The revised proposal for settlement of NFL concussion litigation that was announced Wednesday provides uncapped benefits for thousands of retired players -- a major change from the initial proposal that a judge rejected in January. The new proposal raises legal questions about its terms, the choices facing retired players and the next steps in the process:
Q: Many retired players were unhappy with the original settlement. Will the revised proposal answer their concerns?
A: Yes, but not all of them. Many players and their personal attorneys were concerned that the first offer of $675 million in injury benefits was not enough to pay the claims of the thousands of players who suffer the effects of concussions. U.S. District Judge Anita Brody, who will decide whether to approve the settlement, also was concerned about the adequacy of the initial agreement.
Eliminating the cap on the funds available answers many of the players' concerns, but there are also players who do not qualify for awards of compensation under the grid system that is included in the settlement proposal and more players who are seeking damages for injuries that result from pain medication. Many of these players will remain concerned and will face difficult and important decisions about whether to remain part of the settlement or opt out and try to seek compensation from the league on their own.
Q: What are the next steps in the legal process?
A: The attorneys who have led the settlement effort for the players and the NFL attorneys will ask Brody for a preliminary approval of the proposal.
The new proposal answers most of the questions she raised this year about the original settlement, and she is likely to issue preliminary approval. The lawyers will then send notices describing the details of the settlement to all retired players. The players will have 90 days to decide whether they wish to agree to the settlement.
Brody will then conduct a "fairness hearing" that will examine the terms of the settlement, the actuarial support for the proposal and any issues raised by the players. Brody will then either issue a final approval or ask for more information. If she approves the settlement, the players will begin to make their claims and collect compensation.
Q: What options do players have if they are not happy with the proposal?
A: Any player can object to the proposal and explain his objection to the judge, or a player can opt out of the settlement altogether.
In the objection scenario, the attorney for the player would try to persuade Brody in the fairness hearing that the settlement is somehow inadequate. It would be a challenge to prevail against arguments from the lawyers for the huge class of players and the NFL legal team, but if enough players join in the objection, they could succeed in obtaining a modification of the proposal.
If the player pursues the opt-out option, he would be removed from the settlement and would return to the court where he filed his original lawsuit and prepare for trial against the NFL.
Q: If a player goes that opt-out route, what are his chances for success?
A: The player would face a barrage of legal actions from the NFL, but he would also enjoy the prospect of a trial by a jury in his home court. In an opt-out scenario -- let's use the families of Junior Seau and Dave Duerson as examples -- they would present their wrongful death cases to juries in San Diego and Chicago where they were fan favorites. The jury would determine whether the NFL was responsible for their injuries that precipitated suicide and would determine the amount of compensation. The jury would not be limited to the amounts set in the settlement.
The path to a jury trial and a potentially big award would be risky, though. The NFL will argue that there can be no jury trial because the dispute is covered by the union agreement. The league will also claim that the player assumed the risk of injury and that the injuries could have been caused by high school or college concussions.
As plaintiffs' attorney Christopher Seeger said Wednesday, a lawsuit against the NFL is a "long and uncertain road."
Q: Will anyone ever know whether the NFL concealed the effects of concussions from the players, as many players suggest?
A: It is possible. Any player who opts out of the settlement will be able to begin the pretrial process known as "discovery." It would be difficult and expensive, but the discovery process would allow the player to search through NFL records to determine whether the league knew of the effects of head injuries and either concealed them or misrepresented them to players. The player's lawyers would be able to take sworn testimony from NFL officials and doctors as they search for evidence.
But unless there are players who opt out, no one will know what the NFL knew and when the league knew it.
Q: What prompted the NFL to agree to an uncapped fund for payment to injured players instead of the $675 million fund that the players accepted in the original proposal?
A: There were at least two factors. The first is that the NFL is confident that the amount that it will pay will not exceed the $675 million in the original proposal. The league's confidence is based on the actuarial studies that were done during the negotiations last year (studies that have not been made public). Although the offer of an uncapped fund appears to be generous, the league believes it will pay no more than the previously offered $675 million.
The second factor is that the players agreed to allow the NFL unlimited appeals of awards to players that the league deems to be excessive. Under the first proposal, the league was limited to 10 appeals per year. If the NFL believes that an award is based upon faulty medical evidence or exaggerated descriptions of disability from the player, it can appeal the decision to Brody or someone that she designates. In the appeal, the court will have the assistance of an advisory board of experts that is established in the agreement and paid from the settlement funds. If the league files appeals that are "vexatious" or "frivolous," the players can seek sanctions from the court, according to these new terms in the 163-page agreement.
Q: If the NFL will pay the same amount with or without a cap on the settlement, why did it take six months to agree on the new proposal?
A: This is a very good question. The judge refused to approve the first settlement six months ago. After she made her decision, many players and their personal lawyers began to wonder about the proposal and to ask questions about it. Many filed papers in Brody's court seeking information and making objections. Momentum began to build for a rejection of the settlement. The NFL lawyers and the executive committee of the players' lawyers stonewalled any attempt to obtain information about data that supported the settlement and the ability of the settlement fund to provide for all the injuries. The settlement they announced Wednesday, it seems, could easily have been concluded and announced months ago. The delay and the refusal of the lawyers to disclose their actuarial studies may lead to more doubt and suspicion from the players. The fairness hearing will be an opportunity to resolve these questions.