Response to Pete Prisco

Pete Prisco wrote a provocative, complicated column on the NFL's concussion settlement yesterday. Let me logically unpack his interesting column, because it seems like the crux of the extreme "the players didn't deserve it" opposition to the NFL concussion settlement.

1. "They know the risks. They know they can get killed at any time. NFL players know they can get hurt, and have long-term issues"
2. In Prisco's experience, all but one of the players he has spoken to would have done it all over again. "They love the game. They love the checks."
3. Therefore, the recent concussion settlement is a money grab. If all of them would do it over again even knowing the risks, then they essentially want to be paid for not being warned about a risk that they would still have taken. Only that one player that wouldn't do it all over again has any claim to damages. 
4. Placing full responsibility for the concussions on the NFL, in every case? That is specious and difficult to prove. These players have been playing since they were very young in many cases, and high school and college football could easily have been contributory towards their CTE. Prisco uses - by way of a reducto - a funny example about suing his own father for two-handed touch football, and uses suing Pop Warner and high school to make the point clearer.
5. Therefore, while Prisco says the settlement is nice, and it will help players, on a fundamental level, Prisco believes the players don't deserve the money.
6. (optional). The money from the NFL is not value-free. If this concussion lawsuit had dramatically and immediately altered the business of football, it's conceivable that society at large would lose out - "Without the NFL, I wouldn't have a job. Nor would a lot of people." Whether or not you think Prisco's job is worth it, whether or not you accept this argument (certainly it wouldn't be a total loss, because certainly alternative ways to spend that money and time and leisure and labor would arise), whatever you think, losing the NFL would make a lot of money change hands, and the net result might be negative. Crusading for justice for the players - Prisco implies - might feel important and righteous, but are you willing to bear the cost as a fan, as a fantasy owner, as a writer, as a worker? 

Setting aside the 6th argument, which is more an open speculation than a rigorous point, we see that Prisco, despite the overtures of hackery in his column, actually has a pretty defensible and interesting point. Still, Prisco's argument is unsatisfying, somehow, even when you strip away all the bluster to find something substantial.

Let me see if I can figure out what my objections amount to. Let's go after the premises and steps of reasoning one by one.

1.  I would argue that the NFL players did not know the risks nearly to the extent claimed. You can die at any moment and be physically incapacitated for life in an NFL game. But "risk" without the article "the" is simply an open-ended term meaning essentially all danger in uncertainty. Knowing "risk" and knowing "the risks" (which is what Prisco is claiming) are two different things - while anything can happen on a football field and an NFL game carries a lot of open-ended potential for danger, players did not know the modern facts and current research about concussions, which amount to a common, systematic, and far-less-understood category of risk. Knowing so much more about *that* risk changes the equation for taking action substantially - at the very least, what players actually mean when they say "I know the risks." substantially changes as the human knowledge base increases. "The risks" today are not "the risks" yesterday, for better or for worse.
2. That NFL players would (with only one exception) still go out on the field today is interesting and a point in Prisco's favor... But there's something else - there's something fundamentally seedy about this point that bugs me - see, with a modern knowledge of concussions and CTE, athletes in major sports are increasingly shielded from returning before they're ready. So yes, if NFL players had to do it all over again, even knowing what we know now? Sure, those athletes might have still gone out there and played like their lives depended on it once again... but in the end, wouldn't it change matters substantially if they got a concussion? Even with their diehard attitude, they would have sat a few games (would have been forced to sit, in all likelihood) because of, say, a broken leg. My point is that we are far closer nowadays to seeing concussions more like a broken leg than a "he got his bell ringed, wait 'til he comes to" type of injury. With modern knowledge of CTE, athletes would be far more averse to returning to play in order to guarantee their long-term safety. This isn't a knock on their toughness -  it's just rational: Their understanding of the risks of traumatic brain injuries would be much improved. So Prisco's hypothetical - while interesting information - simply falls apart to the extent that it is a hypothetical. The only difference is our knowledge of concussions, and that knowledge alone would have been sufficient to tangibly alter the way a player in previous eras would approach a concussion
3. Fundamentally, then, you can look at the settlement as representing a tort for the difference in quality of life created by the ignorance between now and then. In other words, knowing what we know now, a player might not have had, say, $150,000 in medical bills a year. Maybe, avoiding the impact of repeated concussions, they might have played another full season (at 6 figures) and had half the medical costs... they might even have had a better job and a better quality of life. Since by all accounts this scenario in fact represents a real and tangible difference for hundreds of players, this settlement cannot be a pure money grab - it is, at worst, a cynical attempt to extract some money from the NFL, but it is, even in the worst case, also grounded in real and substantive differences in outcome. 
4. A few related quibbles with this point: Indeed it is true that the NFL may not have been fully the cause of this difference in outcome; surely college and high school athletes suffer concussions and perhaps the seeds for CTE are laid early in a football player's development, and the NFL is just the proverbial last guy on the pile. On the other hand, this is precisely why we have science and precisely why we have lawsuits - not simply to determine fault but to attempt to separate out causes and assign blame proportionately if possible. The NFL at every turn has attempted to squash science of CTE by the accounts of virtually all neutral researchers. The case of Dr. Elliot Pellman suggests gross negligence at best and gross malfeasance at worst on the part of the NFL and its executives. The fact that scientific knowledge of CTE took so long to percolate into policy and its supporting evidence opposed so stridently by the NFL... all of it suggests that the NFL bears more than a little responsibility for concussion awareness even down to Pop Warner leagues, all the way down to a child's father or mother signing a release to allow that child to play football at school.
5. So I guess this is my counter to Prisco's argument, in light of my objections to his premises and reasoning up to this point: If the NFL helped to deceive the American public and its players about concussion awareness, then:
1. The players emphatically deserve this settlement at the very least and, what's more, a full accounting of how their rights as employees have been infringed upon, a plan of action by the NFL not only to solve this problem for future players but also to increase its transparency and accountability over this scandal. The players did not truly know their risks to the extent that current scientific knowledge should have allowed, and this created a difference of outcome for which they should be compensated.
2. The NFL does not deserve that settlement money at the very least. Even donating that money to charity and getting it out of the hands of unwholesome gains would go a long way towards demonstrating that it's not alright for a company in the business of risking its employees' health to treat its employees' health with indifference and cry foul when called out.