NFL's dark cloud: The concussion lawsuit

As we approach the highly anticipated Super Bowl XLVIII between the Denver Broncos and the Seattle Seahawks, there's one dark cloud that doesn't seem to want to pass over the National Football League: The concussion lawsuit and pending settlement.

Earlier this month, Judge Anita Brody of the Eastern District of Pennsylvania, who oversees the consolidated NFL concussion litigation, denied the $765 million settlement offer from the National Football League. Judge Brody's reasoning was that "not all retired NFL football players who ultimately receive a qualifying diagnosis, or their related claimants, will be paid."

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Given the sizes of the awards and the number of potentially qualifying plaintiffs, she said: "It is difficult to see how the monetary-award fund would have the funds available over its lifespan to pay all claimants at these significant award levels."

Jack Brewer of the New York Giants in December, 2004
Getty Images
Jack Brewer of the New York Giants in December, 2004

The original offer included a maximum payout of $5 million to players who qualify. Using simple math, this would mean that the fund would only be able to cover 150 players if the entire amount was allocated to those players and their families who are suffering the most. I am not here to debate how much money is appropriate for compensation — or even how you decide who deserves what. What is obvious to me is that the NFL concussion lawsuit is far from over.

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It has already begun to have a major impact on the game. There have been many rule changes in the last five years, many of which are designed to make the game safer and protect players from the head collisions that cause concussions. Though I support these efforts, the sad reality is that it is virtually impossible to protect players from concussions. Even with all of the drastic rule changes, 152 players suffered a concussion in 2013, with 67 of those players missing at least one game, according to PBS's "Concussion Watch."

How will this eventually affect the profitability of the NFL? Well for now, I think the league is well-positioned to drag out the current litigation with current and former players for quite some time. Maxwell Kennerly, a personal-injury lawyer with The Beasley Firm, says: "Defendants like the NFL can afford to adopt a scorched-earth strategy, force the plaintiffs' lawyers (who are on a contingent fee, and so have to fund the litigation themselves) into a war of attrition, and then litigate until the end of time."

"The NFL receives roughly $1 billion annually in stadium subsidies and tax favors," Kennerly noted, which they can write off as legal or business expenses. "Plaintiffs' lawyers, in contrast, get no subsidies whatsoever: Instead, they get a tax penalty, because they have to pretend that the money they spend on cases is actually a loan, rather than a business expense," he said.

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So it is now not a matter of whether the NFL will have to take on an unprecedented settlement amount — it is a matter of when.

I will be the first to admit and support the efforts that the NFL is putting into making the game safer from the youth level on up. The "Heads Up!" campaign with youth football leagues emphasizes the proper way to tackle as well as proper equipment measurements in order to reduce concussions.

Despite these precautions, youth-level participation is still dropping at rapids speeds. Pop Warner announced an overall 10 percent decrease in attendance over the last three years.

Unless this slows down, there will be a natural impact in the fan base in years to come. It could also have adverse effects on the quality of play on the field. For former players like myself, we owe our educations, our careers and many of the joys of our lives to the NFL and the game of football. Yet the dangers of the sport have become too costly for me to allow even my own son play the game. I know other former teammates feel the same way. It is not worth sacrificing the health of our children, even for the sport we love.

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This is the reason I have founded the #C4CT (Coalition for Concussion Treatment) movement which focuses on finding innovative treatments for concussions and preventative measures.

I have partnered with Amarantus BioScience to host one of the world's most prominent concussion conferences at the United Nations this week prior to the Super Bowl. Some of our attendees include Clinton Portis, Jeremy Shockey, Carl Eller, Ramses Barden, Antrel Rolle, Sidney Rice, Leigh Steinberg, Dr. Robert Stern, Dr. Robert Cantu and Andrea Kremer.

Not only am I a former player who has experienced concussions, I am a fan who wants to help find a way to continue the game which I love. I want to make the game safer so that it can continue to be played forever.

— By Jack Brewer

Jack Brewer is former NFL safety who played for the Minnesota Vikings, New York Giants, Philadelphia Eagles and Arizona Cardinals.