NFL logo on goal post padding before a 2014 preseason NFL football game at Ford Field in Detroit. (AP Photo/Rick Osentoski)

NFL Concussion Settlement Wins Final Approval from Judge

April 22, 2015
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In a decision that carries a potential $1 billion price tag for the NFL, a federal judge has given final approval to a settlement between the nation’s most profitable sports league and thousands of ex-players who have accused it of concealing a link between football and long-term brain injury.

The ruling by U.S. District Judge Court Judge Anita B. Brody on Wednesday ends a legal battle that since 2011 has threatened to undercut the nation’s adoration for professional football and sparked a debate about whether the sport on any level is worth the risk to players.

With Brody’s decision, the NFL avoids a potentially embarrassing discovery process and trial that would have brought attention to the medical histories of former players dating back decades.

Instead, the league will pay $75 million for baseline medical exams for retired-players; $10 million for concussion research and education; and an uncapped amount in damages for retirees who can demonstrate that they suffer from one of several brain conditions covered by the agreement. In total, the settlement is expected to cost the NFL nearly $1 billion dollars over the next 65 years — an amount on par with what it earns during a single season in sponsorships alone.

“Today’s decision powerfully underscores the fairness and propriety of this historic settlement,” said Jeff Pash, NFL executive vice president and general counsel, in a statement. “As a result of the settlement, retirees and their families will be eligible for prompt and substantial benefits and will avoid years of costly litigation that – as Judge Brody’s comprehensive opinion makes clear – would have an uncertain prospect of success.”

At the center of the class-action lawsuit were two fundamental questions: What did the NFL know and when did it know it? In their master complaint, roughly 5,000 former players charged that the league, “ignored, minimized, disputed, and actively suppressed broader awareness of the link between sub-concussive and concussive injuries in football and the chronic neuro-cognitive damage, illnesses, and decline suffered by former players.”

The league’s denials of this link, players say, can be traced to its now disbanded “Mild Traumatic Brain Injury Committee,” which in a series of scientific papers from 2003 to 2009 concluded that “no NFL player” had experienced chronic brain damage as a result of repeat concussions. In one 2005 paper — published in the journal Neurosurgery — members of the committee wrote that, “Professional football players do not sustain frequent repetitive blows to the brain on a regular basis.”

Such findings stood in direct contrast to outside research suggesting a more clear-cut connection. In 2002, for example, a crippling brain disease known as chronic traumatic encephalopathy, or CTE, was discovered in the brain of former Hall of Fame Pittsburgh Steelers center Mike Webster. CTE, which can only be identified posthumously, is rare outside of football, but in September the nation’s largest brain bank focused on traumatic brain injury told FRONTLINE it had identified the disease in 76 of 79 deceased NFL players it had examined.

Under the settlement, the family of a player determined to have died with CTE would qualify for a payment as high as $4 million. Players suffering from dementia could receive as much as $3 million, while those with Lou Gehrig’s disease would qualify for the maximum payment of $5 million. All in all, the deal will apply to more than 20,000 former NFL players — nearly a third of which are expected to develop a long-term cognitive problem as a result of their time in football, according to actuarial data filed in connection to the case.

Payments will not be given to players until all appeals are heard, a process that could take months or even years.

Supporters of the agreement say it ensures that players and their families will avoid a lengthy court trial that offered no guarantee of victory. Still, more than 200 former players or their families have opted out, arguing that the agreement does not go far enough.

Among those opting out is the family of legendary San Diego Chargers linebacker Junior Seau. In 2012, Seau committed suicide by shooting himself in the chest with a .357 Magnum revolver — in the chest, it was speculated, to preserve his brain for research. The Seau family has filed a wrongful death suit against the NFL, saying they are not suing “for his pain and suffering,” but rather “their own.”

Reflecting similar discontent, around 140 ex-players filed official objections for Judge Brody to consider during a fairness hearing held in November.

After the agreement was first announced in August 2013, Brody signaled sensitivity to such concerns on repeat occasions. In January 2014, for example, she declined to approve the deal out of concern that not enough money had been set aside to compensate players. Following the decision, the NFL agreed to lift a cap on damages that had previously been set at $675 million.

In February, Brody again ordered both sides back into negotiations, saying players should receive at least partial credit toward benefits eligibility if they played in the NFL’s European league. Brody said the agreement should also do more to aid players should they wish to appeal an award or are unable to produce specific medical records. The two sides addressed these concerns by agreeing to count one season of overseas play time as equal to a half-season of regular NFL play; allowing players to request a “hardship” waiver of the $1000 fee to make an appeal; and creating a “limited exception … in the event of unavailability” of medical records.

A larger sticking point was the agreement’s CTE benefit. Under the original terms of the deal, a player would have needed to die by the agreement’s preliminary approval date in July 2014 in order to qualify for payment. Brody requested the timeline be extended until the deal’s final approval date. Despite the revision, critics are quick to highlight that the deal continues to shut out the family of Mike Webster because he died prior to the start of eligibility in 2006.

Another glaring omission, say critics, is the lack of any admission of wrongdoing by the NFL, or acknowledgment of a link between football and brain disease.

“I think there really needs to be a come to Jesus moment when the NFL says, ‘Yeah, clearly there’s this link. We tried to downplay it or outright deny it,'” said Rep. Linda Sanchez (D-Calif.) in an interview with FRONTLINE.

Beginning in 2009, Sanchez helped put the concussion issue on the nation’s radar during a series of congressional hearings in which league officials famously drew comparisons to big tobacco. The deal is not perfect, she said, but hopefully it will lead to more of a focus on player safety.

“I hope this case serves as a starting point for the NFL’s acknowledgement of the dangers of the sport of football, because I think there’s a lot more work that needs to happen on the part of the NFL,” Sanchez said.

In recent years, the league has donated millions toward concussion research and changed its rulebook to limit the frequency of head-to-head collisions. Ahead of the 2011-2012 season, for example, it moved kickoffs up by five yards in an attempt to limit kick returns, one of the most dangerous plays in football. The following season, the league announced that concussions fell by 40 percent on those plays. The NFL has also increased fines for illegal hits to the head, and agreed to allow independent neurologists on the sidelines during game day.

The combined efforts have had an effect. According to a FRONTLINE tally of NFL head injuries, teams reported 123 concussions during the 2014 season, down from 152 a year earlier and 171 in 2012.

What remains unclear is what direction any future changes may go. The NFL had been prepared to outfit players with helmet sensors, but less than three weeks after this year’s Super Bowl, the league quietly announced with little explanation that it was indefinitely delaying the plan.

In the meantime, the league continues to face questions about how often players are slipping through the cracks. In one high-profile example from this year’s Super Bowl, New England Patriots receiver Julian Edelman was allowed to stay in the game following a crushing head-to-head collision that caused him to display several of the symptoms that are supposed to automatically trigger a player’s removal from the field for evaluation. Edelman later told The New York Times that he was eventually tested for a head injury, but that “due to our team policy” he could not discuss whether he suffered a concussion. In all, Edelman was on the field for 72 of the team’s 74 offensive plays.

Yet while some players will slip through the cracks, and others may refuse to disclose their injuries, the debate over the settlement has brought nationwide attention to the debate around football safety. In perhaps the most clear-cut example of the growing awareness of concussion safety, Chris Borland, one of the NFL’s most promising rookies last season, announced in March that he was retiring from the sport after just one season out of concern for his health.

“I’m concerned that if you wait ’til you have symptoms, it’s too late,” Borland explained to ESPN. “There are a lot of unknowns. I can’t claim that X will happen. I just want to live a long, healthy life, and I don’t want to have any neurological diseases or die younger than I would otherwise.”

Related Film: League of Denial

Watch FRONTLINE’s 2013 film that examined what the NFL knew about a link between brain damage and football — and when it knew it.

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