In 2013, the NFL settled a concussion lawsuit brought by about 5,000 former players. On Monday, nearly three years later, the settlement was approved by the United States' Third Circuit Court of Appeals against complaints by roughly 200 players that the settlement isn't comprehensive enough. Notably, the settlement was approved even though it does not award any players who will be diagnosed with CTE, specifically, down the road.
Here's the bizarre thing about the court's decision: It acknowledged the link between football and CTE, and that the NFL should have known about it. It also acknowledged the NFL's own acknowledgment -- when senior vice president Jeff Miller admitted in March that, "certainly yes," there is a link between football and neurodegenerative diseases like CTE.
In its opinion, the Third Circuit called the NFL's admission on CTE "an important development," but that it was "conceding something already known." Though the admission came late, the court didn't believe it was significant enough to hold up the settlement any further and prevent players from taking advantage of the nearly $1 billion available to them.
The reasons the court gave illustrate just how effective the NFL's foot dragging was.
The court just wants players to get paid
In its opinion, the court said that it might have changed certain aspects of the settlement if it were starting from scratch.
"If we were drawing up a settlement ourselves, we may want different terms for a certain condition," the judges wrote. "But our roles as judges is to review the settlement reached by the parties for its fairness, adequacy, and reasonableness."
To that end, the judges found that "this settlement will provide significant and immediate relief to retired players living with the lasting scars of a NFL career, including those suffering from some of the symptoms associated with CTE.
"We must hesitate before rejecting that bargain based on an unsupported hope that sending the parties back to the negotiating table would lead to a better deal."
The settlement has already been held up for nearly three years. Feeling the weight of the time passed, it approved something it felt could help a lot of players. The court noted that the 200 objectors were, relatively, a very small group.
In affirming NFL concussion settlement, 3rd Circuit also pointed to the low number of objectors & opt-outs (pic.twitter.com/unooUzKXBM— Daniel Wallach (@WALLACHLEGAL) April 18, 2016
CTE symptoms are closely associated with other disorders
It also seemed odd that the court approved of awards for players who have been diagnosed with CTE before the approval of the settlement, but not after. It wrote that the argument that all players diagnosed with CTE should be awarded, past and present, "misunderstands the role of the monetary award for CTE."
"Retired players who were living with symptoms associated with one of the other Qualifying Diagnoses, but died before approval of the settlement, may not have had sufficient notice of the need to be diagnosed," the court wrote. In the case of players who died before the settlement, signs of CTE are thus a way to diagnose neurological problems they could have been compensated for while they were alive.
Conversely, though players who are still alive may exhibit symptoms associated with CTE, many of those symptoms are also associated with disorders that are covered by the settlement, like Alzheimer's or Parkinson's. This means that a football player can have undiagnosed symptoms of a neurological disorder, pass away, be found to have CTE and leave no money for his family from the settlement.
Again, the judges admit that the settlement isn't perfect. Ideally the symptoms associated with CTE will be recognized while players are still alive. There may be instances when they are not, but for now -- at least, in the opinion of the Third Circuit -- the settlement as it stands is good enough. Which means ...
The NFL got what it wanted
In fairness, so did the players to a large extent -- the vast majority did not raise any objections to the settlement. A lot of money is now available to players that didn't exist before the settlement. The fact that future players diagnosed with CTE may not be compensated seems like a reasonable sticking point, however. Instead of an amended settlement, the NFL was rewarded for its years of denying CTE.
It is well documented that the NFL relied on bad science to bolster its arguments. In March, the New York Times revealed that at least 100 concussions were omitted from a database that an NFL committee used to downplay the dangers of head injuries. That database was the basis of several studies by the league's Mild Traumatic Brain Injury Committee, headed by a rheumatologist named Elliot Pellman, that said that there is no definitive link between CTE and football.
At the time the settlement was initially reached, the payout was more than $200 million lighter and the NFL still hadn't acknowledged a link, even though Boston University's Center for the Study of Traumatic Encephalopathy had already published evidence of CTE in former players who had donated their brains to the lab.
The settlement was reached on the basis that CTE wasn't serious, an assertion that seems absurd in 2016. The settlement should do a lot of good for a lot of people, but it's frustrating nonetheless that, by playing dumb, the NFL was able to win a significant concession. The NFL can now acknowledge CTE without having to act or assume liability.
The Third District's approval was yet another acknowledgment that the NFL has, for years, turned a blind eye to the realities of CTE. At the same time, it encouraged the league's obstinacy. The court thinks the concussion settlement is good enough. When fighting the NFL, that may be the best anyone can hope for.