Players seek data behind NFL deal

Updated: August 1, 2014, 11:33 AM ET
By Mark Fainaru-Wada | ESPN.com

More than two dozen retired NFL players and their families are requesting the release of data that would reflect the projected incidence of brain damage in ex-players -- material they say they need to determine whether to accept or reject the terms of a proposed concussion settlement between the league and players.

This week, attorneys for former Chicago Bears defensive back Dave Duerson filed a motion asking the U.S. district judge overseeing the concussion settlement case to release the information. The lawyers cited "grave concerns about the soundness and reasonableness of the proposed settlement that has been given preliminary approval by this court."

On Thursday, a lawyer for another two dozen players filed a similar motion asking the court to release the medical, actuarial and economic data used by lead attorneys for both sides in shaping the proposed settlement.

"That this information is currently off limits to the lawyers charged with advising their clients as to the fairness, reasonableness and adequacy of the settlement, and whether their clients should opt in, object or join the settlement, defies logic ...," wrote attorney Dwight Bostwick on behalf of the 24 players.

The information being sought would provide the first look at what experts hired by both the NFL and the players who sued the league predict will be the incidence of brain damage among former players.

The data have been a source of contention throughout the settlement process. In January, U.S. District Judge Anita Brody rejected the first efforts to settle the concussion case and asked attorneys on both sides to deliver the actuarial data to the court, citing concerns there was not enough money to provide for all deserving players. At the time, the proposed settlement called for the NFL to pay $675 million toward retired players suffering from brain issues.

After Brody rejected the initial deal, she appointed a special master to oversee an examination of the data. The parties returned to negotiations, and a month ago announced a revised deal with no cap on the total amount to be paid out over the life of the deal. Two weeks later, Brody gave her preliminary approval.

While the settlement that Brody approved has no overall cap and maximum payouts in the millions for players suffering from various neurological issues, there is a payout formula based on the level of illness and the players' age at the time of diagnosis. Also, players who were in the league fewer than five years see their payout reduced. For example, a retiree who played five years in the league and was younger than 45 when diagnosed with Lou Gehrig's disease would receive the maximum $5 million; a player who spent three years in the league and was diagnosed with Alzheimer's disease at age 50 would get $640,000; and a 10-year veteran diagnosed at 80 with early dementia would get $25,000. The data being sought by players would allow them and their attorneys -- most of whom are not part of the small group of players' attorneys who have seen the data -- to learn more about how those figures were determined.

"This is an extraordinary settlement for retired NFL players and their families -- from those who suffer with neuro-cognitive illnesses today, to those who are currently healthy but fear they may develop symptoms decades into the future," attorneys Christopher Seeger and Sol Weiss, co-lead counsels for the players, said in statement at the time.

But the actuarial data was absent from the court records reflecting the latest terms of the proposed settlement. Both parties have enlisted their own experts to come up with the information that a mediator in the case had described as modeling "the likely disease incidence."

In addition to former players calling for the release of the information, Bloomberg News filed a motion with the court in late January asking for it to be made public. In early April, ESPN joined with Bloomberg in filing a new motion with the court calling on it to release the data. On Thursday, attorneys for the NFL filed a request seeking more time to respond to the motion from Bloomberg and ESPN.

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