Next week’s fairness hearing in the NFL concussion settlement process undoubtedly will attract a lot of attention, but the real action will come later. That’s when the case almost surely gets appealed, and the 220 players who have opted out of the settlement begin filing their individual cases against the league.
Given that federal judge Anita Brody, who is overseeing the case at the district court level, has already preliminarily approved the settlement, formal approval appears a foregone conclusion, experts said.
“More likely than not it is a fait accompli,” said Bob Clifford, partner in Clifford Law, which has represented plaintiffs in several high-profile class actions, including families of aviation crash victims. “When a judge kind of says what she [Brody] has said already, it is probably wishful thinking she would not ultimately rule in favor of the settlement.”
That said, Clifford believes there are solid grounds for appeal, including the fact that not only is chronic traumatic encephalopathy (commonly referred to as CTE) not covered under the settlement, but also that class members relinquish their right to sue the NFL if they develop the brain disease, which has been connected to the affects of head injuries suffered while playing football. Other issues objectors have raised include the lack of discovery, the payment-approval process, and the fact that medical claims are usually not grouped as a class action.
The preliminary settlement, originally for $765 million, later became uncapped, though sources have said they do not expect the total to rise past $1 billion.
Another point to watch: when the players, or the estates of deceased players such as Junior Seau, who have opted out file lawsuits. Objectors can appeal the case, while those who opted out can file lawsuits against the NFL on their own.
John Goldman, a sports lawyer with Herrick, Feinstein, said that if the Seau estate could get its case to trial before a jury in Southern California — the region where Seau lived and played most of his career — that would be a problem for the NFL.
There are significant hurdles before that could occur, though. The league will argue that Seau’s case is pre-empted by labor law and the issue should be resolved through binding arbitration. Also, the individual cases could be consolidated and returned to Brody’s court.
One of the defenses of the settlement is that there is no guarantee Brody would not have thrown the case out under the labor law doctrine that these cases should be handled under the dispute-resolution mechanisms contained in the league’s collective-bargaining agreements.
Objectors and those who have opted out, however, say that because no discovery was done, it is impossible to know whether labor law pre-emption is a factor. If discovery were to have unearthed something that suggested the league hid evidence of the damage caused by playing football, for example, that might not be protected by the labor law pre-emption.
Next week is sure to bring forth some verbal theatrics and sound bites, but in coming months, an issue to watch is whether the objectors appeal if payments under the settlement are held back. That is typically the case, though Clifford said the NFL could set aside a minimum amount it agrees to pay out under any lawsuit resolution. If money is held back, or reduced, that could create acrimony between those players who signed off on the settlement and are eligible for payments, and those who are appealing the case.
The first concussion case was filed in 2011, and the hundreds that followed were consolidated into one class action. Those cases encompass more than 4,000 former players, though the class-action covers all retirees at the time of the settlement.
The sides agreed to settle last year.
