Settlement Reached in NFL's Concussion Litigation

The NFL has reportedly reached a $765 million settlement with more than 4,500 retired players, which will "fund medical exams, concussions-related compensation, and a program for medical research." According to Peter King with Sports Illustrated, each player (or their estate) will receive about $170,000. The agreement, which still requires approval from United States District Judge Anita B. Brody in Philadelphia, concludes nearly two months of intensive negotiations under the supervision of Judge Phillips.

"This is a historic agreement, one that will make sure that former NFL players who need and deserve compensation will receive it, and that will promote safety for players at all levels of football," said Judge Phillips in a press release by the NFL. "Rather than litigate literally thousands of complex individual claims over many years, the parties have reached an agreement that, if approved, will provide relief and support where it is needed at a time when it is most needed. I am deeply grateful to Judge Brody for appointing me as mediator and offering me the opportunity to work on such an important and interesting matter."

"This agreement lets us help those who need it most and continue our work to make the game safer for current and future players. Commissioner Goodell and every owner gave the legal team the same direction: do the right thing for the game and for the men who played it," said NFL Executive Vice President Jeffrey Pash. "We thought it was critical to get more help to players and families who deserve it rather than spend many years and millions of dollars on litigation. This is an important step that builds on the significant changes we’ve made in recent years to make the game safer, and we will continue our work to better the long-term health and well-being of NFL players."

Once the final documentation is completed, the settlement will be filed with Judge Brody, who will schedule a hearing to consider whether to grant preliminary approval to the agreement.

Portions of the agreement are as follows:

• Baseline medical exams, the cost of which will be capped at $75 million;
• A separate fund of $675 million to compensate former players who have suffered cognitive injury or their families;
• A separate research and education fund of $10 million;
• The costs of notice to the members of the class, which will not exceed $4 million;
• $2 million, representing one-half of the compensation of the Settlement Administrator for a period of 20 years; and
• Legal fees and litigation expenses to the plaintiffs' counsel, which amounts will be set by the District Court.

A Q & A with Judge Layn Phillips on NFL Litigation Settlement:

Who will receive the money and how?

Retired players will have the opportunity to participate in baseline medical exams. Players with demonstrated cognitive injury, now or in the future, will be able to obtain a monetary award. The decisions regarding who qualifies and the amount of the award will be made by independent doctors and fund administrators agreed upon by the parties, and the federal court in Philadelphia will retain ultimate oversight.

How will the medical monitoring work?

A nationwide network of health care providers will be available to give the baseline exams to retired players. The goal will be to make the exam sites convenient so that as many retirees as possible can take advantage of the potential medical benefits.

Is this an acknowledgement by the NFL that it hid information on long-term effects?

No. An agreement doesn’t imply anything about either side’s position. It doesn’t mean that the NFL hid information or did what the plaintiffs claimed in their complaint. It does not mean that the plaintiffs’ injuries were caused by football or that the plaintiffs would have been able to prove that their injuries were caused by football. On the other hand, it doesn’t mean that the plaintiffs wouldn’t have been able to prove their case. The settlement means that the parties reached an agreement to put litigation behind them, get help to retired players who need it, and work proactively to support research and make the game safer. These are goals everyone can share.

What would be the process without a settlement?

Absent a certified litigation class or some creative form of consolidation, every case would have to be addressed individually. Doing so would be complicated, time consuming, expensive, and the outcome for both sides would be highly uncertain.

How were you able to get the parties to settle something that seemed so contentious?

To their credit, both sides recognized that it would be far more productive to get out of court and do something good for retired players with medical needs and focus on the future of the game and making it safer. I would characterize it as a ‘win-win.’ The alternative was for the two sides to spend the next 10 years and millions of dollars on litigation, which would have been great for lawyers, expert witnesses, trial consultants and others. But it would not do much for retired players and their families who are in need. This resolution allows the sides to join together, do something constructive, and build a better game for the future. Both sides faced major risks and uncertainties that made a class settlement far and away the best path for resolving these issues.

Will this prevent other lawsuits of this nature from being filed?

For a variety of reasons, the underlying theory of this lawsuit about what took place in the past would be difficult to replicate in the future. Everyone now has a much deeper and more substantial understanding about concussions, and how to prevent and manage them, than they did 20 or even 10 years ago, and the information conveyed to players reflects that greater understanding. In addition, the labor law defenses asserted by the NFL would represent a very substantial barrier to asserting these kinds of claims going forward. The combination of advances in medical research, improved equipment, rules changes, greater understanding of concussion management, and enhanced benefits should, and hopefully will, prevent similar lawsuits in the future.

What should parents of kids who play football take from this settlement?

Parents should know that the NFL and the plaintiffs are committed to doing what’s right for the game and making it safer at all levels. The proposed settlement includes funds for medical research and education to support those goals.