Despite a confident display Tuesday from the players' attorney during a media conference call, it is increasingly clear that the $765 million concussion litigation settlement between the NFL and players who sued the league over health issues could yet fall apart.
A review of 356 pages of settlement details filed Monday in federal court in Philadelphia finds settlement details that may be disappointing to many players, details that could lead them to opt out of the agreement and take their chances in individual trials.
Christopher Seeger, the co-lead attorney for the players and one of the principal negotiators of the arrangement, insists that the number of opt outs will be minimal, but players and their attorneys are certain to raise concerns about the levels of injury compensation and the fees to be awarded to Seeger and other class-action lawyers in the case.
With many players reported to be growing restive and anxious during the four months that have elapsed since the first report of the settlement in August, the specific terms of the agreement that were disclosed Monday may add to their concerns. Here's a big reason why: Early reports on the settlement indicated payments of as much as $5 million to an individual injured player, but the specific amounts described in the settlement's "monetary award grid" show significantly lesser sums.
To qualify for the often-mentioned $5 million award, a player must be diagnosed with ALS, also known as Lou Gehrig's disease, before the age of 45. Only a handful of players will qualify.
Such an award would be reduced if the player is diagnosed with dementia or Alzheimer's later in life and would be available only to players with five full seasons of experience in the NFL. Lesser awards would be available to players with less NFL experience.
Trying to determine how much money a typical retired player who faces problems resulting from concussions would receive is difficult. But there will be a large number of players who face dementia after the age of 60. The grid provides a payment of $580,000 to a 60-year-old NFL veteran who is diagnosed with a moderate form of dementia at age 60 or later. After paying a legal fee of one-third of the award (a typical arrangement) and the costs of his case, the player would collect something in the range of $375,000.
Although there is a strong argument for accepting the lump sum of $375,000 to avoid the risks and uncertainties of a trial, there is also the possibility that a jury in a player's hometown may conclude that his suffering is worth a multiple of $375,000.
Each retired player must use the numbers in the grid to calculate his possible award and then make a decision on whether to take what is on the table or take his chances in a trial. When the amount on the table is as low as $375,000 for a life-altering injury, it makes it easier for the player to decide to opt out of the settlement.
The delays in concluding the settlement together with the repeated reports of multimillion-dollar awards will increase players' disappointment in what they will now be learning about their share of the settlement.
The next-highest award after ALS is $4 million for the death of a player with a post-mortem finding of chronic traumatic encephalopathy. Such a payment would apply, for example, for the suicide death of Junior Seau. But, under the age-based reductions of the grid, it would provide only $2.3 million to the family of Dave Duerson, who also committed suicide. After payment of fees and expenses, Duerson's children would collect an award of about $1.5 million, considerably less than they may have been expecting. They would have a difficult decision to make -- take their share of the $1.5 million or take their chances on a trial in Chicago where their father starred for the Bears.
In addition to disappointment in the amount of their original awards, the players and their attorneys may be shocked at the payment of $112 million in legal fees to the attorneys who have been leading the work on the cluster of concussion cases gathered in Philadelphia. That payment is separate from the $765 million settlement, but the players who joined the lawsuit in the vast majority of cases will have to pay attorneys' fees from whatever settlement money they receive.
The settlement came very early in the litigation process but after a prod from the judge. The attorneys for the players did not take a single deposition from any NFL executive or employee and never began the process of searching NFL records for any possible evidence that the league and the owners had concealed the effects of concussions from the players.
Lead attorney Seeger, in the teleconference Tuesday, argued that the lawyers had done significant work on the case, researching the science of concussions and working with physicians, actuaries and economists on the settlement.
As a lawyer, I am reluctant to criticize another attorney's attempt to collect a fee, but $122 million for filing a series of lawsuits and spending 12 days in mediation to settle them is a bit much. Most of the personal lawyers for the players who are not a part of Seeger's committee will be appalled at the $112 million fee suggestion and will not hesitate to share their thoughts with their player clients. Those contacted by ESPN declined to comment, citing the gag order in the case.
As soon as U.S. District Judge Anita B. Brody approves the settlement papers that were filed Monday, the players will have a 60-day period to make their decisions on whether to opt out. There is no magic number of opt outs that will cause the settlement to collapse. According to the settlement documents, the NFL has the right to walk away from the settlement "for any reason whatsoever" before the final approval process begins.
The NFL wants the settlement to work and to end the league's concussion crisis, but it will not hesitate to walk away should the number of opt outs reach the point where the payment of $900 million in settlement no longer makes sense. Why pay roughly $900 million to settle something that is not settled?