Just when the NFL was upon a great celebration of its present (Tom Brady vs. Peyton Manning) and its future (Russell Wilson vs. Colin Kaepernick), the past reared its concussed head.
A deal struck just before the start of the season designed to quiet the growing controversy over the NFL’s responsibility for the consequences of brain trauma among retired players, was denied preliminary approval Tuesday by a federal judge in Philadelphia overseeing the case — during the week of the conference championship games.
“I am primarily concerned that not all retired NFL football players who ultimately receive a qualifying diagnosis or their (families) . . . will be paid,” U.S. District Judge Anita B. Brody wrote in a 12-page opinion filed Tuesday morning and reported by the Associated Press and several other media outlets.
She asked for more financial details from the parties a week after she received a plan from the lawyers representing more than 4,500 retired players, who were plaintiffs in a lawsuit that produced a settlement announced in September.
The deal is supposed to last 65 years and pay out $765 million, plus another $112 million in expenses and legal fees, a figure that some lawyers, media critics and former players described at the time as low.
Kevin Mawae, former players union president and a Pro Bowl center for three teams in his 16 years, including his first four with the Seahawks (1994-97), was critical of the settlement at the time.
“The unfortunate thing is that the general fan, they see $765 million and they think it’s a windfall for the players,” he told reporters. “It’s great for . . . the guys that would fall in the category of needing immediate help. But it’s $700 million worth of hush money that (the league) will never have to be accountable for.”
Brody’s request doesn’t necessarily mean she will reject the settlement, a point made by both sides.
“We respect Judge Brody’s request for additional information as a step towards preliminary approval,” NFL spokesman Greg Aiello said in a statement. “We will work with the plaintiffs’ attorneys to supply that information promptly to the court and special master. We are confident that the settlement is fair and adequate, and look forward to demonstrating that to the court.”
An attorney for the players, Christopher Seeger, released a media statement that he also thinks the settlement will get the judge’s OK.
“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,” Seeger wrote. “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.
“We believe this is an extraordinary settlement for retired NFL players and their families, and have received overwhelming support as they have learned about its benefits. We look forward to finalizing this agreement so they can soon begin taking advantage of its benefits.”
Critics of the settlement, in which the league accepts no responsibility, say that players rushed to accept the deal in order to disburse funds to players in greatest need, which averted years of litigation but let off the NFL, an enterprise with annual revenues of $9 billion, too easily.
AP reported that Layn R. Phillips, a former federal judge from California hired by Brody to lead settlement negotiations, called the deal fair.
If retired players chose to go to trial, they would have had to prove the NFL knew of the consequences of game-induced brain trauma but hid the information from players. Proving who knew what, when, was seen by some legal analysts as a difficult chore since medical science remains on the outskirts of understanding brain trauma, and was further in the dark years ago.
Any of the plaintiffs could opt out of the settlement and pursue the case individually, but they would face delays and expenses that most could not afford, particularly against such a wealthy defendant.
Brody asked for more analysis to bolster their claim that the money won’t run out.
”Unfortunately, no such analyses were provided to me in support of the plaintiffs’ motion,” she wrote. “In the absence of additional supporting evidence, I have concerns about the fairness, reasonableness, and adequacy of the settlement.”