There was always a chance the NFL would have to pay retired players more than the $765 million in the concussion settlement filed in August. A “legal Hail Mary,” we called the scenario: if enough additional players sued the the NFL for deceiving them about the game’s true risk, a judge would have no choice but to deem the settlement insufficient. While a wave of more lawsuits might be unlikely, it is certainly plausible given that once the deal is finalized, NFL players will no longer be able to sue the league for hiding the dangers of concussions.
A federal judge, however, foresaw the potential problems with the rigidity and finality of the settlement. On Tuesday U.S. District Judge Anita Brody rejected the settlement, voicing skepticism that $765 million might not be enough to cover the 20,000 retired players eligible for payouts. Even if lawyers on both sides claim otherwise.
“Despite the potential benefits of class actions, their binding effect on absentee parties remains a significant concern, Brody wrote in an opinion issued in federal court in Pennsylvania.”I am primarily concerned that not all Retired NFL Football Players who ultimately receive a Qualifying Diagnosis or their related claimants will be paid.The Settlement fixes the size of the Monetary Award Fund.”
The NFL may have to bump up its offer even before the Hail Mary lands.
Brody criticism of the deal centered on the methodology that produced the $765 million amount. The NFL’s lawyers says it’s enough. The plaintiffs’ lawyers say it’s enough. Accordingly, lawyers on both sides have publicly declared the settlement a victory, a fair and balanced deal, the best thing for all parties involved. They say that independent economists have done the math.
“Unfortunately, no such analyses were provided to me,” Brody wrote. “In the absence of additional supporting evidence, I have concerns about the fairness, reasonableness, and adequacy of the Settlement.”
The judge broke down the numbers:
In various hypothetical scenarios, the Monetary Award Fund may lack the necessary funds to pay Monetary Awards for Qualifying Diagnoses. More specifically, the Settlement contemplates a $675 million Monetary Award Fund with a 65-year lifespan for a Settlement Class of approximately 20,000 people. Retired NFL Football Players with a Qualifying Diagnosis of Parkinson’s Disease, for example, are eligible for a maximum award of $3.5 million; those with a Qualifying Diagnosis of ALS may receive up to $5 million. Even if only 10 percent of Retired NFL Football Players eventually receive a Qualifying Diagnosis, 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.
So Brody has ordered the NFL and the plaintiffs to “share the documentation” that proves the current agreement is adequate.
Lawyers representing the players have asserted that the settlement was necessary because the path to a trial victory would have been long and legally tenuous. The players, many of whom suffer from debilitating cognitive diseases, need the money as soon as possible.
A Wall Street Journal headline, though, said what most of the public thought: “Deal in Concussion Suit Gives NFL a Big Victory.”
The NFL brings in $10 billion in revenue each year and claims to seriously give a damn about the plight of its workforce. This is why fans see referees call penalties anytime a defensive end’s forearm brushes a quarterback’s head, or a safety’s shoulder swipes the facemask of a receiver catching the ball. All this apparent sympathy on the stage, for millions to see… yet nothing more than a paltry, one-time-only, no-guilt-admitted payout behind the scenes.