On Wednesday, June 1, 2016, the Third Circuit Court of Appeals denied the petition to rehear an objection to the NFL’s concussion settlement. Former players still unsatisfied with the settlement plan asked for the full Third Circuit to review the court’s April unanimous decision to affirm the lower court’s ruling. The uncapped settlement, settling about 5,000 NFL concussion-related lawsuits, provides up to $5 million to individual players suffering from severe neurological diseases. As the settlement covers over 20,000 retired players, the agreement could cost the NFL over $1 billion.
After the Third Circuit’s first decision, Cleo Miller, former running back for the Kansas Chiefs and Cleveland Browns, filed the petition for the rehearing en banc. Darren Carrington, former safety for several NFL teams, later joined the petition. In total, nine former players argued that due to the early nature of scientific research on Chronic Traumatic Encephalopathy (CTE), the claims were not ripe and should not have been prematurely extinguished by the settlement. Additionally, objections were also raised that only the heirs of players who died from 2006 to April 2015 with CTE can receive payments of up to $4 million.
The Third Circuit decision, a one-page filing by Thomas L. Ambro, one of the three judges that originally heard the appeal, wrote that “no judge who concurred in the decision having asked for rehearing” and there was not a majority among the judges that supported the appeal. Additionally, the court found that although scientific research into CTE is ongoing, the settlement accounted for the uncertainty through adequate representation of subclasses. This is the third time that objectors to the settlement have been turned away by the court.
Christopher Seeger, representing the settlement plaintiffs, issued a statement indicating the plaintiffs were pleased with the Third Circuit’s decision. The counsel noted that the settlement has survived litigation without one judge dissenting, a notion of general support for the case to be finally settled. Seeger’s statement also noted the consequences associated with the continued litigation:
“These meritless appeals have come with devastating consequences for the thousands of retired NFL players suffering from neurocognitive injuries, and those concerned about their future, as they have been forced to wait even longer for the immediate care and support they need and deserve. We hope these objectors will consider the over 20,000 retired players and their families that support this agreement before filing additional appeals to the U.S. Supreme Court that will only extend these delays further. We will continue to forcefully defend this important settlement should they decide to move forward with the appeals process.”
Five years after the initial suit, compensation may finally be in sight. While continued objections and litigation is being protracted by a few dissenting players, many players awaiting compensation have exhausted all other financial options. The uncapped settlement guarantees every eligible NFL retiree will be paid in full, with 99 percent of that class supporting the settlement.
The last option remaining for dissenters is to appeal the Supreme Court, a move that would likely be both legally unsuccessful and damaging to the health of players in greatest need of financial compensation. Compensation will be paid out once all appeals are exhausted. The NFL and its insurers are still at odds in determining how much of the settlement each may be liable to cover.
The court noted in its decision that with such a large recovery class, it was unlikely any outcome would appease all plaintiffs, even if the Supreme Court granted cert for the case. In the words of Judge Ambro, further objections risk “making the perfect the enemy of the good.” For those desperately awaiting compensation, the best case scenario is that objectors end litigation at this time.