A federal judge gave preliminary approval Monday to a revised settlement in concussion suits filed by former player against the NFL. That clears the way for ensuing legal steps that will, pending final approval, provide hundreds of millions of dollars in payments over the next 65 years to ex-players suffering from brain impairments.
U.S. District Judge Anita Brody issued her decision in Philadelphia, where more than 240 suits filed by more than 4,500 ex-players have been consolidated in a single class-action case.
Attorneys Christopher Seeger and Sol Weiss, co-lead counsels for the former players, issued a statement: "This is an extraordinary settlement for retired NFL players and their families — from those who suffer with neuro-cognitive illnesses today, to those who are currently healthy but fear they may develop symptoms decades into the future."
The judge, who later will decide whether to grant final approval, scheduled a fairness hearing for Nov. 19 on the revised settlement. Intermediate legal steps, including notification of eligible players, are required in the coming months.
In January, Brody denied a request for preliminary approval of a $765 million settlement that would have included a monetary award fund fixed at $675 million. In her ruling, the judge raised questions about whether the agreement was sufficiently funded.
Both sides said the $675 million was sufficient. But under the revised agreement announced June 25, the cap was removed from the monetary award fund.
All former NFL players retired as of Monday's preliminary approval will be eligible for benefits of the settlement — not just the ex-players who joined in suits. In court documents, the judge estimated there are about 20,000 retired NFL players.
In the coming months, former players will be notified of terms of the settlement and their legal right to opt out if they would instead prefer to continue with lawsuits. If they do not opt out, they will forfeit the right to pursue other similar suits against the NFL.
After the notification period, the judge will hold a hearing to determine whether the deal is "fair, reasonable, adequate, and in the best interests" of the former players. The judge will then have the decision on whether to grant final approval and implement the court-supervised program.
The settlement would include up to $75 million in NFL funding for a baseline neurological and neuropsychological testing for all eligible retired players. It would also include $10 million from the NFL for educational programs to promote safety and injury prevention.
In the suits, the ex-players alleged that for decades the NFL knowingly concealed the risk of concussions and their long-term effects. In the settlement, the NFL makes no admission of guilt to those allegations. The players also are not required to prove that their conditions are related to football.
The diagnoses would be made by a network of physicians approved by the NFL and the players' attorneys.
The settlement includes maximum awards of $5 million for amyotrophic lateral sclerosis (also known as ALS or Lou Gehrig's Disease), $3.5 million for Parkinson's and Alzheimer's and $4 million for a player diagnoses after death with chronic traumatic encephalopathy, the brain disease known as CTE.
The amount of the monetary award will be dictated by age at the time of diagnosis. For example, a player diagnoses with ALS under 45 years of age will be eligible for the maximum $5 million. A player between the ages of 75-79 would be eligible for $1 million and a player diagnoses beyond age 80 would be eligible for $300,000.
The settlement would also include payments for players such conditions as early dementia or a "severe decline in cognitive function."
Under the first settlement (turned down by the judge), the NFL was limited to 10 annual appeals of decisions that a former player was eligible for a monetary award. Under the revised settlement, there is no limit on the appeals to a court-supervised "appeals advisory panel." But the settlement says if the NFL makes "vexatious, frivolous or bad faith appeals" the players' attorneys can petition the court for relief.
Attorneys for the players will get paid, too. The judge will determine that based on a petition by the attorneys provided it does not exceed $112.5 million. That amount will be paid separate.
"These fees and incurred costs will be paid separately by the NFL Parties and not from the Baseline Assessment Program Fund, Educational Fund or Monetary Award Fund," says the settlement notification to ex-players.
Players who do no opt out of the settlement may still raise objections to its terms. They are asked to notify the court in writing. They may also ask the judge for permission to speak at the fairness hearing.
In their statement following the judge's ruling, player attorneys Seeger and Weiss also said, "We have received overwhelming support from the retired player community as they learn more about the guaranteed benefits and long-term security this settlement provides, and we look forward to soon finalizing this agreement."
However, before the judge's latest ruling, a group of seven former players, including Alan Faneca and Sean Morey, filed the first court objection to the revised settlement.
"The Revised Settlement is a great deal – for the NFL and Class Counsel. It is a lousy deal for the retired players, whose rights have been bargained away without adequate or independent representation," those players said in an objection recently filed in federal court in Philadelphia.
They contend the settlement is "anything but fair," and that it has "fatal" defects, including that it excludes some classes of players, was not the product of "arm's length negotiations,'' that the proposed notification document for players is "false and misleading" and that the claims process is "onerous and confusing."
Their objection states: "With much fanfare, Class Counsel proclaim they "have lifted the cap" and thereby addressed any concern about the settlement fund's adequacy. Thus, they contend, this Court should grant preliminary approval. But cap or no cap, the Revised Settlement comes nowhere near being fair, adequate, and reasonable."