There were new developments last week in the large National Football League (NFL) concussion case. As blog readers know, thousands of former players filed over 200 individual lawsuits in recent years. Those suits make a range of specific allegations, including claims that the league misled players about long-term damage caused by repeated head injuries.
The lawsuit has become part of a national conversation about brain injuries in general, and the hidden harm that may be caused by sports like football where concussions are common.
The Concussion Lawsuit
Since the legal battle first began, many of the individual suits have been combined into a single piece of litigation in federal court. The consolidated cases are making their way through the legal process. Recently the NFL filed a motion to dismiss the suit. This is a common tactic where the defendant argues that there are no actual legal issues to resolve–suggesting that there is not a claim for which relief can possibly be granted. The NFL claims that forced arbitration clauses in prior agreements with the players mandate that the matter head to arbitration instead of via the traditional civil justice system. In short, it is an attempt to end the suit early in the process.
A judge was expected to rule on that motion to dismiss later this month. Instead, as discussed in a recent USA Today story, the judge ordered the parties into mediation.
Mediation in a form of alternative dispute resolution that is sometimes used as an alternative to filing a lawsuit but often in addition to it. In mediation the parties, usually with their attorneys, engage in discussions with a neutral third party–the mediator. The mediator helps to engage the parties in talking about their disagreement and potentially reaching a settlement that is satisfactory to both sides.
It is important to distinguish mediation from arbitration. Unlike an arbitrator, a mediator will not reach a specific decision that the parties must abide by. Instead, mediation is just to facilitate possible settlement, nothing more. It is a more informal process, confidential, and usually without formal rules of sharing arguments, evidence, etc. In that way, mediation is a far fairer process than forced arbitration that is frequently used in these matters.
Interestingly, some outside observers are worried that a settlement might actually be reached via mediation. The concern is that in so doing, information will not be made public about the conduct of the NFL or the research related to concussions. One brain injury attorney noted, “I’m not so sure it is the right solution to this issue …. The facts surrounding this case are so important not only to the players involved in the case but to everybody else who has an interest in the issue of sports concussions,”
Whatever happens, local families should remain vigilant about the very real harm that can come from even a single concussion. When involved in any activity where brain injuries are possible, it is critical for basic safety standards to be followed every step of the way.
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