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NFL settlement with players would seem to make CFL concussion litigation even less likely

andrew bucholtz

Concussions past and present are a huge issue in the CFL as well as the NFL, but while many former NFL players opted to sue the league over misinformation about and mishandling of head injuries, former CFL players have been taking a more conciliatory approach thus far, even working with the league on concussion initiatives. Thursday's news that the NFL has reached a $765 million settlementwith the former players suing the league seems likely to continue that trend and reduce the chances of CFL concussion litigation even further. A massive CFL lawsuit always seemed somewhat unlikely thanks to substantial differences in the league's past and present approach to concussions, plus the much smaller amounts of money involved, but a huge judgement or settlement for former NFL players might have prompted former CFL players to consider legal action of their own. Instead, this rather low settlement despite all the factors in NFL players' favour would appear rather likely to discourage a similar lawsuit in Canada.

While $765 million is a fair amount of money, it's relatively insignificant next to the NFL's revenues, and it's been termed "a win for the NFL" by many writers, including Sports Illustrated's Peter King. That's despite a lot of problematic information that's emerged about what the NFL knew about concussions and what it told its players, including the league's long association with infamous concussion-downplaying doctor Elliot Pellman, the league's disability board concluding that football was responsible for some head injuries, the behaviour of the league's committee on head injuries and the way the league challenged many initial reports of chronic traumatic encephalopathy (CTE, a concussion-linked disease that's been found in several autopsies of former CFL players too) being found in high numbers of former NFL players. Those aspects of the NFL's handling of concussions are far more troubling (and far more potentially useful in court) than anything that's been revealed on the CFL front thus far.

Why did the former NFL players settle? Sports Illustrated legal contributor Michael McCann has an interesting take on that:

Although some commentators are surprised that retired NFL players did not receive more money in the proposed settlement, keep in mind the alternative. Had the retired players continued the litigation, it is possible that some or all of the claims in their lawsuit would have been dismissed by Judge Brody.

Beyond the threat of dismissal, going to trial may have proven unsuccessful. The league was prepared to argue that the players' claims are barred by the fact that players, through their union, agreed to health protocols and waivers of legal rights as part of the collective bargaining agreement. The league would have also attacked causation: retired players played years of football before entering the NFL and their neurological injuries may have been caused in part or in whole by their college and high school days. Non-football activities, diet and genetic predisposition may also be causes.

The complicated science could have enabled NFL attorneys to convince a jury that there is no real certainty for the cause of any one player's neurological problems and thus their claims should be rejected.

Even if the players won a trial, there would have been appeals that lasted years and threatened reversal. It is not a stretch to say that had the retired players instead litigated, some of them may have died before they were ever paid. For other retired players, a delay in payment would have meant they could not afford to pay for certain treatments. A settlement, provided it is approved, avoids these worries and ensures that retired players are paid.

Whether the NFL players were wise to take this deal or not is up for debate, but McCann's piece illustrates the challenges they would have faced in court despite all the damaging information that's emerged about the NFL's handling of concussions. It's important to note that the suit was far more about the NFL not properly informing players of risks (and, according to the players, perhaps even covering up some information on the connections between football and head trauma) than it was about those actual risks themselves. While the CFL may well have some of its own issues on those fronts, few have come to light thus far, and most alumni haven't been protesting about the league's treatment of them too much. In fact, the CFL Alumni Association actually has gone a long ways to defend the league's handling of head injuries.

Beyond that, there simply isn't a lot of money CFL players could potentially win. Sure, there are less former CFL players than NFL ones (an eight to nine-team league produces less alumni than a 32-team league), but there's way less cash available for them. The newest TV deal is valued at $30 million or so a year, which is a step forward for this league, but even when you throw in ticket, merchandising and sponsorship revenues, the CFL isn't getting anywhere close to the $9 billion the NFL earns annually. A decisive legal win for NFL players might well have sparked similar action north of the border, even if former CFL players likely have a weaker case and would be shooting for a much smaller share of revenues. This is far from a big win for NFL players, though, so if they were only able to come away with this settlement, it seems unlikely CFL alumni will be too encouraged to try their own lawsuit. You never know what will happen next in this league, though, so Thursday's news doesn't eliminate that possibility: it just makes it less probable.