Posted January 14, 2014

Judge Anita Brody denies preliminary approval for NFL concussion settlement

NFL safety, Roger Goodell
It could be back to the drawing board for Roger Goodell.

It could be back to the drawing board for Roger Goodell. (Andrew Nelles/AP)

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.

161 comments
DennyCrane
DennyCrane

The settlement was absurdly low considering many of the owners are billionaires and the league itself is rolling in cash. And that's before considering all the taxpayer subsidies the league receives from taxpayers.


No one can possibly predict how many players might be affected by this and at what cost. Time for the owners to focus on the health of those who toil to make them rich.

MrArlington
MrArlington

This is a pure money grab. How can one look at the FACTS below and conclude that the ham-handed players and their union aren't also responsible for their current state.

  1. Medical literature on concussions has been available for as long as the NFL has existed, and players and their union could have availed themselves of it.
  2. The vast majority of NFL players began playing football at a young age, and then participated in thousands of plays and collisions in high school and college games and practices long before they entered the league
  3. Since the 60's the league has been governed by collective bargaining agreements, which require ratification by both owners and players. Since the NFLPA represents both current and former players, players could have sought greater protections for current players and enhanced benefits for retired players.

PritchBomb
PritchBomb

Why can't the NFL just add a clause to all new contracts that states the player releases the NFL of all liability regarding injuries sustained while playing in the NFL. If you want to make millions playing football, you can either take the chance and sign or choose to pursue another career.


Then use the money the NFL is offering now to handle all claims for past and present players. Remember, nobody is forcing anybody to play football and put their future health at risk. These guys are choosing to do it because they want to make millions. 


And before all they keyboard lawyers chime in, I know I'm over-simplifying the whole thing, but I was trying to make a point. Football stinks, watch hockey.

Lohikaarme
Lohikaarme

Like having their fancy stadiums being financed by the tax payers, the billionaire owners will find a way to stick whatever are these expenses to the fans.

frankdatank
frankdatank

People get Alzheimer’s and Parkinson's all the time. Who's to say these guys would not get diagnosed with it even if they never played in the game? Sure the odds go up if you play football (duh) but we all need a scapegoat I guess...

Joebuckster
Joebuckster

This looks bad on the Player's Association for not assessing this properly. Looks like some simple math to me. Of course, it looks even worse on the NFL...

DWJ08
DWJ08

The NFL may need to set aside a billion dollars....every 10 years. It's the cost of doing business, NFL. 

ZoneDog
ZoneDog

the billionaire owners need to come up with a lot more money to get this deal settled and swept under the rug---$700 million will not cut it---it may end up costing $2 billion +  --- that's pocket change for these teams.

Pat11
Pat11

Current players know of the risk yet they continue to lead with their heads and try to ram opponents just like retired players did, so the its hard to say anything would of changed if retired players had all the data from the NFL at the time. Current players get fined them complain about football becoming soft. I think the only reasonable solution is to ban any player after a set # of concusions to prevent any future frivolous lawsuits.

  I was 3 or 4 years old the first time I had a hard hit to head on concrete, even at that age I didnt need no study or medical degree to understand that the head isnt supposed to be hit hard so these retired players excuse of the NFL with holding info is pretty lame.

 On the legal front two parties agree to a resolution then a judge steps in and overturns it, give me a break.

Phroggo
Phroggo

Hey, Judge Brody, better put your helmet on and practice your footwork 'cause you're about to get blitzed by the NFL.

dosborne8
dosborne8

Interesting to see the comments so far.  I compare the NFL's stance to that of the tobacco companies, before they were successfully sued by the states and ordered to pay very large settlements.  Many smokers died of smoking related illnesses but none was able to successfully sue the tobacco industry, until  the tide started to shift against the tobacco industry, and society began to realize the inherent dangers of smoking.  True, many smokers knew the risks involved with smoking and the tobacco industry continually used that argument to sway juries and the courts.  Yes, NFL players knew the inherent risks of playing football but that does not absolve the league of its responsibility for promoting an "unsafe" product.  I would imagine that, over the course of time, the NFL will gradually change to make the game more safe, if that's even possible.  Personally, I believe the league should establish an ongoing fund, to care for future players who will suffer additional trauma.  The irony of this entire ordeal is that the settlement and payment to players will come from the public anyway in the form of higher ticket prices, parking fees etc. so I'm not very sympathetic to the NFL's position anyway.

sam93505
sam93505

This is the part I don't understand... on each and every NFL Riddell helmet a sticker clearly says: 


"WARNING: NO HELMET CAN PREVENT SERIOUS HEAD OR NECK INJURIES A PLAYER MIGHT RECEIVE WHILE PARTICIPATING IN FOOTBALL. Do not use this helmet to butt, ram or spear an opposing player. This is in violation of the football rules and such use can result in severe head or neck injuries, paralysis or death to you and possible injury to your opponent. Contact in football may result in CONCUSSION-BRAIN INJURY which no helmet can prevent. Symptoms include: loss of consciousness or memory, dizziness, headache, nausea or confusion. If you have symptoms, immediately stop playing and report them to your coach, trainer and parents. Do not return to a game or practice until all symptoms are gone and you have received medical clearance. Ignoring this warning may lead to another and more serious or fatal brain injury. "


So, THEY KNEW THE RISK BEFORE STEPPING ONTO THE FIELD!


WTF????

Wild
Wild

NFL coaches and teams and team doctors for decades simply sent concussions back onto the field - they didn't care about the players who entertained the 'fans' in the Arena. Yet the doctors knew the horrible brain-injury from playing with a concussion.  Average 20-something NFL player is not too bright, and most probably did not know about these horrible effects. And now, with more disclosure, a lot of young players are playing sports other than football. College football, we can hope, will revert to the days when real athletes played and millions were not made by the NCAA. That would be a good thing. And the NFL has peaked, and will go into a deserved decline (just as the Roman gladiator contests declined into safer events.)

MrArlington
MrArlington

In the name of safety I feel we should force players to retire after two concussions.

MrArlington
MrArlington

@TimDeGrinneyI don't have an oxygen tank nor  collect social security. Will I still have access to this link?

PhillyPenn
PhillyPenn

@MrArlington Here's why you continue to make a fool of yourself:  The NFL had the obligation to duly inform the players of its own sponsored research that specifically studied brain trauma that was a result of NFL play.  The NFL chose to hide that research from the players and denied them the opportunity to make an "informed decision" based on scientific research that specifically related to NFL game suffered concussions.  Those are FACTS and it's not just me saying that.  A  federal judge is saying that too.  But you, some mook on a comment board, knows more about mitigation obligation than a federal judge.  Like I said, you are a fool.

KennethB.Jacobs
KennethB.Jacobs

@PritchBombHockey isn't any better. It's also a high risk sport  Not only does the head injury risk exist because of the hitting, it also exists because of the fighting. . . and NHL players are afraid to open their toothless mouths.

DennyCrane
DennyCrane

@PritchBombBecause it is a work place safety issue. While there are some "assumed" risks with every job this is extraordinary because of it's severity and inherent danger for any players. Some of the research indicates it doesn't take much trauma to cause the effect. By the way, it will eventually get to hockey or any other entertainment that induces such severe health problems. And are you really comfortable paying a person peanuts knowing that they face the potential for severe health issues just show you can sit on your couch, eat potato chips, and root for the home team?

MrArlington
MrArlington

@LohikaarmeTaxpayers vote to fund the stadiums and the willingly buy tickets and merchandise. 

KennethB.Jacobs
KennethB.Jacobs

@frankdatankIt's easy to sit in front of the boob tube and make a lot of uninformed pronouncements. These illnesses are included because the incidence in football players is higher than for the total population and hence are considered occupational hazards. People pooh-poohed lung disease of coal and asbestos mine workers too.

MrArlington
MrArlington

@ZoneDogWhat the NFL should do is force players to retire after a predetermined number of concussions. I'd love to see the "safety focused" NFLPA's reaction to that calling of their bluff. 

PhillyPenn
PhillyPenn

@Pat11 Why dont you leave Central Nervous System trauma and disease to the grown ups.  

RichLGerhold
RichLGerhold

@dosborne8 At what point do we try to teach our children to be responsible for your own actions? Because the message here is frankly "Screw up your health for money, and then find someone to pay for your medical bills" 

Everything in life has a price.

Our ancestors knew this, but somewhere along the line we as Americans have lost this perception and painted this perverse reality where the rules of life don't apply to us. 

AF Whigs
AF Whigs

@dosborne8:  I agree, an ongoing fund will be absolutely necessary because this subject isn't going away.


I don't get the argument that "the players know the dangers" of playing football.  Yes, they do, of course, but they're taking a risk to make a lot of money (hopefully).  But the NFL is an employer, and they make their billions of dollars on the backs of the players.  The players deserve what they're paid because the teams wouldn't pay it if they couldn't afford it, BUT they also deserve to be protected as much as possible during - and after - their career.


Plus, football is a cold, hard business.  How many guys have career ending injuries - whether head trauma or not - and are instantly cut by the teams?  How many training camp injuries end careers or make it so guys don't get a shot to make a team?


The bottom line for me is that the players put their health and longevity (literally) on the line for the NFL every camp, practice and game so the NFL can look after them.  Of course the can of worms no one really wants to open up is that head trauma is a problem all the way down to Pop Warner.  The NFL, being the cash cow at the end of the rainbow, should fund studies and safety initiatives at all levels (in conjunction with the NCAA, the other huge benefactor of the football system) to make the game safer.   I'll bet all or most NFL players arrive to their first camp having already had a number of head traumas.

This issue is HUGE and isn't going away.  How many Chargers went out with head injuries on Sunday? Three?  Four? 

KidHorn
KidHorn

@dosborne8 I agree with the ongoing fund. I always thought the NFL was getting a great deal. They weren't paying nearly enough. They basically said we'll pay you X now or you can maybe get X+Y after 10 years of litigation. They knew many needed money now and took advantage.

MrArlington
MrArlington

@dosborne8You by far have had the most practical, and well thought out response by anyone on here so far. . The mud slingers on this board could learn from you.

RichLGerhold
RichLGerhold

@sam93505 It's simple. 

Nobody is responsible for their own actions anymore, it's either a genetic predisposition, or someone else who is at fault.

AF Whigs
AF Whigs

@sam93505:  Did you see the Chargers game?  I was only half paying attention but at least two of their players got head injuries from teammates making tackles coming from a different angle.  I doubt that any head injuries are intentional.  It's one of the dangers of the game.


But why does the responsibility fall solely on the players in your mind?  The monolithic, multi-billion dollar corporation that hires these men to run into each other bears no responsibility in this, especially when they've been sweeping the issue under the rug for decades?

bserious
bserious

@sam93505Yes, because every player reads that sticker before putting the helmet on, and even if they did read it, they're more likely to believe the words on that anonymous little sticker than they are going to believe what their experienced coaches - each of whom probably has talked at length, more than once, about how much he "loves his guys" and would do anything for them - tell them is the best way to do things.  Riiiight

KennethB.Jacobs
KennethB.Jacobs

@WildActually the ideal would be to discontinue this high risk sport at EVERY level - completely. It has no place in the school system anywhere. Of my classmates who played the game in high school, a high percentage had residual aches and pains and disabilities that were directly related to their high school football (and basketball) days: knees, backs, shoulders. Now in their 60s and 70s+, these Friday night and Saturday afternoon "heroes" to-day are suffering aches and pains that have interfered with their earning capabilities and will accompany them to their graves . . .  and incidentally. . .  for which they receive no compensation.

bserious
bserious

@MrArlington Does it also bother you that people in West Virginia were told by those in charge of the water that their water was full of nasty chemicals and that they shouldn't drink it, rather than telling people some stuff got in the water but it's nothing to worry about?  I mean every adult knows that water can get contaminated, it should be up to those drinking it to make sure it's clean before they drink it, not the people who are providing the water.

MrArlington
MrArlington

@PhillyPenn@MrArlingtonI said it was a money grab and proceeded to list 3 reasons why the NFLPA shares responsibility. I never said the judge was wrong.

aadaddy
aadaddy

@MrArlington <-----This is what the offspring of a cave troll and banana slug looks like. Dude, get a friggin job.

AF Whigs
AF Whigs

@MrArlington:  IF they can afford the tickets once the new stadium is completed.  Communities are routinely strong-armed by owners to finance stadiums with threats of relocating teams. 

PhillyPenn
PhillyPenn

@MrArlington Is that based on your professional opinion and having studied neurology for years and years or are you just spouting off at the mouth?

AF Whigs
AF Whigs

@RichLGerhold:  But why do the NFL owners and the league get to earn huge amounts of money and bear no responsibility for the health of the players?  If you get hurt at work the employer isn't off the hook (thankfully).

drudown
drudown

@bserious @MrArlington 


Why wouldn't the persons or companies that are knowingly placing POISONOUS chemicals into the People's groundwater (see, 'Gasland' documentary on Netflix or Youtube) be LIABLE for the FORESEEABLE harm that their conduct proximately CAUSED? By your tortured logic, mere "knowledge" that things can fall from buildings somehow absolves a negligent defendant from dropping a piano onto a family of four. "But…'everybody knows' that falling objects can hurt someone." WTF does that have to do with the CAUSE and EFFECT of NEGLIGENT CONDUCT? These companies that are "fracking" our ONLY supply of POTABLE WATER to make a few bucks SELLING NATURAL GAS TO ASIA don't have the unilateral right to POISON our water and then, what, try to "shift" the cost of loss back onto the People because that's the "deregulation" agenda of the GOP? How about we dispassionately reconsider the utter IMPRUDENCE of WASTING tens of millions of gallons of our DWINDLING fresh water supplies to wrest energy out of the Earth via environmentally disastrous "fracking" when LESS ONEROUS MEANS are READILY AVAILABLE? Enough of this "we cannot tell the Corporations what they can and cannot do" just because they BRIBE our politicians. First things first, ALL US CORPORATIONS have to PAY TO PLAY, i.e., pay their PRO RATA SHARE of federal INCOME TAX.


Spare us the "double taxation" red herring. The GOP Congress cannot cite some ILLEGAL PLEDGE to Grover Norquist and "starve" our court system or administrative agencies of revenue when the Founding Fathers granted PLENARY POWER to RAISE REVENUE to Congress. Shut down our OWN GOVERNMENT?


Someone show me the LEGAL AUTHORITY for the House Speaker and GOP members of Congress to WILLFULLY REFUSE to follow the EXPRESS LANGUAGE of Article I, Section 8? There isn't any.


Vote this crooks out. 

PhillyPenn
PhillyPenn

@MrArlington  your Point 1- you're saying the players should have availed themselves of it, obviously the Judge disagrees with you.  Point 2- the study regarded brain trauma based on NFL play and the players previous medical history was not at point in the suit, so again the Judge disagrees with you.  Point 3- this point is irrelevant because the NFL hid the study that could have helped the NFLPA better educate their members, so AGAIN, the Judge disagrees with you.  


So, yes; you were disagreeing with the Judge all along.

MrArlington
MrArlington

@aadaddy@MrArlingtonAt my job now. Unlike you I don't clean toilets for a living and have full access to my computer. Your petty insults place you solidly in the mouth breather crowd.

MrArlington
MrArlington

@PhillyPenn@MrArlingtonYou don't need to study neurology for years and years to know that getting concussions increases your odds of certain diseases. 

MrArlington
MrArlington

@AF Whigs@RichLGerholdThey get paid large sums of money partly due to the fact that it is so such a dangerous game. They are also given the best health care in the world if they do get injured.  At a certain point personal responsibility kicks in and players are culpable.