Federal judge Anita Brody denied a preliminary motion to approve the proposed $765 million concussion settlement between the NFL and retired players Tuesday. What does this mean? Five quick thoughts:
1. The price is not right: Brody isn’t convinced that the centerpiece of the settlement — a proposed $765 million award fund for brain-damaged former football players — is large enough to cover approximately 20,000 NFL retirees over a 65-year period:
I am primarily concerned that not all Retired NFL Football Players who ultimately receive a Qualifying Diagnosis or their related claimants will be paid.6 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.
Brody is right to be skeptical. As ESPN’s Outside the Lines has reported, more than 300 former players already have been diagnosed with brain diseases such as dementia, Parkinson’s, amyotrophic lateral sclerosis (ALS) and chronic traumatic encephalopathy (CTE) – diseases that would qualify them for payments in the proposed settlement’s highest compensation categories, which range from $1.5 million to $5 million. Assume an average $1 million payout per case, and that’s almost three-quarters of the $382.5 million the NFL will make available during the first three years of the settlement.
More to the point, does anyone seriously believe that we’ve seen the last case of neurodegenerative disease among those approximately 20,000 former NFLers? The last CTE death and/or suicide? If anything, disease rates are likely to increase for athletes who played in the modern NFL — bigger, faster athletes generating more force and absorbing harder hits to the head, all while spending more time on the field due to longer seasons, starting tackle football at younger ages and playing through pain and injury with the help of pain-numbing drugs like Toradol (a particularly worrisome drug, given that its blood-thinning properties could make users more vulnerable to brain damage).
Again, here’s Brody:
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.
2. Show her the money: Plaintiffs’ lawyers have claimed that the $765 million is, in fact, adequate. They say they have the economic analysis — read: forecasting models, based on payout amounts and projected rates of brain disease — to prove it.
Oddly enough, Brody notes, the plaintiffs’ lawyers haven’t bothered to share their work:
The Declaration from [settlement mediator] Judge Phillips refers to “analyses conducted by the independent economists or actuaries retained by the parties” to justify his belief that the $760 million to be paid by the NFL Parties “is fair and reasonable and will be sufficient to fund the benefits to which the parties have agreed.” 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. Unfortunately, no such analyses were provided to me in support of the Plaintiffs’ Motion. (Bold added).
Dog ate their homework? Perhaps the plaintiffs’ lawyers have smart, convincing projections to support their position. Perhaps not. The only way to know is to see their math models, and the raw data and long-term assumptions underlying them. Is the settlement actually adequate because the plaintiffs’ lawyers are privy to undisclosed medical information that leads them to believe that only a tiny fraction of retired football players will develop neurodegenerative disease in the next 65 years? Is it adequate because the qualifying diagnostic process has been set up to deny awards to the vast majority of cases? (Note: Hardly unheard of when dealing with health benefits and workers’ compensation for former NFL players.) Do the plaintiffs’ lawyers expect the worst case (like someone who puts aside two years’ salary in savings) or best case (like every Congressional budget plan ever) future?
Right now, we have no idea.
3. A nod to the semi-functional, but still impaired? In a footnote, Brody also says she has “additional concerns” about the adequacy of the proposed settlement’s Baseline Assessment Program fund, an additional $75 million earmarked for:
(a) Giving retired players neuropsychological and neurological exams to determine the type and extent of their brain damage;
(b) Possibly providing medical care, counseling and prescription drug coverage for former players with moderate cognitive impairments.
As I’ve also noted before, football-induced brain damage is not limited to diseases like ALS and CTE. It also includes a wide spectrum of problems, such as memory lapses, debilitating headaches, emotional volatility, depression, nerve pain and adult-onset ADHD. Problems that don’t require nursing home care, but do make it much harder to earn a living, have good relationships with family and friends and generally function as a productive member of society. Problems that can in many cases can respond well to appropriate clinical care, provided said care is paid for.
The current settlement offers little — if anything — for ex-players suffering from the above. I think that’s a huge mistake. Is Brody hinting that she agrees?
4. No bandwagoning? In the same footnote, Brody also expresses concern over what might be the single most bizarre aspect of the settlement: language that shields the NCAA and amateur football organizations from future lawsuits.
Here’s the exact clause, which was brought to my attention last week by friend and former colleague Nathan Fenno of The Washington Times:
Settlement Class Members who receive Monetary Awards will agree, as a condition precedent to receiving Monetary Awards, to dismiss pending, and/or forebear from bringing, litigation relating to cognitive injuries against the National Collegiate Athletic Association and/or other collegiate, amateur or youth football organizations and entities.
“These concerns will have to be addressed,” Brody writes. Good. As I wrote last week, the NCAA already is facing deserved lawsuits for its shameful concussion and brain injury non-policies. Why is the NFL providing legal cover for its de facto minor league? More importantly, why did the plaintiffs’ lawyers agree to this?
Brody wants answers. So should the rest of us.
5. Far from a done deal: Ultimately, the proposed settlement doesn’t simply have to be able to pay for itself. It has to be a fair and reasonable resolution to the dispute at hand — has to solve actual problems, and not just end litigation more quickly so that all the involved lawyers can cash their checks and go home.
When it comes to the concussion suits, major issues remain unaddressed and/or unclear. Are the large individual monetary awards large enough to cover the ultra-high costs of caring for people with neurodegenerative diseases? Are current active players OK with the settlement shutting them out completely from future help or legal recourse? Is it good for society and public health that the “League of Denial” NFL gets to keep its mouth shut about what it knew and when it knew it regarding football and brain damage, all so Roger Goodell can peddle unproven, no-evidence “safer” tackling programs for children instead? Does anyone outside the lawyers who drafted the settlement realize that monetary awards for CTE deaths are limited to former players who die between 2006 and the day the settlement is approved and that if you are posthumously diagnosed with the disease beyond that point, your family gets nothing? Does anyone realize what kind of macabre behavior that might incentivize?
On Monday night, I received a note from the daughter of a former NFL player who has been diagnosed with dementia. Here’s part of what she had to say:
Today my dad needs 24-hour care. We tried to put him into a memory care facility this summer and he was kicked out after just 2 days. He has the mind of a 3-year-old but is strong and imposing physically. We have 24 hour care … private pay … 7 days a week. Under the (settlement) payout grid my dad is entitled to $25,000 … which will pay for about 2.5 months of care for him. I am his (Power of Attorney) and I am mad as hell about this thing!
As is, the settlement is a bad deal. I expect opt-outs. Legal objections. Ongoing, end-around lawsuits filed in state courts. I expect much more to come — in fact, I wouldn’t be completely surprised if the NFL decided to walk away from it, depending on how messy things get.
Nothing is settled.