Appeals Court Upholds NFL's Concussion Settlement

The 3rd U.S. Circuit Court of Appeals upheld the $1 billion settlement in an April 18 decision, saying the settlement may not be perfect but is fair.

The 3rd U.S. Circuit Court of Appeals has upheld the $1 billion NFL class-action settlement of players' concussion injuries in an April 18 decision that calls the settlement fair to the athletes. The cases consolidated before a Philadelphia U.S. district judge contended that the NFL was aware of the risks of repetitive head trauma but ignored, minimized, or suppressed information concerning the link between that trauma and cognitive damage. The parties agreed to a settlement in July 2013 that provided $765 million to fund medical exams and compensation for players' injuries; the final settlement at issue in the appeal was approved in April 2015 and includes an uncapped monetary award fund to exist for 65 years and compensate players who submit proof of certain diagnoses.

The appeals court panel, with Judge Thomas L. Ambro writing, held that the settlement is reasonable.

"In the end, this settlement was the bargain struck by the parties, negotiating amid the fog of litigation. If we were drawing up a settlement ourselves, we may want different terms or more compensation for a certain condition. But our role as judges is to review the settlement reached by the parties for its fairness, adequacy, and reasonableness," he wrote. "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 [chronic traumatic encephalopathy]. 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. Accordingly, we conclude that the settlement's treatment of CTE does not render the agreement fundamentally unfair."

The decision notes that, during March 2016 testimony before the House Energy & Commerce Subcommittee on Oversight & Investigations, the NFL's executive vice president, Jeff Miller, agreed that there is a link between football and degenerative brain disorders such as CTE. "The NFL's statement is an important development because it is the first time, as far as we can tell, that the NFL has publicly acknowledged a connection between football and CTE. On the other hand, the NFL is now conceding something already known. The sheer number of deceased players with a post-mortem diagnosis of CTE supports the unavoidable conclusion that there is a relationship, if not a causal connection, between a life in football and CTE," Ambro wrote. "Objectors cite the NFL's concession as further evidence that this settlement should be rejected. They argue that the NFL has now admitted there is a link between football and CTE, yet refused to compensate the disease. Again, we note that the settlement does compensate many of the impairments associated with CTE, though it does not compensate CTE as a diagnosis (with the exception of players who died before final approval of the settlement). Moreover, even if the NFL has finally come around to the view that there is a link between CTE and football, many more questions must be answered before we could say that the failure to compensate the diagnosis was unreasonable. For example, we still cannot reliably determine the prevalence, symptoms, or risk factors of CTE. The NFL's recent acknowledgment may very well advance the public discussion of the risks of contact sports, but it did not advance the science. Accordingly, the NFL's statement is not a ground for reversal of the settlement's approval.

"It is the nature of a settlement that some will be dissatisfied with the ultimate result. Our case is no different, and we do not doubt that objectors are well-intentioned in making thoughtful arguments against certification of the class and approval of this settlement. They aim to ensure that the claims of retired players are not given up in exchange for anything less than a generous settlement agreement negotiated by very able representatives. But they risk making the perfect the enemy of the good," he concluded. "This settlement will provide nearly $1 billion in value to the class of retired players. It is a testament to the players, researchers, and advocates who have worked to expose the true human costs of a sport so many love. Though not perfect, it is fair."

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