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Volume 20 No. 42

Law and Politics

Is the $760 million proposed NFL concussion settlement doomed?

The question comes not because a federal judge last week turned down, for the time being, the proposed deal, asking in her ruling whether the offered money is enough. The NFL presumably could find extra dollars if that’s required to save the settlement.

Instead, what caught the attention of several class-action attorneys and others was the footnote from Judge Anita Brody where she wrote, “I will not address the issue of conditional class certification at this time.”

Denial of class certification would all but end the settlement because the NFL is seeking a bar of all class members from future concussion litigation. If there is no class, the league cannot get this broad waiver.

Since the Supreme Court in 1997 threw out the certification of a class of asbestos victims, certifying large groups of personal injury cases has been rare, at best, attorneys say.

“Despite the fact that the [retirees’] personal injury cases were not originally filed as a class-action case, the NFL is now attempting to settle them on a class-action basis,” said Jon King, a lawyer who is representing former NFL quarterback Craig Morton in a separate concussion case against the NFL. “The Supreme Court, in a 1997 case called Amchem Products Inc. vs. Windsor, cast serious doubt on the ability to successfully settle personal injury cases on a class-action basis.”

John Goldman, a lawyer with Herrick, Feinstein, said of the judge’s mention of class certification in a decision focused on another issue, “It certainly confirms going into this that there might be an issue certifying the class given the nature of the claims and class plaintiffs. You never know; we are guessing. But it struck me when I read it.”

When analyzing whether a group deserves class status, a judge looks for, among other requirements, commonality — meaning that the alleged wrongs claimed by each of the plaintiffs are similar. There are more than 20,000 retirees in the proposed NFL class, so meeting that commonality bar is difficult. In addition, in proposed settlements like the asbestos and NFL concussion cases, there are provisions for covering future cases, making it challenging to assess whether those yet-to-occur incidences are similar enough to satisfy the class-action rules.

The proposed settlement papers filed earlier this month in federal court tackled directly the comparison to the asbestos case.

“[U]nlike Amchem, where the settlement class included members who were exposed to different asbestos-containing products, for different amounts of time, in different ways, and over different periods … the proposed Settlement Class here has a great deal of cohesion as all Retired NFL Football Players and their families are aware they played NFL Football,” the retirees’ brief states. “The Plaintiffs and Settlement Class Members all allege that their injuries arise from one cause (head impact while playing football), involving two defendants (the NFL and NFL Properties), over a defined period of time, and render them at increased risk of suffering only certain, particular types of injuries.”

Class counsel is expected shortly to supply the court with the economist’s report Brody asked for in her ruling, justifying that the $760 million would last the 65 years of the class. Whether Brody would then allow the deal to proceed is open for debate, though the threshold for preliminary approval of class settlements, which is what would come here, is far lower than it is for final approval.

A provision that might ultimately be struck from an approved deal is the one that would bar class members from suing the NCAA over similar injuries. The NFL is concerned that if the NCAA lost such lawsuits, the governing body could sue the league, alleging the injuries in part stemmed from playing professionally. Brody sharply questioned that feature of the proposed settlement in her ruling.