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NFL Concussion Litigation

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by

Stacey Kirk

on 7 August 2015

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Transcript of NFL Concussion Litigation

Historical Overview
Evolution of the Helmet
• Medical professionals used to refute player’s association claims

• NFL created the Mild Traumatic Brain Injury Committee ( MTBI)

• Without admitting guilt Commissioner states, “Let’s do the right thing for the game and the men who play it.”

• Contentious/hardball tactics


Negotiation Tactics
• Avoid any admission of guilt that the injuries were caused by football.

• Limit any monetary payments made to retired players

• Maintain the trust of the fans and its reputation

• Establish dialogue with players association to avoid court proceedings


NFL's Negotiating Goals
Concussion Data
• The NFL was being sued by retired players for injuries they sustained while playing in the National Football League

• NFL failed to take reasonable actions to protect players from chronic risk

• Forced players to participate even if injured.

• NFL was obligated to provide players with information that would protect them

• Both the NFL and players association where ordered to share data on injuries


Issues Affecting Negotiations
Presented By:
Perfect Pitch
Negotiation Timeline
* July 19, 2011- 73 former professional football players filed suit in Superior
Court

* August 30, 2012- NFL parties move to dismiss complaints

* January 28th 2013- Briefs completed to dismiss case

* July 8, 2013- All parties ordered to participate in mediation

* August 29, 2013- Mediation efforts are successful (After 2 months)

* June 25, 2014- Class Counsel filed motion for preliminary approval of
the settlement

* July 7, 2014- Motion granted for preliminary approval of the settlement

* November 12, 2014- Move for final approval of the settlement

* April 22 2015- Final settlement reached and approved

Negotiation Strategies
• NFL parties began the negotiation utilizing a competing strategy then adopted a problem solving /collaborative strategy approach as the negotiations progressed

• Competing-

o Looks out for his or her own interests
o Cares little about the relationship with the other person
o Likes to win and do well in one-time negotiations.

• Problem solving/Collaborative

o Negotiators care a lot about their own interests
o Values the relationship with the other negotiator
o Works well when there are multiple issues to be negotiated


Aspiration Level
The ideal outcome for the NFL parties was too have the courts dismiss any and all lawsuits brought forth by the players and to avoid having to admit fault.
If a condition of the settlement stipulated that the NFL would have to admit fault it is very likely this settlement agreement would not have occurred.
BATNA
Former Players Negotiation Goal
More than 4,500 retirees have alleged that the NFL downplayed, dismissed, and covered up the long-term neurological harm including dementia, Alzheimer's and Parkinson's disease, chronic traumatic encephalopathy (CTE); and amyotrophic lateral sclerosis (ALS) associated with football-induced concussions and hits to the head allegations, placing players at increased and unnecessary risk, need to provide some compensation and medical treatment.

Discover what the NFL knew or should have known about the damaging and deteriorating effects of concussions and repetitive brain trauma, which can result in conditions such as dementia, depression, and Alzheimer’s disease and when the NFL knew it.
Former player didn’t have the information, didn’t know any of the risks. But, the NFL needs to release more information so the players now can choose to take an educated risk.

Football-induced brain damage is a public health/safety and public cost issue. The NFL needs to educate and do more to protect its players and other college/high school players.

Resistance from the NFL
The NFL long has denied any wrongdoing and insisted that safety always has been a top priority.
NFL’s former head concussion doctor, a rheumatologist named Elliot Pellman, was publishing studies that disproved the conclusion that concussions were a serious threat to the long-term health of NFL players.

There was no guarantee that the players would have been able to prove the NFL was directly liable for their concussion related issues or caused by College sports.
The study of neurological disease is still in its infancy.

Denial
Other concerns

The disease currently can only be diagnosed after death; and the settlement is designed to help former players while they’re still alive. So set up a target group and time frame for settlement.

The proposed settlement only allows for changes to its diagnostic criteria once every 10 years.

Using Medicare, higher private insurance premiums, and charitable contributions to assist medical treatment.

The NFL plans to take a leadership role in addressing football-induced brain damage out of sincere concern, and protect its public-relations.

BATNA
LEE SANDS
STACEY KIRK
IRENE SAE KOO
SCOTT WILHELM
Strategically Planning
Create the statistical medical data base and personally testimonies to build up the case.

Prepare to address former players interests and goals. Step into the NFL’s interests. Educate them about the cost of reputation, trust and positive image.

Use Breakthrough Strategy and Collaborative Strategy to create a open and sharing process with the NFL to focus on solving the joint problems.

Incorporate the NFL ideas, collaboratively create the options and alternatives in order to make a WIN WIN.

Get commitment to select the best possible and appropriate proposal to settle the compensations and other benefits to assist former players. Keep the reputation and positive image for the NFL in continuously researching and preserving the public health and safety.

Point Counterpoint: Final Results
Former players interests and goals vs. NFL interests and goals

Approximately four year prior to the April 22, 2015 settlement

Historic settlement and huge victory

How settlement affects players and their families

Diseases that are/are not compensable under the settlement

Future of concussion litigation
Point Counterpoint: Final Results
QUESTIONS???
Full transcript