Bloomberg//February 2, 2015
//February 2, 2015
The National Football League’s $765 million settlement over concussions came up short a second time as a federal judge said she wants more changes before she’ll approve it.
U.S. District Judge Anita Brody in Philadelphia, in an order the day after the New England Patriots defeated the Seattle Seahawks in the Super Bowl XLIX, said the NFL should expand payment for some claims by the approximately 5,000 players who have sued the league seeking damages for head injuries.
Brody was swayed by the objections of dozens of former players and their families who said the deal wasn’t good enough, especially for those with symptoms of chronic traumatic encephalopathy, or CTE, a brain disease diagnosed only after death.
The settlement should allow payment to retired players who died from the disease after the agreement’s July 7 preliminary approval date and before its final approval, Brody said Monday in the order, in which she suggested several changes.
The changes “would enhance the fairness, reasonableness, and adequacy” of the proposed settlement, Brody said in her three-page order.
In addition to expanding claims for CTE, Brody also wants the settlement to provide credit for seasons played in the NFL’s European league and “reasonable accommodation” for some class members without medical records supporting a qualifying diagnosis.
Brody wants lawyers for the league and players to address the issues before Feb. 13 or offer explanations as to why they’re unwilling to agree to the amendments.
In the lawsuits consolidated before Brody, players accuse the NFL of negligence and failing to inform players of the link between repeated traumatic head impacts and long-term brain injuries.
“The judge did not reject the settlement,” Brian McCarthy, an NFL spokesman, said in an email. “The judge asked both sides to address several issues before she grants final approval.”
Brody rejected an early version of the settlement in January 2014, citing concerns that a $675 million compensation fund may be insufficient to cover the class for the life of the accord’s 65-year-term. In June, the NFL agreed to lift the cap on cash awards while tightening restrictions for audits of payments and damage award appeals. Medical monitoring and educational programs would bring the total value of the settlement to $765 million. The league estimates it will have to pay out no more than $900 million.
In July, Brody granted preliminary approval to the revised deal that included cash for retirees suffering from a list of qualified injuries including Alzheimer’s disease, Parkinson’s disease and amyotrophic lateral sclerosis, known as ALS or Lou Gehrig’s disease.
While more than 99 percent of retired players in the class approved the accord, dozens of players and their relatives criticized it. The deal fell short, especially for players with symptoms of CTE, a brain disease diagnosed only after death, critics said.
The disease, which has been linked to the suicides of Pro Bowl linebacker Junior Seau and Chicago Bears safety David Duerson, mimics symptoms of Alzheimer’s, Parkinson’s and amyotrophic lateral sclerosis, or ALS.
Under the settlement, families of players who died from CTE before the deal’s July 7 preliminary approval date could receive as much as $4 million each. Those living with symptoms of the disease, especially those exhibiting mood and behavioral changes including suicidal thoughts, stand to get nothing.
Lawyers for players who helped draft the accord said that while the deal may not be perfect, it’s fair. Players faced huge risks in continuing the litigation, including the league’s argument that claims are barred by labor agreements, Chris Seeger, the lead plaintiffs’ lawyer who helped negotiate the deal, said in November. Brody ordered the parties into mediation in 2013 before ruling on the issue.
The league was prepared to contest the litigation for years, its lawyer, Brad Karp, said in November. Without a settlement, retired players faced significant risk of defeat considering the NFL’s strong legal defenses, Karp said.
The case is In re National Football Players’ Concussion Injury Litigation, 12-md-02323, U.S. District Court, Eastern District of Pennsylvania (Philadelphia).
With assistance from Eben Novy-Williams in New York.P