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Patrick Hruby

Fending Off A Behemoth

The proposed NFL concussion settlement forecloses on an unrelated painkiller lawsuit

Sports on Earth

I would not play against the National Football League in a house game of "Monopoly." No way. Not without a lawyer, a forensic accountant and possibly an entire team of certified United Nations board game inspectors. Not without security cameras rolling and Roger Goodell's hands where I can see 'em. Because the NFL doesn't just play to win; it plays to define the terms of the game, to rig the rules of the game so completely that there's no actual contest in the first place.

Case in point? The proposed league concussion class action lawsuit settlement. On Thursday, lawyers for a group of retired players including Richard Dent and Jim McMahon who separately have sued the league over painkiller abuse filed a motion with a federal judge to intervene in the brain trauma case. Why? Because the settlement's vague, expansive language indemnifying the NFL from future lawsuits could be interpreted to cover the painkiller cases, too.

And you thought being the banker was an invitation to cheat.

Of course, concussion payouts shielding the league from painkiller damages makes little legal -- and even less logical -- sense. One suit involves brain damage, lousy medical care and the league's documented attempts to dismiss and deny the inherent neurocognitive risks of being repeatedly hit in the head; the other revolves around accusations that team doctors supplied players with dangerous drugs that allowed them to play through injuries but resulted in addiction and harm.

Different causes. Different physical and mental damage. Different allegations of wrongdoing. Different lawsuits. But no matter. The way Dent and McMahon's lawyers read the proposed concussion settlement, its sweeping release could prevent their clients from pursuing painkiller recompense in at least three ways:

• Claims "relating to" any allegation in the concussion suit -- such as a plaintiff's status as an NFL retiree -- arguably are released.

• Claims for any injury a plaintiff suffered while playing in the NFL seem "similarly susceptible to a release argument by the NFL."

• Claims for specific cognitive injuries -- which could include mood disorders, attention deficit problems and other mental problems caused by painkiller administration -- may also be released.

Are Dent and McMahon's lawyers being paranoid? Perhaps. Only consider this: Last month, they sent a letter to both the NFL and the top player concussion attorneys, specifically asking that the painkiller case be explicitly written out of the proposed settlement.

Responding with a letter of his own, league lawyer Brad Karp said thanks, but no thanks:

… On July 25, the League's [concussion lawsuit] counsel responded, stating: "we cannot agree to your request and will oppose any application or objection that seeks to amend the Class Action Settlement in this fashion" … That latter added: "[to] the extent we correctly read the [painkiller] complaint as seeking to recover for head, brain and/or cognitive injuries, these claims are released as part of the Class Action Settlement, and we decline to amend the Class Action Settlement to exclude them."

Finally, the League's letter stated that any such overlapping head, brain and/or cognitive injury claims alleged in [the painkiller suit] -- apparently even to the extent such claims arise from the different proximate cause of illicit painkiller and pharmacological administration -- are now "enjoined" …

Such is "Monopoly," NFL-style: I already paid you for landing on Marvin Gardens. I'm not paying again for Park Place. So what if the two properties are completely different colors and you have a hotel built on the latter? I declare your properties "enjoined," and if you don't like it, talk to my friend over here, who happens to be a federal judge. None of this should be surprising. Welching on its tabs is a proud league tradition, like charging full price for preseason games and pretending that antiquated television blackout rules are necessary for the survival of a $9 billion-a-year industry.

Remember: the NFL is the same organization backing a proposed concussion settlement that itself is designed to pay pennies on the brain damage dollar -- a deal that top player attorneys admit will provide average awards of just $135,000 to $225,000, all while limiting compensation for the neurodegenerative disease chronic traumatic encephalopathy (CTE) to retirees who have died with the condition between Jan. 1, 2006 and July 7 of this year. The NFL is also the same organization that enjoys federal non-profit status while paying Goodell a $40 million-plus salary; that continually extorts taxpayers for mega-million stadium construction projects; that uses the fight against breast cancer as a marketing tool; that enjoys a publicly-subsidized, employee cost-contained minor league farm system via "amateur" college football; and that demands Super Bowl host cities exempt its employees from all sorts of local taxes, as well as parking costs.

Yep, free parking.

As such, is it really out of character for the league to attempt to put one over on the painkiller plaintiffs? Would Goodell and his high-priced -- and, it should be noted, highly skilled -- attorneys really be out of place growing mustaches and wearing Monopoly Man top hats? Should I continue asking rhetorical questions, or do three in a row make the point?

Oh, and speaking of character: according to a report in the Washington Post, NFL officials are considering longer suspensions for players who commit acts of domestic violence. As well they should, being moral arbiters and all. No more Get Out of Jail Free cards. Save those for the league itself.

Read the original article at Sports on Earth