Football
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Analysis

A federal judge’s unexpected rejection of the settlement in the NFL concussion case earlier this month has drawn praise from lawyers for some of the former football players who allege they’ve been kept in the dark on the details of the deal.

When U.S. District Judge Anita Brody of the Eastern District of Pennsylvania declined to grant preliminary approval of the $760 million agreement, she made clear that she was troubled by the lack of empirical support for the figure and that she was unsure that there would be enough money to cover all of the players with potential claims. Brody ordered the NFL and the co-counsel for the plaintiffs to submit to the court the documentation on which they based the settlement.

That documentation hasn’t been given to the dozens of lawyers representing players in the case who weren’t involved in the development of the settlement.

The co-lead counsel in the case, Sol Weiss of Anapol Schwartz and Christopher Seeger of Seeger Weiss, cited to Brody’s July 8 order foreclosing counsel from “publicly discussing the mediation process” as keeping them from sharing the data with other plaintiffs attorneys.

They are currently in the process of transferring the requested data and documentation to the special master, Weiss said.

On Wednesday, Weiss and Seeger filed a motion with the court seeking guidance “regarding disclosure of this data to the PSC and lawyers who have filed cases in the MDL. Should the court deem it advisable to make the information available immediately, then it shall be so. Should the court instruct us to maintain confidentiality, obviously that ruling will similarly be observed.”

Last week, after a meeting of about 75 plaintiffs lawyers with the co-lead counsel in New York, lawyers from Corboy & Demetrio in Chicago filed a motion with the court asking Brody to direct Weiss and Seeger to share the settlement’s underlying data with the other plaintiffs lawyers.

“Just show me what’s under the hood,” said Jason Luckasevic, one of the first lawyers to file claims against the NFL and who is now representing more than 500 former players. Until he sees the data that underlies the settlement agreement, he can’t advise his clients, said Luckasevic, of Goldberg, Persky & White in Pittsburgh. That sentiment has been echoed by other attorneys in his position.

“I am in a holding pattern above the airport,” he said, until he gets the information.

Brody ordered the documentation from the economists and actuaries whose work the settlement was based on to be given to Perry Golkin, the special master that she appointed in December to help assess the integrity of the settlement.

“She clearly was dissatisfied with the math,” said Michael McCann, director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law.

McCann called Brody’s unusual decision to deny approval a “bold step,” for which a number of former players are surely grateful.

McCann expects that the league and the players will continue to negotiate and present a new agreement to the court. Either the NFL can come up with more money for the fund or be more persuasive with the data and empirical support, he said.

The judge made it clear that she has to be convinced that the settlement is going to be able to cover all of the retired players who will have claims, McCann said. It’s hard to tell two parties who have reached an agreement that it’s not good enough, he said, and highly unusual to reject a settlement that was recommended by a mediator.

In July, Brody sent the parties to mediation with a retired federal trial judge from the Tenth Circuit, Layn Phillips.

At the end of August, they announced that they had reached a settlement and Phillips called it a “historic agreement” in a release issued with an outline of the terms at the time.

“The declaration from 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,’” Brody said in her Jan. 14 opinion rejecting the deal. She next said that the plaintiffs counsel “believe” that there will be enough money in the settlement fund to cover all of the former players.

“Unfortunately, no such analyses were provided to me in support of the plaintiffs’ motion,” she said.

The plaintiffs lawyers have said that they will be able to convince the judge that the settlement is fair and reasonable, said Robert Heim of Dechert, who is representing the NFL. That’s the next step, he said. He was unsure as to whether the league is anticipating further negotiation of the deal.

“They want to wait until the season is over, when there are no eyes on them, for this battle to go down,” said Lance Lubel, of Lubel Voyles in Houston, referring to the NFL and Super Bowl XLVIII, scheduled for Sunday evening in New Jersey. Lubel is representing more than 80 former players in the case.

Lubel also said he is troubled by the nondisclosure of the data underlying the settlement. “It’s unusual for people on the plaintiffs’ side to not give information to the other plaintiffs lawyers,” he said.

Brody hasn’t ruled on the motions over the dissemination of the data to all of the lawyers in the case, but she has signaled her preference for settling the case.

In a two-page order announcing the accord 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.

Although the judge can’t actually change the terms of the settlement herself, she does have significant leverage over it, McCann said.

She can’t tell the NFL to add more money, but, he said, “in an indirect way, she can.”

“Ultimately,” McCann said of the settlement of the case, either with the current agreement or an amended one, “she will approve one.”

Saranac Hale Spencer can be contacted at 215-557-2449 or sspencer@alm.com. Follow her on Twitter @SSpencerTLI.