A class action settlement between the National Football League and its former players over the lingering effects of head injuries may be sent back to the locker room if a federal judge cannot be convinced that the $765 million agreement is financially viable.
Former players have accused the league of ignoring the dangers associated with concussions, with more than 4,500 of them suing for damages as many suffer severe cognitive illnesses. A settlement last August left many players dissatisfied, leading to a judge saying Tuesday that she isn’t convinced the NFL can fulfill its obligations.
In her ruling, U.S. District Judge Anita B. Brody denied a motion that was meant to serve as a preliminary approval for the August settlement. Players diagnosed with diseases like amyotrophic lateral sclerosis and Parkinson’s disease would be awarded a maximum of $5 million, while the families of players who committed suicide after suffering from chronic traumatic encephalopathy would receive up to $4 million. Retirees without any concussion-related symptoms would get baseline screenings and follow-up care if needed.
But the settlement’s detailed payout agreement would last 65 years and cover as many as 20,000 players, causing Brody to question the finances of the deal. “Even if only 10 percent of retired NFL football players eventually receive a qualifying diagnosis,” the judge wrote, “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.”
Brody’s hand-picked mediator, Layn R. Phillips, a former federal judge, led several months of negotiations last year and has called the settlement fair to both sides. Indeed, even attorneys representing the players expressed confidence in the feasibility of the deal, but ESPN’s Andrew Brandt said neither side gave Brody an analysis of the numbers, and she wasn’t going to take their word for it.
Brody has other concerns as well, including a clause protecting the NCAA from similar lawsuits on the college level. The options available mean the path to a final settlement is anything but simple. Given the judge’s ruling, the two sides could offer more evidence the fund would be stable, change the payout formula, or perhaps have the NFL add more money to the pot. Otherwise, they may have to start over.
If the judge does give preliminary approval, players will have a few months to either accept or opt out of the agreement. If enough players accept the deal, Brody would hold a final fairness hearing for last-minute reviews.
Opting out, though, would allow those players to sue the NFL as individuals, and many former players may do so, as they have expressed their displeasure with the current agreement. Fred Smerlas told The New York Times that many ailments are undervalued: “If you’re struggling every day and can’t sleep, you don’t get any money. This is no settlement; this is window dressing. It’s hard for someone with a bow tie and a pipe to know what’s going on in our heads.”