Concussion - Agent J versus the NFL

Will Smith as Dr. Bennet Omalu. Co-stars Alec Baldwin, Albert Brooks, and Gugu Mbatha-Raw. Directed by Peter Landesman (Parkland).

It’s about the doctor that first made a big deal of CTE injuries in pro sports.

The NFL is not pleased.

Per a league source, owners spent significant time at their May 2015 meeting discussing how to deal with and respond to the movie Concussion, which has a planned release date of December 25.

Great trailer. I didn’t even recognize Will Smith until I convinced my brain it was him.

And have to think that ticking clock at the end is a clock ticking on the NFL. They aren’t done paying for the CTE and concussion problems, not by a long shot.

Agree, really looks interesting and Will Smith can bring the acting for the right parts.

I don’t think the NFL can do anything about the CTE issue as long as it’s tackle football. These guys are faster and hit harder than normal humans, but their heads are just normal heads. I hope players decide to retire earlier. The NFL should make that decision easier by providing better retirement benefits.

But it’s not just the NFL. What is the NCAA doing about this? And high-school? The damage starts earlier than the NFL.

All sort of valid-ish points, but you’re not thinking it through. The NCAA may eventually get theirs. They’ve got plenty of other problems.

But now I want you to think about this as a liability lawyer, or a lawyer representing an insurer.

High schools? They don’t have money. You might get a judgment against them…might not.

Colleges? Maybe. But the NCAA is actually a voluntary organization that can dis-incorporate itself if it needs to. They’re a slippery target.

The NFL? That’s a damned easy target to draw a bullseye on. So:

  1. The NFL has money. Billions of it.
  2. As you state, tackle football seems to inherently cause CTE. Guess what? That doesn’t absolve the liability in any meaningful way. Saying “I don’t think the NFL can do anything about it…” is the kind of thing that would get a lawyer sued for malpractice. It’s essentially an admission of liability. So to all that…just no.
  3. The NFL notoriously treats ex-players like dirt. Thus, you have a lot of players who feel absolutely no loyalty and have no means of longterm income after leaving the league.

What does that all add up to? Millions, maybe hundreds of millions, if not billions of damages being brought in liability suits over the course of the next 10-15 years, showing that the NFL was aware of the problem and didn’t act upon it or inform players.

And that liability issue is why the NFL and professional football probably are going to have to change in some material ways within the next decade or so.

Plenty of money available from high schools in the form of either municipalities (insured) or arch-dioceses (also insured). As for colleges, you would be suing the individual institution, as well as the NCAA. The individual institutions would also have liability insurance, not to mention that the big football schools have very deep pockets in their athletic departments. I don’t see any deterrence from a plaintiff lawyer’s perspective.

So I was doing some research on Dr. Bennet Omalu and came across this hour long interview he did with Frontline a few years ago. It is incredibly interesting and thoughtful - he seems like a very intelligent and brave man. Would definitely recommend people check it out if they’re curious about CTE.

The movie obviously dramatizes a lot of the actual events, but they seem movie-like in their own way a lot of the time.

Being on robot football! Let’s give the engineers who design them and the “drivers” who control them all the fame, money, and trashy women. Make them 10 feet tall and look like the robot that Fox uses to promote the NFL. Robots can’t sue, right? It might come down to a liability issue.

Nobody’s gonna fall for that, now that the secret is out and we all know you’ve cracked A.I. You’d take over the league!

(I kid!)

The TV money dwarfs the rest. And the majority of it is found in the NFL, with “big time” college football coming in after that. The lawsuits will concentrate here.

But what happens in the NFL is most likely to change what happens at each level under it.

Trial lawyers sue municipalities and colleges for a variety of personal injuries every day, why should football related concussions be different? There will be plenty of lawyers willing to represent kids who never made it to the NFL.

Pro tip: nobody said there would be no lawsuits at a level below the NFL.

Again, think like a liability lawyer. Or peacedog. Think like him.

Lawyers do not like messy, when a clean, streamlined option exists.

So, two words for you: class action.

A lawyer can group 5-10 CTE sufferers or the estates of deceased CTE sufferers into a single class action suit worth hundreds of millions if not billions of dollars. Such a suit also remains open-ended and allows other plaintiffs to join and increase the ask. Such a suit can be targeted at a single entity.

That option is not available for suing municipalities and high schools. The NFL is a single target, and a single target with tremendous financial resources.

So that’s why.

More reasons why would include the idea that the league’s lack of a concussion policy makes it an easier path to a winning lawsuit/settlement based upon OSHA standards, since, again, that’s a single standard for workplace health. If an employer in the US is paying a person to perform a service under contract, there are applications within federal law that imply a contractual obligation for the employer to inform employees of all risks and their extent, whether the contract states that explicitly or not.

High schools can argue that the players are smaller, the contact not as great, the players are essentially volunteering to play, etc. Yes, it’s school-sanctioned, but the lack of pay and the lack of contract creates more work for a plaintiffs lawyer than the NFL does.

Thus, to take on the NCAA or high schools, it boils down to this: more complications, less money. Why do that when you can throw a harpoon at the great white whale?

As peacedog notes, there will be other suits against smaller institutions. High schools, colleges, peewee football. The suit against the NFL will be the big dog, however.

That too.

Your previous posts suggest otherwise, but whatever. As for the NFL, the NFLPA settlement with the league will complicate any future lawsuit by former players. As for current players, it will be almost impossible for them to claim that they were unaware of the dangers of concussion. This doesn’t make such lawsuits impossible, but they won’t be easy cases to win.

The suit for the NFL is probably going to be 500M to a Billion, just guessing. There isn’t that much money anywhere else, not even in college football. There’s a shitload of money in college footbal, just not a metric fuckton.

Lawsuits at different levels will be about different things. The big suit coming to the NFL and theaters near you is going to be about the NFL’s (and this extends to the player’s union to a degree) ignoring of discarded, injured players and also stuffing the pockets of class action lawyers. Because nobody stuffs their own pockets like class action lawyers. Maybe accountants that work on Trump bankruptcies. I dunno how well those guys get paid but they get to do it a lot.

Lawsuits at the highschool level will just be about kids. That said, Triggercut is correct that these are going to vary in terms of uncertainty. That isn’t to say they won’t be brought. It’s just that this will be nothing like what happens to the NFL. Because while there will be high schools and colleges that it turns out acquitted themselves well (or possibly as well as can be expected), the NFL is dead in the water on this issue. They are completely fucked.

The only question is whether Roger gonna Goodell this one up and make it worse or not. Deflategate will be old news soon, and was a heaping pile of stupid to begin with. Whatever the next pre-CTE controversy we get (that the NFL tries to fan the flames on, perhaps) up next will pass quickly. The best case scenario for the NFL is eventual massive and highly publicized settlement and then rules changes. Roger might Goodell both of those after Goodelling the league’s chances in court. I wouldn’t put anything past him.

My previous post did no such thing. But neither did Triggercut’s. We’re just both emphasizing the eventually lawsuits against the NFL, on account of the fact that they’re the ones that are going to be for the most money and get the most coverage. And whose outcomes are probably best positioned to impact what comes after. Anyway, the folks that opted out of the NFLPA settlement did so deliberately. I expect their day is coming. I doubt they’ll come out of this without a great settlement, but we’ll see.

It’s probably also worth mentioning that all TV money has a shelf life right now too. Post “traditional” sports league TV Deals might wind up on the same money generation curve they’re on now (where each deal is that much more lucrative than the one that came before), but it seems at least likely that there will be some “resettling” there as viewership fluctuates with people steadily leaving cable packages behind. It’s a gradual process, but it’s happening. It’s possible there will be less money for all parties in the future (I think this is moreso likely in college football; the deals will still be good. Just not great). The time to strike is now.

Then no one cares when this happens!

One of the reasons that many people regard class actions as an abuse of the legal system is that the class action lawyers often wind up with a much bigger payout than the plaintiffs they represent. Their pay is a percentage of the total award, which may be millions, even if the individual class members get peanuts. A class action by former NFL players will be different, because the plaintiff universe is so much smaller. It could result in rich rewards for both the lawyers and the individual class members. The complication is that they’ll have to find enough former players who are willing to forgo the NFLPA settlement to comprise a certifiable class. That is, the plaintiff’s lawyers will have to convince the courts that there are enough former players out there who haven’t taken advantage of the settlement such that it would be impractical for each them to be named as a plaintiff individually. That’s not an impossible task, but you can be sure the NFL will be concentrating its (considerable) legal ammunition on that issue.

However that goes, you’re talking about a handful of plaintiffs lawyers involved in the class action. So to answer triggercut, only the cream of the plaintiff lawyer crop is going to get to throw that harpoon at Moby Goodell. Meanwhile, there are thousands of personal injury lawyers who file mundane personal injury lawsuits every day, because there’s insurance coverage to pay for them. They are the ones who will sue, negotiate and settle with the college and high school insurers.

From the NYT:

“Will is not anti football (nor is the movie) and isn’t planning to be a spokesman for what football should be or shouldn’t be but rather is an actor taking on an exciting challenge,” Dwight Caines, the president of domestic marketing at Sony Pictures, wrote in an email on Aug. 6, 2014, to three top studio executives about how to position the movie. “We’ll develop messaging with the help of N.F.L. consultant to ensure that we are telling a dramatic story and not kicking the hornet’s nest.”

Another email on Aug. 1, 2014, said some “unflattering moments for the N.F.L.” were deleted or changed, while in another note on July 30, 2014, a top Sony lawyer is said to have taken “most of the bite” out of the film “for legal reasons with the N.F.L. and that it was not a balance issue.” Other emails in September 2014 discuss an aborted effort to reach out to the N.F.L.