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CTE researcher says NFL's concussion settlement is not enough
3:20 | NFL
CTE researcher says NFL's concussion settlement is not enough
Monday April 18th, 2016

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Nearly five years after the first concussion lawsuit was brought against the NFL, the league on Monday secured an important court ruling that should mostly end the legal controversy of this still-unresolved health crisis. As expected, a panel of Judges Thomas Ambro, Thomas Hardiman and Richard Nygaard on the U.S. Court of Appeals for the Third Circuit unanimously affirmed an April 2015 order by U.S. District Judge Anita Brody that approved a class action settlement between the NFL and more than 20,000 retired NFL players. The settlement, which could cost the NFL about $1 billion over 65 years, calls for varying levels of compensation for retired players depending on their age, injuries and NFL experience. The settlement is expected to pay retired players, on average, around $190,000 and up to $5 million. Pending further court review, attorneys who represented the retired players are set to receive $112.5 million for their work.

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The Third Circuit’s order is a likely permanent setback to 95 “objectors,” retired players who formally objected to the settlement on grounds that it fails to sufficiently serve the class of people it claims to represent. The objectors can now petition for a “rehearing en banc,” where they would seek review by other judges on the Third Circuit, but such rehearings are rarely granted—especially when, as here, the three-judge panel votes unanimously. The objectors would face similarly low odds should they seek review by the U.S. Supreme Court. In all likelihood, the NFL has settled with approximately 99% of retired players, with a couple of hundred retired players who opted out as the exceptions. That small group of players can continue their existing cases against the NFL or preserve their right to sue the NFL in future actions.

Why the appeals court approved the settlement

Perhaps the most important reason why the three-judge panel approved the settlement concerns the applicable standard of review. The panel reviewed Judge Brody’s decisions under the “abuse of discretion” standard, which would require a finding that the judge made a “clearly erroneous finding of fact, an errant conclusion of law or an improper application of law to fact.” Put more basically, the panel could not have reversed Judge Brody’s merely on grounds that it disagreed with her—the panel needed to conclude that this very experienced judge made a significant error.

The panel found no such error.

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Take the issue of whether the player representatives in the class action brought claims that were typical of the class. In a class action, the persons selected by attorneys to serve as class representatives must have interests “typical” to others in the class. This ensures that the representatives have to look out for the thousands of other people who could stand to benefit from the ruling. As the panel stressed in its opinion, typicality has a low threshold; class representatives don’t need to share identical backgrounds or problems as others in the class.

Here, the two class representatives are 42-year-old Shawn Wooden and Kevin Turner, who died last month at the age of 46. Wooden, who played nine seasons in the NFL, does not suffer from a neurological diagnosis that qualifies for the settlement funds, but the attorneys selected Wooden because he—like thousands of other retired NFL players—might receive such a diagnosis in the future. The attorneys also selected Turner, who played eight seasons in the NFL, because he was a retired player living with a qualifying neurological diagnosis (ALS) and thus represented the many challenges faced by players living with those diagnoses.

Judge Brody found that the very different circumstances of Wooden and Turner adequately covered the spectrum of existing and potential problems for retired players. Writing for the panel, Judge Ambro agreed, highlighting that “even if [Wooden and Turner]’s injuries are unique to their time in football, the NFL’s alleged fraudulent concealment of the risks of head injuries is the same.”

Why retired players should feel good about the Third Circuit’s decision

Proponents of the settlement can argue several points. First, assuming the settlement is not endangered by other appeals (mentioned above), it will ensure that retired players with qualifying neurological problems receive a substantial amount of money in a timely manner. For some retired players facing life-threatening health problems, the money could literally prove vital. This is an important point. If the litigation continues for years, some retired players who would have received compensation during that time won’t receive it, and some of them will suffer adverse health consequences as a result.

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Second, the plaintiffs’ attorneys secured a lucrative settlement in a litigation that would face difficult odds if it ever goes to trial. While retired players have laid out a compelling moral argument that the NFL should have (to put it mildly) been more forthcoming and caring, the retired players’ legal argument is not as convincing. Specifically, the NFL can argue that the retired players’ claims are preempted by collective bargaining agreements assented to by those players’ exclusive bargaining representative, the National Football League Players’ Association. The CBAs contain language that, in so many words, states that grievances concerning health matters must be addressed through arbitration, and thus any related lawsuits are “preempted” from being heard by courts. If a judge agrees with a preemption defense in a case, the judge will dismiss the case. While the preemption defense is a weaker response to players who played while there was no CBA in place from 1987 to ’92, it still might prove effective for the NFL. Preemption served as a compelling defense for the NFL in the initial concussion cases brought against the league.

In addition to the preemption defense, the NFL is also armed with a causation defense. To prevail in a case against the NFL, retired players must demonstrate (among other things) that their long-term neurological injury occurred due to playing in the NFL. On the surface this might seem easy to show, especially for players who played many years in the NFL and who clearly suffered neurological harm during NFL games. But keep in mind that before his first practice, an NFL player already participated in thousands of plays and contact drills while in college and high school. A player might also partake in non-football activities—such as playing other contact sports or becoming exposed to certain toxins and environmental conditions—that might pose the threat of long-term neurological problems. In court, the NFL would contend that it is impossible to reliably know why any one player suffers from a neurological problem.

To be sure, data showing that the concussion problem was worse than what the NFL let on would help players show causation in general. But that data wouldn’t necessarily establish why any particular player suffers from a long-term neurological problem.

Why retired players should be disappointed in the Third Circuit’s decision

The most obvious reason why retired players should be displeased by the affirmation of the class action settlement is that, in the view of some, the NFL is essentially off the hook. A league that takes in more than $13 billion a year in revenue will only have to pay out approximately $1 billion over the next 65 years (which works out to about $15.4 million a year, and even less when accounting for inflation). The $1 billion figure is not set in stone and could prove lower or higher depending on a number of factors. A common sense reaction to these numbers is that the NFL could—and should—pay more to the players who are mainly responsible for making the NFL so compelling.

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No doubt anticipating this line of critique, Judge Ambro admonished that unwinding the settlement in hopes of a bigger payday would “risk making perfect the enemy of the good.” In other words, if the panel reversed the decision on grounds that the settlement should ideally be more favorable for players, the panel would have risked a situation where a revised settlement proves worse for retired players, or where players take the NFL to court and lose. To be sure, some players would disagree with that favorable portrayal of the current settlement.

Some retired players are also clearly dissatisfied with how the settlement treats chronic traumatic encephalopathy (CTE). At a recent Congressional panel, NFL senior vice president for health and safety Jeff Miller acknowledged that there is a link between playing football and suffering CTE—the first time a senior league official made such a connection. At this time, CTE can only be diagnosed after death. As a consequence, the settlement only compensates families of players afflicted with CTE after those players die. Advances in science might eventually make CTE diagnosable in living people, but the settlement is not designed to provide compensation for retired players diagnosed with CTE while they are alive.

The objectors hoped that Miller’s acknowledgment would be grounds to block the settlement. In a March 15 letter to the U.S. Court of Appeals for the Third Circuit, Steven Molo, an attorney for the objectors, wrote that Miller’s admission reflected “a stark turn” from the NFL’s previous filings in court in regards to CTE. However, in a response letter, Paul Clement, an attorney retained by the NFL, asserted that Molo misrepresented the terms of the settlement. As Clement highlighted, the settlement does in fact compensate the “serious, objectively verifiable neurocognitive and neuromuscular impairment” in living players who suffer from conditions associated with CTE, although the settlement does not compensate for CTE itself among living NFL players.

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The panel was unconvinced by the objectors’ arguments. Judge Ambro emphasized that a reliable system for diagnosing CTE in living patients will likely take years to surface and even then would require extensive studies before a sufficient clinical profile for testing could be built. Judge Ambro further cautioned that the settlement requires that retired players and the NFL meet every 10 years and discuss possible modifications that would respond to scientific advances. In other words, it is possible the settlement could be altered to account for innovations in CTE testing. Lastly, Judge Ambro cited expert testimony finding that at least 89% of retired NFL players who were examined in CTE studies would have shown other qualifying health problems while they were alive. This means nearly nine in 10 players afflicted with CTE would still benefit from the settlement while they are living.

Players who opted out of settlement can continue to sue NFL

As noted above, approximately 220 retired players and families elected to opt out of the settlement before it was finalized. By doing so, they can continue their existing cases against the NFL or preserve their right to sue the NFL in a future action. In an earlier piece, I explored the advantages and disadvantages those players accepted by opting out. They can now attempt to amend any legal filings to include mention of Miller’s admission and the Times’ allegations. Yet, as also explained above, the NFL is armed with several powerful legal defenses.

The NFL eliminates most—but not all—of its exposure to liability for concussions

Assuming the settlement is not affected by additional appeals, the NFL is not required to admit any wrongdoing for the concussion crisis. This is how settlements normally work: The defendant agrees to pay the plaintiff but as a condition for payment does not admit fault. The absence of an admission of fault is important for the NFL on a number of levels. First, if the league admits fault, it is more likely that members of Congress and regulators would contemplate legislation and regulation that changes how the NFL does business. Second, an admission of fault could adversely impact insurance policies negotiated by the NFL. Third, and perhaps most important, an admission of fault would strengthen concussion lawsuits brought by the retired players who opted out, as well as any future lawsuits brought by current and future NFL players.

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In addition to not compelling an admission of fault, the settlement releases the NFL from potential liability for concussion-related causes of action relating to retired players (other than those who opted out). This sense of finality is bolstered by a legal principle known as res judicata, which is Latin for “a thing decided.” Res judicata dictates that once a claim has been resolved, either through a judgment or a settlement, it usually can’t be re-litigated—exactly what the NFL is seeking.

However, current and future NFL players are not part of the settlement. The settlement, in fact, only covers “all living NFL football players who retired from playing professional football before July 7, 2014,” as well as certain categories of retired players’ family members. It remains to be seen if the NFL is able to use collective bargaining with the NFLPA to address how current and future players should be compensated for long-term neurological problems. If no agreement is made, the NFL can expect new concussion lawsuits to be filed each year for many years to come.

Michael McCann is a legal analyst and writer for Sports Illustrated. He is also a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He also created and teaches the Deflategate undergraduate course at UNH, serves as the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law and is on the faculty of the Oregon Law Summer Sports Institute.

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