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Judge flags NFL’s attempt to protect NCAA in concussion settlement

In denying approval to the proposed settlement, Judge Anita Brody questions the adequacy of funding of the medical assessment plan, and exposes for the first time the NFL’s intent to protect the NCAA from similar lawsuits.

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Allison Joyce

Federal court judge Anita Brody today threw a flag on the proposed settlement between the NFL and the retired players who filed what became a class action lawsuit.

The two parties in this lawsuit submitted their proposed plan a week ago Monday. Approval by the judge is required to ensure, in judicial terms, fairness to the parties involved.

In handing down her finding [Brody's written finding here], Judge Brody questioned the adequacy of the proposed $75 million BAP (Baseline Assessment Program) to be paid by the NFL to provide eligible retired NFL players with neuropsychological and neurological evaluations to determine whether the individual retiree is suffering from any cognitive disorders, and if so, to what extent. If any such disorders are found, the retirees may receive further evaluations, medical treatment including counseling and coverage for any prescribed medications.

Judge Brody noted that the Plaintiffs, while party to the proposed settlement, did not provide sufficient supporting documentation demonstrating that the proposed monetary amounts for the various elements of the program would be sufficient given the estimated size of the plaintiff class. The documents submitted to the Judge for her approval estimated there were more than 20,000 members that could be considered part of the Settlement Class.

The Judge wrote: "Even if only 10 percent of Retired NFL Football Players eventually receive a Qualifying Diagnosis, it is difficult to see how the Monetary Award Fund would have the funds available over its lifespan to pay all claimants at these significant award levels...."

The Judge's findings rejecting the settlement also reference the fact that the NFL is attempting to have any Plaintiff who receives a monetary award under this settlement give up its right to pursue litigation relating to cognitive injuries against the NCAA and any other collegiate, amateur or youth football organization and entities. This clause does not however affect any lawsuits currently underway or contemplated in the future against the helmet manufacturers party to the original suit but not this proposed settlement. (Riddell, Inc., Riddell Sports Group Inc., All American Sports Corporation, Easton-Bell Sports, Inc., EB Sports Corp., Easton-Bell Sports, LLC, and RBG Holdings Corp.)

While it was referenced only in a footnote in her decision, such fine print details as the NFL's attempt to protect the ultimate source of its $9 billion product - the NCAA - could prove to be the most damaging to the NFL's hopes; not just its hope of escaping material monetary damages, but also its hope of preserving the fundamental nature of organized football in this country.

For decades the media has reported on instances where school districts removed equipment from its playgrounds or eliminated sports programs because insurance costs exceeded their dwindling budgets. A jaundiced perspective on the NFL's attempts in this settlement to shelter the NCAA from the storm of litigation would be to think that the NFL, realizing it was getting off easy from a monetary basis, thought it prudent to protect the other "deep pockets" involved in organized football else face the risk that more and more colleges and universities might begin to think twice about retaining their football programs if besieged by lawsuits seeking similar damages to that collected from the NFL.

Of course, given the perfidy with which the NFL conducted itself in how it treated players such as the Steelers HOF center Mike Webster and countless others, maybe such a perspective isn't so jaundiced after all.