Concussion Settlement: The Debate Resets

With the $765 million settlement of the concussion lawsuit, the issue of head trauma in football now becomes a matter of changing the culture of the game

Jenny Vrentas | Aug 30, 2013

Concussion Settlement: The Debate Resets /

Mary Ann Easterling's husband, former Falcon Ray Easterling, committed suicide in 2012 while suffering from dementia thought to be brought about by his playing career; former Eagle and Patriot Kevin Turner is suffering from ALS.

Roger Goodell strode out of a black SUV onto a youth football field in Fairfield, Conn., around dinnertime Wednesday night. About 200 Pop Warner football players between the ages of seven and 14, members of the Fairfield Giants, were practicing, their coaches shouting out careful instructions as the kids completed a circuit of tackling drills.

Heads up, heads up! See what’s coming! Eyes up! Shoulders up!

This evening was about the future of football, changing how the game is taught on youth fields, through the Heads Up Football program created by USA Football and backed by the NFL. The commissioner held a tackling dummy as he watched the players’ form, and later he took questions from a few dozen parents on subjects that have come to define today’s game: when a headache needs medical attention, for instance. Or how many concussions are too many.

“This isn’t public relations,” Goodell said. “This is changing the game, and doing what is right for the culture.”

What the commissioner didn’t let on—though he surely knew it was very likely—was that the following morning would be a landmark for the league in both the short and the long term; one that would eliminate the specter hanging over all of the NFL’s health and safety initiatives, and over the nation’s most prominent pro sports league as a whole.

The Heads Up Football campaign aims to teach youth players proper mechanics to minimize head injuries.

Around 2 a.m. Thursday an agreement was reached to settle the concussion lawsuit brought against the NFL by 4,500 former players and family members of former players. The agreement, which must be officially accepted by U.S. District Judge Anita Brody, will cost the NFL and team owners $765 million. The bulk of that money—$675 million—will go toward injury compensation, adjusted for age, NFL career length and diagnosis, for former players who have suffered cognitive injury; another $75 million will be used for baseline testing for retired players, even those who were not part of the suit; and $10 million will fund research and education into head trauma and related issues. The plaintiffs’ litigation fees, likely to be at least $200 million, will be paid on top of that sum.

For former players such as Kevin Turner, a former Eagles and Patriots fullback whose ALS diagnosis is betrayed by his wobbly speech, the result is the immediate help needed to pay their medical bills. Individual “payouts” will be as large as seven figures.

The NFL meanwhile, can move forward without any admission of liability while taking a smaller financial hit than many expected. The bill will come to about $30 million per franchise, or around 10 percent of the average team’s 2013 revenue, based on Forbes numbers.

The context of the debate over head trauma in football now changes, too. With the threat of litigation resolved, the focus moves from the courts to the culture of the game.

The settlement, bridged by months of negotiations with court-appointed mediator Judge Layn Phillips, was both monumental and unexpected. The sides had been communicating daily for about a year, but there was no certainty until the final moment a deal was struck early Thursday morning. Mary Ann Easterling, the widow of the lawsuit’s first lead plaintiff, Ray Easterling, and one of many family members of deceased players to join the lawsuit, learned of the agreement at about 1 p.m. via an email from her lawyer. She was "overwhelmed with gratefulness."

Her husband, who played safety and special teams for the Falcons from 1972 to 1979, died of a self-inflicted gunshot wound last year at the age of 62. At the time of his death, Easterling suffered from dementia, a condition his attorney said resulted from years of head trauma suffered while playing football. Easterling’s autopsy found evidence of chronic traumatic encephalopathy (CTE), a neurological disease that has been found in the brains of athletes, including deceased NFL players, who have experienced repeated concussions and sub-concussive hits. The settlement allows for former players with evidence of severe cognitive impairment, dementia, Alzheimer’s and ALS to receive sums as high as $5 million, and for the families of former players whose deaths were tied to CTE to receive payments up to $4 million, according to Christopher Seeger, the plaintiffs’ co-lead counsel.

Says Mary Ann Easterling, “It’s not the end of the story. The other part of the story is dealing with the psychological effects and the emotional damage that’s happened in the families. [But the settlement] gives them the ability to step forward.”

Many, including Turner, expected the litigation to drag out for five, 10 or 15 years—a timeframe that could very well outlast a progressive neurological disease such as ALS. The possibility of a larger payout that might come with a court victory or a later settlement was offset by the reality that some players may not have that long to wait. “It’s happening right now,” Turner says. “And for those out there [who] are suffering, living in these conditions—not only for them, but for their families—what a huge breath they can take now.”

Why the concussion settlement was a win for NFL

—Peter King

What happens next after the lawsuit settlement

—Michael McCann

Ex-players say devil is in the settlement's details

—Don Banks

Players, agents react to settlement news

—Chris Burke

NFL owners were said to have a strong consensus, though not unanimity, to settle the suit now. A long discovery period before trial would have put former team doctors and long-retired players in depositions before combative attorneys, and league insiders feared that even one or two cases of coaches ordering concussed players back into games would have hurt the league’s case. At issue was the contention of retired players who said team and league doctors did a poor job of diagnosing head injuries, and in some cases ignored concussions and returned players to games knowing they were injured. The league maintained its doctors didn’t have a practice of returning injured players to the field before they were ready, and contended that when it knew the seriousness of the concussion issue it acted aggressively to make the game safer.

The settlement itself is neutral on the issue of which side is right. It states that the agreement “does not represent, and cannot be considered, an admission by the NFL of liability, or an admission that the plaintiffs’ injuries were caused by football. Nor is it an acknowledgement by the plainfiffs of any deficiency in their case.”

One important factor for the aggrieved players was the stipulation in the settlement that approximately half of the $675 million pool would be paid in the next three years, getting money quickly to the ailing players who need it most. (The remainder will be paid out over the following 17 years.) And player who is retired by the date that the settlement is officially approved, will be able to be tested and will be eligible for payment from the compensation pool.

For families in need of such aid the resolution of the case was cause for celebration. The reality is that winning in court would have depended on proving causation, which carries a difficult burden of proof, and the owners had leverage because the players were on a more pressing schedule. But Kevin Mawae, former president of the NFLPA, is one ex-player who strongly disavowed the settlement. Mawae was not part of the suit—though he is eligible to share in the settlement—but saw short- and long-term value in forcing the NFL to open its records on the head trauma issue. Those records, he speculates, would have proved that the league knew about the harmful side-effects of concussions long before the information was disclosed to its players. Says Mawae of the settlement, “It hurts the NFL zero. Not that you want to hurt or bankrupt the NFL, but what it prevents players from doing in the future is being protected, in a sense that there is information the NFL has that has not been disclosed and now will never have to be.” Mawae considers the league’s financial penalty a “pittance.”

Seeger, the plaintiffs’ lawyer, argues that the players did not leave money on the table, but rather “got everything we could possibly get out of the NFL,” coming to an agreement only when they got to a number large enough to fund payments for 65 years if needed. The NFL, in a press release, said it was “critical” to get help to players and families who need it, rather than to continue to spend millions on litigation.

Former players may opt out of the settlement and continue to pursue their own suits, while current players are not covered by the settlement’s terms. A suit against Riddell, the official helmet-maker of the NFL, has not been settled; Seeger said the company was not as “generous and anxious” to resolve the suit as the NFL. Riddell declined to comment to The MMQB.

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Doctors at the Bedford Veterans Administration Medical Center, repository for the Brain Bank, are studying the brain to gather more information that will enable youth programs like the Harlem Jets to play safely.

With a major threat to the future of the multibillion-dollar NFL now eliminated, what comes next? The settlement’s correction for the past reinforces the urgency of addressing health and safety issues now and in the future. Rules changes, equipment advances and more stringent return-to-play protocols can bring progress, but they must be right, and they must be embraced by players and, just as importantly, by coaches. There may be advancements on the horizon, such as genetic testing to determine if an athlete is prone to concussions or less capable of recovering from them, as well as more accurate and objective concussion tests. Young athletes, and their parents, must also be comfortable making the decision to play the game.

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All of this falls under the umbrella of changing the culture of a sport that is caught between its violent roots and the health and safety responsibilities which, thanks to a generation of retired players, have moved to the forefront.