New NFL Concussion Deal Still Flawed - May Fail Again

Many Problems and a Mystery With Concussion Settlement Remain
 
 
Information Which The NFL Has Might Save Many Brains in the Future
Information Which The NFL Has Might Save Many Brains in the Future
WASHINGTON - June 25, 2014 - PRLog -- WASHINGTON, D.C. (June 25,  2014):  The proposed settlement of law suits over concussion-related medical problems, despite today’s agreement by the NFL to remove the much-criticized $675 million cap, remains flawed with several problems and at least one mystery, says public interest law professor John Banzhaf, who correctly predicted the failure of the original settlement, and had said that more than 1,000 players would reject it. That may also happen to the new settlement, he says, because many serious problems still remain.

        Although the new concession may have been triggered by President Obama's recent daylong summit on concussions, the deal seems to run counter to the President's desire to give "parents information that they need to help make judgments about how their kids can be safe," since it allow the NFL to keep secret the wealth of reports, studies, and information the league reportedly has about the prevention, detection, mitigation, and treatment of concussion related injuries, some of which may have already been turned over to plaintiff's attorneys and should be made public, says Banzhaf.

        Banzhaf, a former electrical engineer from MIT with two patents, notes that it is already possible to inexpensively produce football helmets which can detect, record, and transmit to the sidelines information about impacts in different directions at various locations on the helmet, but that such information may be of less value without data from the NFL on how to analyze it.

        Some of the problems with the original settlement which caused players to advise the law professor that they would probably reject it apparently still remain.  Many players worry that they will receive little if any compensation, either because their injuries though serious may not meet the high criteria for being "severe," and/or that they will not be able to show that they were caused by concussions sustained when they were playing for the NFL rather than from college or high school football or some other causes.  Indeed, it was reported that the NFL received “additional measures to prevent fraudulent claims” in the proposed settlement - in other words, additional hurtles the injured players will have to surmount.

        Another problem is the concern that some of the plaintiffs' attorneys may be "double dipping" - collecting attorneys fees which in many cases may be very high given either the amount of work actually done and/or the amount of recovery they achieved for the players, and in addition a percentage of some of the awards based upon pre-existing contingency fee arrangements.  As one report put it, " there is a legitimate concern that negotiators may “reward themselves at the expense of injured athletes.” This was a matter of sufficient concern that a federal judge reportedly asked a special master to investigate.

        One final intriguing change in the proposed settlement is it no longer contains a previous provision that barred players who settled from suing the NCAA or other amateur football leagues.  Exactly why the NFL should care if their former players subsequently sued the NCAA or other entities for concussion- related injuries was never made clear, but did cause some speculation as to whether or not there might be some collusion between the entities to keep information related to concussion injuries from the public.

        "Covering up the harmful effects of concussions is suspiciously like what the tobacco industry did with regard to the problems of smoking," says Banzhaf.  A former Secretary of HEW once said that, had the country known what the tobacco industry already knew about the harmful effects of smoking, action would have been taken many years earlier, and millions of lives probably would have been saved.

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ @profbanzhaf

Contact
GWU Law School
jbanzhaf@law.gwu.edu
202 994-7229 / 703 527-8418
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