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