By Ken Reed

U.S. District Judge Anita Brody has essentially forced the NFL to remove the cap on concussion-related damages in a class-action case involving more than 4,500 former players.

Brody has granted preliminary approval to the new landmark settlement deal that would compensate former players on concussion-related claims. Previously, Brody had questioned whether a $675 million cap on damages would be enough to cover all claims in the future. As such, she had withheld her approval of the original settlement.

Brody’s refusal to approve a deal with a cap on it deserves to be widely applauded. The NFL had fought hard to have a cap on damages as a part of the settlement.

However, the revised settlement still has some critical flaws. The biggest one being how the settlement deals with Chronic Traumatic Encephalopathy (CTE), the degenerative brain disease that’s caused much of the recent concussion-related uproar in sports such as football and hockey. Players diagnosed with Lou Gehrig’s disease, dementia, Alzheimer’s, or similar diseases will be eligible for monetary awards — even though many of these diseases may in actuality be CTE-based. However, players with other neurobehavioral problems regularly linked to CTE are out of luck. The revised settlement leaves players who have yet to be diagnosed with CTE — even though they very likely currently have the disease and are suffering from its effects — with nothing. (Of note, the only way to be officially diagnosed with CTE today is to die and have your brain tissue examined in an autopsy. There are, however, many neurobehavioral medical effects linked to CTE, including, depression, memory loss, chronic headaches, chronic pain, impulsivity, speech impairment, concentration problems, attention deficits and diminished executive function that wouldn’t be covered under the agreement as it now stands. Many former NFL players believe they are suffering from these symptoms as a result of concussions and repetitive subconcussive shots to the brain during their NFL careers, resulting in CTE-based problems. Not only wouldn’t they receive a dime from this preliminary settlement, they’d also be barred from bringing any future legal action against the NFL regarding CTE issues.)

Sports journalist Patrick Hruby did an excellent job describing the practical reality of the preliminarily approved settlement regarding CTE:

“Guess what: according to the specific language of the revised settlement, the qualifying diagnosis of ‘Death with CTE’ requires retirees to have died and been diagnosed with the disease before the date of preliminary settlement approval, i.e., before July 7, 2014. If you die with CTE after that — no matter if you commit suicide like Seau and Duerson or end up crazy and living in your truck and super-gluing your teeth in place like Webster; no matter how ravaged your brain looks to a neuropathologist in the cold light of a laboratory; no matter how much you or your family suffer; no matter how well connected said suffering is to a disease that the doctor who discovered it wanted to name ‘footballer’s dementia’ — you don’t qualify for an award.”

CTE is a huge issue with former players. To date, 33 of 34 former football players, including high profile players like Mike Webster and Junior Seau, who had their brains examined after death were found to have CTE. That means there could be thousands of current and future former players and their families who suffer from the debilitating effects of CTE who never receive a monetary award from this settlement.

Removing the cap on concussion-related damages is a positive step — one largely engineered by Judge Brody, but ignoring the horrendous impact of CTE from this point forward is a major problem with this revised settlement.

Before granting final approval, Brody will hold a November 19 fairness hearing to determine if the settlement as proposed is “fair, reasonable, adequate, and in the best interests” of the former players.

Here’s hoping the former players and Brody push for changes on the CTE-related provisions of this preliminary agreement before it is finalized.

This settlement needs to be revised more expansively before it’s a done deal.

Ken Reed, Sports Policy Director, League of Fans


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