Another take on NFL Concussion Settlement
Howard blogged about it earlier and I have a new piece for SI on the settlement and what to expect next.
Settlement in NFL concussion lawsuit
The class action against the NFL by more than 4000 former players, alleging that the league knew and failed to disclose the risks of head trauma associated with the game, has tentatively settled. Players will receive $ 765 million (plus court-approved attorneys' fees to be determined later) for individual compensation (reportedly about $ 110,000 per plaintiff), plus funding for research and medical examinations. The settlement was reached following court-ordered mediation, although the agreement still must be approved by the court.
Much is being made in some sports-media circles about the size of the settlement relative to the NFL's wealth, but, of course, civil damages are tied to the harm to the plaintiffs, not to the defendant's ability to play. We might question whether the settlement figure provides sufficient deterrence that the NFL will take real steps (as opposed to the cosmetic ones it has been taking) to make the game safer--assuming such a thing is actually possible (I have my doubts).
Like many other cases, this one also highlights the question whether settlement, especially in money cases, furthers the civil justice system's goals of discovering the truth. There was no discovery, so we never really learned what the NFL knows and has known about the game's risks or about what those risks actually might be (the answer to both is "a lot," according to a forthcoming documentary). We also have not heard the plaintiffs' stories told in a judicial forum (although we might not have). Of course, discovery in a case like this almost certainly would have been sealed, a regular practice that presents a different problem in modern litigation. And the plaintiffs' willingness to settle this early makes sense, because this case would have been a ripe target for a Twiqbal-based 12(b)(6).
Much is being made in some sports-media circles about the size of the settlement relative to the NFL's wealth, but, of course, civil damages are tied to the harm to the plaintiffs, not to the defendant's ability to play. We might question whether the settlement figure provides sufficient deterrence that the NFL will take real steps (as opposed to the cosmetic ones it has been taking) to make the game safer--assuming such a thing is actually possible (I have my doubts).
Like many other cases, this one also highlights the question whether settlement, especially in money cases, furthers the civil justice system's goals of discovering the truth. There was no discovery, so we never really learned what the NFL knows and has known about the game's risks or about what those risks actually might be (the answer to both is "a lot," according to a forthcoming documentary). We also have not heard the plaintiffs' stories told in a judicial forum (although we might not have). Of course, discovery in a case like this almost certainly would have been sealed, a regular practice that presents a different problem in modern litigation. And the plaintiffs' willingness to settle this early makes sense, because this case would have been a ripe target for a Twiqbal-based 12(b)(6).
Sport and Speech: The Bobblehead
Monday night was Rick Monday Flag-Saving Bobblehead Night at Dodger Stadium. In 1976, two damn hippies (no doubt the common characterization at the time) tried to burn an American flag on the field during a game between the Cubs and Dodgers; Monday, then the Cubs centerfielder (he later played for the Dodgers), snatched the flag away. Video of the incident is included in the link.Monday discussed it in a 2006 interview:
“That means something, because this wasn’t just a flag on the field. This was a flag that people looked at with respect. We have a lot of rights and freedoms — not to sound corny — but we all have the option if we don’t like something to make it better. Or you also have the option, if you don’t like it, [to] pack up and leave. But don’t come onto the field and burn an American flag.”
While I have argued that the stands of a ballpark qualify for designated public-forum status, the field itself does not, because speech is inconsistent with expected uses (i.e., playing baseball). So Monday is half-right in that last sentence: Don't come onto the field and burn an American flag. Make sure you stay in a public forum.
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