Upcoming Fairness Hearing in NFL Concussion Litigation

By Christine Baugh

On November 19, Judge Anita Brody will hold a fairness hearing in the class action lawsuit of National Football League (NFL) Players v. NFL re: concussion injury. This is one of the final steps toward final approval (or rejection) of the settlement in the case. Before final approval Judge Brody must determine that the settlement is fair, reasonable, and adequate for the over 20,000 retired NFL players who are included in the class. A variety of concerns have been brought forth publicly regarding the proposed settlement, which received preliminary approval from Brody earlier this year. Around 140 retired NFL players filed objections to the proposed settlement and around 200 have opted out of the class. This blog post provides a brief overview of the settlement and objections to it.

Settlement terms (summarized):

  • Monetary Awards for those with a qualifying diagnosis. Award amount is determined based on a sliding scale that factors in diagnosis, age, and years played in the NFL.
  • Baseline Assessment Program. Class members who are Retired NFL Players have the option to participate in a baseline assessment and medical monitoring program.
  • Education Fund will be established to promote safety and injury prevention in football.

The long-form settlement document can be viewed here.

Concerns (summarized, non-exhaustive): 

A variety of concerns regarding the preliminarily approved settlement have been brought forth through the media and other channels. These are the types of issues that will likely be discussed at the fairness hearing and that Judge Brody will have to weigh in her determination of whether the settlement is fair, adequate, and reasonable for the class as a whole.

Many concerns regard the categories of diagnosis that are eligible for compensation.

Compensable categories are too restrictive: Under the current settlement agreement, former players can be compensated if they have a qualifying diagnosis of Alzheimer’s disease, Parkinson’s disease, Amyotrophic Lateral Sclerosis (ALS, or Lou Gehrig’s disease), death with chronic traumatic encephalopathy (between January 1, 2006 and July 7, 2014), and what are called Level 2 and Level 1.5 Impairment (these categories represent a pattern of performance on a battery of neurocognitive tests that is 2 or 1.7-1.8 standard deviations below normal, respectively). Some have argued that, although the categories included are important to compensate, there are other prevalent problems such as pituitary dysfunctiondepression, and mood and behavioral disorders that are associated with repetitive head trauma and should also be covered by the settlement agreement. Others are concerned that there are characteristics about the existing categories that are problematic (see next two points below). 

Chronic traumatic encephalopathy (CTE) not compensable in most cases: CTE is a neurodegenerative disease that is thought to result from repetitive brain trauma, like that sustained by NFL players. CTE is a large part of why this action was brought forth. Currently, CTE can only be definitively diagnosed after death. However, current research is investigating in vivo diagnostic techniques. Under the proposed settlement, only those who died between January 1, 2006 and July 7, 2014 and were diagnosed post-mortem with CTE can receive any compensation. One rationale for this action may be to try to prevent suicides of former NFL players seeking compensation. However, many believe excluding CTE outside of the select time window is unfair. In order to reduce the risk of suicide for CTE compensation, rather than eliminating all compensation for CTE moving forward, a stipulation could be made that CTE could be compensable outside of the restrictive window, only if suicide was not the cause of death.

Tests to determine eligibility for compensation are inappropriate: Just last month an expert in dementia and neurodegenerative disease came forward to say that the neurocognitive tests to be used in determining compensable diagnoses in the settlement are inappropriate. In fact, 20 former NFL players with self-reported neurocognitive difficulties went through the battery of exams preemptively to see whether, under the current settlement, they would qualify for compensation. None of them would qualify. Although this is not, in and of itself, condemning that the tests are inappropriate for the class as a whole, in combination with expert opinion it raises questions about the utility of the proposed examination.

Other issues include:

  • Retirees who played in NFL Europe are included in class, but their seasons in the European League do not count toward accredited seasons when determining monetary awards under.
  • The NFL has an unlimited number of appeals to retiree’s claims for compensation.

It will be interesting to see what issues are brought forth formally at the fairness hearing and how Judge Brody weighs the issues in her consideration of the settlements fairness, reasonableness, and adequacy of the settlement for the entire class of over 20,000 former NFL players.

[This post reflects my own views only.  It does not necessarily represent the views of the Petrie-Flom Center or the Football Players Health Study at Harvard University.]

christinebaugh

christinebaugh

At the end of her fellowship year, Christine Baugh was a PhD student in Health Policy at Harvard University. She received her BA in History and Science from Harvard College in 2010 and her MPH from Boston University School of Public Health in 2012, concentrating in Health Law, Bioethics, and Human Rights. At the time, Christine's primary research area was brain trauma sustained through sport, and she has written about the epidemiology, risk factors, policy approaches and implications, as well as the possible long-term effects of repeated brain injury. Broadly, Christine’s research interests involve the interaction between evolving science, policy, and society. While a student fellow at the Petrie Flom Center, Christine explored conflicts of interest in the collegiate sports medicine setting in a manuscript titled "Trust, Conflicts of Interest, and Concussion Reporting in College Football Players."

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