A federal judge in Philadelphia will conduct a daylong hearing Wednesday to determine whether a settlement of the massive NFL concussion litigation is "fair, adequate and reasonable" for thousands of retired players who have suffered concussion-related injuries and disabilities.
The agreement -- initially rejected by U.S. District Judge Anita B. Brody, but preliminarily approved when the NFL agreed to an uncapped fund for qualifying players -- has produced thousands of pages of legal and medical arguments, an appeal to a higher court that was denied but awaits an explanatory opinion, and hundreds of letters from players and their families who are concerned about its terms.
Because the settlement, originally valued at $765 million, will affect nearly 20,000 retired players, the judge must examine its details and determine whether it meets the standards established for victims in other mass-injury, class-action court cases such as asbestos and tobacco.
The settlement terms have prompted numerous objections and criticisms from players, their attorneys and medical experts. The main concerns: the compensation for CTE (chronic traumatic encephalopathy), the most common affliction among retired players; the award of $112 million in legal fees for the lawyers who negotiated for the players; and the process for collecting player awards.
According to Steven Molo, who has filed the most extensive and comprehensive objection to the settlement, the agreement is "not a compromise, it is capitulation." Brody appointed Molo to lead the arguments for objecting players on Wednesday. In a brief filed last month, Molo asserts that the benefits of the settlement "run to the NFL, which gets near-absolute release [for concussion claims] without providing adequate and reasonable compensation in return, and to class counsel [the players' attorneys who negotiated the deal] who get an extraordinary fee as part of the process."
At the heart of the players' objections is the failure to provide anything for players who suffer the early signs of CTE -- episodic depression, sleep disorders, mood and personality changes, and attention and concentration deficits. Because their mood and behavior problems have not yet deteriorated into a formal diagnosis of CTE, these players would receive nothing in the settlement, say Molo and other attorneys who have joined in Molo's objections. The objectors add that the settlement is deficient because it does not pay awards to the families of players who die of CTE after the preliminary approval of the settlement in July.
The NFL, in a brief filed last week by its lead attorney, Brad Karp, asserts that the players' arguments on CTE are "misguided, misleading and meritless." Karp suggests that the early symptoms of CTE are "so prevalent in the general population" and "extremely difficult to prove" that they could not be compensated. These symptoms, the NFL lawyer says, "are highly speculative" and the settlement's compromise on the issue is "entirely reasonable." A player's mood and behavior changes, Karp argues, can occur in "the context of retired NFL football players" because they have "several significant risk factors for depressions, including sleep apnea, higher body mass index, exposure to severe lifestyle change or drug abuse." The exclusion of these symptoms was, therefore, "intentional and justified," the NFL lawyer says.
Replying to the players' objection that the families of players who may ultimately die from CTE would receive nothing in the settlement, Karp says that the league did not want to be in the position of "incentivizing suicide."
Molo and other attorneys for objecting players also are expected to criticize the settlement's award of fees of $112 million to the class counsel who negotiated the settlement for the players. The negotiating lawyers did not do any "discovery," the process of taking sworn testimony from NFL officials and doctors and strip-searching NFL files for evidence that the league may have concealed the dangers of concussions from the players.
"Investigation of the facts through discovery of the NFL's internal files could yield powerful and compelling evidence of the NFL's culpability -- strengthening class counsel's hand at the negotiating table," according to the players' brief. "Yet class counsel settled this case without taking a single deposition and without the NFL producing a single document."
At least 12 lawyers will argue for the objecting players. They also will assert that the procedure players must follow for making a claim is too complex, that the benchmarks for age and seasons played are unfair, and that players are not receiving appropriate credit for preseason training and time on the injured reserve list.
Several players and family members are expected to address Brody during the hearing, including Tregg Duerson, the son of the late Dave Duerson, whose suicide was linked to CTE in an autopsy. In the troubled, final years of his life, Duerson lost a valuable business, divorced his wife and lost the family home.
Brody is not expected to make a ruling on Wednesday. She may decide to ask for testimony from medical and actuarial experts, or she may issue a written opinion within two months.