NFL Files New Concussion Settlement in Lawsuit with Former Players

Tim Daniels@TimDanielsBRFeatured ColumnistJanuary 14, 2014

USA Today

Updates from Friday, August 1

ESPN's Mark Fainaru-Wada reports that several retired players are requesting to see the data behind the settlement: 

More than two dozen retired NFL players and their families are requesting the release of data that would reflect the projected incidence of brain damage in ex-players -- material they say they need to determine whether to accept or reject the terms of a proposed concussion settlement between the league and players.

This week, attorneys for former Chicago Bears defensive back Dave Duerson filed a motion asking the U.S. district judge overseeing the concussion settlement case to release the information. The lawyers cited "grave concerns about the soundness and reasonableness of the proposed settlement that has been given preliminary approval by this court."

On Thursday, a lawyer for another two dozen players filed a similar motion asking the court to release the medical, actuarial and economic data used by lead attorneys for both sides in shaping the proposed settlement.

"That this information is currently off limits to the lawyers charged with advising their clients as to the fairness, reasonableness and adequacy of the settlement, and whether their clients should opt in, object or join the settlement, defies logic ...," wrote attorney Dwight Bostwick on behalf of the 24 players.

Updates from Tuesday, July 22

ESPN's Lester Munson reports that several former players are unhappy with the league's current settlement:

Seven retired players launched on Monday the most aggressive attack yet on the proposed NFL concussion litigation settlement. In a highly unusual action, the players asked a higher court to intervene in the settlement process and reverse what they say was an "erroneous" preliminary approval of the proposal on July 7 by a federal court judge in Philadelphia.

Clearly unhappy with the proposal and the fact that Judge Anita Brody ignored their earlier objection when she issued her preliminary approval (she said the proposal was "unopposed"), the players told the U.S. Court of Appeals for the Third Circuit (also in Philadelphia) that there were "conflicts of interest among players," the procedure for making a claim was "improperly complex and exclusionary" and the attorneys who negotiated the settlement for the players are demanding a fee of $112.5 million "while doing very little work."


The players assert in their petition that the failure of the settlement proposal to compensate them puts them in conflict with other players who would collect under the settlement, a conflict that makes any class-action settlement impossible. To qualify for a class action, these players say, all players in the class of 20,000 retired NFL athletes must be treated equally.

In addition to their objections to the terms of the settlement, the players urge the high court to consider their appeal because, for many of the retired players, "time is of the essence." Some players "will die from the injuries that are the root of the litigation, and others will see their conditions worsen." Considering their objections now, the players say, would avoid a "delay of over a year while a settlement marred by a fatally flawed class, as well as other defects, winds its way through the system."

Updates from Monday, July 7

Albert Breer of reported the latest on the settlement between the league and its former players:

Mike Florio of Pro Football Talk also broke down a key part of the settlement:

The settlement as preliminarily approved provides no benefits for living players who have CTE but none of the other conditions.  Even if/when a test is developed for reliably diagnosing CTE in the brains of living patients, the living retirees from the NFL will get nothing until they die.

When they die, their estates will be eligible to receive up to $4 million, based on factors that will increase or decrease the award, such as years of NFL service.  But any living player with CTE but without early Dementia, moderate Dementia, Alzheimer’s Disease, Parkinson’s Disease, or ALS gets nothing during his lifetime.

Updates from Thursday, July 3

Lester Munson of ESPN reported on players who do not agree with the latest concussion settlement between the league and former players:

Seven retired players who played a total of 66 seasons in the NFL attacked the proposed settlement of concussion litigation on Wednesday, asserting that the deal "comes nowhere near being fair, adequate and reasonable."

In their "objection" to the proposal filed in federal court in Philadelphia, the players stated that their "class counsel," the attorneys who negotiated for the players, produced a "lousy deal" for them and "a great deal for the NFL and class counsel."

The players' 58-page critique of the settlement proposal is the first formal objection filed against the settlement, according to Steve Molo, the attorney who represents the group. "We are asking the judge [Anita Brody of U.S. District Court] to do what she did before -- to refuse to grant a preliminary approval."

The players who filed the objection to the proposed settlement include Sean Morey, a special teams player who played for five teams between 1999 and 2010; Alan Faneca, an offensive lineman who played 13 seasons mostly with the Steelers between 1998 and 2010; Ben Hamilton, an offensive lineman who played for two teams between 2001 and 2010; Robert Royal, a tight end who played for three teams between 2002 and 2010; Rock Cartwright, a fullback and kick returner who played for two teams between 2002 and 2011; Jeff Rohrer, an outside linebacker who played for the Cowboys between 1982 and 1989; and, Sean Considine, a strong safety who played for five teams between 2005 and 2012.

Updates from Wednesday, June 25

Albert Breer of provides a statement from the NFL on the revised settlement filing for the concussion lawsuit:

The National Football League and counsel for the retired player plaintiffs announced today a revised settlement agreement in the NFL concussion litigation pending in the U.S. District Court for the Eastern District of Pennsylvania. In the revised agreement the NFL’s obligations under the monetary award fund will not be capped at any specified amount. This means that once the compensation program is established funds will be available to any retired player who develops a qualifying neurocognitive condition.


While actuarial estimates from both parties supported the $765 million settlement that was announced in August, this new agreement will ensure funds are available to any eligible retired player who develops a compensable injury. “This agreement will give retired players and their families immediate help if they suffer from a qualifying neurocognitive illness, and provide peace of mind to those who fear they may develop a condition in the future,” said co-lead plaintiffs’ counsel Christopher Seeger and Sol Weiss. “This settlement guarantees that these benefits will be there if needed, and does so without years of litigation that may have left many retired players without any recourse.” “Today’s agreement reaffirms the NFL’s commitment to provide help to those retired players and their families who are in need, and to do so without the delay, expense and emotional cost associated with protracted litigation. We are eager to move forward with the process of court approval and implementation of the settlement,” said NFL Senior Vice President Anastasia Danias.

Breer notes a concussion education fund will be added as part of the settlement along with the differences between this and the first agreement:

Kevin Seifert of ESPN highlights more details:

Bleacher Report's Adam Lefkoe, Chris Simms and Matt Bowen discuss concussions in the NFL: 

Updates from Thursday, April 17

Anita B. Brody of the Associated Press reports that the judge overseeing the NFL concussion-linked lawsuits is still working with lawyers on adding more money to the case:

A judge overseeing thousands of NFL concussion-linked lawsuits says lawyers are still working to address her concerns about a proposed $765 million fund.

U.S. District Judge Anita Brody says she fears the fund may not be large enough to cover up to 20,000 retired players for 65 years.

Lawyers have given her more data to weigh since she rejected the deal on a preliminary basis in January.


The judge says in a Thursday order the parties are continuing to work with the court "to address the issues." She also has clarified an order this week denying approval of the deal was not a new ruling. She says she was simply adding the January ruling to some case files.

Updates from Saturday, Jan. 25

ESPN's Steve Fainaru and Mark Fainaru-Wada report lawyers are currently involved in an on-going dispute surrounding the settlement details:

One week after a federal judge refused to grant preliminary approval of the NFL concussion settlement, the lead negotiator for the players is engaged in an increasingly bitter campaign to beat back opposition to the $765 million deal.


Legal experts said the growing fissures among former players and lawyers could undermine the settlement after Judge Anita B. Brody's surprise ruling, which requested more information amid concerns there is not enough money to cover all qualifying players.

---Original Text---

The $765 million concussion settlement reached between the NFL and its former players has suffered a setback after failing to receive approval in the U.S. District Court.

Albert Breer of the NFL Network reports Judge Anita Brody refused to give the settlement preliminary approval after review:

After months of negotiations, the NFL reached a settlement with more than 4,500 former players in a joint lawsuit related to concussion-related injuries back in late August. Breer reported compensation to all ex-players amounts to $675 million of the settlement, with $75 million going to medical exams and another $10 million going to research and education. The former players went into negotiations seeking more than $2 billion to settle, per Steve Fainaru and Mark Fainaru-Wada of, but got far less. 

Breer states today's decision doesn't mean the settlement won't eventually be accepted by the court, but rather the judge wants further research into the numbers to make sure it's financially sound before signing off on the agreement:

ESPN's Andrew Brandt adds that neither side provided any analysis of the numbers from economists to support their belief that the settlement would be enough to support all the former players who may seek assistance:

He also passed along some remarks from Judge Brody:

Brandt also outlined what's next in the case:

The decision comes as concerns continued to be raised about the settlement. Ken Belson of The New York Times reported some players were considering an option to opt out of the deal even before the judge's latest decision.   

He included comments from Fred Smerlas, a former player who was concerned not every player in need of help would get it based on their condition:

"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's hard for someone with a bow tie and a pipe to know what’s going on in our heads."

Mike Florio of Pro Football Talk noted in December that former quarterback Craig Morton had already decided to opt out of the deal. He sued the NFL on the basis that the league should have known more about the risks involved with head injuries:

On Tuesday, Morton sued the NFL and NFL Properties in California federal court. The 11-count, 373-paragraph complaint, a copy of which PFT has obtained, alleges that the NFL knew or should have known the risks of repeated blows to the head. The complaint specifically alleges that quarterbacks like Morton historically have been more exposed to head injuries, given that defensive players try to "sack" them.

It's unclear how long it will take for the lawyers on both sides to satisfy Judge Brody's remaining questions, but the sensitive issue isn't being taken care of as quickly as the NFL hoped.


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