Commentary

Judge's ruling a setback for attorneys

Need for more information embarrassing for players' attorneys, worrisome for NFL

Updated: January 14, 2014, 6:11 PM ET
By Lester Munson | ESPN.com

A federal judge in Philadelphia has rejected a proposed settlement of more than 4,500 NFL concussion lawsuits. Her decision raises legal questions about the settlement, its terms and its future:

Q: The attorneys for the players and the attorneys for the NFL agreed on the terms of the settlement. Why would the judge reject it at this stage?

A: U.S. District Court Judge Anita Brody, in the 12-page opinion she issued Tuesday, expressed concern about whether all NFL retired players who suffer concussion-related injuries "will be paid." She suggested that the $765 million fund "may lack the necessary funds" to pay all of the retired players who qualify for awards.

In addition to her concern about payments for dementia and other concussion-caused conditions, she is not happy with the funds set aside for measuring and treating future injuries and the settlement's proposal to bar all NFL players from any claims they may have against the NCAA.

Although the lawyers proposing the settlement submitted more than 300 pages of paperwork, they did not offer Brody detailed actuarial analysis covering the adequacy of the settlement or any projections of why the funds would be sufficient for payments over the 20 years proposed in the agreement. Further, they did not offer any detail about the fund's adequacy for future medical treatment.

Q: What is the significance of the judge's ruling?

A: Brody's ruling is significant in two ways. First, it is an embarrassing setback for the players' attorneys who have submitted the proposal. These lawyers included in their proposal a request for $112 million in fees for themselves. It is difficult to imagine how the lawyers could have done $112 million in legal work and not submitted the expert reports to the judge. After spending more than four months preparing these legal papers, the player-clients now learn that the lawyers omitted critical materials from the paperwork.

Second, the rejection, even if temporary, will add to the growing skepticism among players and their personal attorneys about the settlement terms. In addition to the demand for enormous fees and delays in preparing paperwork, the judge's concerns about the adequacy of the settlement funds will fuel player concerns that their representatives have settled for too little. It could add to the number of players who will opt out of the settlement and take their chances in the litigation process.

Q: Does this mean that the settlement will fall apart and the players and the league will return to a litigation battle?

A: Not necessarily. In the settlement proposal, the attorneys for the players asserted that they had consulted extensively with actuaries and economists to ensure that settlement funds would be adequate for as many as 20,000 potential claims. They did not, however, include any reports from the experts whom they consulted. Brody wants the lawyers to submit the expert opinions for her consideration.

Q: What happens next?

A: The lawyers who are leading the players' efforts will submit the expert reports to the court. Brody has appointed a special master who will review the reports and make a recommendation to the judge.

If Brody is satisfied with the experts' opinions and their analysis of the settlement proposal, she will reconsider the proposed settlement. If the experts' reports are as impressive as the players' lawyers suggest, then the settlement could move to the next step in the approval process. If the experts' opinions are less than persuasive (a real possibility), then the judge may issue a final and conclusive rejection of the proposal, sending the players and team owners back to the bargaining table.

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