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NFL removes cap on funds in revised concussion lawsuit settlement

Former NFL players had sued the league saying they didn't know the risks and dangers of head injuries. Photo:

Former NFL players had sued the league saying they didn't know the risks and dangers of head injuries.

It's been nearly a year since the NFL and more than 4,000 retired players agreed to a $765 million settlement on a host of lawsuits tied to the contention that the league knew far more about the dangers of head trauma far earlier than it let on. The final amount, which was seen as a major victory for the league despite the fact that it was estimated to exceed $1 billion with legal and other fees installed, was stalled on review by Judge Anita Brody, who was not happy with the NFL's inability to provide the kind of data needed to determine if the total amount was equitable and would actually cover all the players involved.

"Plaintiffs allege that their economists conducted analyses to ensure that there would be sufficient funding to provide benefits to all eligible Class Members given the size of the Settlement Class and projected incidence rates, and Plaintiffs’ counsel 'believe' that the aggregate sum is sufficient to compensate all Retired NFL Football Players who may receive Qualifying Diagnoses," Judge Brody wrote in January. "Unfortunately, no such analyses were provided to me in support of the Plaintiffs’ Motion. In the absence of additional supporting evidence, I have concerns about the fairness, reasonableness, and adequacy of the Settlement."

In other words, Judge Brody sent everyone back to the drawing board to create a solution that would allow for true reparations over time for those players who believed they were wronged. On Wednesday, the two sides came much closer to a resolution, announcing a revised settlement agreement with far more flexible options on the money provided for care.

"In the revised agreement the NFL’s obligations under the monetary award fund will not be capped at any specified amount," the NFL and class counsel said in a statement. "This means that once the compensation program is established funds will be available to any retired player who develops a qualifying neurocognitive condition. The revised settlement agreement is the result of several months of intensive work under the supervision of presiding Judge Anita B. Brody and the Court’s special master, Perry Golkin. The parties are grateful to Judge Brody and Special Master Golkin for their guidance in helping to reach the agreement submitted for preliminary approval today."

The original settlement had the following provisions:

• A capped amount of $75 million for baseline medical exams

• A $675 million fund to compensate ex-players or the families of ex-players who have suffered cognitive injuries

• A $10 million research and education fund

• A capped $4 million fund for the costs of giving notice to all the members of the class

• $2 million to compensate the Settlement Administrator for the next 20 years

But it was Judge Brody's concern that the terms could not possibly provide for such a potentially large class of litigants, never mind the possibility that other former players might need help and would be excluded because they were not involved in the original settlement.

"The Settlement fixes the size of the Monetary Award Fund. It also fixes the Monetary Award level for each Qualifying Diagnosis, subject to a variety of offsets," she wrote. "In various hypothetical scenarios, the Monetary Award Fund may lack the necessary funds to pay Monetary Awards for Qualifying Diagnoses. More specifically, the Settlement contemplates a $675 million Monetary Award Fund with a 65-year lifespan for a Settlement Class of approximately 20,000 people. Retired NFL Football Players with a Qualifying Diagnosis of Parkinson’s Disease, for example, are eligible for a maximum award of $3.5 million; those with a Qualifying Diagnosis of ALS may receive up to $5 million. Even if only 10 percent of Retired NFL Football Players eventually receive a Qualifying Diagnosis, it is difficult to see how the Monetary Award Fund would have the funds available over its lifespan to pay all claimants at these significant award levels."

Now, with no cap, the NFL can do for former players what it should have done years ago, while adding a dose of integrity to its current anti-concussion rhetoric.

"Consistent with the settlement announced last year, the revised agreement provides a wide range of benefits to retired NFL players and their families, including a separate fund to offer all eligible retirees a comprehensive medical exam and follow-up benefits, and an injury compensation fund for retirees who have suffered cognitive impairment, including dementia, Alzheimer’s, Parkinson’s or ALS," Wednesday's statement said. "Where the retiree is deceased or unable to pursue his claim, a family member may do so on his behalf. While actuarial estimates from both parties supported the $765 million settlement that was announced in August, this new agreement will ensure funds are available to any eligible retired player who develops a compensable injury."

Most importantly of all, former players who need help, and the families of those former players, will actually get it without seemingly inevitable legal delays.

“This agreement will give retired players and their families immediate help if they suffer from a qualifying neurocognitive illness, and provide peace of mind to those who fear they may develop a condition in the future,” co-lead plaintiffs’ counsel Christopher Seeger and Sol Weiss said. “This settlement guarantees that these benefits will be there if needed, and does so without years of litigation that may have left many retired players without any recourse.”

If preliminary approval is granted by the Court, the retired players will be formally notified, and a final approval hearing could happen later in 2014.

~Scooby Axson of SI Wire contributed to this post.

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