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Volume 24 No. 114
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NFL Likely Will Need To Provide More Evidence Of Concussion Case Payment's Viability

U.S. District Court Judge Anita Brody's decision yesterday to preliminarily reject the NFL's $765M concussion settlement due to concerns about the viability of the payment amount "will probably force" the plaintiffs’ lawyers and the league to "provide documents proving there will be enough money to pay for the retired players’ claims," according to Ken Belson of the N.Y. TIMES. If she "remains unconvinced, the league could contribute more to the settlement, change the amount of the payouts to different categories of players, or limit who may be eligible." The players' lawyers had cited hired economists and actuaries as saying that there "would be sufficient money available." However, Brody yesterday said, "No such analyses were provided to me in support of the plaintiffs' motion." Belson notes yesterday's ruling "will probably delay when players may be paid." One of the "critical questions" Brody's appointed Special Master Perry Golkin "must consider is if there is enough money set aside not just for retired players with injuries, but also for players whose conditions worsen in years to come" (N.Y. TIMES, 1/15). The WALL STREET JOURNAL's Jacob Gershman writes the ruling "puts on hold -- but doesn't derail -- the deal." Brody instructed the two sides to "share more information with the court" through Golkin. Both parties said that they "didn't view the judge's caution as a repudiation of the deal" (WALL STREET JOURNAL, 1/15). ESPN's Tony Kornheiser said the rejection is not a "big deal right now." He noted the way it "could become a big deal is if the judge decides like so many in the media did when they looked at this settlement and they said, 'Wow, this is not fair to the players. I'm not going to let you do it'" ("PTI," ESPN, 1/14).

MONEY (THAT'S WHAT I WANT): In DC, Nathan Fenno notes Brody "isn’t certain the hundreds of millions of dollars at the heart of the agreement are enough." The settlement "applies to the estimated 20,000 retired players, not just the ones who sued, and the agreement asserts the compensation fund will last 65 years." However, the NFL and the plaintiffs' lawyers yesterday "expressed confidence the deal will be approved." The NFL in a release said, "We are confident the settlement is fair and adequate" (WASHINGTON TIMES, 1/15). MSNBC contributor Mike Barnicle said Brody "did a great thing" by rejecting the deal. Barnicle: "This situation demands far more money to be put on the table for these players and their families, who have been so damaged by the violence of this sport over 20 years" ("Morning Joe," MSNBC, 1/15). SI's Peter King said the latest move will "be the basis for a settlement," but he added he believed the "amount of money may have to change." King: "I think where things are being lost in translation is if you think every player who had X go wrong with him, had X amount of dementia, is going to get X amount of dollars. It's going to be done on a sliding scale" ("Olbermann," ESPN2, 1/14). Meanwhile, CBS' Doug Gottlieb noted, "Most people hypothesized that the reason they're trying to create more revenue by selling off those Thursday night games (is) to help pay some of these bills so that it doesn't come off of their profit" ("Lead Off," CBSSN, 1/14).

LEGAL ANALYSIS:'s Lester Munson wrote the ruling is significant because it is an "embarrassing setback for the players' attorneys who have submitted the proposal." These lawyers "included in their proposal a request" for $112M in fees for themselves. Brody's decision "could add to the number of players who will opt out of the settlement and take their chances in the litigation process" (, 1/14).'s Michael McCann wrote Brody was "likely also motivated by the fact that more [than] 70 retired NFL players ... have filed concussion lawsuits against the NFL since the proposed settlement was reached last August." Their lawsuits suggest that many retired NFLers "are dissatisfied with the proposed settlement." One "obvious correction" the two sides could make to the terms "would be to increase" the $765M. Given the league's annual revenue of $9-10B, an increase in the terms "could send a powerful message to Brody and skeptical retired NFL players if a new proposed settlement at least crossed the billion dollar line." A reworked settlement also could "reallocate some of the money that was intended for medical research to retired players' health expenses" (, 1/14).

COULD THIS NOW GO TO TRIAL? Plaintiffs' attorney Thomas Girardi yesterday said that he "will recommend that a 'substantial' number of his clients reject the $765 million agreement and continue to sue the NFL." He said that the settlement "benefits severely impaired former players but leaves many others with barely 'a handshake.'" Girardi: "We're analyzing it right now to see who fits and who doesn't. I would say this: A heck of a lot of them don't fit. To start giving you percentages would be a little bit over the top for me right now."'s Fainaru & Fainaru-Wada noted Girardi's remarks "are the first indication that large numbers of players may reject the deal -- even if the settlement ultimately is approved by the judge." They also are "part of what has become an almost open rebellion by some top attorneys against the players' lead co-counsels," Christopher Seeger and Sol Weiss. If a large number of plaintiffs reject the settlement, that "would make it harder to keep the agreement alive" (, 1/14). USA TODAY's Gary Mihoces cited lawyers not involved with the settlement as saying that one option for the plaintiffs could be to reject the settlement and go to a "potential trial that could sheld light on allegations in the suits." However, other legal observers said that this option "was unlikely" (USA TODAY, 1/15). Pro Football HOFer Harry Carson yesterday said of Brody's ruling, "In a way, the fact that she held it up is a good thing, because most of the retired players know they should have gotten a lot more. At the same time, there are a lot of people suffering right now, and they need the help." In Newark, Dave D'Alessandro writes Brody "in a federal court -- a place that isn’t always friendly to organized labor -- says the figures don’t add up" (Newark STAR-LEDGER, 1/15).