NFL Payout for Concussions May Jump ‘Exponentially'

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By Steven M. Sellers

Feb. 4 — The payout in a concussion settlement between the NFL and its former players may grow “exponentially” with any uptick in future brain injury diagnoses, lead plaintiffs' counsel for thousands of former NFL players said.

“The actuarial reports estimate that three out of ten players will come down with a serious diagnosed injury that we define in the settlement,” Christopher Seeger, of SeegerWeiss in New York, said in a Feb. 2 panel discussion on the settlement. “If that number moves to four, then the value of the deal goes up exponentially.”

“It's been changed—it's an uncapped deal—so a billion dollars is an estimate,” Seeger said.

The settlement not only reflects the potential for increased player claims, but also immediate compensation for symptomatic players, and the need for continued research on concussion-related injuries, according to comments made by Seeger and other panelists.

But it also reflects various evidentiary obstacles in the cases, such as the assumption-of-the-risk defense and the wealth of NFL players.

Settlement Approved, Appeal Filed

Last year, the Eastern District of Pennsylvania gave final approval to a $765 million settlement by the National Football League over the head-injury claims of former players (In re Nat'l Football Players Concussion Injury Litig., 2015 BL 114599, E.D. Pa., final settlement approved, 4/22/15).

More than 5,000 former NFL players sued the league in multidistrict litigation, alleging it acted negligently in failing to tell them of the long-term consequences of repeated head impacts .

The deal provides immediate compensation to players already diagnosed with serious brain injuries, but also allows asymptomatic players to make future claims if they prove a concussion-related brain injury.

Not all former NFL players in the litigation agree the settlement is a good deal. Some have appealed to the Third Circuit on grounds that the deal doesn't go far enough in protecting player interests.

Oral argument in the appeals was heard by the court last November (In re NFL Players Concussion Injury Litig., 3d Cir., Nos. 15-2292, oral argument, 11/19/15).

Causation Obstacles Avoided

The upside of the settlement is that it relieves symptomatic players of having to prove causation for their diagnosed brain diseases, including dementia, Parkinson's Disease and Alzheimer's Disease, Seeger said.

Panelist Arthur Miller, a professor at New York University School of Law and associate dean of NYU's Tisch Institute for Sports Management, Media and Business, said the settlement couldn't wait for more research about chronic traumatic encephalopathy.

CTE is a progressive degenerative disease in people who have had multiple concussions, and which has been found in brain studies of some deceased NFL players.

“You can't wait around to solve the CTE mystery,” Miller said. “In the meantime, people are dying.”

More Research Needed

The settlement was also driven by mix of science, evidence and potential jury perceptions, according to Seeger.

“We were prepared for a long-term war,” Seeger said. But he described as a “challenging trial issue” the argument that the players assumed the risk of head injuries when they signed up to play.

Seeger also said focus groups inaccurately perceived NFL players as millionaires.

Mark Fainaru-Wada, an investigative reporter with ESPN who has written extensively on brain injuries in football and how the NFL has dealt with them, said that research would require a “significant longitudinal study” that looks at players over decades.

“You can't diagnose CTE in living people,” said Seeger. “We are compensating diseases associated with CTE.”

The panelists concurred that concussion issues—and presumably the litigation issues that accompany them—extend beyond the NFL.

“We're only talking about the tip of the iceberg in people who have traumatic brain injury who have played football,” according to panelist Harry Carson, a retired linebacker with the New York Giants who said he had been diagnosed with post-concussion syndrome.

Moderator Thane Rosenbaum, another professor at NYU's School of Law and director of its Forum on Law, Culture and Society, said the NFL and its lawyers had been invited to participate in the forum, but declined.

The panel discussion was jointly produced between 92Y and the Forum on Law, Culture & Society as part of a “Trials & Error” series that focuses on high-profile trials.

To contact the reporter on this story: Steven M. Sellers in Washington at ssellers@bna.com.

To contact the editor responsible for this story: Steven V. Patrick at spatrick@bna.com.

For More Information

The event is available at http://livestream.com/92Y/nfl.