Judge Grants Preliminary Approval To NFL Concussion Class Action Settlement
As expected, the federal judge presiding over the NFL concussion class action litigation granted preliminary approval to the settlement agreement that should end the case. Under the proposed settlement, all retired NFL players will receive compensation from a Monetary Award Fund if they are diagnosed with traumatic brain injury, now or in the next sixty-five years. The NFL was able to gain preliminary approval of the settlement by removing the $675 million cap on the Monetary Award Fund that had originally caused Judge Anita Brody to refuse to approve the settlement.
If this settlement reaches final approval, the NFL faces potentially unlimited liability over the next sixty-five years. In return, it will free itself from the threat of massive jury awards to the more than 4,000 former NFL players who have sued the league. Only those retired players who suffer from very significant brain injuries will be eligible for cash payments. No money will be paid to players who suffer from mild or moderate cognitive impairment. As a point of reference, Donald Sterling has been diagnosed with mild cognitive impairment.
Beyond the Monetary Award Fund, the NFL is liable to fund the infrastructure of the settlement. These costs, which include the players' attorneys fees, will add more than $200 million to the price of the settlement.
Please follow past the fold for the details of the settlement and the schedule for its final approval.
All Retired Players Will Receive Baseline Neurological Testing
Every single living player who has ever been on the roster of an NFL, AFL or World League of American Football is part of the class covered by this settlement. The settlement also covers claims by representatives of dead or mentally incapacitated retired players. There are an estimated 20,000 class members.
As an initial step, the settlement requires the NFL to spend $75 million to create a Baseline Assessment Program that will offer all eligible retired NFL players neurological testing to determine whether they currently suffer from a condition entitling them to compensation, a "Qualifying Diagnosis". If a player does not have a Qualifying Diagnosis, he will be eligible for follow-up testing over the next sixty-five years. The data generated from the Baselines Assessment Program will be used to track any cognitive deterioration of the individual retired player, and will be aggregated to help scientists and doctors in studying the problem.
Only retired players suffering from the most serious cognitive and neurological conditions will receive cash. Retired players who suffer from Moderate Cognitive Impairment will not be eligible for cash payments. Instead, they will receive specialized medical treatment, including counseling and pharmaceutical coverage. Moderate cognitive impairment is a serious condition that almost always renders the patient incapable of fully independent living. An individual suffering from severe cognitive impairment would likely not have the ability to take care of basic living needs, such as cooking, eating, dressing and even toileting.
Guaranteed Compensation for Qualifying Diagnosis
For the most seriously stricken retired players, the settlement agreement guarantees substantial payments.
Level 1.5 neurocognitive impairment (between moderate and severe cognitive impairment): $1.5 million
Level 2 neurocognitive impairment (severe cognitive impairment): $2 million
Alzheimer's Disease: $3.5 million
Parkinson's Disease: $3.5 million
ALS (Lou Gehrig's Disease): $5 million
Death with CTE (diagnosed post-death): $4 million
While these numbers are substantial, it is hard to know whether they will be sufficient to cover the medical and nursing care needed by those suffering from these conditions.
No Cap On The Monetary Award Fund
When Judge Brody originally refused to grant preliminary approval to the settlement, her primary reason was her fear that $675 million would not last the full 65 year term of the settlement agreement. One of her duties is to ensure that the settlement is fair to absent class members. It would be the epitome of unfairness if the entire Monetary Award Fund was depleted in 2034 (for example) and players who received a Qualifying Diagnosis between 2034 and 2079 were left without any compensation. The revised settlement agreement places the financial risk that significantly more retired players will receive a Qualifying Diagnosis than expected on the NFL.
No Need To Tie Qualifying Diagnosis To NFL Injury
For the retired players, one of the biggest benefits of this settlement is that it removes the need to prove that their neurological condition was caused by playing in the NFL. Ordinarily, in order to receive compensation in a lawsuit, a plaintiff has to tie his injury to the defendant by a preponderance of the evidence, meaning that it is more than 50% likely that the injury was caused by the defendant. Since each of the Qualifying Diagnosis conditions occur in the general public, it would be difficult for a particular player to prove that his condition was caused by playing football, as opposed to being just another early Alzheimer's or Parkinson's patient.
Even if a player could prove that his condition was caused by football-related injury, it would still be difficult to prove that the NFL was the cause of the condition. Virtually all NFL players played football in high school and college long before they ever stepped onto an NFL field. In fact, because the average NFL career is about 3.5 years, the average NFL player spends more time playing high school and college football than NFL football.
Education Fund, Notice & Legal Fees
In addition to the Baseline Assessment Program and the Monetary Award Fund, the NFL must pay for three additional items. First, the NFL is required to pay $10 million to establish an Education Fund to promote safety and injury-awareness in football, including youth football.
Second, the NFL is responsible for $4 million to pay the costs of providing notice of the settlement agreement to all eligible retired players. This money will be used to pay the cost of sending a first class letter to every known retired player. In addition, the money will be used to purchase advertising in major magazines and newspapers.
Third, the NFL will be responsible for paying the attorneys' fees for the plaintiffs' lawyers who brought this case, in an amount up to $112.5 million. The final amount of attorneys' fees, and the division of those fees among the lawyers, will be determined by Judge Brody after she approves the settlement agreement.
Schedule For Approval
Under the schedule issued by Judge Brody today, the hearing on the final approval of the settlement agreement will take place on November 19, 2014. During the next four months, notice will be sent to all retired players, which will inform them of the terms of the settlement and their right to object or opt-out. Any player who opts-out will be free to sue on his own, but will not receive any of the benefits of the settlement. Any player who objects to the settlement can submit legal argument and factual affidavits in support of his objection.
On November 19, Judge Brody will conduct her hearing to determine whether to grant final approval to the settlement agreement. Given the careful consideration that Judge Brody has already given to this case, and the fact that her primary concern has been alleviated, I expect that she will approve the settlement before the end of 2014.