Attorney Jason Luckasevic
Attorney John Hogan
In the past couple of years I have had numerous retired players – some clients – some friends – ask for my input on the NFL concussion litigation and settlement. As someone who has seen firsthand the devastating effect concussions can have upon a player and his family, I was at first disappointed that the settlement does not provide more money and much broader coverage. However, now that the settlement has been approved by Judge Brody – after several significant changes and having the opportunity to hear challenges to the preliminary settlement from players and their families; doctors and lawyers, I am satisfied that it represents the best possible deal in all of the circumstances. That said I am very disappointed that a number of former players have filed appeals to the final settlement that in my opinion, will not succeed, and only delay benefits for the men in most dire need. Believe me, I “get it” that guys are angry. I “get it” that they want to fight on. I completely understand how disappointed so many of us are that this settlement will not find the NFL culpable, nor will we have discovery to try to determine “what they knew when.” However, as I learned more about the settlement, I came to realize that while it not a perfect outcome, it is the best possible outcome for retired players and their families. These objectors have filed notice that they intend to appeal Judge Brody’s final approval order to the Third Circuit Court of Appeals. While I believe that the intentions of most of these appellants are good, I also truly believe that they are making the wrong choice. Unless these appeals are withdrawn, it will take up to a year or longer for the Third Circuit to resolve them. That’s another year that men suffering from dementia, Parkinson’s, Alzheimer’s or ALS will not receive the compensation they need and deserve. And it’s another year that retired players will not have access to the medical testing they need to determine whether they currently suffer from any impairment. I also recognized just how difficult it would have been for retired NFL players to continue litigating and prevail at trial. The NFL has unlimited resources and many powerful legal defenses at its disposal. In light of those unpleasant realities, agreeing to this settlement, which will get suffering men the compensation they need and will provide medical assessments for all retired players—was the right choice. While I do not handle class action or mass tort cases, it appears to me that the appropriate legal option for those who did not agree with the final settlement was to opt out. As Judge Brody made clear in her opinion, the objections to the settlement do not have legal merit. Here’s why: One main objection is that the settlement does not provide compensation for less severe symptoms such as mood swings, headaches or depression. But the reality is that all settlements are negotiated compromises, and it’s not a valid legal argument to merely disagree with where the parties drew the lines in a negotiation. The NFL clearly refused to compensate retired players for every single symptom, even if it is arguably related to concussions. Furthermore, because the compensation program is uncapped and lasts for 65 years, the settlement actually offers a critical safety net to retired players who have no symptoms or less severe symptoms today but could one day suffer from something more serious like dementia. Similarly, all class members will have access to the baseline assessment program—which will provide every retired player access to a battery of tests that help him determine whether he currently suffers from any symptoms. These benefits are two more reasons those who have filed notices of appeals should be accepting this settlement, not fighting it. Another argument appellants have made against the settlement is that it does not compensate living players who are diagnosed with Chronic Traumatic Encephalopathy, or CTE. While I have no doubts that my good friend Joe DeLamielleure was properly diagnosed with CTE in his testing at UCLA, the current recognized science does not acknowledge that CTE can be diagnosed in the living. That being the case, as the medical evidence of CTE is new and not fully-developed; it likely would not have been allowed in the courtroom had this case gone to trial. One of the major benefits of the settlement is that retired players do not have to prove that their injuries were caused by NFL football. In order to receive benefits, all a retired player needs to do is prove that he has been diagnosed with a qualifying condition. This is an enormous victory for the class, and completely eliminates one of the biggest hurdles that retired NFL players would have faced at trial. It also eliminates any problems with the statue of limitations (the deadline for which a legal action can be brought). This has been an on-going problem for guys I have represented or advised when they did not file a disability, line-of-duty, or workers’ comp claim or appeal in the time allowed by law. I’ve spent much of the past decade helping retired NFL players obtain the benefits they deserve; and advocating for significant improvements to their benefits. Certainly many more improvements are needed. However, filing appeals to the concussion settlement is not the way to achieve those goals. If these appeals actually had a significant chance of improving this settlement for retired players, I would be first in line to support them. But these appeals will not improve the settlement. Instead, I am convinced that they will do nothing but delay benefits for the men in most dire need.