Judge Anita Brody denies preliminary approval for NFL concussion settlement
On Aug. 29, 2013, the NFL and over 4,000 former players who had sued the league agreed to a settlement totaling $760 million. The lawsuits stemmed from the contention that the NFL knew about the dangers of on-field head injuries long before it did enough about them, and that those players affected have not been helped enough in their post-football lives. The settlement came after more than two months of intense negotiations, and was given to Judge Anita Brody for preliminary approval
On Tuesday, Judge Brody denied that preliminary motion, stating in her ruling that she was concerned with a lack of documentation regarding the fairness of the final monetary figure, and whether the players involved would be diagnosed and paid properly based on their claims.
“Counsel for the Plaintiffs and the NFL Parties have made a commendable effort to reach a negotiated resolution to this dispute,” Judge Brody wrote. “There is nothing to indicate that the Settlement is not the result of good faith, arm’s-length negotiations between adversaries. Nonetheless, on the basis of the present record, I am not yet satisfied that the Settlement has no obvious deficiencies, grants no preferential treatment to segments of the class, and falls within the range of possible approval.”
As Judge Brody also wrote, players diagnosed with head trauma-related illnesses would be eligible for fixed monetary awards — $1.5 million for Level 1 Neorocognitive Impairment; $3 million for Level 2 Neurocognitive Impairment; $3.5 million for Alzheimer’s Disease; $3.5 million for Parkinson’s Disease; $5 million for ALS; and $4 million for Death with CTE. While it may seem cold to attach numbers to such horrible circumstances, class-action cases are often partitioned as such.
The problem, as Judge Brody sees it, is that the numbers simply don’t add up.
The Settlement fixes the size of the Monetary Award Fund. It also fixes the Monetary Award level for each Qualifying Diagnosis, subject to a variety of offsets. In various hypothetical scenarios, the Monetary Award Fund may lack the necessary funds to pay Monetary Awards for Qualifying Diagnoses. More specifically, the Settlement contemplates a $675 million Monetary Award Fund with a 65-year lifespan for a Settlement Class of approximately 20,000 people. Retired NFL Football Players with a Qualifying Diagnosis of Parkinson’s Disease, for example, are eligible for a maximum award of $3.5 million; those with a Qualifying Diagnosis of ALS may receive up to $5 million. 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.
More worrisome seems to be the fact that Judge Brody was not provided with the financials she sought.
Plaintiffs allege that their economists conducted analyses to ensure that there would be sufficient funding to provide benefits to all eligible Class Members given the size of the Settlement Class and projected incidence rates, and Plaintiffs’ counsel “believe” that the aggregate sum is sufficient to compensate all Retired NFL Football Players who may receive Qualifying Diagnoses. Unfortunately, no such analyses were provided to me in support of the Plaintiffs’ Motion. In the absence of additional supporting evidence, I have concerns about the fairness, reasonableness, and adequacy of the Settlement.
Judge Brody concluded her ruling by ordering that the documentation be shared with the court, which could lead to a relatively quick approval of the current settlement … or it could be back to the drawing board. In their original talks with the NFL, the players’ side asked for a total amount approaching $2 billion, while the NFL offered next to nothing in return. Sadly, it’s easy to project a quick return to chaos if Judge Brody decides that the books are cooked when she finally sees them.