Seven retired players launched on Monday the most aggressive attack yet on the proposed NFL concussion litigation settlement. In a highly unusual action, the players asked a higher court to intervene in the settlement process and reverse what they say was an "erroneous" preliminary approval of the proposal on July 7 by a federal court judge in Philadelphia.
Clearly unhappy with the proposal and the fact that Judge Anita Brody ignored their earlier objection when she issued her preliminary approval (she said the proposal was "unopposed"), the players told the U.S. Court of Appeals for the Third Circuit (also in Philadelphia) that there were "conflicts of interest among players," the procedure for making a claim was "improperly complex and exclusionary" and the attorneys who negotiated the settlement for the players are demanding a fee of $112.5 million "while doing very little work."
The members of the group, led by former special teams player Sean Morey and attorney Steven Molo, all suffer early symptoms of brain injury but would not qualify for compensation under the payment schedule included in the settlement proposal. Even though their symptoms often lead to chronic traumatic encephalopathy (CTE) -- the most common affliction among NFL players who have suffered concussions -- the settlement only provides CTE payments to players who died of the condition before the judge approved the settlement earlier this month.
The players assert in their petition that the failure of the settlement proposal to compensate them puts them in conflict with other players who would collect under the settlement, a conflict that makes any class-action settlement impossible. To qualify for a class action, these players say, all players in the class of 20,000 retired NFL athletes must be treated equally.
In addition to their objections to the terms of the settlement, the players urge the high court to consider their appeal because, for many of the retired players, "time is of the essence." Some players "will die from the injuries that are the root of the litigation, and others will see their conditions worsen." Considering their objections now, the players say, would avoid a "delay of over a year while a settlement marred by a fatally flawed class, as well as other defects, winds its way through the system."
There is nothing automatic about the players' appeal. The judges of the higher court could refuse to consider their petition and send the case back to Judge Brody to continue the settlement process. The next step for Brody is a "fairness hearing," in which these players would voice their objections. If the judge rejects their plea to reject the settlement, they would then be entitled to an appeal that the judges of the high court must consider.
Although there have been numerous reports of players unhappy with the settlement and several criticisms of its terms, the Morey group is the first to take formal action to try to stop the approval process. It is not known when the high court will take action on the request for an appeal.
The players in the group include Alan Faneca, an offensive lineman who played 13 seasons, mostly with the Steelers, between 1998 and 2010; Ben Hamilton, an offensive lineman who played for two teams between 2001 and 2010; Robert Royal, a tight end who played for three teams between 2002 and 2010; Rock Cartwright, a fullback and kick returner who played for two teams between 2002 and 2011; Jeff Rohrer, an outside linebacker who played for the Cowboys between 1983 and 1989; and Sean Considine, a strong safety who played for five teams between 2005 and 2012.