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Federal Judge Blocks $914 Million NFL Concussion Settlement. Now What?

Judge Anita BrodyPhotograph by U.S. District Court/AP PhotoJudge Anita BrodyMonkey wrench time for the $914 million NFL concussion settlement. A federal judge in Philadelphia tentatively rejected the landmark pact, saying it might not provide enough money for the thousands of retired players who could come down with neuro-degenerative diseases as a result of knocking heads on the field. Now what happens?

Doesn’t “settlement” imply that a lawsuit is, um, settled?
Normally, yes. The vast majority of cases settle privately and receive the necessary judicial approval. Because of the complicated nature of the former players’ mass action against the National Football League, this pact required an especially careful look from U.S. District Judge Anita Brody, who oversaw the consolidated lawsuits. Not all judges exercise their authority to look at the fine print. Brody, to her credit, did.

What’s Brody’s problem with the settlement?
She says that even with the NFL promising up to $914 million for compensation, research, and other purposes, the pact could run out of money over the six decades it’s supposed to cover. At a minimum, she wants more economic analysis proving that it’s sufficient. “In the absence of additional supporting evidence, I have concerns about the fairness, reasonableness, and adequacy of the settlement,” she wrote in an opinion issued today.

Who screwed up here?
The consortium of plaintiffs’ lawyers that crafted the settlement with the NFL’s attorneys come away looking like they’re not ready for the big leagues. A federal judge has told them they didn’t get enough for their clients—or, at a minimum, didn’t do enough legwork to persuade her otherwise. This rejection will inevitably embolden dissident NFL retirees who have criticized the settlement as too stingy; some of those critics have already filed separate lawsuits. If enough former players “opt out,” Brody might definitively kill the settlement, creating the possibility of a litigation free-for-all.

What do the plaintiffs’ lawyers have to say for themselves?
“We are confident that the settlement will be approved after the court conducts its due diligence on the fairness and adequacy of the proposed agreement,” said attorneys Chris Seeger and Sol Weiss, co-lead counsel. “Analysis from economists, actuaries, and medical experts will confirm that the programs established by the settlement will be sufficiently funded to meet their obligations for all eligible retired players.” Maybe, but it would have been better to do the analysis in the first place so as not to provoke Brody’s suspicion that the plaintiffs’ attorneys were letting the NFL get off cheap.

Some 5,000 former athletes have been involved in the litigation. The settlement was supposed to cover a much larger pool of retired NFL players and their families. Notably, the pact would not cover current or future players—a gap that means that the head-injury controversy is far from resolved. Bloomberg News reported that a spokesman for the NFL didn’t immediately respond to a request for comment.

Barrett is an assistant managing editor and senior writer at Bloomberg Businessweek. His new book, Law of the Jungle, tells the story of the Chevron oil pollution case in Ecuador.

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