Judge Seeks Additional Changes in NFL’s $765M Concussion Settlement

The National Football League’s $765 million settlement over concussions came up short a second time as a judge said she wants more changes before she’ll approve it.

U.S. District Judge Anita Brody in Philadelphia, in an order the day after the New England Patriots defeated the Seattle Seahawks in Super Bowl XLIX, said the NFL should expand payment for some claims made by the more than 5,000 players who sued the league seeking damages for head injuries.

Brody was swayed by the objections of dozens of former players and their families who said the deal wasn’t good enough, especially for those with symptoms of chronic traumatic encephalopathy, or CTE, a brain disease diagnosed only after death.

The settlement should allow payment to retired players who died from the disease after the agreement’s July 7 preliminary approval date and before its final approval, Brody said in Monday in the order, in which she suggested several changes.

The changes “would enhance the fairness, reasonableness, and adequacy” of the proposed settlement, Brody said in her three-page order.

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Brody also wants the settlement to provide credit for seasons played in the NFL’s European league and “reasonable accommodation” for athletes who don’t have medical records supporting a diagnosis that qualifies for compensation.

Brody wants lawyers for the league and players to address the issues before Feb. 13 or explain why they’re unwilling to agree to the amendments.

In the lawsuits consolidated before Brody, players accuse the NFL of negligence and failing to inform players of the link between repeated traumatic head impacts and long-term brain injuries.

“The suggestion that the judge has decided not to approve the settlement is entirely unfounded, and nothing in today’s order supports such a conclusion,” Brian McCarthy, an NFL spokesman, said in a statement. “We intend promptly to discuss with class counsel the points addressed in the order and continue to have a high degree of confidence that this settlement –- which has been accepted by more than 99 percent of retirees -– will receive final approval and provide important and generous benefits to retirees and their families.”

NFL Commissioner Roger Goodell said during a pre-Super Bowl press conference that concussions were down 25 percent from the 2013 season, continuing a three-year trend. Since 2012, concussions in regular season games have dropped to 111 from 173.

“The real credit goes to the players and coaches,” Goodell said. “They’ve adjusted to the rules and the challenge of creating a culture of safety for our game. But there’s more to do on player health and safety.”

Goodell also announced the creation of an NFL chief medical officer position to “oversee our medical-related policies, ensure that we update them regularly, and work closely with our medical committees, our advisers, and the Players’ Association.” The position hasn’t been filled.

Chris Seeger, the lead plaintiffs’ lawyer who helped negotiate the deal, said Monday he remains “confident” of the court’s final approval.

“We are grateful to Judge Brody for her guidance and continued efforts to protect the rights of all class members,” Seeger said in a statement.

Brody rejected an early version of the settlement in January 2014, citing concerns that a $675 million compensation fund would be insufficient to cover the class for the life of the accord’s 65-year-term.

In June, the NFL agreed to lift the cap on cash awards while tightening restrictions for audits of payments and damage award appeals. Medical monitoring and educational programs would bring the total value of the settlement to $765 million. The league estimates it will have to pay out no more than $900 million.

In July, Brody granted preliminary approval to the revised deal that included cash for retirees suffering from a list of injuries including Alzheimer’s disease, Parkinson’s disease and amyotrophic lateral sclerosis, known as ALS or Lou Gehrig’s disease.

While most of the retired players in the class approved the accord, dozens of players and their relatives criticized it. The deal fell short especially for players with CTE symptoms, critics said.

The disease, which has been linked to the suicides of Pro Bowl linebacker Junior Seau and Chicago Bears safety David Duerson, mimics symptoms of Alzheimer’s, Parkinson’s and ALS.

Under the settlement, families of players who died from CTE before the deal’s preliminary approval could receive as much as $4 million each. Those living with symptoms of the disease, especially those exhibiting mood and behavioral changes including suicidal thoughts, stand to get nothing.

Lawyers for players who helped draft the accord said that while the deal may not be perfect, it’s fair. Players faced huge risks in continuing the litigation, including the league’s argument that claims are barred by labor agreements, Seeger said in November. Brody ordered the parties into mediation in 2013 before ruling on the issue.

The league was prepared to contest the litigation for years, its lawyer, Brad Karp, said in November. Without a settlement, retired players faced significant risk of defeat considering the NFL’s strong legal defenses, Karp said.

The Patriots 28-24 victory over the Seahawks capped a tumultuous season for the NFL, with on-field play occasionally overshadowed by off-field issues surrounding domestic violence and sexual assault. In September, after the league’s mishandling of Baltimore Ravens running back Ray Rice’s domestic violence affair, management and public relations experts said Goodell’s job could be in jeopardy.

Goodell, who never lost the support of the owners, was paid $35 million in salary last year, while NFL revenue approached $10 billion. The commissioner has a stated goal of reaching $25 billion in revenue by 2027.

The case is In re National Football Players’ Concussion Injury Litigation, 12-md-02323, U.S. District Court, Eastern District of Pennsylvania (Philadelphia).

–With assistance from Phil Milford in Wilmington, Delaware.