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Our Two Cents as The NFL Settles on Concussion Lawsuit

Posted on in Personal Injury

brainBy Attorney, Christopher Strohbehn

In what appears to be a mentality of "let' move forward" the National Football League recently settled with thousands of retired professional football players from the effects of concussions sustained during their tenure in the league. For a while it appeared as though the case would drag on for years after the NFL filed a motion to dismiss the class action lawsuit suggesting that any injury claims needed to be handled through arbitration. That motion was still pending at the time of the settlement. That being said, the settlement is being viewed as a huge "win" for the NFL not only because of the favorable terms of the payout, but also the ability of the NFL to keep certain documentation about what it knew or may have known about concussions and brain injuries shielded from the discovery process. Specifically, the NFL will pay approximately 50% of the settlement over three years, and the remaining amount over 17 years. Some believe these are relatively generous payment terms for a multi-billion dollar industry. Moreover, in order to receive a portion of those proceeds it appears the injured members of that class will still have engage a further process to prove the severity of their injuries. As the release describes this injury compensation fund as follows:

"Injury Compensation Fund - The fund of at least $675 million will be available to pay monetary awards to retired players who present medical evidence of severe cognitive impairment, dementia, Alzheimer's, ALS, or to their families. The precise amount of compensation will be based upon the specific diagnosis, as well as other factors including age, number of seasons played in the NFL, and other relevant medical conditions. These determinations will be made by independent doctors working with settlement administrators appointed by the District Court."

As a result, in order for an injured player or his family to obtain money from this fund, determinations as to the "severity" of the brain injuries will have to be evaluated by "independent doctors working with settlement administrators appointed by the District Court." Of course, this begs the question, what about the players who are only determined to have mild traumatic brain injuries? Where is the line going to be drawn determining the degree of injury for these players?

The NFL is not alone in its concussion lawsuit woes. The NCAA is also facing similar lawsuits. This past July the NCAA refuted the claims made in concussion based lawsuits that have been brought against them. While former college players suggest that not enough was done to keep them safe from head injury, the NCAA indicates that "Student-athlete safety is one of the NCAA's foundational principles. The NCAA has been at the forefront of safety issues throughout its existence." While the results of the NCAA case are still pending, it will be interesting to see if they follow suit based on the NFL's actions.

In Wisconsin, the concussion awareness, which has been a major frontline issue in professional and collegiate level sports, is also being recognized at the very start of an athlete's "career." In an effort to keep young athletes safe, the Wisconsin legislature has implemented youth safety laws designed to protect players from concussions and head injuries.  Among the requirements of this law is that if a coach sees signs, symptoms or behaviors consistent with concussions the person demonstrating those signed must be removed from the activity until that person receives written clearance from a healthcare provider. Moreover, the Wisconsin Department of instruction outlines the obligations regarding high school players and the concussion awareness paperwork they need on file with their school's athletic director in order to be eligible to play.

It will be interesting to see how these cases play out and if any other injury lawsuits result from the national attention they are receiving. For the time being, it is good to see recognition of the detrimental effects of concussions and the lifelong struggles they can bring.

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