Nine former NFLers today appealed the approval of the NFL concussion settlement, likely ensuring payments from the deal -- if it survives -- may not occur this year. They are seeking a hearing before the full Third Circuit Court of Appeals. A three-judge panel of the Third Circuit last week upheld the roughly $1B settlement. Later that day, counsel for the class said if there were no appeals, it could be about four months before money began to flow. Now, the nine players, represented by Massachusetts-based attorney John Pentz, turned the NFL’s argument about CTE on its head. Objectors to the settlement have argued the settlement should cover CTE. The NFL, and class counsel, contend that the science of CTE is too much in its infancy to be covered in the final settlement (post mortem cases are covered through the lower court’s approval last year). The lower district court, and the three judge panel last month, accepted this argument. Pentz now turns the argument around, conceding the knowledge of the disease is in its infancy, but arguing that is why the settlement is wrong. Legally if the science is immature, Pentz wrote, then there should have been no carve out for CTE. “In this context, it was reversible error for Class Counsel to allege, and then release, thousands of claims for CTE when there is no adequate lead plaintiff suffering from the condition who can state a claim against the NFL for CTE,” Pentz wrote. CTE, which currently can only be diagnosed post-mortem, has been found in the brains of 90 of 94 deceased NFL players studied by Boston Univ. Pentz wrote CTE may affect 75% of all NFL retirees. It is unclear from the filing where this number comes from. The nine retirees are Cleo Miller, Judson Flint, Elmer Underwood, Vincent Clark Sr., Ken Jones, Fred Smerlas, Jim Rourke, Lou Piccone and James David Wilkins II.
NO MERIT TO APPEAL: In a statement, the counsel for the class wrote, "This meritless appeal carries devastating consequences for the thousands of retired NFL players suffering from neurocognitive injuries, and those concerned about their future, as they will be forced to wait even longer for the immediate care and support they need and deserve. This latest appeal is heartbreaking news for the 99% of the retired player community that has supported this agreement."
