On Monday, July, 8 2013 a Pennsylvania federal judge ordered a mass of National Football League (NFL) concussion cases to mediation. The cases were brought by more than 4,000 former National Football League players accusing the league of negligence and concealing the dangers of concussions. The players say the league has known for years, or even decades about the long-term dangers of concussions. The league responded that it released warnings based on the medical research available at the time.
The NFL filed motions to dismiss the cases in which it denied wrongdoing and stated that player safety is governed by the collective bargaining agreement. The league contends the parties negotiated those terms and the issue is to be resolved in a confidential arbitration. The players argue that the concealment was fraud and was not contemplated by the collective bargaining agreement.
U.S. District Judge Anita Brody originally planned to rule on the motion to dismiss on July 22, 2013. However, she now says she will not rule on the motion until at least early September. The judge says this will give the mediator time to bring the sides closer together. Layn Phillips, a retired federal judge, has been appointed as the mediator. Phillips cannot make a binding decision, and any side can choose to stop whenever it wants; however, the judge hopes the continued negotiations will result in a settlement.
First, Phillips will meet with both sides’ counsel to hear the arguments on each side. Then he will go back and forth with each side individually to try and strike a deal that works for both parties. When Phillips reports back to the judge on September 3, 2013, he can recommend going back to court or ask for more time to negotiate.
Neither side commented on the decision. The judge ordered the sides to refrain from publically discussing the mediation.
Some commentators think the order to mediate is a signal that the case has a chance to settle. Settling could prevent the NFL from turning over records that may harm its public image. Additionally, it would save a lot of time and expensive litigation because the suit could drag on for years.
Yet, there are still those that have their doubts. Gabriel Feldman, the director of the Sports Law Program at TulaneUniversity said, “[i]t will be a great feat for the mediator to settle the case. He might bring them closer, but to what? This is complex litigation.” He would be “surprised at this earl a stage for the N.F.L. to give a large settlement.”
We will have to wait until September 3 to see what happens. The case is In re National Football League Players’ Concussion Injury Litigation, U.S. District Court for the Eastern District of Pennsylvania, No. 12-2323.