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Originally published January 14, 2014 at 9:02 PM | Page modified January 15, 2014 at 12:13 PM

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$765M might not cover NFL brain-injury cases, judge says

A federal judge seeks more proof and while the NFL players’ lawyers say actuaries show there will be sufficient cash, the players themselves aren’t so sure.


The Associated Press and The New York Times

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NEW YORK —

As pro football nears a final run of the season, the ugly issue of the physical toll it takes on its players popped back into the headlines Tuesday.

Days before a championship weekend with two appealing matchups ahead of the first Super Bowl in the New York area, the NFL is facing the possibility that it will have to pay more money to reach a settlement on the concussion issue.

More than 4,500 former players had filed suit in 2012, some accusing the league of fraud for its handling of concussions. They include former Dallas Cowboys running back Tony Dorsett and Super Bowl-winning Chicago Bears quarterback Jim McMahon, who suffer from dementia.

The ink on pro football’s $765 million proposed settlement had barely dried last week before ex-players and their lawyers started sifting through hundreds of pages for clues about how the payouts and medical benefits will be distributed and whether there will be enough money for the claims brought by some of the 18,000 retirees.

Since August, when the plan’s outline was announced, some players have insisted that the settlement is too small given that the league generates about $10 billion in annual revenue.

Many others complained that while players with serious ailments like Parkinson’s disease would receive payouts, players with less serious yet still debilitating maladies would not be paid. Yet others were angry that by settling, the National Football League could avoid discussing what it knew about the perils of concussions and when.

On Tuesday, Judge Anita B. Brody of the U.S. District Court for the Eastern District of Pennsylvania rejected the proposed settlement because the league and the plaintiffs’ lawyers had not produced enough evidence to persuade her that the $765 million would cover the potential costs for the 18,000 retirees over the 65-year life of the agreement.

Brody denied a motion that was meant to serve as a preliminary approval for the settlement, seeking more information. The proposed settlement that the judge reviewed, which was released last week, was to form the basis for mailings sent to retired players. The players would then have several months to approve the settlement, or opt out of it.

“I am primarily concerned that not all retired NFL football players who ultimately receive a qualifying diagnosis or their related claimants will be paid,” Brody wrote.

The lawyers for the players have said that economists and actuaries have said there will be sufficient money available.

“Unfortunately, no such analyses were provided to me in support of the plaintiffs’ motion,” Brody said. “In the absence of additional supporting evidence, I have concerns about the fairness, reasonableness and adequacy of the settlement.”

The judge’s ruling will probably force the plaintiffs’ lawyers and the NFL to provide documents proving that there will be enough money to pay for the retired players’ claims. If the judge remains unconvinced, the league and the lawyers could increase the size of the settlement, change the amount of the payouts or limit who might be eligible.

Even if the league and the lawyers for the players convince the judge that there will be enough money to go around, her ruling Tuesday will undoubtedly delay when players may get paid.

The settlement was to include $675 million for compensatory claims for players with neurological symptoms, $75 million for baseline testing for asymptomatic men and $10 million for medical research and education. The NFL also would pay an additional $112 million to the players’ lawyers for their fees and expenses, for a total payout of nearly $900 million.

The awards would vary based on an ex-player’s age and diagnosis. A younger retiree with Lou Gehrig’s disease would get $5 million, those with serious dementia cases would get $3 million and an 80-year-old with early dementia would get $25,000. Retirees without symptoms would get baseline screening and follow-up care if needed.

“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 life span to pay all claimants at these significant award levels.”

Some critics said the NFL was getting away lightly. But the players’ lawyers said they would face huge challenges just to get the case to trial. They would have to prove the injuries were linked to the players’ NFL service and should not be handled through league arbitration. They could end up with nothing.

“If you’re a vegetable and can’t do anything, you’ll get money, but if you’re struggling every day and can’t sleep, you don’t get any money,” said Fred Smerlas, an All-Pro nose tackle who played 14 seasons with the Buffalo Bills, the San Francisco 49ers and the New England Patriots. “This is no settlement, this is window dressing.”

It is unclear how many former players agree with Smerlas and are willing to opt out of the settlement. There are risks. Retirees who opt out would preserve their right to sue the NFL. But there is no guarantee that they will succeed any more than the 4,500 players who sued the league and forced it to settle.

Sol Weiss, a lead lawyer for the ex-players, remained confident the class-action settlement will ultimately be approved.

There is no rule for how many players must opt out before a judge will reconsider a settlement, but legal experts said it would have to be at least a substantial minority.

Brody also took issue with another part of the original agreement, writing in a footnote that she was concerned that the agreement prevents participants from suing the NCAA and other amateur football organizations.

The NCAA clause is apparently designed to prevent plaintiffs from double dipping. Feldman said he was unsure why the NFL would insist on that.

NCAA President Mark Emmert said Monday the NCAA is working with researchers all over the world on concussion and head injuries.

The two sides agreed in late August, just before the season kicked off, awaiting Brody’s decision. The weekly accounting of brain injuries on the field, despite efforts to reduce them, did still make headlines.

The NFL’s Madden Rule requires a player diagnosed with a concussion to be taken to the locker room or another quiet location.

A key to the settlement, which may not be available to those who opt out, is that players will not have to prove that their current neurocognitive ailments were caused by concussions they sustained while playing in the NFL.

This absence of causation, in legal jargon, lowers the bar significantly and makes it more likely that players in need will be able to get medical attention or a monetary payout, said Christopher Seeger, the colead counsel for the retired NFL players.

Doubts remain. Craig Morton, a star quarterback in the 1970s, recently filed a similar lawsuit alleging that the NFL hid from players the dangers of concussions.

“I think most are going to say, ‘This doesn’t address my issues,’ ” Morton said. “We’re very disappointed and upset that guys have to go through this much and families were literally destroyed because of the lack of compassion.”



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