Having swiftly gone from being rejected as not sufficient in January to clearing preliminary approval last week, the settlement between the NFL and its former players who sustained head injuries is likely on route to final approval, according to court watchers.
“It’s a significant development, but it doesn’t end the debate,” said Michael McCann, director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law, of the preliminary approval.
Of the estimated 20,000 players who will be eligible to apply for benefits from the settlement fund, some will certainly opt out so that they can bring their own suits against the National Football League, he said.
This litigation has been marked by discord among the players’ lawyers, with those representing various groups of players alleging that co-lead counsel for the MDL have shut them out of the case, most notably in denying them access to the actuarial data used by the NFL and co-lead counsel to formulate the first deal.
That deal, which included a $675 million fund from which injured former players would draw, was rejected by U.S. District Judge Anita Brody of the Eastern District of Pennsylvania in January.
Brody had 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 move drew praise from lawyers for some of the former football players who alleged that they had been kept in the dark on the details of the deal.
Brody appointed a special master, Perry Golkin, in December to help assess the integrity of the settlement and ordered the parties to turn over all of the economic and actuarial data on which the settlement was based to Golkin. The settlement that emerged did away with the $675 million cap.
Last week, Brody gave preliminary approval to the revised deal.
“I suspect it will get final approval,” said Robert Boland, a sports attorney and professor at New York University School of Law.
But, he, too, said he expects an “active group of objectors” to emerge. Boland estimated that it could be as high as 20 percent of the total.
Brody’s grant of preliminary approval “bodes well” for final approval, said Andrew Brandt, director of the Jeffrey S. Moorad Center for the Study of Sports Law at Villanova University School of Law. He noted that the removal of the cap was particularly important to the judge.
In fact, Brody had said when she granted preliminary approval, “The revised proposed settlement is a significant improvement over the proposed settlement presented in January.
“The new settlement ensures that there are sufficient funds available to pay all claims through the 65-year term of the settlement and improves the manner in which diagnoses are made to protect against fraud. The original proposed settlement with a monetary fund ‘capped’ at $675 million—no matter how well supported by the parties’ actuarial analyses—entailed some degree of uncertainty of payment over the 65-year term. That risk should not be imposed on the settlement class members,” Brody said.
“I think she was vigilant in making sure, in her mind, the funding wouldn’t run out in what is projected to be 65 years,” Brandt said, referring to the life of the settlement fund.
He, too, said he anticipates a “vocal minority” of players who will opt out, but doesn’t think it will be a high enough number to sour the deal for the NFL.
Shortly before the judge granted preliminary approval, lawyers for seven players entered their objection, arguing that the structure of the settlement closes out some players and is excessively difficult to navigate for those who will remain eligible.
“Given the limitations on who qualifies for compensation and the complex, one-sided process for determining that, it is likely the settlement will cost the NFL less than $765 million,” according to the objection filed by Steven Molo, of MoloLamken in New York, on behalf of seven former players. The $765 million figure includes the award fund as well as the cost of medical testing and education that was laid out in the first settlement agreement.
From the beginning, Brody has signaled her preference for a settlement in the case, saying in a two-page order announcing that the parties had reached the first accord last August, “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.
In her opinion granting preliminary approval to the second settlement, she laid out the many hurdles that the plaintiffs would face on their way to trial, including federal preemption, statutes of limitations, and the doctrine of assumption of risk.
“If the litigation were to continue, plaintiffs would be required to demonstrate that retired players’ injuries were caused by NFL football play, as opposed to unrelated causes, the natural aging process, or concussions or sub-concussive hits experienced in youth or college football. Therefore, the significant legal challenges facing plaintiffs support preliminary approval of the proposed settlement,” Brody said.
Both Brandt and Boland noted the uphill battle faced by objectors to the deal looking to bring their own cases.