Judge Denies $765 Settlement Motion in NFL Concussion Lawsuit

On January 14, 2014, a federal judge denied the motion to preliminarily approve a $765 million NFL settlement, fearing that the money may not be enough to compensate those entitled to the funds.  The settlement applies to an estimated 20,000 retired players, not just the ones who sued, and the agreement asserts that the compensation fund will last 65 years.  The deal set aside $675 million to compensate retired players who suffer from various cognitive problems.  The settlement agreement outlines a schedule of payments based on type of impairment, NFL experience, age at diagnosis, and other factors.  Top-end payouts range from $5 million for Lou Gehrig’s disease, also called amyotrophic lateral sclerosis (ALS), to $3.5 million for Parkinson’s and Alzheimer’s disease.  These awards may be reduced based on a retired player’s age at time of diagnosis, number of NFL seasons played, and other offsets.

In July 2011, retired NFL football players filed the first lawsuit against the NFL and other parties alleging, among other things, that the Defendants breached their duties to the players by failing to take reasonable actions to protect players from the chronic risks caused by concussive and sub-concussive head injuries and concealing the known health risks.  Since then, more than 4,500 former players have filed similar lawsuits.  These lawsuits have been consolidated before U.S. District Judge Anita Brody in the United States District Court for the Eastern District of Pennsylvania.

On January 6, 2014, Plaintiffs filed their class action complaint.  The Complaint, on behalf of roughly 5,000 former NFL players, alleges that the NFL has been aware for decades that multiple blows to the head can lead to long-term brain injury, including memory loss, dementia, depression, and Chronic Traumatic Encephalopathy (CTE).  It also alleges that the NFL fraudulently concealed what it knew about the negative health consequences associated with concussions and sub-concussive injuries sustained by NFL players.

A study published in the scientific journal called Brain, which included brain samples taken from 85 people who had histories of repeated mild traumatic brain injury (TBI), nearly all of whom played sports, evidenced the possible consequences of routine hits to the head in contact sports.  Many players had instances of losing consciousness.  Loss of consciousness may indicate brain damage after a significant impact whether it is from an automobile accident or a hit on the football field.  Evidence of CTE, a degenerative brain disorder associated with repeated brain trauma, was found in deceased athletes such as: Derek Boogaard, Dave Duerson, Cookie Glichrist, and John Mackey.  In fact, Derek Boogaard’s brain was donated for study after his death at the age of 28.

Judge Brody wrote that she is “primarily concerned that not all Retired NFL Football Players who ultimately receive a Qualifying Diagnosis or their related claimants will be paid.”

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