By Ken Reed
U.S. District Judge Anita Brody will hold a hearing on November 19th to determine whether or not to grant final approval to a concussion settlement between the NFL and former players.
In mid-October, players had the option of opting out of the settlement and pursuing their own legal remedies. Some did just that, most stayed in, and other groups of players filed court objections to the proposed settlement. The primary objection is that the settlement places unfair limits on who would be eligible for compensation and when.
“The court has its own playbook for managing class action litigation,” said Jim Ryan, an employment attorney.
“They look at what the reaction has been since the preliminary approval and see what the objectors have brought forth as to why the settlement is inadequate. A lot of time, just because it was approved at the preliminary stage does not mean it’s going to be approved at the final stage. … The court is going to be very, very in tune to what the objectors are saying.”
Nevertheless, most experts believe Brody will finalize the settlement. That likelihood is disturbing on many fronts. For one, under the settlement proposal in front of Judge Brody, players with less severe brain damage caused by repetitive blows to the brain likely won’t receive any money from the settlement.
Also, the proposed settlement doesn’t address future scientific and medical advances. Currently, chronic traumatic encephalopathy (CTE) can only be diagnosed after death. However, Boston University researcher, Robert Stern, believes an FDA-approved test for CTE will be available within the next decade. That type of scenario isn’t addressed in the proposed settlement.
Findings from a study prepared by actuaries hired by the NFL show that nearly a third of retired players will develop long-term cognitive problems and that brain-related problems will likely emerge at “notably younger ages” than in the general population.
“It’s a bogus deal,” says Kansas City attorney Ken McClain, who represents two dozen former players.
“A fraudulent deal on its face, completely illusory, designed to pay very few people except the lawyers and the players in the most extreme [illness] category. All of these men saddled with neurological problems throughout their lifetimes are not the NFL’s concern. The NFL’s concern is containing risk, just as if they were [General Motors] and these players are faulty ignitions.”
Just how flawed this proposed settlement is is outlined by Patrick Hruby in a recent in-depth article.
Let’s hope Judge Brody gives the concerns of the objectors full consideration.
— Ken Reed, Sports Policy Director, League of Fans
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