Judge Rejects NFL's Concussion Settlement With Retired Players

A federal judge has denied approval of a $765 million settlement between the National Football League (NFL) and retired players who sued the league over concussion-linked injuries they suffered while playing football, saying that the money distributed to former NFL players was not enough to cover their medical costs.

"Counsel for the Plaintiffs and the NFL Parties have made a commendable effort to reach a negotiated resolution to this dispute," wrote U.S. District Judge Anita B. Brody on Tuesday in her ruling. "There is nothing to indicate that the Settlement is not the result of good faith, arm's-length negotiations between adversaries. Nonetheless, on the basis of the present record, I am not yet satisfied that the Settlement has no obvious deficiencies, grants no preferential treatment to segments of the class, and falls within the range of possible approval."

The original settlement, totaling near $900 million, which would have included $675 million for compensatory claims for players with neurological symptoms; $75 million for baseline testing for asymptomatic men; and $10 million for medical research and education. The NFL would have also paid out an additional $112 million to the retired players' lawyers for their fees and expenses.

According to the plan handed to Judge Brody, players diagnosed with head trauma-related illnesses would be eligible for fixed monetary awards - $1.5 million for Level 1 Neorocognitive Impairment; $3 million for Level 2 Neurocognitive Impairment; $3.5 million for Alzheimer's Disease; $3.5 million for Parkinson's Disease; $5 million for ALS; and $4 million for Death with CTE. The proposed settlement was suppose to last at least 65 years and would also take age into account, with younger retirees with Lou Gehrig's disease receiving $5 million, those with serious dementia cases receive $3 million, and an 80-year-old with early dementia would get $25,000.

Among Judge Brody's major concerns were questions of whether enough money has been set aside for diagnostic testing, concerns about a provision that released the NCAA and other amateur football organizations from liability, and concerns as to whether the NFL will have the money to pay out the retired players.

"Plaintiffs allege that their economists conducted analyses to ensure that there would be sufficient funding to provide benefits to all eligible Class Members given the size of the Settlement Class and projected incidence rates, and Plaintiffs' counsel "believe" that the aggregate sum is sufficient to compensate all Retired NFL Football Players who may receive Qualifying Diagnoses," wrote Judge Brody. "Unfortunately, no such analyses were provided to me in support of the Plaintiffs' Motion. In the absence of additional supporting evidence, I have concerns about the fairness, reasonableness, and adequacy of the Settlement."

The retired players and the league face three options after Judge Brody's decision; prove to her that the money will last, increase the figures on the original settlement while easing her concerns with the funds' sustainability, or start negotiations all over again.

Another stumbling block to a settlement may be a growing rift among the players suing the league. Attorney Thomas V. Girardi, who represents one-quarter of the original plaintiffs, will recommend his clients reject the original proposal and continue their lawsuit against the league.

Girardi, who was part of the famous Erin Brockovich lawsuit against Pacific Gas & Electric and sits on the players' executive committee--a select group of lawyers charged with overseeing negotiations--has been critical of the players' lead attorney Christopher A. Seeger and Sol H. Weiss, saying that the other attorneys have been shut out of the negotiations, with some lawyers questioning the $112 million legal fund paid for by the NFL that would go primarily to attorneys like Seeger and Weiss.

"We were foreclosed," said Girardi to ESPN's Outside The Lines television program. "I was on the executive committee, but when it came time to discuss the settlement, it was just Seeger and the other guy, without any of our input."

Thomas A. Demetrio, who represents the family of former Chicago Bears defensive back Dave Duerson--who died of a self-inflicted gunshot wound to the chest--has also expressed frustration with the lack of communication by co-lead counsel, saying that the attorneys have not seen the information Seeger and Weiss were suppose to hand to Judge Brody

"The communication, candidly, has been very poor," said Demetrio. "The cloak of secrecy has been extraordinary to me. You ask a question and they say there's a gag order. That's utter bull----. There's no gag order that says you can't talk to co-counsel. The whole thing has been a disappointment professionally."