On August 29, 2013, the National Football League and more than 4,500 retired football players agreed to settle the NFL concussions lawsuit that former players filed against the NFL back in July of 2011. The former NFL players alleged that the league failed to conceal the risks created by concussive and sub-concussive head injuries.
The retired NFL players were rumored to be looking for a settlement in the billion-dollar range. However, to provide more immediate funds to the ailing players with chronic conditions, the settlement totaled $760 million. Many people thought that this settlement was a “slam dunk” for the NFL and its owners, but Judge Anita Brody thought otherwise.
A Hitch In The NFL Concussions Settlement
On January 14, 2014, Judge Brody issued an opinion that denied the preliminary motion for the settlement. Citing the Federal Rules of Civil Procedure (Rule 23(e) specifically), Judge Brody explains that a court may only issue an approval on a proposed settlement if that settlement is “fair, reasonable, and adequate.”
Although Judge Brody states that both parties have negotiated in good faith and made a commendable effort to reach this point, she feels that the settlement does not fall into the range to be approved by the court. Brody has three main concerns about the settlement:
- Not all retired football players who are qualified or will receive qualified status in the future will have access to the funds.
- The adequacy of the Baseline Assessment Program funding (explained below).
- The settlement prohibits the former players from suing the NCAA and other amateur football organizations.
To better understand Judge Brody’s concern, there has to be an understanding of the settlement itself.
The NFL Concussions Settlement
The NFL will make payments for 20 years totaling $760 million for the current and future retired NFL players in the settlement. The $760 million proposed settlement is broken down into three separate categories.
The first category is a Baseline Assessment Program (“BAP”), which offers eligible retired NFL players baseline neuropsychological and neurological evaluations to determine the existence and extent of any cognitive deficits. The NFL has dedicated $75 million to this program.
The second category provides $675 million to a Monetary Award fund. This fund will provide cash to retired NFL players who already have a qualifying diagnosis or that will receive one in the future. Players with a qualifying condition will be limited to the amount of money they will receive. Amounts for a player’s condition are listed below.
- Neurocognitive Impairment (Level 1) – $1.5 million maximum
- Neurocognitive Impairment (Level 2) – $3 million maximum
- Alzheimer’s Disease – $3.5 million maximum
- Parkinson’s Disease – $3.5 million maximum
- ALS – $5 million maximum
- Death with CTE – $4 million maximum
- Note: Theses amounts may be reduced based on a player’s age when first diagnosed and the number of seasons played in the NFL.
The third and final category provides $10 million to an Education Fund, which funds educational programs promoting safety and injury prevention with football players.
Mo Money, Mo Problems
Although this settlement appeared to be fair when it was first proposed, Judge Brody does not seem to agree with the allocation of the funds. Specifically, Brody does not recognize how the $675 million Monetary Award Fund, which is suggested to last for 65 years, will be enough for approximately 20,000 players (current and future) given the award levels displayed earlier. This main concern may be nominal if the attorneys for both the NFL and retired players are able to present a supplement to the Judge explaining the exact distribution of the funds. However, if neither side can present sufficient information on the allocation of funds for the proposed settlement, it could cause a delay in the case, which is the worst scenario for both sides. For the NFL, it may lead to a larger settlement amount paid to the retired players. And for the retired players, it delays the funds available to those who need it now.
Judge Brody also wants to ensure that the funding for BAP will be a sufficient amount in order to prevent or treat cognitive deficits in future NFL players. In order to guarantee a successful BAP, funding has to be available for decades of testing.
This settlement also included the release of the NCAA and other amateur football organizations from future lawsuits created by retired NFL players who claim these organizations also failed to conceal the risks associated with concussions. Although these other concerns are less critical to Judge Brody’s future support of the settlement, these concerns still need to be addressed by the NFL and the retired players.
The Unseen Issue
One concern that has been brought to light, but the Judge has failed to mention in her decision, is the amount of attorney’s fees agreed upon. In the agreement to settle this case with the former players, the NFL has agreed to pay the legal fees for the retired players – which amount to approximately $122 million.
Litigation is expensive, but are these fees justified? According to ESPN’s Outside the Lines, there is serious concern over the amount of work done by the attorneys in order to be compensated $122 million. Although co-lead attorney for the players, Christopher Seeger, defends the legal fees that will be paid out, ESPN’s legal analyst Lester Munson disagrees with amount. “As a lawyer, I am reluctant to criticize another attorney’s attempt to collect a fee, but $122 million for filing a series of lawsuits and spending 12 days in mediation to settle them is a bit much,” Munson explains.
If there is a real concern for the amount of fees that will be paid out by the NFL, an investigation into the actual work that caused these high fees may be on the horizon. Under certain circumstances, a Judge is able to reduce the amount of fees paid to attorneys. If it is determined that attorneys are being compensated too much for the work they completed, those extra funds could be available to the retired players (as it should be). Until documentation is provided to Judge Brody explaining the final monetary figure, it is unclear at this point if there will be a larger settlement amount.
What’s Next For The NFL Concussions Settlement?
The lawyers who are leading the players’ efforts will submit the expert reports to the court. If Judge Brody is satisfied with the experts’ opinions and their analysis of the settlement proposal, she will reconsider the proposed settlement. If the experts’ opinions are less than persuasive (which is possible), then Judge Brody may issue a final and conclusive rejection of the proposal, sending the players and team owners back to the negotiation stage.