New proposed NFL concussion settlement submitted, with a cap removed

The proposed NFL concussion settlement is back in the hands of a federal judge — and this time there’s no limit on how much the league might be required to pay eligible retirees.

Under the terms of the previous agreement, which was rejected in January by U.S. District Judge Anita B. Brody, the league was required to pay $675 million for compensatory claims. That proposal was not approved because Brody said it lacked enough supporting evidence to indicate the amount would cover more than 20,000 retirees during the 65-year life of the deal.

The settlement submitted to Brody on Wednesday keeps the same payout structure as the previous proposal, but is uncapped, meaning the NFL will pay whatever is required to honor its commitment.

“If an eligible retired player develops a qualifying condition, the fund will be there for him, period,” said attorney Christopher Seeger, co-lead counsel for the more than 4,500 retired players suing the league over head injuries and lasting neurological damage. The settlement is intended for all retired players, regardless of whether they were named as plaintiffs.

The original settlement was to cost the league about $870 million, which would include $112 million for the plaintiffs’ lawyers and $90 million for baseline physical exams, concussion research and education, and various associated fees.

In the revised settlement, the plaintiffs and NFL contend the original estimate of $675 million should be enough to cover compensatory damages.

The plan would not cover players who are considered active whenever the settlement is approved by the judge. Any agreement ratified by Brody would then be voted on by NFL retirees and could be in place by the end of the year.

Retired players can opt out of the settlement, but Seeger cautioned against that.

“Continuing to litigate against the NFL is a long and uncertain road that could take them many years and ultimately leave the retired players with nothing at all,” he said Wednesday in a conference call with reporters.

The revised agreement provides benefits for retired players and their families, as well as a separate fund to offer all eligible retirees a comprehensive medical exam and follow-up benefits, and an injury-compensation fund for retirees who have suffered cognitive impairment. In cases in which the retiree has died or is unable to pursue his claim, a family member can do so. Former players would not need to demonstrate their injuries were caused by football to receive compensation. The agreement also sets aside $10 million for education on concussion prevention.

As was the case in the previous proposal, the latest deal calls for payouts of as much as $5 million for players suffering from amyotrophic lateral sclerosis, or Lou Gehrig’s disease; as much as $4 million to the families of brain-damaged athletes who committed suicide; up to $3 million for cases of dementia; and lesser amounts for other ailments. Players with milder forms of dementia may receive treatment but not payouts.

“Today’s agreement reaffirms the NFL’s commitment to provide help to those retired players and their families who are in need, and to do so without the delay, expense and emotional cost associated with protracted litigation,” NFL Senior Vice President Anastasia Danias said in a statement. “We are eager to move forward with the process of court approval and implementation of the settlement.”

By giving up on the idea of a capped amount in damages, the NFL gained some advantages in the new proposal. For example, in the first agreement the league was limited to appealing 10 monetary awards each year. There are no such limits in the new proposal.

The revised proposal also expands the league’s ability to identify and act on fraudulent claims.

Not every retiree believes the league has the best interest of its former players at heart.

Hall of Fame guard Joe DeLamielleure said the NFL’s strategy has been to “delay, deny, and hope you die.”

“In my opinion, and hopefully I’m wrong, but you’re going to have to be in a wheelchair or dead to receive any kind of benefit,” DeLamielleure said by phone Wednesday.

In the original proposal, there was a provision that barred anyone who accepted settlement money from suing at any other level of football, from Pop Warner through college. There is no such provision in the current proposal.

“There was a lot of give and take, and the NFL wanted it in the earlier deal,” Seeger said. “In going through the deal, that was one thing we were able to negotiate out as well.”