Following years of legal haggling, most of the retired NFL players eligible have decided to accept the terms of the NFL concussion settlement, according to a report by ESPN's Outside the Lines. Tuesday is the deadline for players not satisfied with the proposed settlement to opt out and pursue the case in court on their own outside of the original class. OTL claims that out of more than 18,000 plaintiffs, "as little as a few dozen -- and no more than a few hundred" will actually decline the settlement.
With the majority of eligible players expected to accept the terms of the settlement, it increases the likelihood that Federal District Judge Anita Brody will grant approval at a fairness hearing in November.
Brody rejected the original $765 million settlement proposal due to concerns of insufficient funding. The NFL subsequently agreed to an unlimited settlement that includes cash payments and medical monitoring. However, a number of plaintiffs in the case have argued that the unlimited settlement is compromised by a complex set of criteria for determining eligibility for compensation. For instance, the settlement does not cover players diagnosed with CTE after July 7 or recognize tests for CTE among living players (something that researchers have only recently been able to do).
Plaintiffs who choose not to accept the settlement can choose to opt out and pursue the legal fight on their own, or they can object and make the case that Judge Brody should reject the deal. While few retired players will decline the settlement, that should not be mistaken for satisfaction with the terms. As OTL notes, this may simply be the best of an unfavorable situation.
Many lawyers and players said they are confronting a hard reality: Despite deep misgivings, they stand to collect nothing if they withdraw and would still face an expensive, uphill legal battle against the NFL. The first step would be a return to the NFL's demand that the concussion lawsuits be dismissed under a rule of law known as preemption. Because the players and the owners are bound by a union agreement, the NFL argues, the disputes must be submitted to arbitration, a process far less promising to players. Some lawyers believe that Brody may dismiss some of the cases on this basis after she approves the settlement.
The players opting out of the settlement include several high-profile cases: former Cowboys running back Tony Dorsett, the family of former Chargers linebacker Junior Seau and the family of former Bears defensive back Dave Duerson.
Several players, led by Sean Morey, filed a formal objection with the court. The objection includes a statement from Boston University neurologist and CTE expert Robert Stern which claims that plaintiffs "who suffer from many of the most disturbing and disabling symptoms of CTE would not be compensated under the settlement."
There are several options available to Judge Brody at the fairness hearing. Most notably, she could toss the objections and approve the settlement or recommend that the NFL and plaintiffs rework contested parts of the agreement. Morey's group also has the option to appeal the judge's decision.
The objection includes language about the value of the process of discovery in determining a fair settlement for retired NFL players. Records and testimony brought to the court as part of that process could reveal just how much NFL officials knew about the long-term dangers of head trauma and whether or not the league made an effort to conceal that information.
Continuing the legal fight may ultimately lead to a better, more comprehensive settlement for retired players. However, it's a court battle that would almost certainly drag on for years.