Brain Injury Settlement Should Cost NFL More

(CN) - A $760 million settlement is not enough to compensate the more than 20,000 retired football players suffering from concussion-borne degenerative diseases, a federal judge ruled.

Although concussive and subconcussive head injuries often lead to Alzheimer's, Parkinson's and Lou Gehrig's diseases; early and moderate dementia; and chronic traumatic encephalopathy (CTE), which can only be diagnosed postmortem, the class action alleges that the NFL concealed those risks and failed to protect players from them.

More than 4,500 former NFL players have filed similar lawsuits since July 2011, which were ultimately consolidated as a multidistrict litigation in Philadelphia on Jan. 31, 2012.

During mediation last year, the parties reached a settlement for 20,000 retired players, representatives of deceased or incapacitated players, and close family members.

The class would include players who either were or were not given a "qualifying diagnosis" before the preliminary approval and class certification order, and representatives of deceased players who were diagnosed before death or who were diagnosed with CTE postmortem.

Under the settlement, the NFL would shell out $760 million over the course of 20 years, some $675 million of which will provide cash awards to players with qualifying diagnoses for 65 years, though the NFL agreed to increase that amount by an extra $37.5 million if need be.

While players diagnosed with Alzheimer's or Parkinson's may receive up to $3.5 million, the awards for those with dementia are capped at $1.5 and $3 million. Players with Lou Gehrig's disease, also known as amyotrophic lateral sclerosis or ALS, would receive a maximum of $5 million, and those who died with CTE would reap $4 million.

Awards may shrink, however, based on age at diagnosis and how many seasons played.

The $760 million also includes a $10 million education fund and $75 million to cover baseline neuropsychological and neurological evaluations and treatment for retired players.

The NFL also agreed to pay up to $116.5 million in notice expenses and attorneys' fees and costs, plus half of the annual salary for a special master who could earn up to $200,000.

Class members will be barred from suing the National Collegiate Athletic Association and any other amateur football organizations for cognitive injuries, according to the settlement.

U.S. District Judge Anita Brody refused last week to grant the unopposed settlement preliminary approval, however, after finding that the $675 million fund could provide only a few hundred players with awards.

"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 settlement fixes the size of the monetary award fund. It also fixes the monetary award level for each qualifying diagnosis, subject to a variety of offsets. In various hypothetical scenarios, the monetary award fund may lack the necessary funds to pay monetary awards for qualifying diagnoses."

Judge Brody added: "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."

The ruling also notes that Brody never received the expert analyses on which the mediator, retired U.S. District Judge Layn Phillips, relied to find the settlement "fair and reasonable."

"Plaintiffs allege that their economists conducted analyses to ensure that there would be sufficient funding to provide benefits to all eligible class members given the size of the settlement class and projected incidence rates, and plaintiffs' counsel 'believe' that the aggregate sum is sufficient to compensate all retired NFL football players who may receive qualifying diagnoses," Brody wrote. "Unfortunately, no such analyses were provided to me in support of the plaintiffs' motion. In the absence of additional supporting evidence, I have concerns about the fairness, reasonableness, and adequacy of the settlement."

The parties must share those records through the special master, according to the ruling.

Brody also declined to certify the class.

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