In a stunning development, U.S. District Judge Anita Brody has rejected the proposed $765 million settlement between the NFL and more than 4,800 retired players (plus 1,000 of their family members) who sued the league over concussions. Brody's central concern was that not enough money was set aside for each of the potentially 20,000 retired NFL players who would be eligible to receive money for the rest of their lives. She also objected to a lack of data in support of the settlement's economic assumptions.
Brody was likely also motivated by the fact that more than 70 retired NFL players -- including former Broncos quarterback Craig Morton and former Seahawks wide receiver Koren Robinson -- have filed concussion lawsuits against the NFL since the proposed settlement was reached last August. Their lawsuits suggest that many retired players are dissatisfied with the proposed settlement and that its approval would fail to represent their views. Along those lines, had Brody approved the settlement, many retired players might have opted out and begun a new wave of concussion litigation against the NFL. Brody was also undoubtedly aware of the public outcry following the Frontline special League of Denial, which aired on PBS in October and concluded that the NFL acted unethically in the past over concussions.
Keep in mind, it is very uncommon for a judge to reject a settlement that not only both sides agreed to, but also was recommended by a neutral, court-appointed mediator (former U.S. District Judge Layn Phillips). Attorneys for the league and the plaintiffs were confident that Brody would approve the settlement. Her decision undoubtedly comes as a major disappointment and thrusts NFL concussion litigation back into the spotlight.
Option No. 1: A new proposed settlement
The good news for the NFL and the retired NFL players who support the settlement is that they can rework it and then petition for Brody's approval. One obvious correction would be to provide more data and documentation to support the settlement's economic assumptions. A second and more controversial step would be to increase the $765 million. Whether NFL owners, who will share in paying this amount, are willing to increase their contributions by a significant margin remains to be seen. A 31 percent increase would bring the settlement amount to just over $1 billion. Given the league's annual revenue of $9 billion to $10 billion, it could send a powerful message to Brody and skeptical retired NFL players if a new proposed settlement at least crossed the billion dollar line.
A reworked settlement could also reallocate some of the money that was intended for medical research to retired players' health expenses. While this move would raise a potentially different set of objections by Brody, it would help to address her central criticism that not enough money is being made available to retired players.
Option No. 2: A return to litigation
If the NFL and retired players fail to reach a new settlement that gains Brody's approval, they would return to litigation, and it would likely take years to play out. It is also not a litigation retired players should necessarily feel confident about. While there may be a strong moral case that the NFL acted unethically in how it treated player concussions, the legal case is fair less certain. Some of the players' claims may be pre-empted by collective bargaining agreements and other claims may be time-barred by statutes of limitation under various state's laws.
Even if the players' claims are heard in court, the NFL would be poised to argue several points. First, it is unclear when in their football careers that retired NFL players -- who also played football at the college, high school and Pop Warner levels -- suffered the harm that led to their health conditions or whether their conditions were caused by non-football factors. The NFL can also raise a potentially compelling assumption of risk argument, namely that players knew the health risk and accepted it. Lastly, the NFL can ask why didn't the NFLPA, whose job it is to look out for players, do more for their members.
Retired players, of course, have their own set of compelling legal arguments. They would be armed with scientific data that the health of retired NFL players tends to be much worse than the health of other men their age. Players would also make the case that the NFL responded with profound slowness to an obvious health crisis and may have even intentionally tried to cloud the science. Still, the legal case against the NFL for concussions is harder than many media critics have asserted.
Michael McCann is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law.