The NFL is one step closer to closing the books on a landmark concussion lawsuit.
U.S. District Judge Anita B. Brody on Monday granted preliminary approval of a settlement that would compensate retired NFL players suffering the long-term effects of head injuries. The agreement figures to cost the NFL several hundred million dollars, although there is no specific limit on how much the league might be required to pay eligible retirees.
Brody had rejected the original proposal in January because the sides had not provided enough evidence that a limit of $675 million in compensatory damages would be sufficient to cover all the injured parties during the 65-year life of the deal. There are more than 5,000 plaintiffs, and the settlement would cover more than 20,000 retirees.
A revised proposal was submitted two weeks ago, and Brody’s approval was widely expected.
“A class action settlement that offers prompt relief is superior to the likely alternative — years of expensive, difficult and uncertain litigation, with no assurance of recovery, while retired players’ physical and mental conditions continue to deteriorate,” the judge wrote.
Retired players will receive packets in the coming weeks that explain the terms of the settlement. They have the ability to opt out of the agreement, making them ineligible to receive money from this agreement but preserving their right to sue the league on their own. If they do not opt out, players will be deemed in favor of the deal and will thereby be giving up any right to sue the league over head injuries.
A fairness hearing on the final settlement has been set for Nov. 19.
Legal experts say players who might choose to opt out of the settlement would face a difficult fight to recover any damages from the league on their own.
“One thing we know by the nature of this litigation is it will take a substantial number of years and substantial expense to do it,” said Stanford law professor William B. Gould, former chairman of the National Labor Relations Board. “I think it’s unlikely that the NFL is going to enter into new comprehensive settlements.”
The only players who would be eligible to receive money under the settlement are those who were retired when Brody gave her preliminary approval. So, for instance, if a player retired Tuesday or later he would not be eligible.
In a written statement, Christopher Seeger and Sol Weiss, co-lead counsels for the plaintiffs, called the agreement “an extraordinary settlement for retired NFL players and their families — from those who suffer with neuro-cognitive illnesses today, to those who are currently healthy but fear they may develop symptoms in the future.”
The NFL got some concessions for lifting the spending cap. Among them, the league can contest an unlimited number of claims and/or monetary awards. Under the previous proposal, the league was limited to 10 such challenges per year.
“We are grateful to Judge Brody for her guidance and her thoughtful analysis of the issues as reflected in the comprehensive opinion she issued” Monday, NFL Senior Vice President Anastasia Danias said in a written statement.
The original settlement was to cost the league about $870 million, which was to include $112 million for the plaintiffs’ lawyers and $90 million for baseline physical exams, concussion research and education, along with associated fees.
The settlement Brody granted preliminary approval to 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. Former players would not need to demonstrate their injuries were caused by football to receive compensation.
The proposed settlement features 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 might receive treatment but not payouts.
In May, seven retired players filed a motion to intervene in the concussion litigation, claiming the settlement proposal didn’t represent the interests of all players.
The players — Roderick Cartwright, Sean Considine, Alan Faneca, Ben Hamilton, Sean Morey, Jeff Rohrer and Robert Royal — said the proposed settlement was a “lousy deal” for the retirees and “a great deal for the NFL and class counsel.”