Post by FWS on Jun 25, 2014 20:56:53 GMT -6
New NFL Concessions In Concussion Settlement Open Door To Suits Against NCAA
Roger Groves
Forbes.com
June 25, 2014
The NFL has agreed to remove the $675 million cap on damages from the concussion-related claims of former NFL players. This came after United States District Judge Anita Brody questioned whether that sum is sufficient to cover the damages of the plaintiff players over the majority of their remaining lives. But that is not the news with the most significant future institutional impact. The other part of the settlement revision involves a more obscure but far more long-reaching provision.
The original settlement agreement included a provision that eliminated those players from ever suing the NCAA or other amateur sports entities for concussion-related injury. The NFL has now agreed to remove that ban in an effort to reach a settlement that Judge Brody will accept.
Everyone’s talking about the cash cap. No one is pontificating about the other-entity litigation cap . The future implications of this obscure revision are more profound than most realize. Consider the following scenarios.
There are over 4,500 plaintiffs who have filed against the NFL. If they are free to sue the NCAA, there will be some, if not all who will say to a future judge:
“I have CTE, or other neurological injuries from playing football. Some of those injuries did not start with the NFL.”
So of course the players will look back to their college days. Experts will have to parse out the extent to which injuries were most attributable to injuries in college or in the professional field of play. The concept of comparative and contributory negligence is already well established in case law, statues, and the court rules that handle those issues.
The federal court rules allow a defendant to bring in a party they believe shares in the liability in a case. It is therefore quite likely that a former player of the future will sue the NFL, and then the NFL will implead (move to include) the NCAA. Conversely, if the player sues the college and the NCAA first, then the NCAA will implead the NFL. No matter what defendant is on first, this one settlement kindles a litigation strategy that puts the NFL and the NCAA, and its member institutions at odds in a way never seen before.
The entity impact is not confined to actual or future litigation. It involves litigation avoidance. I guarantee that every competent board of trustees of every major NCAA institution with a football, lacrosse, hockey or other head-injury-prone sport will ask a simple question of its lawyers:
“Can we amend our Letter of Intent and scholarship documents with student-athletes to include a waiver of liability for concussion-related injuries?”
Competent attorneys that have the courage to tell the whole truth will simply say, “No.” And when pressed for a rationale, the response is, “ No party to a contract can negotiate away its obligation of good faith and fair dealing, and no contract provision can insulate you from fraud or the failure to disclose known material risks.”
The rest of the advice to the NCAA, its member institutions, and the NFL is to just play fair. When you know of risks for your students or employees, tell them. Transparency is the best insurance in such matters. Your obligation is not to eliminate the risk of concussions. It is to tell what you know about those risks.
Now the NFL, the NCAA, the conferences and the individual schools have the incentive to develop protocols, procedures, and training that should have been in place from the time they first knew of a problem. The incentive is borne out of players’ pushing back against the lack of honesty in the first place.
I am biased about claiming that we have a world-class legal system . But even objective observers would likely conclude that sometimes the legal system is the vein that converts a bad circumstance into a good result. After over a decade of wrangling over this issue, litigation and then settlement has led to a better result than if the lawsuits within this due process-laden system did not exist.
Roger Groves
Forbes.com
June 25, 2014
The NFL has agreed to remove the $675 million cap on damages from the concussion-related claims of former NFL players. This came after United States District Judge Anita Brody questioned whether that sum is sufficient to cover the damages of the plaintiff players over the majority of their remaining lives. But that is not the news with the most significant future institutional impact. The other part of the settlement revision involves a more obscure but far more long-reaching provision.
The original settlement agreement included a provision that eliminated those players from ever suing the NCAA or other amateur sports entities for concussion-related injury. The NFL has now agreed to remove that ban in an effort to reach a settlement that Judge Brody will accept.
Everyone’s talking about the cash cap. No one is pontificating about the other-entity litigation cap . The future implications of this obscure revision are more profound than most realize. Consider the following scenarios.
There are over 4,500 plaintiffs who have filed against the NFL. If they are free to sue the NCAA, there will be some, if not all who will say to a future judge:
“I have CTE, or other neurological injuries from playing football. Some of those injuries did not start with the NFL.”
So of course the players will look back to their college days. Experts will have to parse out the extent to which injuries were most attributable to injuries in college or in the professional field of play. The concept of comparative and contributory negligence is already well established in case law, statues, and the court rules that handle those issues.
The federal court rules allow a defendant to bring in a party they believe shares in the liability in a case. It is therefore quite likely that a former player of the future will sue the NFL, and then the NFL will implead (move to include) the NCAA. Conversely, if the player sues the college and the NCAA first, then the NCAA will implead the NFL. No matter what defendant is on first, this one settlement kindles a litigation strategy that puts the NFL and the NCAA, and its member institutions at odds in a way never seen before.
The entity impact is not confined to actual or future litigation. It involves litigation avoidance. I guarantee that every competent board of trustees of every major NCAA institution with a football, lacrosse, hockey or other head-injury-prone sport will ask a simple question of its lawyers:
“Can we amend our Letter of Intent and scholarship documents with student-athletes to include a waiver of liability for concussion-related injuries?”
Competent attorneys that have the courage to tell the whole truth will simply say, “No.” And when pressed for a rationale, the response is, “ No party to a contract can negotiate away its obligation of good faith and fair dealing, and no contract provision can insulate you from fraud or the failure to disclose known material risks.”
The rest of the advice to the NCAA, its member institutions, and the NFL is to just play fair. When you know of risks for your students or employees, tell them. Transparency is the best insurance in such matters. Your obligation is not to eliminate the risk of concussions. It is to tell what you know about those risks.
Now the NFL, the NCAA, the conferences and the individual schools have the incentive to develop protocols, procedures, and training that should have been in place from the time they first knew of a problem. The incentive is borne out of players’ pushing back against the lack of honesty in the first place.
I am biased about claiming that we have a world-class legal system . But even objective observers would likely conclude that sometimes the legal system is the vein that converts a bad circumstance into a good result. After over a decade of wrangling over this issue, litigation and then settlement has led to a better result than if the lawsuits within this due process-laden system did not exist.