By Dan Bernstein
CBSChicago.com Senior Columnist
(CBS) — It no longer matters which side is correct, because both sides have already lost.
Four thousand former NFL players have endured the sobering risks of head trauma related to their days in uniform. Some are long dead, their families continuing the fight in their memory. Many are debilitated, needing money urgently to keep up with complicated care that is ever more expensive. Another group has yet to experience any symptoms, merely waking up each day to wonder if and when the dark spiral begins for them.
The league should be just as nervous. Commissioner Roger Goodell , currently trapped into orchestrating a grand masquerade forced by the litigation, has to pretend that he’s trying to make pro football less dangerous, when nobody really wants that – not fans, players, owners or television networks. He is looking at a public-relations nightmare that is mirroring that of Big Tobacco, with his business painted as similarly ruthless and inhuman. His own, panicky moves attempting to seize control of the narrative are backfiring, only reinforcing what the plaintiffs allege.
More significantly, this cynical effort to reduce injury risk in an inherently violent sport threatens to alienate a loyal audience that knows what it wants. Almost all agree that the capricious application of rapidly-changing rules in such a fearful environment has the NFL on a path to becoming something decidedly less satisfying, and less entertaining.
The case has been ordered to mediation by US District Court Judge Anita Brody, with the adversaries scheduled to report back to her by September 3rd. It is time for the NFL to move swiftly to settle the action, and in doing so aid injured former players, protect itself, and slow the erosive alterations to the game.
Players and families signed onto the suit are already muttering that the NFL will be content to wait them out, dragging the legal process into a slog that tests their resolve as more of them decline and die, and there’s no reason to think that’s not true. The deeper-pocketed party always has time on its side. The plaintiffs would benefit directly from getting some money right away rather than face years of uncertainty over whether they’d even see a dime.
The defendant, however, fears the public disclosure of a mountain of potentially embarrassing information during a discovery phase of depositions and documents, names, faces, dates, personal emails and previously secret files. If you think they look bad to the public now, wait until documentary reporting is replaced by hard evidence, and the blank spaces are filled in with sworn testimony.
As it watches the numbers spin on the multimillion-dollar meter for legal fees, it would be smarter for the NFL instead to begin channeling that money to the complainants, per an agreed-upon formula that assigns a value to each individual case and remits accordingly. There is some question as to whether or not such payments could come from standing insurance policies, but those concerns are not sufficient reason to let bilateral damage continue.
A negotiated settlement can include language that admits no wrongdoing whatsoever by the league, which could essentially reset the understanding between owners and players over the assumption of risk. Fewer gray areas would exist after this, with some rights to sue now being waived upon signing a standard contract, along with a specified commitment for an increased and streamlined disability-fund procedure.
This would also allow for a pause in the inexorable softening of professional football toward something bland and unrecognizable. With consent more fully informed and legal protections in place, there is no more need for pretense and public posturing. Exceptional athletes can choose the burden of future deterioration in exchange for fortune and fame, and there will be no recriminations. The parties can get back to the lucrative business of high-speed collisions for our amusement, moving away from this feigned naiveté.
There are elite lawyers working for both parties in this case, many of whom must understand the value of an intelligently-crafted settlement for their respective clients. Neither the former players nor the league are getting any happier, healthier or wealthier as the process grinds ahead toward discomfort, doubt, and expense. Football will never be safe, and should not be expected to be.
If Roger Goodell has a brain in his own head, he and the owners will start cutting checks.
Dan Bernstein joined the station as a reporter/anchor in 1995, and has been the co-host of Boers and Bernstein since 1999. Read more of Bernstein’s columns, or follow him on Twitter: @dan_bernstein.
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