On Wednesday, a judge gave preliminary approval to a settlement between the NFL and 4,500 players worth a proposed $765 million. The league then issued this press release, which offers some details of the settlement. The NFL Players Association issued a much shorter statement of their own: "All of the plaintiffs involved are part of our player community, and we look forward to learning more about the settlement."
To break down what it means for both parties, CBSSports.com spoke with Turner Broughton, an attorney at Williams Mullen in Richmond, Va. where he handles class actions.
CBSSports.com: Does this protect the NFL from future concussion litigation?
Broughton: It should protect the NFL through the class period in regards to concussion litigation -- unless someone opts out.
CBSSports.com: What does it mean to "opt out"?
Broughton: Procedurally, the way this works is that the NFL and the lawyers representing the players in this class action are going to appear before the court on a "motion for preliminary approval of the class settlement." The court can't just rubber-stamp the settlement. There are factors under the federal rules of civil procedure that the court will look at and it has to analyze whether the settlement is fair and reasonable and meets those factors.
Once the court does that, it will set up a notice schedule and within a period of time following the preliminary approval -- which likely will be granted by the court -- notice will go out to prospective class members. Among other things, the notice will define what the class members have to do to receive benefits, and it will also give them a period of time in which they can opt out of the settlement.
You don't have to participate in a class. You can decide, 'I think my injuries or my damages are greater than what I'm going to get under this class settlement. I'm going to opt out of the settlement and I'm going to go it alone, essentially, in a suit against the NFL for my injuries.'
If they do that -- and anyone doing so would obviously have to take on all burdens of proof and causation and everything else -- then it really becomes an individual suit at that point.
But if you don't opt out by a certain date -- there is a period of time prior to the final approval of the class to do so -- then you're now a member of the class. Which means that your claim is extinguished now and forever subject to any benefits you get pursuant to the terms of the class settlement.
What this really is going to come down to is this: Are there any plaintiffs and plaintiffs' lawyers out there who think that they can do better on an individualized basis, and are willing to take on the costs and risks associated with going it alone?
Is this settlement a win for the players, the NFL, neither or both?
Broughton: I can't say it's a win or a loss for either party because I think there were probably going to be serious hurdles to proving (the players') claims of what the NFL did or didn't know with regard to player safety and concussions, as well as the NFL's defense regarding the obvious risks associated with playing football.
At this point, you also don't know what the NFL did or did not know regarding head injuries and their long-term effect on players' cognitive function.
So I don't think this is necessarily a win for the NFL -- it is paying out $765 million. That's a big number. Anyway you slice it, that's a lot of money.
CBSSports.com: How uncommon is it that the NFL would include the settlement language, "No Admissions of Liability or Weakness of Claims"
Broughton: That language appears in virtually every single settlement. There's nothing uncommon about that language at all. The NFL isn't acknowledging any liability. And one of the reasons you do that is because this class settlement document is a public record, and what happens if the court decides you haven't met the Rule 23 factors and it does not approve the settlement? You've now admitted liability.
CBSSports.com: Will this settlement have any impact on cases at lower levels of football?
Broughton: I don't know that it will necessarily have an impact on lower levels of football because it's so individualized. I suspect that this lawsuit would have focused on the NFL's knowledge of concussions, so I don't see that having the same sort of impact for two reasons:
1) I would expect that a lot of this is going to be based on what knowledge the NFL had, and
2) At the collegiate level -- and more particularly, the high school and lower levels -- I don't think you are going to be able to establish the same level of knowledge.
That being said, I suspect some of the lawyers involved in this lawsuit are now going to turn their attention to the NCAA. That wouldn't surprise me.