PHILADELPHIA — While the NFL seemingly was able to avert a lengthy trial by reaching a settlement to end high-profile concussion litigation last year, the proposed deal between the league and its retired players had its day in court Wednesday. U.S. District Judge Anita Brody oversaw a “fairness hearing” to hear both a defense of the proposed settlement and objections posed by some former players and their attorneys.
Brody heard arguments for more than four hours from 14 lawyers, two former players and the family members of three other retirees. She did not make an immediate ruling and might not issue an order accepting or rejecting the deal for several weeks.
“The whole goal of the litigation from Day 1 was to get help to the sickest players. . . . We’re one step closer to achieving that goal,” lead plaintiffs’ attorney Christopher Seeger said following the hearing.
But even in defending the proposed settlement to the courtroom, Seeger conceded it wasn’t “perfect.”
“But it is really good,” he told the judge, “and it is fair.”
Seeger said only 199 of the more than 22,000 retired players opted out of the proposed settlement and another 206 objected. The deal was initially for $765 million, though it could exceed that figure once the sides agreed in June to make some aspects of it uncapped. Seeger outlined for the judge the three main components of the revised deal: $75 million devoted to conducting baseline assessments, an uncapped amount for those suffering from a limited number of qualifying diseases and $10 million dedicated to educational efforts.
Objectors focused, meanwhile, on what’s missing — namely, compensation for chronic traumatic encephalopathy, a degenerative brain disease resulting from repetitive brain trauma. While the initial complaint outlined issues faced by former players associated with CTE, objectors argue the proposed settlement does little to provide relief for those issues.
“They’re gone. They’re nowhere to be found in the document,” former player Eugene Moore, who played parts of the 1969-71 NFL seasons, told Brody. “How does that happen? It’s astonishing. . . . It’s akin to bringing a coal miners’ health claim without black lung disease.”
While settlement attorneys point out that CTE cannot be diagnosed until death, Steven Molo, lead attorney for the objectors, told the court that within 10 years, scientists will be able to diagnose CTE in living people. Class attorneys who filed an initial complaint linking football with CTE told the court Wednesday the science is too incomplete to draw definitive lines and establish causation.
“We were building the case to get around the scientific issues,” Seeger explained later. “What I was highlighting today, just to make a point, was that was going to be a really big issue in the case.”
Brad Karp, the attorney for the NFL, called the proposed deal a “historic settlement” but made clear the league feels it would’ve prevailed had the case gone to trial. The proposed settlement is “measurably superior than the likely outcome” of continued litigation, he said.
“This has been missing from the public debate. . . . The league could have fought these claims — successfully fought these claims — for many, many years,” he said.
He noted the league’s misgivings with the allegations but said “the NFL is proud of this settlement.”
Responded Thomas Demetrio, one of the attorneys representing objectors: “The NFL is ‘proud of this settlement.’ Yeah, no kidding. I would be, too.”
Demetrio and his colleagues also took issue with the amount of money the class attorneys stand to make off the case — about $112 million.
Demetrio told the judge the proposed settlement lets the league off too easy, while the settlement negotiators insisted the agreement takes care of the retired players most in need. They pointed out that one of the lead plaintiffs, former fullback Kevin Turner, was unable to attend Wednesday’s hearing. The 45-year old is battling Lou Gehrig’s disease, and his condition has worsened in recent weeks, making travel impossible, Seeger said.