Judge Orders Mediation for NFL Concussion Litigation, What Does It Mean?

A federal judge from the Eastern District of Pennsylvania  has ordered the parties in the NFL concussion litigation issue to submit to mediation in hopes that the litigation can be resolved in a timely and cost-effective manner.

Specifically, District Court Judge Anita B. Brody asked Layn Phillips, a retired federal judge, to serve as the mediator.

In tandem with that decision, Judge Brody said she would not rule on the NFL’s motion to dismiss the case until Sept. 3, instead of July 22 as originally planned.

The league responded with the following statement: “We respect and will comply with the court’s order regarding mediation and will be available to meet with Judge Phillips at his direction. We have received the order and will follow the court’s directive. Per the order, we will have no further comment on this process.”

While the mediator may not be able to resolve the litigation, the hope is that Philips can at lease narrow some of the issues.

Various experts weighed in:

“It would be a great feat for the mediator to settle the case,” Gabriel Feldman, the director of the Sports Law Program at Tulane University, told the New York Times. “He might bring them closer, but to what? This is complex litigation. A settlement here would be dollars going to the plaintiffs, and I’d be surprised at this early a stage for the N.F.L. to give a large settlement.”

“Presumably, the judge is experienced and he can give both sides an appraisal of the case from the perspective of someone who’s sat on the bench,” Matthew J. Mitten, a mediator and the director of the National Sports Law Institute at Marquette University, told the New York Times. “It doesn’t hurt to take a step back and take a reality check.”

In addition, Paul D. Anderson, an attorney and editor of NFLConcussionLitigation.com, weighed in with the following:

In a hail-mary-like play, Judge Brody ordered the players and the NFL to engage in mediation to determine IF a resolution is possible.

Though a resolution is unlikely – at this early stage of the game – this order signals a few things.

First, instead of ruling on the NFL’s Motion to Dismiss on July 22, as previously scheduled, Judge Brody decided to hold off.

Why?

I think she knows, and she wants the parties to be aware, that both sides are vulnerable. Now is the time to stop the train before it begins its tumultuous path to protracted years of litigation. More deaths. More pain. More suffering. More money expended on legal fees.

This, in turn, implies that her forthcoming ruling is NOT going to be in favor of the NFL. It indicates that Judge Brody is going to DENY the NFL’s Motion to Dismiss — at least in part, if not in full.

Second, Judge Brody is giving the NFL a wake-up call before things get heated. I think she believes the players’ claims have merit — even beyond a motion to dismiss.

Step VIII in the Ten Steps to Better Case Management: A Guide for MDL Transferee Judges states, “[a]s soon as you are satisfied that plaintiffs’ claims have at least some arguable merit,” suggest mediation.

Well, Judge Brody—the transferee judge—did just that. She is satisfied the players’ claims have merit.

Merit does not equate to SUCCESS, yet.

It does, however, give the plaintiffs’ a key to the NFL’s potential dirty laundry. DISCOVERY is on the horizon if a resolution is not found.

Either the NFL can keep its dark secrets sealed, or it can roll the dice and push forward with discovery. The plaintiffs’ lawyers’ leverage increases as they inch toward a jury trial(s).

Third, mediation is not binding. Both sides go into mediation with their own agendas and inflated egos.

It’s an early opportunity for the parties to size each other up.

The players will have a dollar figure in mind, likely north of $8 BILLION. And, the NFL will also have a resolution in mind: another charitable trust.

Whether actual dollars are discussed and proposals exchanged during the course of the next two months will be up to the Honorable Layn Phillips.

But, if the past NFL lockouts–with the players and the referees–were any indication as to how the owners do business, I wouldn’t hold your breath that a resolution is near.

The NFL still has an arsenal of defenses, even if discovery proceeds. There is a chance the NFL could cut the entire plaintiffs’ pool (i.e. 5,000+) in half with various defenses and motions.

The owners are asking themselves, “Why concede defeat now when we could contain cost later?”

Umm, because the NFL is image conscious and it is taking a severe beating in the court of public opinion. Because “later” could also mean multiple HUGE verdicts if these cases ever see a jury. Because football is at a “crossroads” and the NFL needs to regain control of the dialogue.

The owners could still come out of this battle unscathed–other than a few billion lost–if it never admits and/or discloses exactly what it knew and when it knew it about brain injuries.

This leads me to my final point.

Judge Brody threw the NFL an early bone. The ball is now in the NFL’s court.

Either they can acquiesce to the players’ demands and put the NFL Concussion Litigation in the early historical chronicles of major sports litigation, OR, dismiss the plaintiffs’ demands and “awaken a sleeping giant.”

Here’s to a resolution.

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