What's Next for the NFL Concussion Settlement?
The federal judge presiding over the case has sent the settlement back for changes. Here's what you need to know about what comes next.
Image by Kyle Terada-USA TODAY Sports
The National Football League doesn't always prevail in court. It only seems that way. Case in point? On Monday, the federal judge overseeing the class action concussion lawsuit brought by more than 4,500 former players against the NFL ordered both sides to make a series of changes to a proposed multimillion dollar settlement in order to enhance the "fairness, reasonableness and adequacy" of the deal.
Make no mistake: this is a positive development for the retirees, the equivalent of crossing midfield after starting a drive in your own end zone. However, it's hardly a touchdown. Here's why, in four quick bullet points:
1. A timely audible: Start with the good news—Judge Anita Brody isn't wholly oblivious to the deal's many, many shortcomings. In her order, she requests that the settlement:
A) Include players from NFL Europe. Under the current deal, overseas play doesn't count toward the "eligible seasons" brain-damaged retirees must accrue to receive varying levels of cash compensation. A former player who spent a single season with the Green Bay Packers would qualify for an award; a player who spent four years banging helmets for the Frankfurt Galaxy would not.
B) Uncap the Baseline Assessment Program (BAP). The settlement calls for all retirees to undergo a battery of neurocognitive tests which will be used to determine and track the extent of their brain damage. However, funding for this program—which also is supposed to cover counseling and prescription medication for qualifying former players—presently is capped at $75 million.
C) Extend the "Death With CTE" diagnosis. According to the terms of the settlement, retirees suffering from the neurodegenerative disease chronic traumatic encephalopathy (CTE)—the condition at the heart of League of Denial, as well as the upcoming Will Smith film Concussion—are only eligible for cash awards of up to $4 million if they have died and been posthumously diagnosed with CTE after January 1, 2006 and before July 7, 2014. Brody wants to extend the latter date to the day of final settlement approval, which could occur later this year.
D) Make it slightly easier to collect awards. The settlement requires players to pay a $1,000 fee to contest rejected claims; Brody wants a hardship provision. She also wants retirees who don't have their medical records due to events such as fires and floods to have better accommodated.
For brain-damaged former players, all of the above are wins. The NFL Europe expansion means that approximately 3,500 retirees who spent some or all of their careers overseas now have a chance to be compensated, and/or receive a larger award. The extra BAP funding ensures that the testing system that acts as the gatekeeper to said awards won't run out of money itself—a potential outcome that would be rather ironic, if utterly Goodellian. The Death With CTE extension likely will prevent a few deserving, suffering families from being shut out, while the hardship and force majeure changes likely will prevent the same for other deserving, suffering former players.
More importantly, Brody's requests reveal that she's paying closer attention to the settlement than she seemed to be prior to last November's fairness hearing, during which she embarrassingly and inexplicably asked a top player lawyer "what's TBI?"—the common medical shorthand for the term traumatic brain injury. An engaged, skeptical judge can only help the retirees, particularly given that ...
2. The deal still stinks: Brody's order doesn't go far enough to address the many, many, many—did I mention their numerosity?—flaws in the settlement. The deal's award system remains arbitrary, unscientific, and seemingly designed to pay out as little cash as necessary to as few players as possible. Players living with CTE, football's industrial disease, get nothing. Neither do the families of CTE-afflicted players who died before 2006, a group that includes the first football player ever diagnosed with the disease, Hall of Fame lineman Mike Webster. The BAP tests and qualifying diagnoses define brain damage too narrowly, excluding a host of symptoms ranging from chronic, debilitating, expensive-to-treat hormonal deficiencies to life-altering mood and behavior disorders; moreover, the deal is written in a way that will allow the NFL to ignore and disregard future medical and scientific advances, even though said dismissiveness is why the settlement exists in the first place.
In other words, the retired players who are leading objections to the deal still have their work cut out for them.
3. The objectors mean business: Before, during, and after the fairness hearing, top player lawyer and settlement negotiator Chris Seeger insisted that while the deal wasn't perfect, it was the best one that could be struck with the mighty NFL. Meanwhile, league lawyer Brad Karp told Brody at the same hearing that the NFL could have crushed the retirees' cases—primarily through the same federal labor law preemption rules that resulted in the recent dismissal of a somewhat similar class action painkiller suit against the league—but instead decided to magnanimously settle because it was "the right thing" to do. (Of course, a slowly decomposing Wilford Brimley was more convincing shilling for Quaker Oats, but I digress).
In successfully prodding Brody to request modifications, the objectors have demonstrated that both Seeger and Karp are wrong: the proposed settlement is neither generous, maxed-out, nor a fait accompli, no matter how much sketchy-looking pre-negotiation collusion and legal fee payola may or may not have gone into the deal. Moreover, the objectors and their lawyers are earning themselves a seat at a probable re-negotiating table—expect them to push Brody, Seeger and Karp for more concessions, and appeal any approved deal that doesn't adequately resolve the issues discussed above. Money and power are still stacked against them; they remain the Rebel Alliance fleet to the NFL's fully-operational Death Star II at the Battle of Endor. On the other hand, the deflector shields just went down. And who knew Teddy Ruxpin and friends could actually, you know, fight?
4. Rising pressure: A recent GQ article on NFL commissioner Roger Goodell confirmed what everyone paying attention already knows: the league couldn't care less about doing the right thing when it comes to retired players' battered brains. To the contrary, team owners only agreed to settle the case because:
... "It was about protecting the brand," recalled [Houston Texans owner] Bob McNair. "Do we want the brand attacked on this for the next ten years? Or do we want to go ahead and take the high road? In effect, we don't think most of these concussions referenced even occurred in the NFL, but we're not going to complain about it" ...
See that? McNair and his fellow owners are such big, expansive men they're not even going to complain that Pee Wee, high school, and college football also cause brain damage—never mind that doing so to defend themselves against legal liability would be unfathomably pyrrhic, given that youth and college football are the NFL's seed corn, the source of the league's talent and outsized cultural relevance.
Following a public relations annus horribilis, the league needs its concussion problem to die down, not flare up. It needs fewer attacks on its brand, including inadvertent ones from owners making the mistake of being honest with GQ writers. It needs the peace and quiet a settlement would provide, not the drip-drip-drip of depressing headlines that a prolonged legal fight would produce. Hurting retirees need an adequate deal, too, and sooner rather than later—as do their lawyers, who look increasingly foolish with each judicial rejection. For her part, Brody likely wants an agreement wrapped up and out of her courtroom, though not at the cost of being remembered as the judge who sold generations of former football players a bill of goods. In short, everyone involved has reason to come up with a better settlement—and Brody's new ruling is a step in the right direction.
Will the NFL take the hint? We'll find out.