A second try at settling concussion lawsuits filed by former players against the NFL is in the hands of a judge. The key new element: removal of a $675 million cap on financial awards to ex-players.
How much the league might pay over the 65 years of the agreement is uncertain, though one outside labor lawyer estimates it might be a billion dollars or more.
The immediate impact of removing the damages cap is that legal observers now expect preliminary approval from the judge, who in January turned down an earlier settlement due to concerns about whether it was sufficiently funded.
Preliminary approval would set in motion more legal steps over the coming months and potentially set the stage for final approval – and ultimately payments to the former players suffering from brain conditions such as dementia, Alzheimer's disease, Parkinson's and amyotrophic lateral sclerosis (ALS), also called Lou Gehrig's disease.
"They removed the limit on the monetary amount, so that's probably going to go a long way to convincing the judge now to settle it because it doesn't limit the potential number of people who can recover (monetary awards)," said Joseph Farelli, a New York labor attorney and a partner in the firm of Pitt & Giblin, which is not involved in the case.
Robert Boland, who teaches sports law and management at New York University, also anticipates preliminary approval from U.S. District Judge Anita Brody in Philadelphia.
"I think (the revised settlement) goes a good bit further to actually helping the players in need, removing the cap, putting the funding away, without substantially impairing the NFL in any way," Boland said. "I think it captures the spirit of the initial settlement and probably goes that extra mile."
After Brody's rejection of their initial settlement, both sides said they considered the original $675 million to be sufficient and that they hoped to demonstrate that to the judge. But that argument is gone in the revised settlement.
"I think it's going to come close to costing a billion dollars," Farelli said. "Quite frankly, if the judge thought $675 million wasn't enough, and for her to say that … it must have been pretty low to her. I think one billion dollars is a very conservative estimate as to how much they're going to pay out."
Boland says he has no estimate on what it might eventually cost the league. But the NFL currently has estimated revenues of $10 billion a year and that is expected to rise in coming decades. NFL Commissioner Roger Goodell has said he hopes to see NFL annual revenues reach $25 billion.
"If we were all thinking back at the beginning of the case, and if ($1 billion) was the maximum liability, we would have considered that a victory for the NFL," Boland said.
More than 240 lawsuits filed by more than 4,500 ex-players have been consolidated in a single class-action case.
After preliminary approval, former players would be notified of terms of the settlement and their legal right to opt out if they would instead prefer to continue with individual lawsuits.
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. That hearing is not expected until late fall, possibly November.
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. The players also are not required to prove their conditions are related to football.
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 ALS, $3.5 million for Parkinson's and Alzheimer's and $4 million for a player diagnosed after death with chronic traumatic encephalopathy, the brain disease known as CTE.
The settlement would also include payments for players such conditions as early dementia or a "severe decline in cognitive function."
While the cap on the monetary award fund has been removed, the dollar amounts for awards for specific conditions remained the same as in the initial settlement.
Farelli questions whether those payments are sufficient.
"A common problem anytime you have a long-term settlement involving medical conditions is nobody really has a good idea on how the health care costs are going to escalate over 10, 20 years," he said.
"So the amounts thrown out for people who fortunately are not deceased but people who are going to be suffering from the medical lingering effects, it's still not going to wind up being enough. … A lot of these guys are going to need 24-hour care."
Farelli doesn't expect that to stand in the way of preliminary approval by the judge.
"Those limits (on payments) are not going to be enough, but the thing is they're not so outrageous as to offend the judge."
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