Three months after the $760 million settlement between the NFL and its former players was denied preliminary approval, the terms of what will ultimately be accepted are still unclear.
In a one-sentence order Wednesday, U.S. District Judge Anita Brody of the Eastern District of Pennsylvania again declined to approve the accord, but also denied class action status to some groups of plaintiffs.
The latest order amplifies a January opinion in which Brody ordered the parties to divulge data on which the settlement had been based because she wasn’t convinced that there would be enough money to cover all of the former players who sustained various types of brain injuries while they played for National Football League teams.
“We didn’t know how long it would take,” said Michael McCann, director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. The “judge made it clear that they need to be more precise in their math and projections,” he said.
Considering the size of the potential class of 20,000 members, Brody had said in her January opinion, “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 life span to pay all claimants at these significant award levels.”
More than 4,500 retired players filed suits, which were consolidated by the Judicial Panel on Multidistrict Litigation in 2012 to Brody’s court, and the settlement class is likely to include more than 20,000 members, according to Brody’s January opinion.
In December, the judge had appointed Perry Golkin to be the special master tasked with helping to assess the integrity of the settlement. She ordered the documentation from the economists and actuaries whose work the settlement was based on to be given to Golkin.
“The appointment is warranted because of the expected financial complexity of the proposed settlement,” Brody had said.
The judge didn’t have all of the information undergirding the settlement three months ago, so it’s not surprising that there hasn’t yet been a new agreement, said Thomas V. Girardi of Girardi Keese in Los Angeles, who is on the plaintiffs executive committee. “She’s been getting additional information and weighing it,” Girardi said.
McCann said he thinks a new settlement agreement will be reached later this year and it will ultimately involve a larger lump sum of money and include more specificity on the delivery mechanisms.
Brody has signaled her preference for settling the case. In a two-page order announcing the accord reached in August, Brody said, “From the outset of this litigation, I have expressed my belief that the interests of all parties would be best served by a negotiated resolution of this case.”
“The settlement holds the prospect of avoiding lengthy, expensive and uncertain litigation, and of enhancing the game of football,” she had said.
When she denied preliminary approval in January, Brody had said, “I am primarily concerned that not all retired NFL football players who ultimately receive a qualifying diagnosis or their related claimants will be paid.” But she tempered her concern by saying, “There is nothing to indicate that the settlement is not the result of good-faith, arm’s-length negotiations between adversaries.”
The settlement was announced at the end of August, after Brody had sent the parties to mediation with a retired federal trial judge from the Tenth Circuit, Layn Phillips.
Lawyers for the former football players who brought the suit had characterized the settlement as being quite unique at the time it was announced. The last similarly-scaled injury classwide settlement that came through the Eastern District was the suit against the diet drug called Fen-Phen.
The proposed settlement, which included no admission of liability on the part of the NFL, devoted $75 million to baseline medical exams for any of the nearly 20,000 former players who are likely to be eligible for the class settlement. The bulk of the money, $675 million, was to be kept in a fund from which players could draw according to a weighted assessment of their condition.
“Despite the potential benefits of class actions, their binding effect on absentee parties remains a significant concern,” Brody had said in her January opinion.
After the action is resolved, class members can’t litigate the same claims against the defendant, Brody explained.