A second sports league has settled a concussion lawsuit brought by retired players, but that won’t end the litigation or the discussion of health- related issues associated with concussions.
Lawsuits against the NFL and the NHL alleged that management knew the risks of concussions but failed to take appropriate action to protect the players. The NFL settled its litigation in 2016 and a tentative settlement was reached in the NHL suit last month. However, there are major differences between the two settlements.
NFL players received a total of $1 billion, while their counterparts will receive a paltry $18.9 million, less than 2 per cent of the NFL settlement. There are several reasons for the financial disparity, the most important being only the NFL litigation was designated as a class action lawsuit. There were 5,000 plaintiffs and an estimated 20,000 former players are projected to receive benefits over a 65-year period. The NHL lawsuit included only 318 plaintiffs after their request for class action status was denied last summer.
The NFL settlement effectively put an end to concussion litigation against the league. Not so with the NHL settlement. Players who are not included in the settlement are free to sue the league individually. However, individual lawsuits are more expensive and time consuming than class action suits, which discourages litigation.
The NFL settlement will pay retired players up to $5 million depending on a player’s age, injuries and NFL experience. Of the $18.9 million NHL settlement, approximately $22,000 will be paid to each plaintiff, for a total of $7 million. In addition, the league agreed to reimburse up to $75,000 in medical treatment expenses for qualified players. The NHL will also create a $2.5 million “common good” fund for players’ health and welfare matters, and agreed to pay almost $7 million in legal fees.
It took five years for the NHL to settle, in part because the league was impervious to the negative publicity from disclosures of what they knew and when they knew it regarding the effects of concussions on players’ health. The NFL settled prior to discovery, fearing that such disclosures would have negatively affected its reputation – “tarnished the shield” in league parlance.
Lawsuits aside, concussions in football and hockey – all sports for that matter – won’t disappear until leagues and governing bodies change their rules to discourage the reckless behavior that leads to them. In fact, both the NHL and NFL have recently adopted rule changes designed to protect players. The NHL metes out severe discipline for elbows to the head. The NFL does likewise for leading with the helmet. Not only will such action protect players, it will preserve owners’ pocketbooks. Paying players who can no longer participate is a waste of resources.
The counter argument is that we are “sissifying” the sports. Tell that to former players and their families who suffer the physical, mental, emotional and financial effects of concussions. For them, it may be too late, but the settlements may be the beginning of safer sports and better health for players.
Jordan Kobritz is a non-practicing attorney and CPA, former Minor League Baseball team owner and current investor in MiLB teams. He is a professor in the Sport Management Department at SUNY Cortland and maintains the blog, sportsbeyondthelines.com. The opinions contained in this column are the author’s. Kobritz can be reached by email at firstname.lastname@example.org.