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As expected, the Supreme Court denies review of NFL concussion settlement

The denials mean that the settlement—which is expected to pay retired players, on average, around $190,000 and potentially up to $5 million depending on those players’ ages, injuries and NFL experience—will go into effect as soon as March.

The U.S. Supreme Court on Monday denied two petitions from groups of retired NFL players to review a class action settlement between the NFL and more than 20,000 retired NFL players over concussions and neurocognitive conditions. The denials mean that the settlement—which is expected to pay retired players, on average, around $190,000 and up to $5 million depending on those players’ ages, injuries and NFL experience—will go into effect as soon as March. Beginning in the spring, retired players who registered for benefits will begin the benefits process. At a later date, these retired players will receive those benefits. The NFL, which generates about $13 billion a year in revenue, is expected to pay out approximately $1 billion over the next 65 years to fund the settlement’s terms.

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The Supreme Court’s decision was fully expected

Few expected the Supreme Court to review the concussion settlement. For starters, the Supreme Court only accepts between 1% and 2% of petitions for review. Indeed, each year, the Court typically receives between 7,000 and 8,000 petitions and tends to hear about 100 of them. While almost no petition is “likely” to be picked, certain petitions enjoy better odds than others. For example, a petition that highlights a split in how federal circuits regard an area of law will attract the justices’ attention. In granting such a petition, the justices can resolve the split and harmonize the law across the country. Likewise, a petition about a very important or impactful federal legal issue—such as the legality of a new federal health care law—is one that justices will be inclined to review.

A petition over the lawfulness of the concussion settlement did not contain the qualities that were likely to lead to selection. For instance, there is no federal circuit split on the most relevant issues. Only one federal circuit—the U.S. Court of Appeals for the Third Circuit—has ruled on the concussion settlement. This is because approximately 5,000 concussion lawsuits were consolidated into one case that was heard in the Third Circuit. Further, within that federal circuit, two sets of federal judges unanimously approved the concussion settlement: U.S. District Judge Anita Brody approved the settlement in April 2015 and, a year later, Judges Thomas Ambro, Thomas Hardiman and Richard Nygaard of the U.S Court of Appeals for the Third Circuit upheld Judge Brody’s decision. The lack of dissenting view took away a potential rationale for the Supreme Court to reconsider the settlement. The settlement also does not implicate a controversial federal legal issue. While the settlement impacts thousands of retired players and their families, it fundamentally reflects a voluntary contract between the NFL and thousands of retired players, about 11,000 of whom have already pre-registered for benefits.

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Making the odds of Supreme Court review even more difficult was the absence of one justice. Four or more justices must vote to grant certiorari. Normally it is four votes out of nine, but the combination of the February 2016 death of U.S. Supreme Court Justice Antonin Scalia and the unresolved nomination process of Judge Merrick Garland (whom President Obama nominated nine months ago but whose nomination is expected to be withdrawn after President-elect Trump takes office on January 20, 2017) has, for the time being, led to a Supreme Court of only eight justices. There is thus one fewer justice to vote to grant certiorari.

The concussion settlement has its fans and its critics

As is the case in most class action settlements, the NFL concussion settlement reflects a compromise that provides less than what its beneficiaries sought but avoids a worst-case scenario where the beneficiaries lose in court and gain nothing. The more favorable aspects of the settlement include the following:

•​ Substantial money and other benefits are on the way. Retired players with qualifying neurological conditions will soon obtain thousands of dollars and healthcare benefits. Players with serious neurological problems will obtain much more. For some players, the settlement will significantly prolong their lives and improve the quality of those lives.

•​ Certainty and closure. The first concussion lawsuit was filed in 2011 and only now, with 2017 merely a couple of weeks away, is the matter finally resolved. Had a settlement not been approved, the retired players would have been in court for an indefinite period of time, perhaps many years. During that time, some retired players would have suffered adverse health consequences due to the absence of settlement benefits.

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•​ Avoiding a loss in court and obtaining nothing. The NFL was armed with several legal defenses that would have been difficult for retired players to overcome. The main weakness for the retired players’ claims was that NFL collective bargaining agreements signed by those players’ exclusive bargaining representative—the NFLPA—accepted arbitration as the mechanism to resolve health matter grievances. The NFL was thus prepared to argue that the retired players’ lawsuits were “preempted” by the CBA, specifically the requirement that health grievances go to arbitration rather than court. This defense was less of a hurdle for retired players who played at a time when there was no NFL CBA (1987 to 1992) but even for those players, preemption might have worked because the terms of an expired CBA can remain in effect. The NFL had other defenses, too, including the difficulty of players proving legal causation. Consider that before his first NFL practice, an NFL player partook in thousands of plays and suffered many collisions. These hits occurred while playing in college, high school and Pop Warner and thus not under the scope of the player’s NFL employment. For the player to now prove that his time in the NFL—rather than his time at other levels of football or his exposure to genetic and environmental conditions—caused his neurological harm would have been challenging.

While those are favorable reasons for the settlement, several hundred retired players have, at different times in the litigation, objected to the terms of the settlement. Some of them opted out of the settlement to pursue their own cases. The main criticisms of the settlement are as follows:

•​ The NFL is getting off far too lightly. While the NFL’s pledge to pay about $1 billion sounds astronomical, it is in fact a much more modest figure when considering two dynamics: first, the league takes in about $13 billion a year in revenue and second, the $1 billion will be paid out over 65 years. The math underscores this point: $1 billion over 65 years is $15.4 million a year, a figure that is even less impressive when incorporating the impact of annual inflation. For a league that many retired players and their attorneys contend negligently ignored, and perhaps even exacerbated, an epidemic of neurocognitive problems, $15 million a year seems far too light to some.

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•​ The settlement’s real beneficiaries are the lawyers. The attorneys for the retired players are expected to receive $112.5 million in recognition of their fees. This money will be shared among many lawyers, but, to be sure, it is a considerable figure. Keep in mind that attorneys in class actions normally take on enormous financial risk: often, they agree to work on a case for a contingency fee, which means they are only paid if they win the case or if it ends in a settlement. If the case instead proves unsuccessful, the attorneys receive nothing. More accurately, they lose money due to their lost billable time, unreimbursed expenses and expended energies devoted to an unsuccessful class action. They also lose money if they passed up on other client opportunities. Here, the retired players' attorneys were able to settle the litigation with the NFL prior to pretrial discovery, which is an expensive and time-consuming process where each side shares evidence and submits to answering questions under oath through depositions and interrogatories. Nonetheless, those attorneys expended substantial time, energy and expense on this case in recent years. 

•​ The settlement does not adequately address chronic traumatic encephalopathy (CTE). CTE is a degenerative neurological disease that is caused by repeat head trauma. It can only be diagnosed with certainty in a post-mortem examination. Scientific advances, however, could lead to CTE being diagnosed with certainty during one’s lifetime. The settlement does not provide funding for CTE diagnoses. To be fair, the settlement could be adjusted to provide such funding in the event technology leads to verifiable CTE diagnoses during a person’s lifetime. Indeed, as part of the settlement’s terms, retired players and the league are expected to meet every 10 years to revisit the settlement and make necessary adjustments. Further, approximately 90% of persons who suffer from CTE tend to show other neurological problems that are contemplated by the settlement. Nonetheless, many retired players believe the settlement fails to adequately contemplate CTE.

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Moving forward

While the concussion settlement is now final, retired players who opted out of the settlement can—and in some cases already have—pursue their own lawsuits against the NFL. Those cases may take years to play out, but if successful, they could provide more for the retired player-plaintiffs than they would have received through the settlement. If unsuccessful, however, the retired player-plaintiffs would receive nothing.

Other leagues that have been sued over concussions are sure to take notice of the Supreme Court’s decision on Monday. Take the NHL and WWE. Should those leagues, like the NFL, reach settlements, all parties to those settlements can now feel more certain that the settlements would be upheld in court.

Michael McCann is SI's legal analyst. He is also an attorney and a tenured law professor at the University of New Hampshire School of Law.