A
federal district court judge on Wednesday gave her final approval to
the settlement of a lawsuit brought by more than 5,000 former players
who accused the N.F.L. of hiding from them the dangers of concussions, a major step toward ending one of the most contentious legal battles in league history.
The
settlement provides payments of up to $5 million to players who have
one of a handful of severe neurological disorders, medical monitoring
for all players to determine if they qualify for a payment and $10
million for education about concussions.
The
landmark deal, which many players criticized, was originally reached in
August 2013, but Judge Anita B. Brody twice asked the two sides to
revise their agreement, first to uncap the total amount of damages that
could be paid for the conditions covered, and then to remove the limit
on how much could be spent on medical monitoring.
As part of the deal, the N.F.L.
insisted that all retired players — not just the 5,000 or so who sued
the league — be covered by the settlement as a way to fend off lawsuits
in the future. But about 200 players, including Junior Seau, who
committed suicide and was later found to have a degenerative brain
disease, opted out of the settlement to preserve their right to continue
fighting the league.
Critics
of the settlement said that even after the revisions, the number and
variety of diseases covered by the deal were too small and that many
players would receive only a small fraction of the multimillion-dollar
payouts promised by the league after their age and years in the N.F.L.
were considered. Critics also contended that the settlement needed to
acknowledge more classes of plaintiffs, not only those with diagnosable
diseases and those without them.
In her 132-page ruling,
Brody called the settlement “fair, reasonable and adequate.” She also
addressed the criticisms of the deal filed with the court, something
appellate judges are likely to scrutinize if the case reaches a higher
court, which is widely expected.
No
payments will be made to players until all appeals are exhausted. That
could create tension between the players who are eager for some
restitution and others who continue to push for a better deal. Appeals
must be filed within 30 days.
Christopher
Seeger, one of the two lead counsels for the plaintiffs, said he had a
“modest concern” that the case could be appealed. While he said that
Brody had addressed and dismissed many of the concerns about the
settlement, he said new issues could be raised. If the settlement is
appealed, it could take six to nine months for the judges to hear the
case, he said. If it is not appealed, retired players could start filing
claims within 90 to 120 days.
“What matters now is time, and many retired players do not have much left,” said Kevin Turner, a retired running back who has amyotrophic lateral sclerosis,
commonly known as Lou Gehrig’s disease. “I hope this settlement is
implemented without delay so that we can finally start helping those in
need.”
Still, some players contended that the settlement should be broader and include more generic conditions, like memory loss, irritability,
sleep deprivation and other problems they claim were a result of
playing football. Other plaintiffs claimed that the settlement should
include a provision that allowed for future scientific discoveries, like
a test to diagnose chronic traumatic encephalopathy,
a brain disorder associated with repeated blows to the head, in living
patients. The disease can now only be diagnosed posthumously.
Some
critics contended that the N.F.L. could have spent more to settle the
case. When the deal was announced in August 2013, the league agreed to
pay up to $675 million to players with diagnosable diseases. Under
pressure from the judge, that limit was removed. But given the narrow
number of diseases covered, critics claimed that the N.F.L. would pay
out only a small fraction of what it promised.
Scott
Rosner, a lawyer who teaches sports business at the University of
Pennsylvania, said it would be hard for the players who appeal the
settlement to win any substantive changes because the judge twice asked
the N.F.L. and the plaintiffs to revise their deal and because she
addressed the various criticisms of the deal.
“My
sense is that the appellate court in this instance will give some
pretty significant deference to Judge Brody,” he said. “This is a bit of
a long shot.”
If
an appeals court overturns part or all of the settlement, the case is
likely to revert to Brody, who is also expected to have jurisdiction
over the cases involving the plaintiffs who opted out of the settlement.
The players who opted out of the deal could settle their differences with the N.F.L. individually.
“The
Seau family rejected the settlement because they want the truth to come
out about the N.F.L.’s decades-long deception to hide the dangers of
concussive brain injuries from the players,” said Steven Strauss, a
lawyer for the Seau family.
Jeff
Pash, the N.F.L.’s general counsel, said in a statement that the
agreement would disburse money to players in need and avoid a lengthy
trial.
“As
a result of the settlement, retirees and their families will be
eligible for prompt and substantial benefits and will avoid years of
costly litigation that — as Judge Brody’s comprehensive opinion makes
clear — would have an uncertain prospect of success,” Pash said.
Lawyers
for the players have argued that the settlement is favorable because it
would have been difficult to beat the N.F.L. in a trial. They noted
that Brody never ruled on the N.F.L.’s argument that the case should be
dismissed because the collective bargaining agreement between the
players and the owners governed this dispute. Other judges have sided
with the league on this point, and the plaintiffs’ lawyers said Brody
could have followed suit, had she ruled on the issue.
In
a trial, the players would have also had to prove that the concussions
they received in the N.F.L. led to their current conditions, a major
hurdle given the lack of documentation. Under the current deal, players
will not have to document that they had any concussions to be eligible
for a payment, the lawyers said.
The
lawyers for the plaintiffs encouraged the players to agree to the
settlement because, they said, it is better to get some money to players
who are sick now and coverage for those who may be sick in the future.
When
the case is fully settled, Brody will have to rule on how much the
lawyers representing the players will be paid. They have asked for, and
the N.F.L. has agreed to pay, $112 million in fees.
The
N.F.L. has also spent millions of dollars to defend itself. From April
2013 to March 2014, the league paid $7.4 million to Paul, Weiss,
Rifkind, Wharton & Garrison, the firm most involved in representing
the league in the case.
Cr : Ken Nelson / New York Times
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