The federal judge overseeing the concussion lawsuit brought by 4,500 former players against the National Football League denied a preliminary motion to approve the proposed settlement to the case Tuesday, saying that the agreement may not include enough money to compensate all players properly.
The NFL and the players announced the $760 million settlement in August; the parties officially filed the settlement for approval last week.
The settlement includes $675 million to compensate players who have suffered various brain diseases during or after their careers, but Brody denied initial approval amid questions that the funds would be insufficient to fully compensate all players who may have a claim. Because it is a class action suit, compensation is available to all former NFL players who have brain damage, not just those who sued.
“There is nothing to indicate that the Settlement is not the result of good faith, arm’s-length negotiations between adversaries,” Brody wrote in her opinion. “Nonetheless, on the basis of the present record, I am not yet satisfied that the Settlement ‘has no obvious deficiencies, grants no preferential treatment to segments of the class, and falls within the range of possible approval.’”
“I am primarily concerned that not all Retired NFL Football Players who ultimately receive a Qualifying Diagnosis or their related claimants will be paid,” she added.
The settlement sets specific payouts for different diseases. Players with neurocognitive impairments can receive up to $3 million under the settlement; the maximum awards are even higher for Alzheimer’s ($3.5 million), Parkinson’s ($3.5 million), death with chronic traumatic encephalopathy ($4 million), and Lou Gehrig’s disease ($5 million). Under that structure, Brody isn’t the first to raise concerns about whether it can fulfill its obligations. Some players have too, and ESPN’s Steve Fanairu and Mark Fanairu-Wada reported in September based on the number of former players who have filed claims with the NFL’s disability board with those diseases, former players would be eligible for more than $1 billion in payments.
Brody arrived at a similar conclusion. “Even if only 10 percent of Retired NFL Football Players eventually receive a Qualifying Diagnosis, it is difficult to see how the Monetary Award Fund would have the funds available over its lifespan to pay all claimants at these significant award levels,” she wrote.
That doesn’t mean the settlement, which was negotiated at Brody’s urging, is dead. Brody is asking both sides to come back to her with documentation and evidence proving that the settlement is sufficient to pay its obligations. If they can do that, it will likely move forward into the full approval process, when players who don’t like the settlement will be able to object to it at an open hearing and, if they still think it is deficient, opt-out of it.
It is, however, an interesting setback for the settlement at an early stage in the approval process. Brody noted in her opinion that the bar judges use to determine whether a settlement is “fair, reasonable, and adequate” is generally lowered in the preliminary approval process, and the financial structure of this agreement still wasn’t able to clear it. It’s odd that the NFL and players didn’t include evidence to prove that the settlement amount was sufficient in their request for approval, especially since Brody wrote that both sides said they had independent analyses supporting the sufficiency of the total amount.
But if the lawyers for both sides have documentation to prove that the settlement can cover its obligations, this seems like it will be a minor bump on the way to approval. For now, though, it means the NFL and the players involved will have to provide evidence to answer the major question that has existed about the settlement since the day it was reached.