As we previously reported, lingering issues over the NFL concussion litigation settlement have reemerged. The final settlement established an uncapped fund that would last over a 65-year period, to compensate a class of over 20,000 former NFL players. In May 2017, a collection of law firms representing the players, filed a petition seeking $112.5 million common-benefit fee to compensate the class of attorneys. Unlike traditional common-fund cases where the common-benefit fees are calculated as a percentage of total recovery; in this case, the NFL agreed to pay $112.5 million rather than charge each attorney for the work they did for the class. In September 2017, Judge Anita B. Brody appointed Harvard Law School professor William B. Rubenstein to address questions surrounding the $112.5 million settlement.
According to Professor Rubenstein’s assessment, the $112.5 million fee acts as a tax on the amount available to each player. Professor Rubenstein argues that the NFL may only be willing to pay a certain amount to settle class claims without regard to how much goes to the players and their attorneys. Professor Rubenstein concludes that the contingency fee paid to attorneys whom began representing players after and before the date of preliminary approval should be reduced from 20 percent to 15 percent. Additionally, he concludes there should be 5 percent set-aside fund for the costs associated with administrating the settlement over the next 65 years.
The collection of law firms/proponents of the $112.5 million agreement, disagree with Professor Rubenstein’s assessment and in response petitioned Judge Brody to adjust the assessment. Proponents claim that the assessment relies on outdated figures and data used in the rejected capped version of the agreement. According to proponents, “Predicting the scope of injury and the number of qualifying claimants has always been difficult [and] is perhaps for this reason the Court … required that the settlement be uncapped.” Proponents of the agreement accept Professor Rubenstein’s assertion that the contingency fee paid to former players’ attorneys whom began representing players after the date of preliminary approval should be reduced from 20 percent to 15 percent. They also agree with the 5 percent set-aside fund. However, they disagree that the contingency fee paid to attorneys whom began representing players before the date of preliminary approval should be reduced. They argue that there are some higher risk clients that cause firms to spend greater resources.
Proponents of the settlement claim that Professor Rubenstein’s approach assesses the settlement in terms of each attorney receiving their fair portion of the overall fees. However, the settlement was designed to take into account the risks faced and the benefits obtained with each client. Proponents claim that if the settlement was structured as Professor Rubenstein argues, then players would not be benefitted; rather, the NFL would only get money back. According to proponents, Professor Rubenstein based the 15 percent cap on the assumption that attorneys could process their clients’ claims through a streamlined process without enormous time or expense. Yet according to proponents, this is has not been the case. Instead, the NFL has been litigating claims as if they were each individual lawsuits, and in doing so, claims have become complex and slow. Without a skilled attorney who can identify qualified experts, navigate NFL obstruction, and who can succeed in a sophisticated litigation fight over alleged deficiencies, audits, and appeals, former players stand little chance of recovery.