2013-10-03 14:40:26 - WASHINGTON, D.C. (October 3, 2013): Some former NFL players included in a $765 million proposed settlement of a class action law suit brought against the League over concussion-related medical problems say they will opt out of the settlement over concerns not only about their own compensation, but also to help insure that any secret information about concussion injures will finally be made public, says law professor John Banzhaf.
Banzhaf is a public interest law professor who has begun to be contacted after he was mentioned in a Chicago Tribune editorial suggesting that some of the included former NFL players should opt out.
He said players may not realize that they do not have to be bound by the settlement and its apparently inadequate compensation scheme, but rather can simply opt out of it and proceed on their own.
Those who choose to do so will then not be limited by the compensation provided under the settlement, and may in their own individual case – or in separate class actions – obtain much higher damages.
More importantly, stresses Banzhaf, whether those who opt out win more or even win nothing, they can
still use the tremendous power of pre-trial discovery – under which the League can be required by law to divulge now-secret medical and other studies, memos, emails, and consultants’ reports arguably related to concussion issues – to obtain information to help protect and benefit younger football players.
“If the League has still-secret information about the severity of concussion injuries and their consequences, techniques for better detecting and measuring their severity, and/or methods of reducing the concussions or injuries which result from them, that information could help reduce or even prevent countless future medical problems among current professional and college football players, as well as those in high school or even younger,” suggests Banzhaf.
It appears that, under the proposed settlement, approximately 18,000 former NFL players and their heirs will be bound by its limited compensation scheme unless they take legal steps to opt out of it.
Although opting out and then joining in a separate law suit and trial could possibly result in no compensation at all, many players are concerned that if they remain in the class and do not opt out:
# they will not get any money because they don’t meet the settlement test for compensation which is that the problem must be “severe”
# all the money will be paid out to early claimants, so that younger players may be left holding an empty bag
# payouts will be inadequately small because the overall amount is not nearly enough to cover all the players who may eventually seek compensation for their injuries
# lawyers hired by the individual players may take a big chunk out of their payouts under pre-existing contingency agreements
Most public commentaries argue that the League is the big winner, because it was able to settle quickly for a pittance without admitting any legal liability – and without making public any information it might have kept secret about concussion-related medical problems – only because some severely injured players desperately need some money now, and could not wait for a trial and then lengthy delaying appeals.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418