Duerson family will not appeal the NFL Concussion Settlement

According to the Associated Press, the family of Dave Duerson has decided that they are not going to appeal the approved NFL Concussion Settlement.

Their lawyer, Thomas Demitrio, said the family does not want to obstruct or delay the financial awards being distributed to the retirees that are in dire need of assistance.

Demetrio says the Duersons and his other clients will support the plan for the sake of nearly 20,000 NFL retirees.

Christopher Seeger, co-lead counsel for the retired NFL player plaintiffs said, "The Duerson family and their attorney Thomas Demetrio, who is one of the nation’s leading plaintiffs’ lawyers, have been fierce and courageous advocates for the retired NFL player community. It speaks volumes that they believe it is in the best interest of all retired players not to file an appeal. We hope other objectors follow their example and avoid filing thoughtless appeals, so that retired NFL players may soon begin taking advantage of this settlement’s benefits.”

In addition to wanting to help former players that need immediate assistance, I think Thomas Demetrio and the Duerson family also looked at their chances of successfully appealing Judge Brody’s order and decided that the odds were not in their favor.

I applaud the Duerson family for making this critical decision and I hope that other former players who are thinking about appealing the Settlement will look at this unselfish act and do the right thing.

I also applaud those former players that opted out of the Settlement and have decided to pursue their own litigation against the NFL. They understood the risks of going back to court, but they also understood that they would not be holding up the Settlement for the 20,000 players that have decided to accept the benefits of the Settlement.

As most of you already know, an appeal has been filed by Craig Heimburger, but in light of this news, I hope he will reconsider his appeal.

We can finally see the light at the end of the tunnel, but some former players may never get a chance to step into the light if this Settlement is continually delayed.

The NFL retired player community and history itself will look favorably on the Duerson family for their decision not to appeal the settlement. By doing so, they are allowing the monetary awards for our most needy alumni brothers to begin flowing.

Appeal of NFL Concussion Settlement is unlikely to succeed

Arthur Miller (a very prominent law professor at NYU) just wrote the following op-ed in the National Law Journal. It should be required reading for any additional former players who might be thinking about appealing the settlement. Miller takes apart the arguments of a would-be appellant one-by-one. 

It's too bad Craig Heimberger didn't get a chance to read this before he and his wife filed their appeal. 

Op-Ed: NFL Players Concussion Settlement Is a Fair Deal - Despite criticism of the court-approved agreement, an appeal is unlikely to succeed.

Written by Arthur Miller and posted by The National Law Journal - May 18, 2015

The thorough decision last month granting final approval of the Nation¬al Football League concussion settlement brings a saga that has gripped the sports and legal communities to the one-yard line. In her 132-page opinion, Judge Anita Brody of the U.S. District Court for the Eastern District of Pennsylvania meticulously dismantled the criticisms of a small but vocal group of objectors.

The comprehensive nature of the judge's analysis, combined with the fact that she had the parties improve the settlement twice, means any appeal to the court of appeals would likely prove unsuccessful. It is as it should be, since this agreement clearly seems fair, reasonable and adequate — indeed, generous in light of the significant hurdles plaintiffs would face had they kept litigating.

The level of media attention paid to the objectors unfortunately has painted a distorted picture of the support the settlement has received. These objectors — who represented about 1 percent of retired NFL players — raised unconvincing arguments concerning whether the settlement covers enough injury categories; specifically, conditions like mood swings and depression are not eligible for monetary compensation. These criticisms were attacks on the compensation judgments of the parties that Brody properly rejected.

The settlement has been endorsed by more than 99 percent of the class — a level of support that is practically unheard of, especially considering that this settlement has been the subject of more debate and commentary than any other class action in recent memory. In fact, after the fairness hearing, several class members decided to revoke their opt-outs and rejoin the settlement. Considering the long odds any appeal would face, there is a certain element of recklessness if one objector were to delay for months or years the needed distribution of benefits to more than 20,000 retired players who support it.

HIGH LEVELS OF PARTICIPATION

First, legal precedent favors approving a settlement that receives such high levels of participation. Indeed, in the past, retired NFL players have proven willing to opt out en masse of a class action settlement that they did not believe was in their interest; just last year, more than 2,100 excluded themselves from a different class action settlement over publicity rights. With the concussion settlement, the retired NFL player community resoundingly decided against that approach, and their tremendous support was in itself an argument for final approval.

Second, in a perfect world, every single injury alleged in a lawsuit would be compensated. But this settlement was not created in a vacuum. In reality, the science on the link between concussions and neurological injuries is far from settled. The judge acknowledged this by stating: "The study of CTE [chronic traumatic encephalopathy] is nascent, and the symptoms of the disease, if any, are unknown. … Arguably, these uncertainties exist because clinical study of CTE is in its infancy." In short, the results of the existing research are highly debatable and inconclusive.

Seen in this light, the exclusion of less serious symptoms (at least when compared to dementia, Alzheimer's, Parkinson's and amyotrophic lateral sclerosis) from the compensation program does not mean the settlement is unreasonable. In fact, one could argue persuasively it is generous to retired NFL players, considering the state of the science (or lack thereof) and the various legal risks and hurdles of continued litigation. Moreover, the settlement does not require retired players to show that their cognitive illnesses were caused by playing football, thereby eliminating difficult proof problems. All they must show is that they have a covered illness.

Third, critics of the settlement pointed to a history of inappropriate conduct by the NFL (much of it alleged in the plaintiffs' complaint) as a reason why it should be rejected. These critics generally failed to understand that, if litigation went forward, most of this conduct would never be heard in court if the NFL prevailed on just one of its many potent legal defenses.

The NFL would have argued that the players' claims belonged in the workers' compensation system and not the tort system; were time-barred by the statute of limitations; or that players assumed the risk of these injuries by playing a sport known to be inherently dangerous. Retired players would not only need to prove they sustained their injuries in the NFL (and not Pop Warner, high school or college games), but that another factor, such as genetics or drug use, was not responsible.

Additionally, before the settlement was announced, the court was about to rule on the threshold complex and risky argument that litigation is pre-empted because it is covered by the collective-bargaining agreement. It is telling that Brody ordered both sides to mediation before issuing her ruling on the point, as most if not all of the claims could have been dismissed based on this single issue.

In short, it is not easy to prevail against the NFL, which makes the concussion settlement a win for retired players. In addition to providing baseline medical examinations, the agreement is designed to last for the next 65 years. This long-term guarantee provides further evidence that all class members were adequately represented.

A single objecting player can appeal Brody's decision and delay the settlement indefinitely. Every objector has the right to do that, of course, but one hopes that will not happen, particularly as the lives of so many other retired players who need help now hang in the balance.

Arthur Miller is a university professor at New York University School of Law and ¬associate dean and director of the New York University School of Professional Studies Tisch Institute for Sports Management, Media and Business.

The article can be seen at this link: National Law Journal


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NFL Concussion Settlement is Appealed

A potential $1 billion concussion settlement between the NFL and retired players could be delayed after Craig Heimburger and his wife Dawn filed an appeal on Wednesday, May 13, 2015.

Heimburger was a lineman for Green Bay, Cincinnati, Buffalo and Houston between 1999-2002, seeing action in 13 games.

The co-lead counsel for the retired players, Christopher Seeger and Sol Weiss said “We are extremely disappointed and perplexed that an objector would file a notice to appeal the Court’s final order, even though this decision means thousands of retired NFL players suffering from devastating neurocognitive injuries, and those concerned about their future, will now be forced to wait many months for the immediate care and support they deserve.”

"Throughout this settlement process, we have heard directly from countless retired players who are in dire need of these benefits, and their most common question has been to ask how quickly they can get help. For those who hoped to receive benefits as soon as this summer, this appeal is heartbreaking news. We look forward to offering a forceful defense of the settlement in the Court of Appeals."

So what is the appeal going to address, and what are the objections?

Seeger and Weiss said “Final approval was granted by Judge Anita Brody only after objections were raised and heard at the fairness hearing in November and carefully considered by the Court. Ultimately, in an extremely detailed and thorough opinion, the Court overruled the very same objections that will likely be made in any appeal.”

Even if the appeal is ultimately lost, payments to players suffering the effects of concussions would be delayed while the case is heard.

Bethany Wirogowski, the wife of deceased player Dennis Wirgowski recently sent me an email in response to an article I posted regarding an editorial written by Chie Smith, the wife of Steve Smith - a former player who is suffering from ALS. 

Bethany and Chie reminded me of just how amazing some of the wives have been during this 4 year battle.

Here's Bethany Wirgowski's email:

“I have to say my problems seem little in comparison to these players. My husband Dennis ended his life by suicide, a day I never saw coming, a day I will never understand. So many questions with no answers only assumptions. Dennis played with the New England Patriots and Philadelphia Eagles. It's hard to understand and very frustrating to think that a few players can delay this for so many. If they didn't agree why didn't they opt out? I pray they don't jeopardize this settlement for the rest of us who are suffering. God Bless the Kevin Turners and the Steve Smiths.”

I can’t say it any better than that.

Herb Orvis editorial on NFL Concussion Settlement

Herb Orvis is a former defensive lineman who spent 10 seasons in the NFL playing for the Detroit Lions and the Baltimore Colts from 1972 to 1981. He wrote an editorial that was posted at Detroitnews.com about the NFL Concussion Settlement. 

Unfortunately, the article came out one day after the NFL Concussion Settlement was appealed. Still, I think it deserves to be seen by former players that are interested in the final outcome of this Settlement.

Orvis: Concussion settlement may be game-changer

By Herb Orvis - Posted at Detroitnews.com on May 14, 2015

Though I don’t regret playing years of football, I never realized that in doing so, I would be sacrificing my central nervous system, linked directly to my brain. Fans of the game certainly remember the crowds roaring after helmet–to-helmet hits. Those sounds still resonate today, though they are totally different for those of us inside the helmet.

Twenty-three years after playing my last professional football game, I was diagnosed with Parkinson’s disease. I knew my knees might suffer and I even came to expect shoulder and back injuries. I never did realize the “Black and Blue” division — the NFC North teams known for their intense rivalries and physical style of play — would lead me to receive a life-changing diagnosis. My teammates and I are just learning about the direct link between the hits we took on the football field and the long-term neurological problems we are facing.

But even though I continue to battle with tremors and balance problems, and wake up every day to stretch and keep my body moving in fear that parts of it will stop, I finally have a sense of hope.

Thanks to the courage of thousands of former NFL players who sought out legal counsel and demanded the league do the right thing for those suffering from concussion-related injuries, the court has finally approved a historic settlement. In short, help is on the way.

As retired football players, we were in search of four things: Care, assessment, benefits and safety for the future of the game and players at all levels. I strongly believe this settlement addresses all of them for the greatest good. And with less than 1 percent of class members opting out of the settlement, it is clear the rest of the retired player community feels a similar way.

Though the settlement is not perfect, it addresses the concerns of former players now, without further delay. It offers compensation and care to those who are sick today with severe neurological diseases. It offers the peace of mind to those who are healthy now but fear for their future, guaranteeing they will be protected and eligible for compensation over the next 65 years. And it offers convenient medical monitoring and assessment to all retired players to ensure neurological illnesses are caught and treated promptly and efficiently.

Unfortunately, too many of my teammates, and thousands of football players who have played America’s favorite sport, are hurting today and need help as a result of their playing days. It is now too late to reverse these tragic consequences in former players, but it is not too late to alter the way the game is played for the future safety of players of all ages. It’s time to reduce the number of concussions on the field, and make sure players return to play only when they’re fully capable. This settlement has highlighted what was wrong with the NFL and has in turn helped shine a light on the importance of making football safer.

Retired players will soon be able to take advantage of this settlement’s benefits, assuming appeals do not hold up this process. I urge my fellow former players who have expressed objections to understand the consequences of an appeal, which would delay all of these benefits for months, if not years. This delay would be most harmful to the thousands of men in desperate need who cannot afford to wait much longer.

As we reach a landmark moment in football history, I hope a tiny percentage of players won’t be the reason the hope of thousands is lost. It’s finally time to stop fighting in court and amongst ourselves, and stand together to get this done for those ballplayers who are hurting.

The article can also be seen at this link: Orvis: Concussion Settlement may be game-changer

Recording of Concussion Settlement Conference Call

If you didn't have an opportunity to join in on the recent conference regarding the NFL Concussion Settlement, you can listen to it by clicking on the following link: Conference Call.

At the beginning of the Conference call the Executive Director of the NFL Alumni, Joe Pisarcik, welcomes everyone and introduces Craig Mitnick, one of the lawyers that represents former players.  Craig does a good job answering many of the questions that were submitted by former players.

Hopefully some of your questions were answered. 

If you have any additional questions or concerns regarding the Settlement, I highly recommend that you contact the attorney that is representing you.