The NFL has reached a reported settlement with the litigants in the concussion litigation cases for an amount put at $765 million.
Judge Anita Brody will still have to approve the settlement after reviewing it, but the recommendation comes from the mediator, Judge Layn Phillips. According to Judge Brody’s order, this “settlement holds the prospect of avoiding lengthy, expensive and uncertain litigation, and of enhancing the game of football.”
Now, let’s break down the terms of the settlement, because it is for more than the $765 million, in total, though individual players will not get all of that, nor will they split equally. (Here is the full release with the summary from the ADR (Alternative Dispute Resolution) Center)
- Baseline Medical Exams for Retired Players, capped at $75 million;
- Former Player Compensation for Injuries Suffered, $675 million;
- Additional One-Time NFL Contribution, if Settlement Administrator determines Injury Fund to be insufficient, $37.5 million;
- Research and Education Fund, $10 million;
- Costs of Notice to Class Members, not to exceed $4 million;
- One-half of cost of Compensation to Settlement Administrator, $2 million;
- Legal Fees and Litigation Expenses paid by NFL to Plaintiffs’ counsel, to be determined.
That reported number you are seeing this afternoon in the early releases does not include that potential additional $37.5 million that can be paid upon request by the independent Settlement Administrator, and it doesn’t include the legal fees and litigation expenses. The court, though, is not bound by the plaintiff attorney contingency agreements and can award reasonable fees.
So is every player going to get an even split of that $675 million? No. It appears that the former players will undergo testing, which is paid for under that baseline medical exams fund, and the amount that a player gets will be based on a specific diagnosis. There is no mention of what happens for wrongful death cases where the former player is already deceased. Among the other factors that the Settlement Administrator will consider in paying specific players: “age, number of seasons played in the NFL, and other relevant medical conditions.”
Many will cry foul that the NFL is getting off for cheap. I broke down the litigation questions a year ago. I think you have to remember that the judge forced the mediation before ruling on various legal issues. An adverse ruling on some of those legal issues, in regard to the NFL’s motion to dismiss, would have had an extremely adverse effect on the amount of recovery for many plaintiffs.
The NFL obviously faced greater exposure if they failed on those legal issues, but they had a reasonable case on issues like causation with many plaintiffs. As I understand it now, many of those plaintiffs don’t have to prove causation (i.e., that it happened in the NFL rather than college or high school or in a car accident), they just get the medical exam, and compensation is based on a variety of factors.
The plaintiffs, meanwhile, had many that might not make it without treatment. The NFL certainly got a “win” in getting rid of the major uncertainty hanging over the league with this. Many players will get compensation late in life, that they might not have seen before it was too late. Both sides were incentivized to avoid litigation, for different reasons. This is not the end of issues relating to head injuries and the future of the sport. It is the end of a giant current cloud of uncertainty in regard to the league’s immediate fiscal future.