Colombia Law School Holds Conference on NFL Concussion Lawsuit’s Uncapped Settlement Fund

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On March 2, 2018, at a conference on class action jurisprudence held at Columbia Law School, advocates and opponents discussed U.S. District Judge Anita Brody’s decision to move the NFL concussion class-action litigation toward an uncapped settlement. Judge Brody, a Columbia Law graduate, attended the conference.

As previously reported, in April 2015, the NFL entered into a settlement agreement with almost 22,000 former players. The settlement established a 65-year uncapped monetary fund for players who could prove certain neurological diagnoses. The settlement provided a $75 million “baseline assessment program” that provided eligible retired players with neurological examinations, a $10 million education fund to promote safety and injury prevention in youth football, and to inform retired players of their medical benefits. Lastly, the settlement offered payments ranging from $1.5 million to $5 million for each player, or the player’s estate, who suffered from a serious degenerative condition in connection with a traumatic brain injury.

Opponents of Judge Brody’s decision argued that the settlement failed to compensate players who may be diagnosed with chronic traumatic encephalopathy, a condition which can only be diagnosed post mortem, and the settlement failed to compensate those with other medical conditions. Alan Morrison, of The George Washington University Law School, argued that the settlement failed to provide compensation for most of the class. Even those that the settlement did compensate, “[the] numbers were picked out of the air and negotiated because they added up to an amount the sides were willing to accept.” Morrison continued, “[a]bout 85 percent were not going to get a penny out of this settlement no matter what symptoms they had … My concern was that in essence, excuse my expression, [the attorneys] were playing God.”

Advocates of Judge Brody’s decision, including Chris Seeger, an attorney for the players, said “[i]f we had followed what [Morrison] wanted, you would have had to have class reps for maybe 30 different subclasses. How do you settle that? Then who are you really helping?” Brad Karp, an attorney for the NFL, said “[t]he only reason [the case] settled was because Judge Brody took such an active role.” Karp also said, “[t]here were a number of potential defenses, all of which had risk for us and for the plaintiffs, but at the end of the day the goal was to put this matter behind the league as quickly as possible.”

Since the settlement, Judge Brody’s work on the case has revolved around the Appeals Advisory Panel, the group that determines which former NFL players are eligible to receive benefits. Also, Judge Brody recently received one Columbia Law School’s most prestigious award, the Medal for Excellence, party for her work on the NFL concussion suit.

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