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Bernie Bytes: NFL wins big in concussion settlement

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  • Bernie Bytes: NFL wins big in concussion settlement

    August 30, 2013 12:10 pm • Bernie Miklasz

    I’ll suspend the political correctness and state the obvious here: in the matter of the $765 million settlement of the concussion-related suit filed by retired players, the NFL won in a rout.

    Several reasons:

    1. Some legal analysts suggested that the players could have won $2 billion or more in damages had the players pushed this all the way. And others projected a doomsday scenario that would have meant the end of the NFL as we know it. After all, this is a gladiator sport – and if you can’t keep the players healthy, and you’re going to get sued and be forced to pay damages every time a player suffers a concussion, then how could you possibly continue to operate?

    Well, that’s over now.

    Yes, $765 million is a big number, but it breaks down to about $24 million per team. Goodness, NFL owners and GMs waste more money than that on stupid free-agent contracts each year.

    Moreover, the league gets to make this go away on a payment plan; half the settlement is due within three years but the NFL can allocate the other half over 17 years. This is a league that collects nearly $10 billion a year in revenue, and that annual haul will increase in the coming years. This payout is tip-jar money for NFL owners.

    2. The league didn’t have to admit liability. Direct words from the court document: “The settlement does not represent, and cannot be considered, an admission by the NFL of liability, or an admission that plaintiffs’ injuries were caused by football.”

    Of course, that’s preposterous; the NFL didn’t agree to pay $765 million because the 32 owners are sweet, wonderful and generous humanitarians. This was obviously an acknowledgement by the league, but legally it doesn’t matter.

    The NFL had already gone on the offensive by instituting new rules to protect players. This helps in three ways: (A) increased player safety is the right thing to do; (B) the NFL's new safety initiatives puts the league in a more positive light; (C) the new guidelines will help ward off future concussion-related suits.

    And the NFL’s PR machine already is working its magic to portray the league as a proactive, sensitive organization that cares deeply about the players’ health.

    Before settling, the former players had made good progress in winning the PR battle. I don’t think anyone out there is a fan of dementia. I don’t think anyone wants to see these old football heroes suffer horribly as they grow old while NFL owners are growing their franchise values and individual wealth.

    By agreeing to settle, the former players ceded the PR platform to commissioner Roger Goodell and associates. And this plays to the NFL’s strength; the league can spin away and engage in more image enhancement.

    3. The settlement will keep the league’s private files and documents hidden away. As part of the suit the plaintiffs’ attorneys hoped to gain access to all of the NFL’s secrets on the concussion issue _ with a particular interest in the timeline. What did the league know and when did the league know it? How many years did the NFL keep playing by the old guidelines despite possessing damning information on the impact of brain injuries? What, if anything, did the NFL conceal while jeopardizing the health of its players?

    This settlement keeps the secrets safe and secure and out of public view.

    As former NFL Players Association president Kevin Mawae told reporter in Tennessee:

    “The biggest win for them is they don’t have to disclose anything, any of the information they they may have had since the late ’80s or early ’90s on concussions. They may have had information back in 1994 that the players could have at least known all these years, but they paid to keep those that closed. There’s no disclosure anymore. Information is power and when they didn’t have to give that up (in court), you retain that power.”

    4. This settlement inoculates the NFL against future concussion suits from current and recently retired players. That was made clear in the written view of Judge Layn Phillips, who brokered the settlement.

    This from Judge Phillips:

    “For a variety of reasons, the underlying theory of this lawsuit about what took place in the past would be difficult to replicate in the future,. Everyone now has a much deeper and more substantial understanding about concussions, and how to prevent and manage them, than they did 20 or even 10 years ago, and the information conveyed to players reflects that greater understanding.

    “In addition, the labor law defenses asserted by the NFL would represent a very substantial barrier to asserting these kinds of claims going forward. The combination of advances in medical research, improved equipment, rules changes, greater understanding of concussion management, and enhanced benefits should, and hopefully will, prevent similar lawsuits in the future.”

    In other words: today’s players are well aware of the risks, and on top of that the league has taken measures to decrease the risk.

    5. By settling the NFL shifts the focus back to the field, back to the games, back to making money. The NFL is the most popular sports league in North America. And by making this go away, nothing stands in the way of the league's non-stop escalation.

    Now ...

    As for the retired players, we certainly can understand why they settled now instead of marching all the way into a courtroom showdown.

    Many retired players are in legitimate need of expensive medical care are related costs, and they couldn’t afford to wait much longer. The NFL had the resources and power to drag this suit out for many years, and that would have kept the former players from getting the necessary help and relief.

    The retired players who require the most attention will receive immediate assistance, and that’s great. The settlement also achieved another necessary outcome: former players that joined the suit in a blatant money grab won’t be able to dip into the settlement pool; they’ll have to prove that they’re debilitated. Good luck to the retired NFL punters that wanted to jump on the backs of the truly needy retirees to scoop up some free money.

    Future suits are possible, but they won’t be easy to win. With the new rules in place a plaintiff would have to prove that an NFL team (and the league) knowingly ignored those guidelines and allowed a concussed player to continue competing.

    There’s one gap: as Pro Football Talk pointed out, there was no Collective Bargaining Agreement between the league and the NFL Players Association between 1987 and 1993, and that presents a potential loophole.

    The NFL wants to push future concussion-related grievances to arbitration in a process covered by the current CBA. Because there was no CBA from 1987-1993, players from that era could try bypass arbitration by suing directly. But given the NFL’s deep and imposing financial war chest, the league could stall and maneuver and keep such cases in limbo for many years. The real potential of a long, protracted fight and massive legal bills could dissuade players from making the challenge.

    And as we saw in this case, the NFL knows how to win.

    Thanks for reading...

    — Bernie

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  • r8rh8rmike
    Bernie: Blame For Officiating Debacle Lies With NFL Owners
    by r8rh8rmike
    Bernie: Blame for officiating debacle lies with NFL owners

    6 hours ago • BY BERNIE MIKLASZ, Post-Dispatch Sports Columnist

    The shouting continues in the aftermath of Monday’s debacle in Seattle, and the stench won’t fade anytime soon. Incompetent officiating ruined an NFL game, with Seattle being handed a win that it didn’t earn, and Green Bay getting burned with a loss it didn’t deserve.

    What we saw Monday night was one of most disgraceful moments in professional sports history.

    A lot of folks are ripping NFL commissioner Roger Goodell, as they should. Leaders are supposed to lead, and Goodell previously earned respect for never hesitating to take charge. And he should do so now.

    But I’m more disgusted by the NFL owners. Goodell works for them. He’s their employee. He has been granted a large measure of independence to exercise his authority in a bold manner. (See: Bountygate.) But if the owners wanted to settle this irresponsible and embarrassing lockout of the NFL’s real officials, it would be done. Goodell and his lead negotiator (Jeff Pash) would make a deal. But that hasn’t happened, at least not yet.

    So what we have here is a remarkable display of ownership arrogance, and the flexing of muscle, just to show who is in charge. These people are so intoxicated by their wealth, power and privilege that they’d prefer squashing the real officials, even if it means compromising the integrity of the competition, damaging the NFL brand, or undermining their own franchises.

    The real officials are nothing more than hired help to the elitist NFL owners. And the owners aren’t willing to let the hired help win a dispute over money; that would represent a symbolic weakening of the owners’ supremacy. These hopelessly bigheaded people, so used to getting their way, won’t back down.

    To NFL owners, the quality of the on-field product is a secondary concern. The adherence to professional standards is a secondary concern. The players’ safety is a secondary concern.

    And the fans are of no concern, none whatsoever. The fans will pay top dollar for tickets and they will buy media broadcast packages. And if the owners want to give the fans an inferior game and less value for their dollars, they’ll do it.

    This is about power, and ego and control. The league commissioner and the owners believe that they are bulletproof, untouchable, and safe from afflictions that hurt other leagues. This is the NFL, damn it. The most popular league in America. The most successful sports league in the world. A league that expects groveling from the TV networks, the media, civic leaders, and fans.

    The stadiums are filled. Financially impoverished cities will build new stadiums on demand, just to please these football kings. The TV boys are throwing billions at them. Most of the media will settle into the usual role of lapdogs....
    -09-25-2012, 08:48 PM
  • MauiRam
    Bernie: There aren't any good guys in NFL dispute ..
    by MauiRam
    Bernie Miklasz bjmiklasz Sunday, March 13, 2011

    There will be football in 2011. At some point the battling all-star teams of attorneys will complete their game of tackle football. The NFL owners and players have chosen their quarterbacks. And over the next few weeks or months you'll be hearing a lot about David Boies (owners) going against Jeffrey Kessler (players) in the courtroom.

    But understand that there will be football. At some point the lawyers will close their briefcases, collect their fees and clear out. And we'll be debating the merits of Tom Brady vs. Peyton Manning again. Instead of counting up the legal bills, we'll be monitoring rushing yards, sack totals and wins and losses.

    So take a deep breath, because there will be NFL football. The owners and the players will eventually bench their egos, find a way to grind out an agreement to divvy up $9.3 billion in revenue and return the focus to the field.

    So why let them upset you? Just because the owners and players are equally insane, there's no reason to let them make you crazy, too. Cooler heads and even deeper pockets will ultimately prevail.

    In the meantime, if sports is your thing, take a deep breath and enjoy the NCAA Tournament. Baseball is just about back; the Cardinals open the season against San Diego at Busch Stadium on March 31. Or take a walk in Forest Park. Enroll in a cooking class. Fly a kite. Whatever makes you happy.

    The dumbest thing to do right now is pay attention to the fools who own NFL teams as they square off against the dolts who wear the uniforms on Sunday afternoon.

    As of right now the NFL players and owners are making Charlie Sheen look calm, rational and sensible.

    They've already made you mad. So why allow them to build on that frustration? Wouldn't it be nice if the owners and players would leave us alone for a while?

    At the time I write this, it's been around 24 hours since the players walked away from the bargaining table to officially trigger the legal war. And I'm already numb to the news releases coming from the NFL offices, and the spin-room bulletins coming from the NFL Players Association. Both sides are pelting the media (and fans) with incessant briefings designed to sway public opinion.

    Enough with the debate-club pontificating.

    This isn't a matter of bad guys vs. good guys.

    They're all villains.

    It's the epitome of arrogance and ignorance to close the doors and the vaults to the richest sport in the history of Western civilization when there are 13 million unemployed citizens in our great nation.

    The owners' lockout of the players was inevitable. That was the plan all along. The owners don't believe the players have the guts, the unity, to ride out a protracted shutdown. The owners adopted this strategy a couple of years ago by opting...
    -03-13-2011, 02:16 PM
  • MauiRam
    NFL teams prepping for lockout ..
    by MauiRam
    By MICHAEL MAROT, AP Sports Writer Sep 17, 6:11 pm EDT

    INDIANAPOLIS (AP)—Players for four NFL teams have already taken a key step in their looming fight with the league over pay—a fight that may include a lockout next year.

    Carl Francis, a spokesman for the NFL Players Association, confirmed in an e-mail to The Associated Press on Friday that Indianapolis, Dallas, New Orleans and Philadelphia have all voted unanimously to decertify the union. He said union leaders were still collecting voting cards from other teams.

    Decertification would strip the union of its collective bargaining rights on behalf of the players, so the move might seem counter-intuitive. But since antitrust laws exempt NFL owners from being sued by unions that are negotiating CBAs, decertification would in essence eliminate the union and allow players to sue the NFL in the event of a lockout—giving them potential leverage in their dispute with the owners.

    Colts center Jeff Saturday(notes) said the Indy vote took place Wednesday and that he expects the other 31 teams to do the same thing—unanimously.

    “When it’s explained why you’re doing it, I don’t think anyone would vote against it,” he said.

    League officials declined to comment.

    No immediate action is expected by the NFLPA, but voting now will help the union avoid the logistical nightmare of tracking down players for voting cards and signatures during the offseason. The collective bargaining agreement between the NFL and the union expires in March.

    Players have been told that if the union does not decertify before the CBA ends, the NFLPA would have to wait six months to sue the league.

    NFLPA executive director DeMaurice Smith is expected to meet with each team over the next few weeks. NFL commissioner Roger Goodell also answered questions from Colts players during a training camp meeting last month.

    It’s not the first time this has happened.

    The NFLPA was decertified in 1989, two years after a failed players’ strike. It returned as a union in 1993, when a contract was reached with the league that provided for free agency. That landmark CBA was renewed or restructured several times since 1993, including in 2006. The owners opted out of that deal two years ago.

    The players currently get 59.6 percent of designated NFL revenues, a number agreed to in the 2006 CBA. The owners say that’s too much, arguing that they have huge debts for building stadiums and starting up the NFL Network and other ventures, making it impossible to be profitable.

    The NFL generates nearly $8 billion in revenues annually, with about $1 billion going to operating expenses. The owners get about 40 percent of the rest, but they want about $1.3 billion more before the players get their cut, and they’d like two more regular-season games to get more...
    -09-18-2010, 02:58 PM
  • MauiRam
    NFL Players' written response to Goodell's letter .. (Would love your comments Av!)
    by MauiRam
    NFL Players' written response to Goodell's letter

    Saturday, March 19, 2011

    Associated Press

    MARCO ISLAND, Fla. -- The following is the letter sent Saturday by players to NFL Commissioner Roger Goodell, in response to a letter he sent players Thursday.

    Dear Roger:

    This responds to the letter you sent to all NFL players on March 17.

    We start by reminding you that we were there at the negotiations and know the truth about what happened, which ultimately led the players to renounce the NFLPA's status as the collective bargaining representative of NFL players. The players took this step only as a last resort, and only after two years of trying to reach a reasonable collective bargaining agreement and three weeks of mediation with George Cohen of FMCS. At all times during the mediation session we had representatives at the table with the authority to make a deal. The NFL representatives at the mediation did not, and the owners were mostly absent.
    The mediation was at the end of a two-year process started on May 18, 2009, when our Executive Director sent you a letter requesting audited financial statements to justify your opting out of the CBA (letter attached).

    The NFLPA did all it could to reach a fair collective bargaining agreement and made numerous proposals to address the concerns raised by the owners. In response, the owners never justified their demands for a massive giveback which would have resulted in the worst economic deal for players in major league pro sports.

    That is why we were very troubled to see your letter, and repeated press reports by yourself, Jeff Pash, and the owners, which claim that the owners met the players halfway in negotiations, and that the owners offered a fair deal to the players.

    Your statements are false.

    We will let the facts speak for themselves.

    --The proposal by the NFL was not an "a la carte" proposal. The changes in offseason workouts and other benefits to players were conditioned upon the players accepting an economic framework that was unjustified and unfair.

    --Your proposal called for a pegged amount for the salary cap plus benefits starting at 141M in 2011 and increasing to 161M in 2014, regardless of NFL revenues. These amounts by themselves would have set the players back years, and were based on unrealistically low revenue projections. Your proposal also would have given the owners 100 percent of all revenues above the low projections, including the first year of new TV contracts in 2014. Your offer did NOT meet the players halfway when it would have given 100 percent of the additional revenues to the owners.

    --As a result, the players' share of NFL revenues would have suffered a massive decrease. This is clear by comparing your proposal to what the players would receive under the 50 percent...
    -03-22-2011, 11:24 AM
  • ZiaRam
    Why Thursday's NFL Show Was Just a Setup
    by ZiaRam
    by Howard Balzer

    Why does the theme song from the classic movie "The Sting" keep playing in my head? It's simple. We were all played by the NFL Thursday night in a setup designed to make NFLPA executive director DeMaurice Smith come out smelling like a rose when he receives the final concessions needed to close the agreement between the NFL and the players and allow football business to begin again.
    Let me explain.
    To say that Thursday was a bizarre day in the NFL would be a massive understatement.
    When the day began and as it progressed, it was learned that the major issue separating each side was the recertification of the NFLPA as a union.
    Players insisted that could take some time, and that it would be necessary for each player to sign a card electing to be in the union. They wanted the owners to lift the lockout while the recertification was accomplished. After all, the players just want to play football, right?
    Owners countered that it could be done electronically and said there would be no end to the lockout until the players were a union again and the settlement of the lawsuit became a collective bargaining agreement.
    NFLPA executive director DeMaurice Smith seemed to be clearly tweaking the owners when he briefly addressed the media early in the afternoon.
    You see, the league has had this love-hate relationship with the union for a long time. In 1993, they demanded the players recertify after the antitrust suit case was won in court by the players, then denied this offseason they had made such demands.
    That, of course, came after the league refused to recognize the union's decertification in March, calling it a "sham." Yet, now they accept it, and want almost instant recertification.
    With a seeming twinkle in his eye Thursday, Smith noted how the NFL questioned whether "we were a real union," and even poked fun at the "experts on recertification" at the NFL Network.
    Smith said, "The decision to decertify (in March) was important because we were a real union. ... Every time an employee makes that decision about whether he wants to be part of a union, it's something that is serious, significant and should be done in a very sober way."
    Arizona kicker Jay Feely, tweeting on the recertification issue, said, "In March, NFL said NFLPA shld not be able to instantaneously disband, now they are arguing shd be able to reform in a blink."
    It was obvious Smith was sending a message that he and the players wanted recertification done at the players' pace, not by some forced deadline set by the league.
    It's also a sure thing that Smith communicated exactly that in an hour-long conversation with NFL commissioner Roger Goodell that took place no more than an hour before the owners voted on the new agreement and miraculously produced an eight-page release that spelled out the key terms of the agreement and...
    -07-23-2011, 02:31 PM