Judge Denies NFL Concussion Settlement Over Fears of Inadequacy

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A federal judge on Tuesday refused to sign off on a proposed $765 million class action settlement designed to help thousands of former NFL players receive medical help and compensation for concussion-related brain injuries, expressing concerns that it might not be enough and could exclude a large chunk of players.

U.S. District Judge Anita B. Brody noted that although some 4,800 former players had agreed to the NFL concussion settlement, announced last August, the pool of eligible Class Members may have to expand to cover nearly 20,000 men over the next 65 years who come forward with brain injuries.

The players accused the NFL of hiding the risk of brain trauma caused by repeated head injuries associated with the sport. The class action settlement was designed to fund medical exams, concussion-related compensation, and a program of medical research for retired NFL players and their families. Settlement awards would be based on the ex-player’s age and diagnosis. For example, a younger retiree with Lou Gehrig’s disease would get $5 million, or $3 million if they were diagnosed with serious dementia. An early dementia retiree in his early 80s would get $25,000.

If the settlement fund is divided evenly among 20,000 players, however, each claimant would receive just $38,000.

“I am primarily concerned that not all retired NFL football Players who ultimately receive a qualifying diagnosis, or their related claimants, will be paid,” Brody wrote in papers filed Jan. 14.

“Even if only 10 percent of retired NFL football players eventually receive a qualifying diagnosis, it is difficult to see how the monetary award fund would have the funds available over its lifespan to pay all claimants at these significant award levels,” the decision said.

Calculating the hypothetical situation Brody posits would result in former players seeking awards from the NFL concussion class action settlement in the amount of $3 billion, or roughly four times the amount allocated under the current proposed settlement. Specifically, the decision denying the motion noted that, “unfortunately, no such [economic] analyses were provided to me in support of the Plaintiffs’ Motion…. [and] I have concerns about the fairness, reasonableness, and adequacy of the Settlement.”

Various news outlets have noted that of the more than 4,000 plaintiffs who have had their NFL concussion lawsuits centralized in the Eastern District of Pennsylvania, many are older and have been suffering from various disabilities including Parkinson’s Disease for years. Commentators have argued that they pushed for a class action settlement because time is running out for ameliorating these conditions.

Research on traumatic brain injury, especially in athletes, is still in its infancy. It is unclear what data the economists and actuaries would be using in order to establish projected rates for diagnoses over the course of the 65-year period the class action settlement is supposed to cover.

“We respect Judge Brody’s request for additional information as a step towards preliminary approval,” NFL spokesman Greg Aiello said in a statement. “We will work with the plaintiffs’ attorneys to supply that information promptly to the court and special master. We are confident that the settlement is fair and adequate, and look forward to demonstrating that to the court.”

The former players are represented by class action attorneys including David Frederick of Kellogg Huber Hansen Todd Evans & Figel PLLC, Christopher Seeger of Seeger Weiss LLP and Sol Weiss of Anapol Schwartz Weiss Cohan Feldman & Smalley PC.

The NFL Concussion Class Action Lawsuits are consolidated as In Re: National Football League Players’ Concussion Injury Litigation, MDL No. 2323, U.S. District Court, Eastern District of Pennsylvania. New lawsuits were filed directly into the multidistrict litigation as recently as Jan. 6.

UPDATE 1: The NFL announced June 25, 2014 that it has reached a revised class action settlement agreement that removes the $765 million compensation cap, making approval of the deal likely.

UPDATE 2: A federal judge granted preliminary approval to the NFL concussion class action settlement on July 7, 2014.

UPDATE 3: The NFL concussion class action settlement received final approval on April 22, 2015.

UPDATE 4: On Oct. 23, 2018, NFL players who were set to receive compensation from a traumatic brain injury settlement have discovered that their payout will be reduced to almost nothing.