NFL Concussion Settlement Killed by Judge, as Predicted by Law Prof Talking With Players

WASHINGTON - Jan. 15, 2014 - PRLog -- A federal judge has soundly rejected a $765 million proposed settlement of concussion-related injuries even without holding a so-called fairness hearing at which she was to have heard objections from many of the players - a move which puts any such negotiated settlement at risk, says public interest law professor John Banzhaf.  Banzhaf has been publicly predicting the rejection for weeks; indeed, he has been told that, even if approved, more than 2000 players would probably exercise their legal right to opt out of the deal.

The tentative deal was to be presented to a federal judge from approval after it was announced many months ago, but even that initial step was held up when the judge, immediately following allegations of possible wrongdoing, appointed a special master to investigate and report back to her.  More specifically, he is "reportedly investigating allegations of  'double dipping' on the part of some plaintiffs’ attorneys," according to a Pennsylvania legal journal.

Forbes characterized it in an article entitled "NFL Concussion Lawsuit Settlement Agreement Stalled By Judicial Intervention."  The proposal has now gone from stalled to formally rejected, even with a hearing, a remarkable result, says Banzhaf.

Banzhaf has predicted that more than 2,000 retirees are likely to opt out of the deal, a prediction based upon private conversations, as well as on remarks by other impartial commentators who have argued that the deal is a bad one for the players.

As Forbes reported it at the time, "According to George Washington University Law School public interest law professor John Banzhaf, more than 2,000 retired NFL players may refuse to accept the negotiated settlement, which he says would allow the NFL to keep secret what it knew about the dangers of concussions.

Banzhaf further notes that even if only a small number of former players opt out of the settlement, thereby allowing the settlement to still be accepted by the court, those players who choose to opt out of the settlement class may bring separate litigation to earn additional compensation and force the NFL to disclose closely held information concerning what they knew (and maybe did not know) about concussions in the time period reflected by the players’ claims."

The deal has been severely criticized by many commentators because of the paucity of the proposed settlement payout compared to the income and reserves of the NFL, and because it might not provide adequate compensation for many former NFL players for several reasons:
* Many will never get any money because their medical problems cannot be proven to meet the settlement's high standard for compensation – which is that their condition must be “severe”
* All the money may be paid out to early claimants, so that younger players – many whose conditions are not yet "severe"– may be left holding an empty bag
* Payouts will be inadequately small because the overall settlement amount is nowhere near enough to cover all the players who may eventually seek and need financial compensation for their injuries
* Lawyers hired by the individual players may take a big chunk out of their payouts under preexisting contingency fee agreements

"Even if only 10 percent of retired NFL football players eventually receive a qualifying diagnosis," the judge wrote, "it is difficult to see how the Monetary Award Fund would have the funds available over its lifespan to pay all claimants at these significant award levels." "I am primarily concerned that not all retired NFL football players who ultimately receive a qualifying diagnosis or their (families) ... will be paid."

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ @profbanzhaf