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A Mediated Settlement May Not Be the Best Solution to the NFL Concussion Crisis

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The proposed mediation between the NFL and the players may be desirable from the perspective of clearing United States District Court Judge Anita Brody's docket. It will also unfortunately perpetuate the long standing conspiracy by the National Football League, its teams and physicians to conceal the fact that football is a concussion delivery system with potential lifelong devastating consequences to players.

The well-intentioned endeavors of U. S. District Court Judge Anita Brody to bring the National Football League (NFL) and the legal representatives of the former players to the negotiating table will prevent factual discovery. This is the only mechanism that could compel the league, and its collaborators, to reveal incriminating documents and be compelled to provide sworn testimony about what they knew, when they knew it, and how they contrived to keep this information from players.

The potential revelations are important not only to the players who have been deceived and are confronted by the lifelong physical, emotional and behavioral consequences of brain injury, but additionally for young athletes who admire and revere professional athletes and presume that the NFL takes care of its own.

Any significant and comprehensive mediated settlement of this lawsuit brought on behalf of approximately 4,000 brain injured players must reject any confidentiality clauses, address the future risks to players, and provide proper redress to those who have already suffered the devastating and enduring effects of traumatic brain damage.

For years, the NFL has adamantly refused to admit the basic facts; that a concussion is a brain injury; that the lingering consequences of even a single concussion can plague a player for his lifetime; that multiple concussions complicate and slow the speed of any potential recovery and increase the chances of devastating long term disability. In short, the NFL steadfastly refuses to admit that playing football is equivalent to playing Russian roulette with your brain.

A mediated settlement must not shield the NFL from disclosure, and all documents and deposition testimony must be made public. Any settlement should not prohibit further disclosure or impede the use of this information in the future by those pursuing their legal rights. Secrecy provisions are counter to the public's right to know and obstruct the legitimate search for the truth; the basic premise upon which our judicial system is based.

It is predictable that purported efforts to encourage players to report signs and symptoms of brain injury have been unsuccessful. Pursuant to NFL contracts, a player risks being cut from the team if he reports his symptomatology. The financial benefits of his contractual agreement are over. Any mediated settlement of the present case must protect future players by removing this economic disincentive and insuring that any player who suffers a brain injury retains the full monetary benefit of his contract. Otherwise, players will continue to hide their injury.

The league and its disability retirement fund must be required to reopen and reexamine the claims of players who have previously had their long term disability benefits denied. League doctor shopping and the corruption of accepted medical principles cannot continue to be condoned. An impartial committee must be appointed to reassess the applications of those players whose claims of permanent brain damage were denied.

Mediation should never obscure the truth. The legal representatives of the players involved in this lawsuit must resist all efforts to keep information from the public. This litigation not only impacts these individuals, but has far-reaching ramifications for players who have been wrongfully denied benefits in the past, as well as players who will sustain brain damage in the future.

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Michael Kaplen and Shana De Caro are partners at the New York based law firm of De Caro & Kaplen, LLP and concentrate their practice on representing victims of brain trauma. Kaplen is also a Professorial Lecturer in Law at The George Washington University Law School where he teaches the only course on traumatic brain injury in any law school, The Legal Aspects of Traumatic Brain Injury. De Caro is the Chair Elect of the Traumatic Brain Litigation Group of the American Association for Justice.