The $765 million proposed settlement of concussion-related lawsuits targeting the NFL – which would have limited the league’s liability as well as allow it to keep secret what it knew about the dangers of concussions – now faces major problems that may prevent the settlement from ever going into effect, according to public interest law professor John Banzhaf of the George Washington University Law School, who has been advising several players involved in the deal.
First, said Banzhaf, he’s been told that more than 2,000 retired NFL players may refuse to accept the deal at all, thereby possibly preventing it from ever going into effect. He points out that at least this number opted out of another NFL $42 million settlement involving the players’ publicity rights, a deal which was apparently less controversial because it didn’t involve serious medical problems, alleged coverups, etc.
He added that even if somehow the number of players who opt out is small enough that the settlement can still go into effect, those who opt out can bring new litigation aimed at gaining additional compensation, and also forcing the league in pretrial discovery to disclose what it knew years ago about concussion injuries. Banzhaf notes that hundreds of players who opted out of the publicity-rights settlement have already initiated their own new lawsuits.
Second, another major problem that could also sink the proposed settlement is allegations of “double dipping” by some of the attorneys involved in negotiating the settlement. On the very day that it was revealed that some lawyers were apparently seeking “multiple paydays,” even though the players had been assured that no part of the $765 million deal would go to lawyers, federal Judge Anita Brody appointed a special master to look into the “financial aspects” of the proposed settlement. Since this new development comes some four months after the deal was announced, and was expected to be brought before the judge promptly for approval, it could further seriously delay – if not actually upset – the proposed settlement, according to the professor.
The problems facing the NFL concussion settlement may not be limited to professional football, suggested Banzhaf, noting that similar concussion suits have also been filed regarding other professional sports, as well as several different college level sports, and both male and female athletes. He says the NFL, NCAA, NHL, and individual teams could be facing a “new asbestos,” since asbestos lawsuits, like tobacco lawsuits, were also based on the theory that defendants actively covered up hidden dangers, and asbestos lawsuits are still being filed decades after the coverup was first discovered.
Banzhaf was involved in the major asbestos settlement, and has also been called “The Law Professor Who Masterminded Litigation Against the Tobacco Industry” and “a Driving Force Behind the Lawsuits That Have Cost Tobacco Companies Billions of Dollars.”