The Pro Football Concussion Report

A Fan's Look at Head Injuries and the Concussion Crisis in Football

Details Overcome Early Criticism of NFL Concussion Settlement

Proposed chart of NFL head injury related illnesses and compensation

01.07.14

The details in the proposed NFL concussion settlement were finally submitted to Judge Anita Brody for final approval yesterday. Most importantly, the details revealed that the settlement would actually provide benefits or compensate a wider range of former players than previously thought. In addition to paying cash awards for former players diagnosed with ALS, Alzheimer’s, Parkinson’s, and CTE (a time-limited number of already deceased players), the settlement fund  will provide cash and benefits to players diagnosed with early and moderate dementia. Early and moderate cognitive impairment will likely include many more players than the other more severe cognitive illnesses. This was probably the most significant early criticism of the settlement, that it would not cover enough of the suffering former players. The original motion can be found at Paul Anderson’s excellent website, NFLConcussionLitigation.com here, and Exhibit B can be found here.

While many feared that the details of the settlement which was first announced several months ago could be disappointing to the plaintiffs, the fleshed out plan actually answered some of the early criticism.

Early Criticism #1: The settlement doesn’t pay benefits to enough players

The class of settlement participants appears to be at least all players who were on a team roster for at least one-half of one season. (The actual class may be more inclusive of players who only were on pre-season rosters, or even in NFL Europe.) This has been estimated to be over 20,000 former players. Remember, “only” about 4,800 former players had actively signed up with attorneys as plaintiffs in the original lawsuits. So, the majority of former players (about 15,000) chose not to sue the league in the first place, and probably never expected to receive anything from the concussion lawsuits. And most former players will not receive cash payments because most players are not suffering from the above listed cognitive illnesses. Players have been shown to be as much as 4 times as likely to suffer from cognitive impairment as regular folks, but still, that’s a fairly small percentage of the population. All former players though will be able to be examined and evaluated to determine if they do suffer from any cognitive impairment, and if so, to what degree. Level 1.5 Neurocognitive Impairment (early Dementia) and Level 2 Neurocognitive Impairment (moderate Dementia) are defined in the court-filed document and are qualifying diagnoses for monetary compensation. A lesser finding of Level 1 Neurocognitive Impairment diagnosis (mild Dementia) will qualify a player for further medical testing and/or necessary treatment including counseling and medication. Hopefully the former players experience with the medical exams, conclusions and diagnoses arising from this settlement will be more positive and consistent and the players won’t face the hurdles they have reportedly encountered when trying to qualify for medical benefits from other NFL-affiliated retirement plans. And according to the court filing, players who have previously received benefits from other NFL health plans will not be barred from participating in this settlement. Still, former players who are not suffering from these cognitive illnesses will not receive monetary payouts, but it’s difficult to imagine any litigation scenario in which a “victim” who is not showing an injury would be eligible for financial compensation.

Early Criticism #2: The total amount of money will not be enough and may run out

Of course it’s hard to say, especially when the plan is designed to cover 65 years into the future or what amounts to the estimated lifetime of any current former player. To stretch out the money, awarded amounts are reduced depending upon the diagnosis, the players age at the time of diagnosis, and the number of seasons the player is credited with playing. Generally, the younger a player is at the time of diagnosis and the more seasons played in the NFL, the higher the award will be. Unfortunately, a player who is diagnosed with Alzheimer’s at age 80 would only receive a maximum of $50,000 as opposed to a maximum of $3.5 million for a former player who was diagnosed prior to age 45.

 

Settlement-diagnosis-chart

NFL-age-diagnosis-chart

 

Early Criticism #3: The settlement doesn’t require the NFL to admit any wrongdoing

The allegations against the NFL suggested they created, covered-up and/or misdirected scientific knowledge related to the long-term effects of football concussions. Even the settlement documents continue to use the word “fraud” in relation to the plaintiffs claims against the NFL. The agreement to rather quickly settle the litigation by the NFL is considered by many to be a concession in order to avoid the legal discovery process. It was in “discovery” that the plaintiffs would have subpoenaed previously confidential contracts, letters, emails, memorandums and related documents of AFL and NFL owners, teams, league, commissioners, executives, medical staff, advising panels, vendors, etc. to locate evidence that might support their allegations in court. If a case can’t be quickly dismissed, the threat of discovery alone, not necessarily guilt, but just the stress and vulnerability of adversaries accessing your private documents looms large.

It’s doubtful that the NFL owners would have ever let the litigation continue to the point of any potentially embarrassing discovery. For over 50 years, the league has been defended by some of the smartest, most powerful law firms in the country. The NFL spends millions of dollars on attorneys every year regardless of what litigation they’re involved in and even chooses NFL executives from these expert law firms. Former NFL Commissioner Paul Tagliabue (who hired the controversial Dr. Elliot Pellman as head of the NFL’s Concussion Committee) and current NFL Executive Vice-President Jeff Pash were groomed for their NFL jobs at their previous careers as partners at the powerful Washington D.C. law firm Covington & Burling.

In addition, the threat of discovery was essentially a means to an end. The litigation was initiated by the plaintiffs to help compensate or care for injured victims of long-term damage as a result of football concussions. The goal of the lawsuits were never to embarrass or punish the NFL, even though that may be part of the process of bringing them to the negotiation table. Giant lawsuits like these need injured victims to get anywhere. Without injuries it’s difficult to convince a judge why a case should continue or convince a jury why a defendant should be made to pay damages. Coverups and manipulations make for intriguing allegations, news stories and potential evidence, but the goal of the entire awful litigation game is usually to simply help the injured victim. Yes, sometimes defendants are punished, but that is applied in order to prevent future injuries from occurring based on the same behavior. In the NFL’s case, most folks admit that the steps they are taking today in dealing with head injuries, while not perfect, are at least aimed in the proper direction.

And since current players are not included in this class (but are supposedly barred from suing the NFL by their collective bargaining agreement) who knows what type of litigation future advances in medical science and perhaps even future allegations could bring.

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