Litigation threatens football's future

The NFL concussion lawsuit moved close to resolution last week -- see below for analysis -- but don't be deceived into thinking this settles courtroom challenges. Football remains in a legal quicksand that has the potential to drag the sport under. The big concern has never been the NFL, which has only a small number of current and retired players, and can buy its way out of any difficulty. The issue is the 3 million youth players, 1.1 million high school players and approximately 50,000 college players.

Unlike NFL players who are well-compensated and are adults when they assume risk, the overwhelming majority of football players receive nothing and are children when they assume risk. Except for those who matriculated at football factories, most football players suit up for sponsoring organizations that cannot buy their way out of problems: youth leagues, public school districts and colleges whose athletic departments lose money.

If youth leagues, public school districts and colleges that are already in the red on sports start paying brain-damage awards, they'll stop sponsoring football. They won't have any choice -- insurers will drop them. This, not the NFL's litigation maneuvering, is the nuclear bomb ticking in football. Consider:

A teen partially paralyzed at a Colorado football practice just won a $11.5 million judgment against his high school district, some school personnel and the Riddell helmet company. Last year, San Diego school district agreed to pay $4.4 million to a man who was a teenaged high school football player when he suffered a severe brain injury.

The California injury occurred in 2007, the Colorado injury in 2008. The litigation took years to reach the award stage. Since rising awareness of the harm caused by concussions began roughly five years ago, there may be many other high school football brain-harm lawsuits that started in the past five years and are now in progress. Surely, more will be filed in the future.

Sixteen-year-old Jaleel Gipson of Farmerville, La. died in May after an Oklahoma Drill at high school football practice. Louisiana allows the sadistic Oklahoma Drill, in which players bash helmets; the state also allows full-contact high school football practice year-round, meaning year-round opportunities for brain and spine harm. A week ago, Tyler Lewellen, a 16-year-old California high school football player, died from head trauma; two weeks ago, a 16-year-old Georgia high school football player died from a spinal injury sustained in a scrimmage.

These awful tragedies do not mean young people should not play football. Every year there are awful tragedies involving young people and cars, or young people and swimming, or young people and bicycling. Sometimes fate is simply awful. There is a roughly a one-in-a-million chance a teenager will die because of an hour of driving, compared to a roughly a one-in-six-million chance a teenage will die because of an hour of football practice or play.

When the awful tragedy is a young person's death in a car crash, often there is no third party to sue. When the awful tragedy is a football death, there are always third parties to sue. As willingness to use the courtroom increases throughout society, football-triggered lawsuits against high schools and youth leagues may rise. Sixteen-year-old Edwin Miller, a Maryland high school football player, died of heat stroke in 2009 after conditioning drills. In the immediate aftermath, his parents went out of their way to be conciliatory, including asking the team to attend his funeral in football jerseys. Three years later, they sued.

Adrian Arrington, a former player at Eastern Illinois University, has sued the NCAA regarding his concussions. Last week, the parents of Derek Sheely, a Frostburg State University player who died in 2011 from a second-impact concussion sustained in practice, filed suit against the school and its coaches. The legal filing alleges "reckless disregard for player health," including frequent Oklahoma Drills in which players were instructed to lead with their heads, and that Sheely was sent back into practice despite a bloody bruise on his forehead and saying he felt strong head pain. These claims are allegations, not tested yet by any court. But they are deeply disturbing allegations.

The NFL's settlement offer on concussions involves an organization with billions of dollars and also involves labor law, neither of which pertain to youth, or high school players. For the youth and high school players who legally are children in the care of adults, assumption of risk does not carry the weight it does when cited by colleges or the pros. There may be many big awards coming. Awards in the millions per player harmed, not around $50,000 per retiree as in the NFL situation (see below). No public school system, and few universities, could withstand that.

There are positive signs. Reader Ty Locke of Jersey City, N.J., writes, "My 13-year-old nephew who is entering freshman year at Old Bridge High School in New Jersey suffered a concussion in practice. I was surprised and encouraged at how far programs have come in terms of treating and diagnosing concussions, in just the decade since I played high school football in the same area. His high school mandates a five-tiered evaluation before he is able to return to full contact. For the first week my nephew was not permitted to run or work out, he was yelled at for just picking up a football. Before returning to full contact he'll need to get cleared by an independent physician outside of the school's staff. I think that's a great sign of progress."

That is indeed a great sign of progress. Will football last long enough for such progress to spread? President Barack Obama told the New Republic, "If I had a son, I'd have to think long and hard before I let him play football." Brain-injury lawsuits below the level of the NFL could make this question moot, if colleges and high schools stop playing. The threat of brain harm to players is becoming well-known; the threat of concussion litigation to the sport itself may be just as real.

Now --- still America's original all-haiku NFL season predictions.

AFC East

Billionaire demands
corporate welfare for field.
Miami Dolphins.
Forecast finish: 12-4

Wes Welker shown the
door; football gods will wax wroth.
The New England Pats.
Forecast finish: 10-6

Next summer, two a
days will move to Pamplona.
The Jersey/B Jets.
Forecast finish: 6-10

Only castoffs are
allowed to play QB here.
The Buffalo Bills
Forecast finish: 4-12

Stat That Must Mean Something: This season the NFL fields head coaches Mike McCarthy, Mike McCoy, Mike Munchak, Mike Shanahan, Mike Smith and Mike Tomlin. None go by the more stately "Michael."

Preseason Games Are Obsolete: Numerous starting NFL players have been carted off the field during preseason games -- not from vicious hits, just routine injuries. For years, TMQ has asked why the league charges for preseason games: fans do the teams a favor by attending. Now TMQ asks, why are there preseason games, period?

The games are terrible; no one cares about the outcomes; good players get hurt, reducing the quality of the real games; ratings aren't much. Yes, owners like the added revenue from ticket sales and concessions. But money is not the NFL's core problem.

Preseason games have led to horrific injuries. Reader Joe Hertz of Sterling, Va., reminds that the 1978 Jack Tatum hit that paralyzed Darryl Stingley occurred in a preseason contest. The hit, Hertz notes, was legal under the rules of the time though would not be legal today, as Stingley was in a defenseless posture. Such horrific outcomes are rare. But routine injuries in preseason games are common.

Preseason games are a leftover from the old days of football when players had offseason jobs to make ends meet, and needed the preseason to get into shape. Now that the players are millionaires, do conditioning year-round and attend multiple minicamps, preseason games have no utility. Cut them back to two or eliminate them altogether.

The Defenseless Defender: For several seasons, NFL defenders have been complaining that new helmet-to-helmet rules penalize them but not offensive players -- Ray Fittipaldo has more on this complaint -- which feeds the perception that the league wants more offense, less defense.

A new rule for 2013 creates the concept of a "defenseless defender." Beginning this season, the ball carrier cannot lower his helmet and ram a defender, nor can a blocker hit a defender in a defenseless posture, such as an edge rusher who has just turned to go in the opposite direction. Many people (including your columnist) question whether the NFL is doing enough about safety. Props to the league for this new rule, which will confuse stadium crowds the first time a referee announces a foul for a hit against a "defenseless defender."

NFC East

RG III -- sequel.
This year he's RG III2
Washington Persons.
Forecast finish:: 11-5

Eli v. Peyton,
Week Two. Ratings, anyone?
Jersey/A Giants.
Forecast finish: 10-6

Countersued those who
bought club's fake Super Bowl seats.
The Dallas Cowboys.
Forecast finish: 6-10

Carroll and Kelly
break college rules, jump to pros.
The Philly Eagles.
Forecast finish: 6-10

New York Times Corrections on Fast-Forward: In recent months the Paper of Record has, according to its corrections section:

• Said the asteroid that passed uncomfortably close to the Earth in February was 150 miles long; 150 feet is correct.

• Said the Republican Party controls the Senate. This is what John Boehner thinks, too.

• Erred regarding "the tea-drinking tradition in East Frisia."

• Confused $10,000 with $100,000, confused $4 with $4 million, confused $1 million with $1 billion and confused $75 billion with $760 billion. Reporters responsible, would you like administer the Central Bank of Cyprus?

• Mistook McSteamy for McDreamy.

• "Referred incorrectly to an order issued by Russian Empress Elizaveta Petrovna" involving "the best and biggest cats."

• "Misidentified the election Lyndon B. Johnson is said to have stolen" ("B.?" Oh, you mean that Lyndon Johnson.)

• "Referred incorrectly to the 280-pound albino Burmese python at the Brooklyn Children's Museum. The python is a 'she,' not a 'he.'" The quotation marks suggest New York City is so gender-confused, "she" and "he" are now viewed as conditional terms.

• A map "located Morehead State University incorrectly. It is in the northeastern part of Kentucky, not the western part." Twenty-five years and two Super Bowls later, the New York media still doesn't know where Phil Simms is from.

• Admitted making the same minor error "at least 229 times".

• Misstated "the last time British royals visited the Jersey Shore."

• For the fifth consecutive year since TMQ started doing a New York Times corrections item, mistook a woman for a man. It's so hard to tell these days!

• Misstated the cost of "chemotherapy for a wolfhound."

• Miscalculated how old 37 is in gorilla-years.

• More than once referred to the mega-underdog that reached the men's Sweet Sixteen as "Gulf Coast College." No one else had heard of the place either.

• Misspelled the phrase "the ocularcentrism of the Western episteme." Ocularcentrism is a vocabulary word in the sort of arch mumbo-jumbo reserved for the tenured.

• "Misidentified the killer of Agamemnon and Cassandra. They are murdered by Clytemnestra, not by Aegisthus."

• Gravely clarified of a Tiger Woods shot, "He drove into the rough, hit out to the fairway, flirted with the water on his approach and settled for a bogey after a chip and a putt. It is not the case that he drove into the rough, flirted with the water on his approach and settled for a bogey after a chip and two putts." Then on a different day of a different tournament, gravely clarified, "Tiger Woods hit the flag stick and ricocheted into the water at No. 15. It was his third shot, not his tee shot."

• Confused Calvary with cavalry.

• Said the original Woodstock festival was held at Woodstock, N.Y.; readers noted that Bethel, N.Y., is correct. Like wow, there's no one left at the New York Times who attended Woodstock.

• Acknowledged a Page 1 article contained numerous basic mathematical errors. Subject of the article? Standards for math education.

• Ran three separate corrections about sushi. Noted by reader Joshua Rosenstock of New York City.

• Ran eight corrections regarding a single article, including a correction of a correction.

• Declared the new pope's name was Jorge Maria Bergoglio.

• "Misstated, in some editions, the number of pounds of meatballs Ikea was withdrawing from sale in European countries. It is 1,670 pounds, not 1.67 billion pounds."

• "Misstated the distance above sea level of Colorado Springs, Colo. It is 6,000 feet, not 6,000 miles."

AFC North

Trained, studied playbook --
not for season but "Hard Knocks"
The Cincy Bengals.
Forecast finish: 10-6

All-new cast to defend crown.
Bal-a-met Ravens.
Forecast finish: 8-8

Cursed by football gods
since scapegoated Arians.
The Pittsburgh Steelers.
Forecast finish: 8-8

Will season ticket
holders get honest rebates?
Browns two point zero.
Forecast finish: 5-11

Fear the Wrath of the Cupcakes: Football-factory schools like to open by paying a fee to entice lower-division teams to come to the big school's field and get pounded in front of the boosters. Yea, verily, Baylor beat Wofford 69-3 while Oregon defeated Nichols State 66-3 -- that's the way cupcake games are supposed to play out.

But wait: lower-division North Dakota State defeated Big 12 member Kansas State. Towson defeated Connecticut, which was not long ago in a BCS game. McNeese State not only defeated but stomped South Florida, winning 53-21. Brett McMurphy has the numbers of how much these and other cupcakes who were supposed to lose were paid to win instead.

Then there was lower-division Eastern Washington at Oregon State, the latter a preseason ranked team. Eastern Washington posted 625 yards of offense, scoring a touchdown with 18 seconds remaining to defeat the hosts. This won't get the lasting attention the Appalachian State upset at Michigan received: West Coast games don't end until more than half the country has gone to bed. (Did you know that 113 points were scored in last year's USC at Oregon game?) But it is an upset of equal significance. Go Eagles!

Buck-Buck-Brawckkkkkkk: It was the very first game of the 2013 NCAA season, North Carolina at heavily favored South Carolina. The visitors trailed 20-7 midway through the third quarter and faced fourth-and-goal on the Gamecocks' 2. That cannot be the field goal team trotting in! TMQ wrote the words "game over" in his notebook, and the football gods showed their wrath by granting the hosts a length-of-the-field touchdown on the next snap, making the lead 27-10. You're the underdog on the road, you're behind late, don't settle for a field goal from the 2! Just to prove it was no fluke, on North Carolina's next possession, coach Larry Fedora had his team punt from the opposition 42.

NFC North

Last year Niners owned;
this year open at S.F.
The Green Bay Packers.
Forecast finish: 12-4

Fifty-six years since
a title. But who's counting?
The Detroit Lions.
Forecast finish: 9-7

Lovie, Urlacher
gone; 10 wins must be punished!
The Chicago Bears
Forecast finish: 6-10

League's best runner, worst
passing game. Net: home in Jan.
Minnesota Vikes.
Forecast finish: 5-11

Love Those Unnamed Experts: Last week's word that the GDP grew at 2.5 percent in the second quarter is strong economic news; the jobs report due Friday may signal if the recent mild decline in unemployment will accelerate.

The good news about the second quarter applies to the period the sequester went into effect. Widely predicted to cause awful economic distress, instead across-the-board spending cuts have been accompanied by economic improvement. When the sequester began, unemployment was 7.9 percent and the most recent quarter had shown only 0.4 percent GDP growth. Now unemployment is down to 7.4 percent while growth has climbed to 2.5 percent. Perhaps these improvements would have happened anyway; perhaps trends would be even better without the sequester. All that can be known is that politicians and pundits said the sequester would be terrible for the economy, and instead so far it's been a positive.

Let's review some predictions:

"Sequester Will Sock A Vulnerable Economy" -- Washington Post banner headline on the midwinter day the sequester started. "The sequester is already hurting our economy," President Barack Obama said a few days later. Since these statements, the GDP is up about 3 percent, the stock market is up about 5 percent, unemployment is down half a percent and the housing market has become so strong there is talk of a new bubble. Three months into the sequester, American household net worth hit an all-time high.

Unnamed "experts" predicted that the sequester "will cost 700,000 jobs. Instead about 1 million new jobs have been added.

Early in the sequester, the New York Times' lead editorial declared that Ohio "could lose 30,000 jobs" while approving of a claim that federal spending restrictions could bring the University of Cincinnati's medical school "to its knees." Three months later, the Bureau of Labor Statistics reported, "The largest over-the-month increases in employment occurred in Ohio." The latest figures show Ohio having 37,000 more jobs than in the same month of the previous year. Rather than kneel, the University of Cincinnati's medical school announced a $100 million expansion.

Undaunted, in early August, with employment rising instead of falling as pundits predicted, a New York Times front-page story darkly warned "many job losses are predicted if the cuts remain in place into next year."

The Washington Post, newspaper of the federal government, ran a sob-story piece about affluent federal employees in a high-income zip code protesting the sequester. The first person quoted was a retired federal worker who complained that she can't be sure her pension checks will arrive on time. That is, nothing bad had actually happened to her, other than anxiety. Do retired federal workers imagine private-sector workers never have to worry?

The article veered off the rails when it introduced a conveniently unnamed federal official who finds any criticism of his government paycheck "extremely threatening and highly insulting." Just try the private sector for 10 seconds, fella! The conveniently unnamed official was said to work at National Defense University and therefore needed anonymity because he has a security clearance. But officials with high clearance only cannot talk about classified material, they do not surrender First Amendment rights on political policy issues such as the budget. It sounded like unaccountability was what the conveniently unnamed official really sought. Be that as it may, upon saying the official cannot be named, the Post declared that he makes public appearances:

"On a recent visit to Missouri, he got fed up with ritual denunciations of federal workers, and he put a group of complaining citizens through a tough line of questioning: 'You don't want the highways?' he vented. 'You're against food inspections?'"

No one proposes eliminating highways! The sequester did not abolish any aspect of government service or benefits, merely reduced discretionary spending by 8 percent. Is straw-man nonsense the academic standard at National Defense University? Next we learn the highly insulted, conveniently anonymous federal employee "told a carpenter who was going to build bookshelves in the living room that the $5,000 job will have to be put off." Federal official faces delay in custom bookshelves -- oh, the horror!

Maybe the above article was just a newspaper having an off day, but it symbolizes how much muddle there is on the subject of federal spending. As last week's column noted, adjusted for inflation, federal spending has declined 5 percent in the past three years. That's positive, and similar to what a private enterprise would achieve to become leaner. In fiscal 2009, the federal deficit was 10.2 percent of GDP; by the end of fiscal 2013, the deficit will be down to 4 percent of GDP. That's a major improvement.

One can debate whether the White House, the House Republicans or general economic conditions deserve the most credit for this progress. The key point is -- it's progress. The nation is getting its fiscal affairs in order, while GDP growth is happening. A new spending binge would be a blunder, but there's no reason to fear raising the debt ceiling.

AFC South

Peyton at Indy,
week sev'n. Ratings, anyone?
Indy Lucky Charms.
Forecast finish: 12-4

Roped and branded by
New England twice last season.
The Houston Texans.
Forecast finish: 12-4

Red Zone Channel on
scoreboard exceeds what's on field.
The Jacksonville Jags.
Forecast finish: 4-12

Suspension a when,
not if, for Bernard Pollard.
Tennessee Titans.
Forecast finish: 4-12

$765 Million Doesn't Buy What It Used To: The proposed settlement of the main concussion lawsuit against the NFL -- the supervising judge still must accept the deal -- has been widely interpreted a huge win for the league. Teams pay only about $25 million each, and well into the future, when money presumably will be worth less than today's. The $13 million or so each team owes up front represents less than 2 percent what the typical NFL franchise will realize in revenue in the period of the payments.

So the NFL got off relatively cheaply. But remember, the players might have received nothing. Had the suit gone to trial, it was far from clear the plaintiffs would prevail. Suppose a retired player had neurological problems: How could it be proven the problems stemmed from NFL employment, as opposed to college or high school concussions or falling off a ladder while cleaning gutters? Players also ran the risk trial would result in a finding that labor law, not personal injury law, governs this issue. If the complaint had essentially become a workman's comp case, the players' best outcome would have declined.

Often parties in a lawsuit reach pre-trial settlement in order to minimize risks -- the party with a lot of money eliminates the risk of a very large judgment, the party seeking money eliminates the risk of ending up empty-handed.

For the NFL, not only is the settlement relatively affordable, the league avoided any admission of wrongdoing, and avoided court-ordered discovery that might have turned up information the NFL wants kept mum. Such information may not have been just what-did-they-know-and-when-did-they-know-it on head trauma. Except for the publicly owned Green Bay Packers, NFL teams receive subsidies from taxpayers (for stadium construction, operations or both) and yet reveal nothing about their finances. Preventing disclosure of team finances was a major goal on the NFL in this settlement, and take a wild guess why the league was concerned with this.

For the players, the settlement allows them money soon, not years in the future after a trial and appeals. Dragging the process out was a concern for aging retirees who need help while they're still among us. Some $675 million will be distributed to retired NFL athletes, with $85 million set aside for health care and medical research. Players with severe conditions such as ALS, or the estates of players who killed themselves, may receive up to $5 million. With about 18,000 retired NFL players eligible to apply for a check (some won't), the typical award may work out to $50,000 or less. Since players may opt out of the settlement and pursue their own lawsuits, many will face this choice: take a moderate sum now and move on, or spend years in bitter litigation that might lead to a jackpot or to nothing. On "Deal or No Deal," once a contestant got to a briefcase with a decent amount of money, the rational move was to stop. That is now the retired players' situation.

For plaintiffs' counsel the outcome is marvelous. The NFL is covering their legal fees, and won't say how much was agreed to. That means the lawyers get their payday upfront, rather than waiting for years. If the NFL offered the players' lawyers a pretty penny to settle, they may have had incentive to sell their own clients short -- an issue the supervising judge may explore.

Layn Phillips, a former judge who is now a mediator, helped put the deal together. He noted, "The underlying theory of this lawsuit about what took place in the past would be difficult to replicate in the future." That means current and future players who suffer brain trauma will not be able to assert they were never warned about head injury risks. Phillips has a great title -- he belongs to the California Academy of Distinguished Neutrals.

NFC South

They just can't finish.
What will go wrong this season?
Atlanta Falcons.
Forecast finish: 12-4

Sinners no more! Team's
excommunication ends.
The New Orleans Saints.
Forecast finish: 10-6

Faucets in helmets:
Panthers either hot or cold.
Carolina Cats.
Forecast finish: 8-8

Cursed by football gods
for coach's bad sportsmanship.
Tampa Buccaneers.
Forecast finish: 4-12

Book News: Maybe, possibly, perhaps I will soon be mentioning again my upcoming book "The King of Sports: Football's Impact on America," which can be pre-ordered here. Yes, perhaps I will mention "The King of Sports" again.

For the moment, I commend to readers a football book just out, "Breaking the Line" by Samuel Freedman. This terrific and timely book documents the integration of college football in the 1960s, tells the stories of famed coaches Eddie Robinson and Jake Gaither, and details a puzzle of that time -- whether removing the barriers against African Americans playing for the major conferences also meant the old Orange Blossom Classic, the championship game for historically black colleges, had become obsolete. This volume should be on the bookshelf of anyone interested in football history.

AFC West

Manning to Welker:
Both wandered in off the street.
The Denver Broncos.
Forecast finish: 12-4

Te'o: don't rule out
a retroactive Heisman.
San Diego Bolts.
Forecast finish: 8-8

One coach is a "spread
game analyst" -- nice title.
Kansas City Chiefs.
Forecast finish: 8-8

Pirate logo fits
for this is a sinking ship.
The Oakland Raiders.
Forecast finish: 2-14

Hope Springs Eternal: Reader Bo James Nerlin of Ridgeway, Colo., counted up the NFL Nation seasons predictions and got a total of 283 predicted wins -- in a season of 256 games. SportsNation found that 77 percent of those polled feel "confident" or "hopeful" about their favorite NFL teams though by the end of the season, the majority are likely to feel disappointed.

NFC West

QB shows more skin
than cheer-babes on calendar.
The S.F. Niners.
Forecast finish: 14-2

Under the radar
no more: Wilson top young gun.
Seattle Seahawks.
Forecast finish: 10-6

Were Cards really in
Super Bowl just four years past?
AZ Cardinals.
Forecast finish: 4-12

Left RG III on
the table; can they rebound?
The St. Louis Rams.
Forecast finish: 4-12

Hell's Sports Bar: Hell's sports bar has 28 widescreen hi-def TVs, though certain broadcast restrictions may apply. On opening day, the fantastic Green Bay at San Francisco matchup will be blacked out in Hell's Sports Bar. Patrons will see Chiefs at Jaguars, a combined 4-28 last season.

Next Week: During the preseason, TMQ uses "vanilla" material designed to confuse scouts from other sports columns. Starting next week, I will come at readers from all directions with complex sentence structures, exotic joke packages and quick-snap items. Real football will be back at last!

In addition to writing Tuesday Morning Quarterback for ESPN, Gregg Easterbrook is the author of "The King of Sports" and eight other books, and is a contributing editor of The Atlantic. His website is here and you can follow him on Twitter here. Every Tuesday during the football season, at 3 p.m. Eastern, he will answer questions on Twitter about that day's column.