The seven former football players who objected to the settlement with the NFL in the case over concussions are now seeking appellate review from the Third Circuit.
The group filed a petition for review with the U.S. Court of Appeals for the Third Circuit based on inadequacy of the class two weeks after the federal judge presiding over the case granted preliminary approval to the settlement agreement that has no cap on the amount of money the National Football League will have to pay into the recovery fund for former players who sustained head injuries.
“The class, as certified, is doomed,” the players argue in their petition to the Third Circuit. “Additionally, the notice is materially false and the claims process is improperly complex and exclusionary—in violation of due process. Rather than incur the substantial expense and inevitable delay of a fairness hearing and ensuing opinion, we ask that those problems be addressed now.”
They are represented by lawyers from Hangley Aronchick Segal Pudlin & Schiller in Philadelphia and MoloLamken in New York.
About a week after the terms of the settlement were made public in late June, these seven players registered their concerns about the agreement with the court in 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.
In their bid for review from the Third Circuit, they cite Federal Rule of Civil Procedure 23, which governs class actions and allows for an appeal of an order granting class-action certification.
“The district judge, in an order allowing the parties to announce the terms of the settlement last summer, stated that ‘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,’” they said in their petition to the Third Circuit. “We agree. But the resolution must comport with the requirements of Rule 23 and treat all class members fairly.”
They argue that the preliminarily approved settlement doesn’t do that.
U.S. District Judge Anita Brody of the Eastern District of Pennsylvania had rejected in January the first deal that the NFL struck with co-lead counsel for the class of former players, which capped the league’s payment toward a recovery fund for former players at $675 million. She granted preliminary approval to the second deal earlier this month, just over a week after it was presented.
“The revised proposed settlement is a significant improvement over the proposed settlement presented in January,” Brody said in a 21-page opinion. “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.”
That had been the major sticking point for the judge when she rejected the first deal, since she had been troubled by the lack of empirical support for the figure and was unsure that there would be enough money to cover all of the players with potential claims.
The litigation includes claims lodged by more than 5,000 former players and it could reach a total of more than 20,000 former players.
The representative plaintiffs don’t actually represent the class since they don’t share all the same afflictions that result from head trauma, the petitioning plaintiffs argue. They also argue that as science advances over the years, it will likely recognize new diseases and better detect already-known ailments.
“Yet the settlement provides no flexibility for adding to the list of qualifying diseases, compensating new conditions, or compensating pre-death diagnoses of CTE,” they said, referring to chronic traumatic encephalopathy.
“Class members are entitled to representatives who would press for settlement ‘provisions that can keep pace with changing science and medicine, rather than freezing in place the science’ known at the time of settlement,” they said.
The litigation has been marked by discord between the co-lead counsel and lawyers representing various groups of players, who say they have been shut out of the case, most notably in being denied access to the actuarial data used by the NFL and co-lead counsel to formulate the first deal.
In response to the filing with the Third Circuit, co-lead counsel Chris Seeger, of Seeger Weiss in New York, said in a prepared statement, “This petition is entirely without merit, and only serves to confuse and obscure the tremendous benefits retired players will receive if this settlement is approved by the court. The appellants themselves note that, ‘for many of the more than 20,000 class members, time is of the essence. Some will die—from the injuries that are at the root of this litigation—as this process plays out. Others will see their medical conditions worsen.’ Yet this filing may delay compensation and care for retired players who are in dire need of this settlement’s benefits, or who may need them within the 65-year life of the uncapped program.”