Don’t Blame The Lawyers: The Ethical, Unethical, NFL Settlement

Watch your heads!

Watch your heads!

When is a $765 million dollar law suit settlement “chump change”?  This is when, reading the reactions to the NFL’s announcement last week of its agreement with former players who sued the league over crippling  concussion injuries sustained while playing professional football:

  • It is inadequate when half of that will be ladled out over seventeen years, and all of it will be reduced by the lawyer’s fees, to be determined but unlikely to be less than a third.  That means that each former player (or his heirs and family) will get, at most, $114, 000 or so.
  • It is inadequate when the league paying the damages will split the payment among its 32 franchises, making each responsible for paying $24 million over 20 years, which comes to about $1.2 million a year. Remember that projected NFL revenues this season are $10 billion, and the NFL gets more than $40 billion on top of that through 2022, thanks to media rights.

In other words, chump change.

Or, if you prefer, “I gave my brain, mind and health to the NFL, and all I got was this lousy settlement.”

The plaintiffs in the class action alleged that the NFL had been negligent in failing to adequately protect players  from concussion risks, and, shades of the tobacco lawsuits, had intentionally downplayed and even sought to hide medical evidence linking serious long-term injuries to on-field hits.  The settlement, which still must be approved by a judge, includes all retired NFL players who present medical evidence of severe cognitive impairment, not just those who joined the suit. Former players who believe the settlement is inadequate may opt out to pursue individual lawsuits, but that will be expensive and risky, and even the players not party to the lawsuit, the league’s collective bargaining agreement, will have to pursue any future claims through an arbitration process.

OK, the settlement stinks. The worst thing about it, being cheap in relations to the profit the NFL teams (and many other parties make) while young men cripple themselves is that even though some of the money will be spent on medical research, it doesn’t seriously address the underlying problem. Football cripples and kills people, and it starts at a very young age. Football fans are cheering and applauding a game that slowly but inevitably dooms many of its participating athletes, because of exactly the activity—violence— that makes the game so popular. A high-profile trial, televised and full of dramatic scenes of former stars shambling to the stand and haltingly explaining their limited and painful lives in a horrifyingly diminished state….family members tearfully recounting the terrible changes in the behavior of their husbands, fathers or sons…tales of suicide and despair by men old before their time…and frightening scientific and medical evidence showing graphically just how dangerous playing football is, would not only have resulted in a likely jury award in the billions, but also would have placed the real national pastime in real jeopardy—-jeopardy that it deserves.

Can we blame the National Football League for telling its legal team to do the best job it could to keep the settlement as small as possible? Sure we can. I know that the system presumes that every defendant will fight to minimize the consequences of its wrongdoing—heck, if the Catholic Church will do it, and organization whose business is good, why expect more for organizations whose business is profit? Nonetheless, there was nothing stopping the owners of the National Football League from saying, “These were our boy, our employees, the athletes who gave us our product and our profit, and we let them down. We have an obligation to not only not to do everything in our power to avoid compensating them and making amends, but to actively and voluntarily make certain that these people are taken care of, and that if a player today chooses to give us five years of his life as an athlete, he will know exactly what he may be giving up in return, and that he and his family will be taken care of, by us, if he ends up crippled or demented.” That would be the right thing to do; I wouldn’t be surprised of somebody among the owners—“Hey, I’m just spitballing here, but what if, you know, we did the right thing?”—even suggested this. Of course, it was rejected.

Blame the league for refusing to do the fair and honest thing. Don’t blame the ex-players and their lawyers, however, as too many commentators are doing. Here is an angry and bitter Mike Wise of the Washington Post:

“Silly, sentimental me. I had no idea the forces of I-gotta-get-mines mentality were at work. I had no idea the litigants who settled for $765 million — less than the value of the NFL’s least valuable franchise, the Oakland Raiders — weren’t interested in truly helping us recover from our national hurt addiction…[NFL head Roger] Goodell’s lawyers took advantage of the immediate-gratification needs of the NFL’s former players, just as the league once took advantage of woozy-headed men who knew their careers might be over if they didn’t go back in the game. The culture of violence won again. Shame on the plaintiffs’ attorneys, who had the gall to trumpet the settlement as a victory because players would now receive care — care they were due years ago by a multinational conglomerate that cared about them as long as their ligaments, bones and brains worked….”

The plight of the plaintiffs, many of them at least, can not be over-stated. They need help now, and there is no question that the NFL’s lawyers, as is their duty and their job, used the bargaining value of the plaintiffs’ own vulnerability against them. The NFL, a multi-billionaire defendant, could take its time, handle discovery at a leisurely pace (though not actively delaying, now—that would be unethical), and keep low-balling settlements while pointing out that a trial and appeal could take years and years even if the lawsuit was successful, and the NFL would be perfectly happy to keep writing checks to its legal team, as long as it took.

The plaintiffs have medical bills and collapsing lives. It would be noble if they decided to sacrifice their own welfare to protect other families and other NFL players, and perhaps be exemplary ethics–perhaps: letting your home be foreclosed on and your kids to be homeless in the interests of future millionaire NFL stars who won’t do their research about their own profession? Ethical?—-but I don’t see how any of the class action plaintiffs can be criticized or condemned for not taking what they could get now.

Criticizing the plaintiffs lawyer is just ignorant on Wise’s part, as well as unfair. They have to do what is in the best interests of the clients, as the clients define that interest, not future clients, and not football players who are not part of the lawsuit. They did get a victory: they got their plaintiffs a settlement offer that the plaintiffs chose to accept. The lawyers were obligated to give their advice and to inform the clients of matters such as this: “Yes, we might win at trial and a jury might award billions. We could also lose, with the jury saying, ‘Who are you guys kidding? You didn’t think getting knocking heads with 300 pound behemoths in armor was going to hurt your heads? Either you’re lying now, or your brain was mush before you started playing football!“‘ Your choice.” They were also obligated—ethically obligated: it’s Rule 1.2—to communicate any settlement offer, and to abide by their clients’ decision to accept or reject it.

The NFL deserves criticism for offering an inadequate settlement based on the fact that the league knows it was responsible, and should be generous in compensating the players who damaged themselves for the NFL’s gain. Their lawyers, however, were completely ethical: they all did what their profession requires them to do. So did the plaintiffs’ lawyers.

And the ex-players and their families are victims still. They have done nothing wrong by trying to survive.

___________________________

Sources: Washington Post, USA Today, Volokh Conspiracy, ESPN, Profsblawg

5 thoughts on “Don’t Blame The Lawyers: The Ethical, Unethical, NFL Settlement

  1. The former players asked for $2 Billion and settled for roughly 1/3 that amount. It shows how truly desperate these players are for ANY settlement. A trial would have certainly awarded them more, then the NFL would appeal the case to death, literally. $114k for a brain damaged man who is probably deep in debt is hardly adequate.

    Those with $$$ and time usually come out ahead, and the NFL certainly won. The settlement is only 3% of the $28 billion in media revenues the league will receive from CBS, NBC, and Fox between 2014 and 2022.

    Civil lawsuits are rarely about ethics or justice.. .It’s all about the lawyers.. And you have to hold your nose and listen if you’re ever in a Jury.

    http://www.forbes.com/sites/prishe/2013/09/04/time-certainty-explain-why-nfl-players-settled-for-less-in-concussion-lawsuit/

    • That’s an unjustified and unsupportable generalization. Civil trials are about the clients—if they don’t like a settlement, nothing can make them accept it. The lawyers do the clients bidding, not the other way around.

      • How much experience do you have with civil lawsuits? The plantiff’s lawyer wants to settle as quickly as possible to collect their 1/3 fee and move on… They typically will make the case that money today is much better than an unknown jury decision and appeal later.

        And the more desperate the client the more likely the settlement. Former NFL players fall into this category.

        And preying on these people doesn’t end with the settlement. As you pointed out half the NFL settlement will be paid out over 17 years.. There are a group of lawyers and financiers who will pay the present day value of that settlement immediately to these plaintiffs, at a tremendous profit.. And I am certain that many NFL players will take this bait as well, further victimizing them..

        There are many books written on these topics… They may change your opinion of civil lawyers.

        • You really don’t know what you are talking about.

          I was in charge of research, publications, sections and litigation groups for the nation’s large and powerful trial lawyers association, and I teach ethics to civil lawyers on a regular basis. I know some of the top civil lawyers in the country, and am close friends with several of them, good friends with more. Competent, ethical civil lawyers, which is most of them, do NOT seek to settle cases as quickly as possible when the case is worth more. You don’t last doing that, and you are in the wrong profession if you try. If you are talking about viatical settlements, they are unethical, and trial lawyers loathe them: Last I heard, the Association officially disapproved them. I also worked for four years as the general counsel and marketing VP for a settlement and negotiation company that consulted with civil lawyers. Your impression of how civil lawyers think and practice law is fantasy.

  2. If the settlement wasn’t a money grab by the lawyers then they should agree to accepting compensation in sync with the money distributed to the litigants. IF and WHEN the litigants get paid, then the lawyers get paid their 1/3 cut. When the “unlimited” budget goes from infinity or the leagues original number of $769M to something significantly less and takes 10 -15-65 years to “pay off” I guarantee the terms of the settlement would change, validating the reality of what an awful settlement offer it is.

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