Posted on August 29, 2013 · Posted in Brain Injury

The general view is that the National Football League scored a big victory with its $765 million settlement of concussion-related lawsuits filed by more than 4,500 former and current players and their families.

There was a press release Thursday announcing the settlement, which still must be approved by U.S. District Court Judge Anita Brody in Philadelphia.

As The New York Times noted in its story about the settlement, $765 million is merely a slap on the wrist for the NFL,  which generates about $10 billion in revenue annually. The belief had been that the league could have been held liable for billions of dollars if it failed to prove in court that it didn’t knowingly hide the long-terms dangers of head injuries from players.

Under terms of the settlement, the NFL doesn’t admit any wrongdoing — despite the fact that not only older retired players but young ones are being diagnosed with chronic traumatic encephalopathy, or CTE, a degenerative brain disease with symptoms similar to Alzheimer’s.

In several much-publicized cases several players have committed suicide, including Junior Seau and Dave Duerson, and posthumously were found to have been suffering from CTE.

Note the near-doublespeak on the liability issue in a Q&A that Phillips did on the settlement, when asked if the agreement is an acknowledgment by the NFL that it hid information on the long-term effects of concussions.

“No. An agreement doesn’t imply anything about either side’s position,” he said. “It doesn’t mean that the NFL hid information or did what the plaintiffs claimed in their complaint. It does not mean that the plaintiffs’ injuries were caused by football or that the plaintiffs would have been able to prove that their injuries were caused by football. On the other hand, it doesn’t mean that the plaintiffs wouldn’t have been able to prove their case. The settlement means that the parties reached an agreement to put litigation behind them, get help to retired players who need it, and work proactively to support research and make the game safer. These are goals everyone can share.”

The suing players decided not to go trial after working with mediator Layn Phillips. They did not want to risk losing the case, and they didn’t want to endure what would have been a long litigation process. Many of the player plaintiffs have neurological problems that must be addressed now, and they need money to get medical help.

The press release said that the agreement, which took two months to negotiate, would “provide medical and other benefits, as well as compensation, to qualifying injured players or their families.”

Under the settlement, the NFL and NFL Properties will contribute $765 million to provide medical benefits and injury compensation for retired NFL football players, fund medical and safety research, and cover litigation expenses.

Attorneys’ fees, to be approved by the district court, will be paid in addition to the settlement amount.

“This is a historic agreement, one that will make sure that former NFL players who need and deserve compensation will receive it, and that will promote safety for players at all levels of football,” Phillips said in a statement. “Rather than litigate literally thousands of complex individual claims over many years, the parties have reached an agreement that, if approved, will provide relief and support where it is needed at a time when it is most needed.”

The release included a statement from NFL Executive Vice President Jeffrey Pash, which sounds ironic at times.

“(NFL) Commissioner (Roger) Goodell and every owner gave the legal team the same direction: do the right thing for the game and for the men who played it,” Pash said. “We thought it was critical to get more help to players and families who deserve it rather than spend many years and millions of dollars on litigation. This is an important step that builds on the significant changes we’ve made in recent years to make the game safer, and we will continue our work to better the long-term health and well-being of NFL players.”

There were also statements from the lead plaintiff’s attorney and Kevin Turner, a former running back for the Philadelphia Eagle and New England Patriots.

“This is an extraordinary agreement that will provide immediate care and support to retired players and their families,” said attorney Christopher Seeger. “This agreement will get help quickly to the men who suffered neurological injuries. It will do so faster and at far less cost, both financially and emotionally, than could have ever been accomplished by continuing to litigate.”

Added Turner, “The benefits in this agreement will make a difference not only for me and my family, but also for thousands of my football brothers who either need help today or may need help someday in the future.

Turner, who has been diagnosed with ALS, namely Lou Gehrig’s disease, will serve as the lead plaintiff for one group of retired players.

Once final documentation is completed, the settlement will be filed with Brody, who will then schedule a hearing to consider whether to grant preliminary approval to the agreement.

If the settlement receives preliminary approval, Brody will direct the parties to distribute notice to the retired players. After giving retired players an opportunity to file objections to the settlement, Judge Brody will hold a hearing to consider whether to grant final approval. the judge is expected to issue the precise schedule within a few weeks.

The NFL had long denied that there was any link to head injuries that happened and permanent brain damage for players. Now, the league has instituted several rule changes that are aimed at preventing, and proper;y treating, concussions.

Thee terms of the settlement include the NFL paying for:

* Baseline medical exams,  with costs capped at $75 million.

* A separate $675 million fund to compensate players who have cognitive injuries.

* A separate $10 million research and education fund.





About the Author

Attorney Gordon S. Johnson, Jr.
Past Chair Traumatic Brain Injury Litigation Group, American Association of Justice :: 800-992-9447