The parties to the class action NFL concussion litigation filed a revised settlement proposal in the Federal District Court for the Eastern District of Pennsylvania.  Recall that in January, the Court ordered the parties back to the settlement drawing board, largely over concerns that the proposed $765 million cap on awards was simply too little to cover the costs and damages incurred by players suffering from neurological disease over decades.

I cannot seem to locate a copy of the revised settlement proposal; I do not have access to PACER and cannot seem to find it on the E.D. Pa web site.  But I’ll offer some quick preliminary thoughts here on the major changes to the settlement as is being reported in the media.  I’ll try to come back around and update the post if and when I am able to read the entire proposal.

(Bear in mind, I am fortunate to have practiced some mass tort litigation for a few years — on the defense side only — so while it has been some time, and while I was never an expert, I have a bit of a window into some of tactical and strategic issues at play in mass tort settlement negotiations).

The single biggest change in the revised settlement is that the settlement amount is now uncapped.  This sounds like a huge win for the plaintiffs.  And I think it is a win.  But the extent of its hugeness depends on the details.  Neither the NFL nor its owners are stupid.  Many observers, this one included, felt that the initial settlement proposal was something of a lowball offer, and apparently the Court agreed, given that the basis for the Court’s preliminary disapproval of the agreement was the inadequacy of the funds allotted.  Accordingly, the NFL seems to have realized that restricting the settlement fund increases the likelihood that the Court will disapprove the settlement.  Rather than risk the Court’s ire by submitting a revised proposal with a higher cap that might still be deemed inadequate for the thousands of players who are implicated (and the uncertain length of time in which ostensible neurological disease will cost retirees, families, and caregivers lots of money), the NFL apparently decided it was safer simply to uncap the settlement fund in the revised proposal.

As I have noted, IMO the NFL’s primary objective in the posture of this litigation is to avoid discovery at all costs.  They cannot afford to have people traipsing through millions of pages of documents, especially when no matter how thorough and careful, the sheer volume of documentation makes it quite likely that even the NFL itself does not know exactly what is contained in said documents.  This increases the pressure on the NFL to come to a settlement agreement with the plaintiffs that the Court will actually approve.  Hence, uncapping the settlement fund seems to be the least risky litigation strategy at this point.

But again, the NFL is not stupid.  They know full well that uncapping the settlement fund removes a hard ceiling on the amount of money the NFL could be compelled to disburse under the terms of the settlement.  You can be certain that other restrictions have been engineered in the settlement to address this theoretical limit.  Ken Belson, who has more or less taken over the NFL concussion beat from the fantastic Alan Schwarz, notes the key mechanism:

The league, however, insisted on measures to prevent retired players from filing false claims. The standards for the doctors who will be eligible to diagnose retired players for the purposes of receiving cash awards have been tightened in the new proposal, and a network of approved doctors will be created.

And there you have it!

The NFL concussion litigation is such an odd convergence of interests for me.  I mean, I am an historian of pain, and spend an awful lot of time and energy researching changing attitudes towards pain in the 19th c., and how those attitudes led to a rise in concerns of skepticism, doubts, and malingering over people’s claims to be in pain.  Much of this research necessarily involves pension claims, so you might say that I am something of an expert on the ways in which anxieties about deception or fraud attach to injured workers (pensions were largely invested primarily in military veterans, and only became available to civil employees quite a bit later), especially people complaining of injuries for which “objective” verification was difficult.

So, it seems quite plain to me that in exchange for its consent to drop the cap on the settlement fund, the NFL insisted on more robust mechanisms for determining eligibility and qualifications for payouts from that fund.

As the inimitable Patrick Hruby notes:

This may be a concern.  Why? Again, Patrick says it well:

Patrick is correct that the NFL’s own history in reviewing disability claims is important.  For example, and as I noted in my 2007 paper, the U.S. Court of Appeals for the Fourth Circuit held in Jani v. Bell (the pension case brought by Mike Webster’s estate) that the Board for the NFL retirement plans

ignored the unanimous medical evidence, including that of its own expert, disregarded the conclusion of its own appointed investigator, and relied for its determination on factors disallowed by the Plan.

But we cannot ignore the larger history of disability determinations as to qualification for monetary benefits, even where the benefits are owed by an ostensibly private actor (rather than the state).  And what that history IMO plainly shows is that the extent of fears about duplicity and deception are generally wielded by a variety of interested parties in ways that cabin, curtain, and curtail the ability of impaired and disabled parties to access monetary benefits that are in theory available to a class of such impaired and disabled persons.

Obviously, people will disagree on whether these kinds of restrictions are ultimately good.