April 21, 2016, Trial News
Third Circuit affirms NFL concussion settlement
Diane M. Zhang
The Third Circuit has affirmed the April 2015 concussion litigation settlement that requires the NFL to pay up to $5 million each to thousands of retired players suffering from certain neurological disorders. In 2013, hundreds of former players joined in a class action against the NFL, alleging that it concealed the dangers of chronic traumatic encephalopathy and its link to professional football.
The Third Circuit has affirmed the April 2015 concussion litigation settlement that requires the NFL to pay up to $5 million each to thousands of retired players suffering from certain neurological disorders. (In re Nat’l Football League Players’ Concussion Injury Litig., No. 15-2206 (3d Cir. Apr. 18, 2016).) In 2013, hundreds of former players joined in a class action against the NFL, alleging that it concealed the dangers of chronic traumatic encephalopathy (CTE) and its link to professional football.
The court’s decision comes a month after Jeff Miller—the NFL’s senior vice president for health and safety—broke with the league’s past stance by admitting to a link between football and CTE during a roundtable discussion convened by the U.S. House of Representatives’ Committee on Energy and Commerce. This marked the first time that an NFL representative publicly acknowledged the link between CTE and professional football.
CTE—a progressive degenerative brain disease that can lead to depression, dementia, and death—results from repeated concussions and other traumatic head injuries. In 2002, after doctors found the rare disease in the brain of football legend Mike Webster, researchers discovered the disease in dozens of other players’ brains postmortem—leading to increased scrutiny of the link between CTE and football. For years, the NFL denied any link between the sport and the disease, claiming that professional football players do not sustain frequent repetitive blows to the head and that currently there is not enough information on CTE, which can be reliably diagnosed only after death.
On Apr. 22, 2015, Judge Anita Brody of the Eastern District of Pennsylvania approved the $1 billion settlement between the NFL and thousands of retired players. (In re Nat’l Football League Players’ Concussion Injury Litig., MDL No. 2323 (E.D. Pa. Apr. 22, 2015).) Some former players, however, criticized the settlement—claiming that its pay scale and lack of coverage for CTE cases diagnosed after the cut-off date could block some players from recovering for their future football-related injuries. An attorney who represented a group of objectors wrote a letter to the Third Circuit in March, citing the recent NFL admission to argue that the settlement’s coverage should expand to include a broader class of injured players.
However, the Third Circuit disagreed. The court acknowledged the NFL’s public admission of the link between football and CTE as “an important development,” yet also stated that the NFL merely conceded something already known, calling the link “an unavoidable conclusion” given the ongoing research on CTE.
The decision further stated that the settlement covers many symptoms of CTE, and compensating players currently suffering from those symptoms is preferable to withholding compensation until they are definitively diagnosed with CTE after their deaths. “Moreover,” the court wrote, “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.”