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U.S. District Judge Anita Brody says that $765 million might not be enough.
The judge is overseeing a consolidated multi-district lawsuit involving some 4,500 National Football League ex-players who allege that the league concealed the risks of head injuries. An agreement was worked out just before the beginning of this past NFL regular season — a relief to TV broadcasters who put up billions of dollars and faced the prospect that increasing noise about concussions would distract from the season.
After the league came to a proposed settlement with the players, a motion was made for preliminary approval. The deal had a fund of $675 million to go to compensate former players who have suffered cognitive injuries, with the rest headed for research and class notices. In recent weeks, more explanation was given on how the money would be disbursed.
But it’s not enough for the judge.
“I am primarily concerned that not all Retired NFL Football Players who ultimately receive a Qualifying Diagnosis or their related claimants will be paid,” she writes in a ruling on Tuesday. “The Settlement fixes the size of the Monetary Award Fund. It also fixes the Monetary Award level for each Qualifying Diagnosis, subject to a variety of offsets. In various hypothetical scenarios, the Monetary Award Fund may lack the necessary funds to pay Monetary Awards for Qualifying Diagnoses.”
The judge does the math and says that if 10 percent of a potential settlement class of 20,000 retired players qualify for money from the fund, it would be “difficult to see how the Monetary Award Fund would have the funds available over its lifespan to pay all claimants at these significant award levels.”
The parties can give the judge more information on how it would all work or they can adjust the numbers. But the legal intrigue over head injuries in professional football won’t likely be over by the time the Super Bowl is played in a few weeks.
Christopher Seeger, of Seeger Weiss, and Sol Weiss, of Anapol Schwartz, co-lead counsels for the retired NFL player plaintiffs, offered the following statement: “We are confident that the settlement will be approved after the Court conducts its due diligence on the fairness and adequacy of the proposed agreement. Analysis from economists, actuaries and medical experts will confirm that the programs established by the settlement will be sufficiently funded to meet their obligations for all eligible retired players … We look forward to working with the Court and Special Master to address their concerns, as they rightfully ensure all class members are protected.”
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