The United States Court of Appeals for the Third Circuit released its opinion upholding the NFL class action concussion lawsuit settlement today, affirming the deal previously ratified by the U.S. District Court for the Eastern District of Pennsylvania and writing that objections to the agreement between the league and thousands of former players, while valid, risked “making the perfect the enemy of the good.”
This was always going to be an uphill battle for the objectors. When a case actually settles courts are loathe to undo it; they want the litigation out of their courtrooms, and all the better without having to actually make the final decision on who wins and loses. In reaching its decision, the Third Circuit essentially agreed with District Court Judge Anita Brody’s initial ruling: Certifying the class was within her discretion and proper; the settlement process was fair; any issues of a conflict of interest between the two subclasses— the 20,000 class members were split into two groups: players with current injuries and those with future injuries—were either found to be baseless or not raised in a timely manner.
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The opinion does spend some time talking about the lynchpin of objections to the settlement: the neurodegenerative disease chronic traumatic encephalopathy (CTE). The objectors’ main argument was that the settlement largely fails to cover CTE cases. The NFL will pay out for postmortem CTE diagnoses made between Jan. 1, 2006 and July 7, 2014. It also will pay out for certain severe cognitive symptoms associated with CTE, which tend to manifest later in life. However, the deal will not compensate mood and behavioral symptoms associated with the disease (think Junior Seau’s depression, suicidal thoughts, and impulse control problems, or the voices that Justin Strzelczyk heard inside his head before dying in a car crash). Nor will it compensate former players if they are diagnosed after death with CTE following July 8, 2014, or diagnosed with the disease while living at some point in the future. (Currently, CTE only can be definitely diagnosed upon autopsy, like Alzheimer’s disease).
All of this means that if you are a past, present or future NFL player who did not opt out of the settlement and later develop CTE—which we now know is a very real possibility—you will not be covered by the deal, and you also have waived your right to sue the league for it. Again, certain symptoms of CTE are covered, many are not. The court acknowledged this fact, but found the exclusion to be reasonable, despite also noting the “unavoidable conclusion that there is a relationship, if not a causal connection, between a life in football and CTE.”
With this science in mind, the Court next determined that certain symptoms associated with CTE, such as memory loss, executive dysfunction, and difficulty with concentration, are compensated by the existing Qualifying Diagnoses. Id. And many persons diagnosed with CTE after death suffered from conditions in life that are compensated, including ALS, Alzheimer’s disease, and Parkinson’s disease. Relying on expert evidence, the Court estimated that “at least 89% of the former NFL players” who were examined in CTE studies would have been compensated under the settlement. To be sure, the mood and behavioral symptoms associated with CTE (aggression, depression, and suicidal thoughts) are not compensated, but this result was reasonable.
“Reasonable” is the key word there, since that is the Appeals Court’s threshold for overturning a settlement. In discussing NFL senior vice president of health and safety Jeff Miller’s recent admission to Congress that there is a link between CTE and playing football, the court held that even with the NFL’s apparent departure from the previous company line in this regard, “many more questions must be answered before we could say that the failure to compensate the diagnosis was unreasonable.” That is what the court means by “making the perfect the enemy of the good.” In the court’s view, there was nothing egregious about the settlement, and so it had very little room to change anything.
Ironically, this is why the objectors objected in the first place. Once the settlement was reached and ratified, many players with otherwise compensable diagnoses would be left in the cold. Thanks to the appellate court’s decision, they now are.
You can read the whole opinion below:
