Legal Battle Over NFL Brain Injuries Ordered Into Mediation

July 10, 2013
by Jason M. Breslow Digital Editor

In this photo taken Thursday, Dec. 8, 2011, trainers tend to Cleveland Browns quarterback Colt McCoy after he was hit by Pittsburgh Steelers outside linebacker James Harrison in the fourth quarter of the NFL football game in Pittsburgh. McCoy injured his hand and was wobbled by a hit from Harrison during the Steelers' 14-3 win. Two other Browns sustained concussions in the Browns' 21st loss in 23 games against their AFC North rival. credit: (AP Photo/Don Wright)

The legal battle over brain injuries in professional football shifted course this week after a federal judge — in a surprise move — ordered the NFL and the more than 4,200 former players suing the league into mediation.

Judge Anita Brody announced on Monday that she will be delaying her ruling on the NFL’s motion to dismiss the case until Sept. 3. Brody was originally scheduled to rule on the motion by July 22. Instead, she said she wanted to give both sides time “to determine if consensual resolution is possible.”

Brody appointed Layn Phillips, a retired federal judge, to serve as mediator, and ordered both parties from discussing the mediation process.

Reaching a resolution through mediation may prove difficult. Players in the case allege that over the course of multiple decades, the NFL withheld information about the long-term dangers of concussive and sub-concussive blows to the head. The NFL has rejected those claims and sought to shift the argument out of court, arguing that disputes over safety are governed by the league’s collective bargaining agreement with players.

Legal experts said Brody’s order should serve as a warning for the NFL, as judges in complex litigation suits will often suggest mediation if they feel a plaintiff’s allegations have merit.

“That doesn’t necessarily mean successful, but I think it does indicate that the NFL’s motion to dismiss will likely be denied,” said Paul Anderson, an attorney in Kansas City, Mo. and the author of the website Anderson represents brain trauma victims and former players, but is not part of the NFL case.

“The plaintiffs’ lawyers are quietly cheering thinking they have won an early round,” said Anderson. “The NFL, likewise, is probably learning that they’re not going to be able to end this case on a motion to dismiss. They’re not going to be able to keep this case private going forward unless they settle now.”

The stakes in the mediation process are enormous for both sides. Absent a settlement, the NFL risks entering a lengthy, pre-trial discovery process — a phase of the case that could reveal evidence that tarnishes the league’s reputation.

Similarly, the players risk an increasingly costly legal fight against the nation’s most profitable sport and its 32 wealthy team owners. Moreover, there’s no guarantee of succeeding at trial.

“You just never really know,” said Anderson. “That’s the high, high risk of trial. That’s why most cases settle.”

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