Litigation Update: Approval of Massive NFL Concussion Settlement Upheld: First Major Battle Nearing End but More to Come

By Jack Luckett

Background

This case began in July 2011 when 73 retired professional football players sued the NFL for failing to protect them from the chronic risk of head injuries in football. The NFL removed the case to federal court and more lawsuits followed. In January 2012 these case were consolidated before U.S. District Judge Anita Brody. The consolidated case now includes claims by over 5,000 retired players. After the initial pleading phase, the NFL filed a Motion to Dismiss, alleging that the Collective Bargaining Agreements applied and required arbitration. While the Motion was pending, Judge Brody ordered mediation.

Settlement

In late 2013, the parties reached a settlement totaling $765 million to compensate retired players diagnosed with Parkinson's Disease, Alzheimer's Disease, ALS, neurocognitive impairment, and, to a limited extent, chronic traumatic encephalopathy ("CTE"). In January 2014 the parties sought class certification and preliminary approval of the settlement. Judge Brody rejected the settlement based on concerns that, because of the capped settlement, not all retired NFL football players with compensable injury would be paid. After five months of further negotiations the parties reached a revised settlement that uncapped the fund for compensating retired players. Judge Brody proposed several changes to benefit class members, which the parties accepted, and she issued a final order certifying the class and approving the settlement in April 2015.

Appeal to 3^rd Circuit

Several retired players were unhappy with the settlement and at least 169 opted out, which allows these players to continuing pursuing their claims against the NFL. In addition, numerous class members objected to the settlement and filed an appeal with the 3^rd Circuit, alleging that Judge Brody abused her discretion in approving the settlement. One of the prominent issues in the appeal was how the settlement fund treats claims for CTE, a medical diagnosis in its infancy that can only be confirmed by a post-mortem examination.

The settlement provides a maximum of $4 million in compensation for any retired player that died with CTE on or before April 22, 2015, the date of final settlement approval. However, the settlement provides no compensation for CTE deaths after that date or for a pre-death CTE diagnosis – assuming advances in medical science allow for such a diagnosis. Any CTE diagnosis after April 22, 2015 receives no compensation from the settlement fund even though members of the class – players retiring before mid-2014 – are precluded from pursuing a CTE claim against the NFL.

Despite these concerns about compensation for CTE, a unanimous three-judge panel upheld Judge Brody's settlement approval. The Court noted that the settlement for deceased players with CTE was meant as a proxy for other compensable medical conditions that the deceased player could have recovered for had he lived. Furthermore, CTE has strong comorbidity with other compensable medical conditions, and many of the symptoms of CTE qualify as neurocognitive impairment under the settlement, meaning that living players with CTE have an avenue for recovery.

What Lies Ahead

After the three-judge panel issued its opinion, several plaintiffs asked the 3^rd Circuit to rehear the appeal en banc because of concerns about the CTE settlement. In light of the panel's unanimous decision, it appears unlikely that a rehearing en banc will occur. A petition for certiorari to the U.S. Supreme Court is sure to follow. However, the legal issues are fairly straightforward, so this doesn't look like a case the Supreme Court Justices would agree to hear. Even if they did, the appellate standard of review – abuse of discretion – makes a reversal unlikely.

The NFL concussion settlement is probably a done deal, but will this cause the story to drop from the headlines? Doubtful. There are at least 169 players who retired before mid-2014 that will continue to pursue litigation against the NFL. Most notably, the family of Junior Seau, who was diagnosed with CTE following his suicide in May 2012. In addition, any player retiring after mid-2014 is not bound by the settlement and may pursue claims against the NFL. Finally, the settlement includes a unique provision requiring the NFL and class counsel to meet and confer in good faith every ten years about changing the criteria for compensable medical conditions "in light of generally accepted advances in medical science." CTE will clearly play a prominent role in these negotiations, although the NFL can't be forced to change the terms of the settlement.