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Judge sends NFL, ex-players to mediation in concussion lawsuit

By Josh Katzowitz | NFL Writer

The NFL continues to believe the recent concussion lawsuit should be dismissed. (USATSI)
The NFL continues to believe the recent concussion lawsuit should be dismissed. (USATSI)

Usually, it's not a great idea when the NFL and whoever happens to be in a legal battle with the league is sent to mediation to work on their judicial problems. Consider the lockout during the offseason of 2011 has a prime example.

But that hasn't stopped the judge who's overseeing the league vs. the former players who are suing it for allegedly concealing information regarding head injuries to send the two sides to mediation to determine if they can arrive at an agreement.

Last August, the NFL asked United States district court judge Anita B. Brody to dismiss the lawsuit brought by more than 4,000 former players because the league says it's a Collective Bargaining Agreement issue rather than an issue for the courts. After hearing arguments in April, Brody said, “I will rule when I sort this thing out for myself.” July 22 was supposed to be the date that Brody would announce her decision, but instead, via the NY Times, she's postponed it until Sept. 3 to give the two sides more time to negotiate.

As the Times writes, though, the mediation “will not be easy given the complexity of the case.”

“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 paper. “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 NFL to give a large settlement.”

Brody also asked neither side to discuss the mediation publicly, and in statements, the NFL and the executive committee for the former NFL players said they would abide by her request.

More Times analysis:

The two-month window for the mediator gives Brody more time to write or adjust her opinion on whether to dismiss the case. Both sides have talked about the strengths of their arguments, but they have a lot to lose potentially, perhaps giving them an incentive to settle. If Brody's ruling is appealed, as many legal experts expect, the case could drag on for months and generate even larger legal bills. The discovery process can also be expensive.

On its surface, the NFL, backed by 32 wealthy owners, might appear to have a greater ability to absorb mounting legal fees. But discovery, which could take years, might unearth evidence that could hurt the league's reputation. At the same time, the retired players, many of whom say they have significant health concerns, may prefer to settle rather than wait years for the legal process to play out, with no guarantee of a settlement.

In any case, this legal process most likely is nowhere near settled, probably a scenario neither side really wants.

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