Effort to alter concussion deal fails

PHILADELPHIA -- A group of seven retired NFL players gave the federal court system a chance to expedite the long-delayed concussion settlement on Wednesday, but three judges of the U.S. Court of Appeals here did not seem interested.

It was the first time any of the roughly 20,000 retired players affected by the settlement had a chance to attack its merits in a public court hearing. And it gave the players and their lawyers a preview of the lengthy and difficult battle they will face if they want to win improvements in the settlement.

The players hoped to persuade the judges of the high court to intervene in the settlement process that is plodding along in a lower court here. Led by former special teams player Sean Morey and attorney Steven Molo, the players wanted to look closely at some of the settlement terms. They were concerned that the agreement made no provision for any player who in the future may suffer from chronic traumatic encephalopathy, the most common affliction among former players and a potentially fatal condition. They also were unhappy with the provision of $122.5 million in fees to be paid to the lawyers ("class counsel") who engineered the settlement.

But the words "class counsel" and "fees" were never mentioned in the hearing, and the CTE provisions consumed only six minutes of an 80-minute hearing. The hearing focused instead on the procedural legalities and arcana. The judges and lawyers argued about "jurisdiction," "notice," "mandamus," "judge as fiduciary," "conditional certification," and, incredibly, "the hydraulic effect of early class action certification."

Rather than look at the substance of the terms of the settlement proposal, the judges focused on the question of whether they should permit U.S. District Judge Anita Brody in the lower court to conclude her review of the settlement. She has scheduled her next hearing for Nov. 19 in a process that will continue well in to 2015. Despite Molo's plea that many of the players' conditions are deteriorating rapidly and require immediate treatment and relief, the judges wanted to wait.

"Judge Brody is an experienced trial judge. She has been all over this and is working hard at it," observed Judge Kent A. Jordan when Molo suggested that the three judges could "fix [the settlement] now and save time and money." Judge D. Brooks Smith, another of the panel of three, added, "We are being asked to review something that Judge Brody has not yet considered, and we have no facts."

It was just what the NFL and the "class counsel" wanted to hear. The players began to file their lawsuits in 2011. Although the players and their lawyers have never taken sworn testimony from any NFL officials and have not demanded documents or medical data from the league, the players and the league reached a settlement in a lengthy mediation process in 2013. The litigation continued slowly as Brody first rejected the proposal and its cap of $765 million and then approved an uncapped proposal in July.

Morey and Molo tried to intervene before Brody approved the proposal, but she ignored their 58-page petition, stating in her approval order that the settlement was "unopposed."

Desperate for a chance to make their arguments, the players filed their appeal, relying on a rule of class actions that allows higher courts to review cases after an order like the order Brody entered approving the settlement.

The response of the judges to the appeal and from the attorneys representing the NFL and the "class counsel" demonstrates the difficulty that Morey's group and other players will face as they continue to battle the settlement. In her order, Brody stated that the "proposed settlement is the product of good faith" and that it "falls within the range of possible approval."

Recognizing that Brody was clearly leaning in the direction of approving the settlement, Morey and Molo tried to stop the process with their appeal. If they could stop the process, they thought, they could negotiate for a better deal on the CTE issue and on the fees for the "class counsel."

The judges' reaction in the hearing here on Wednesday indicates that their effort will not succeed now. The judges seemed to agree that their attack was "premature," as Judge Thomas Ambro stated early in the hearing. Along with any other players unhappy with the settlement, they are now left with the alternatives of presenting their objections to Brody in the hearing that will begin in November or of "opting out" of the settlement and preserving their rights to sue the NFL, a difficult and expensive undertaking.

Dozens of lawyers who will be advising players on the settlement proposal watched the hearing on Wednesday. If they had hoped for some help from the court system in expediting and improving the settlement, they were disappointed.