The NFL Concussion Settlement and the Ethics of Informed Choice

(Editor’s Note: What follows is an execrpt from an exclusive article written by Richard Robeson and Nancy M. P. King for the February issue of Concussion Litigation Reporter. The authors are professors from Wake Forest University)

In January 2014, Judge Anita B. Brody rejected1 the terms of a class action settlement between the National Football League (NFL) and a litigation class consisting of former NFL players with concussion-related health issues and the descendants and heirs of deceased players whose deaths were related to concussions — mild traumatic brain injury (MTBI) — sustained during their playing careers. Although the amount of the settlement was agreed to by both plaintiffs’ attorneys and attorneys for the NFL, Judge Brody expressed concern that its $765 million cap would be inadequate to the medical and financial needs of not only the more than 5, 000 former players who filed suit but also some 18, 000 former players who would be eligible over the settlement’s 65-year term.2 Judge Brody therefore ordered the cap to be lifted and the settlement renegotiated. Some current players also expressed dissatisfaction with the settlement, with one player pointing out that $765 million divided by the League’s 32 teams was equivalent to one-third of the average one-year salary per team.3 Another player called it “hush money,”4 because one of the conditions of the agreement was that the NFL would not admit to any wrongdoing regarding its handling of concussions or its own concussion research.5

The renegotiated settlement approved in April 2015 by Judge Brody is now worth $1 billion;6 and over the last several years the NFL has drastically altered how it handles possible concussions7 and Return-to-Participation.8 Even so, the settlement’s exclusions9 — not least among them being that no one who retired after July 7, 2014 can benefit — have been the cause of yet more recrimination and appeal. Some plaintiffs are especially dissatisfied that chronic traumatic encephalopathy (CTE), a degenerative brain disease that is associated with repeated concussions (recurrent MTBI), is a diagnosis that is expressly not covered by the settlement.10 This latter exclusion is the essential cause of the appeal, a ruling upon which is anticipated early this year. These putative shortcomings have significant implications for current players, including how the matter of informed consent may be regarded. … (To read more, subsccribe here.)

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