New Concussion Settlement a Win-Win

In a change to the initial agreement, the NFL's monetary award fund for retired players with brain injuries will now be uncapped. It's the right move for everyone

A new proposed settlement in the NFL concussion litigation should alleviate many worries when it comes to compensation for players affected by brain injuries. The revised agreement removes the cap on the NFL’s obligations to the monetary award fund, and guarantees that any retired player who develops a qualifying neurocognitive condition will receive compensation. Ultimately, it looks like a win-win for the NFL and the players.

In a Wednesday conference call, Chris Seeger, co-lead counsel for the retired NFL players, said the plaintiffs’ counsel team had been confident that the $765 million initially agreed upon last August would have been enough to cover the 65-year lifespan of the fund. They were supported by actuarial estimates from both parties. However, concerns over the fund’s long-term future arose from both the court and the players.

“We heard concerns from players who needed to trust that the money would be there in, say, 40 years,” Seeger said.

U.S. District Judge Anita B. Brody denied the motion for preliminary approval for the settlement in January. After six months of work under the supervision of Brody and the court’s special master, Perry Golkin, the agreement was reached to uncap the fund and fully guarantee that retired players would receive the necessary benefits during the 65-year plan.

The compensation of Kevin Turner, a class representative in the suit who suffers from ALS, will not change. (Charles Dharapak/AP)

In regards to the actuarial estimates that led to the initial $765 million agreement, Seeger stated that those are now irrelevant due to the removal of the fund’s cap.

“There is no scenario where a player won’t get paid,” said Seeger. “The biggest news of this is that in 15 or 25 years, you are still guaranteed to be compensated.”

According to Seeger, aside from tightening some details the agreement between the players and the league remains largely unchanged. The standard will remain the same for players seeking benefits; severe cognitive impairment will need to be proven to receive benefits. If, during a baseline assessment, mild cognitive issues are identified, players will be eligible for follow-up treatment as part of the program.

The monetary grid and scale to determine a player’s compensation will remain unchanged as well. Seeger said that the plaintiffs never thought of trying to change the grid or its pay values during the revision of the settlement.

One change of note is that the NFL’s ability to appeal claims is now unlimited, whereas they were limited to 10 appeals a year in the July agreement. Some argue that this could give the league a loophole to minimize claims.

Kevin Turner, a former Eagles and Patriots fullback, now suffers from ALS. A class representative in the lawsuit, his compensation ceiling of $5 million will not change with the new agreement. Turner's statement:

“The compensation provided in this settlement will lift a heavy burden off of the men who are suffering,” Turner said in a statement. “I am also personally comforted by the knowledge that this settlement is guaranteed to be there for any retired player who needs it. This settlement is another important step for ensuring that future generations of football players do not suffer the way that many in my generation have.”

It appears as though both sides got it right on the second iteration. The uncapping of the fund ensures the effectiveness of the compensation program. It alleviates concern over the long-term viability of the initial $765-million agreement, and expedites the process for players who are in need right now.

There is no scenario where a player won’t get paid,” said Seeger. “In 15 or 25 years, you are still guaranteed to be compensated.

Judge Brody and Special Master Golkin deserve credit for working through the initial settlement and ultimately ensuring that the appropriate compensation was allocated. Brody’s decision to reject the first settlement looks like it was the right move.

During the conference call, Seeger used the phrase “100% guarantee” multiple times when addressing players’ ability to receive benefits. The NFL and the retired players have to be pleased on two fronts: Once the settlement is approved, the compensation program will come into effect soon and start providing benefits to players in need; and recent retirees who could be affected in the future now know that the coverage will be there.