Analyzing SCOTUS’ Decision to Pass on Reviewing Challenges to the NFL Concussion Settlement

Jan 20, 2017

by Richard C. Giller, Esq.
On December 12, 2016, nearly eight months after the Third Circuit Court of Appeals unanimously approved an uncapped concussion settlement agreement reached in the traumatic brain injury class action litigation involving over 22,000 former NFL players, the United States Supreme Court denied, without comment, two petitions challenging the Third Circuit’s decision approving that settlement. By essentially punting on these challenges, the Supreme Court left in place a settlement that may end up paying close to $1 billion to retired players, with payments up to $5 million per player depending on their diagnosis, while not requiring any player to establish that his ailments were caused by playing football. The finality of the settlement also precludes the NFL from arguing that the League should not be held responsible for the cumulative effects of hits to the head suffered by players from Pop Warner, High School, College and the NFL.
The history of the NFL concussion litigation and settlement is a tortured one, but a brief summary of the proceedings is appropriate. Beginning in July 2011, retired NFL players began filing lawsuits against the League claiming that the NFL failed to take reasonable actions to protect players from the chronic risks posed by repetitive head injuries. In January 2012, the cases which involved nearly 5,000 players by then, were consolidated and transferred to the United States District Court for the Eastern District of Pennsylvania. During a court-ordered mediation in the summer of 2013, the former players and the NFL negotiated a $675 million settlement. On January 14, 2014, the District Court rejected the settlement forcing the parties to renegotiate the terms and amount. On June 25, 2014, the parties filed a second motion seeking preliminary approval of a new, uncapped settlement. On July 2, 2014, seven retired players objected to the settlement.
Following months of legal wrangling, which included an interlocutory appeal to the Third Circuit, District Court Judge Anita B. Brody held a day-long fairness hearing on November 19, 2014 to hear arguments from counsel for the retired players, the NFL and several objectors. After the hearing, the Court proposed several changes to the settlement agreement. The parties agreed to the changes and submitted an amended settlement in February of 2015. On April 22, 2015, the District Court issued a 123-page opinion granting the motion for class certification and granting final approval of the amended settlement. [In re: National Football League Players Concussion Injury Litigation, 307 F.R.D. 351 (E.D. Pa. 2015).] A number of players, who objected to the April 22, 2015 Order, filed 12 separate appeals, all of which were consolidated into a single appeal.
On April 18, 2016, the Third Circuit Court issued an opinion (which was amended on May 2, 2016), affirming the District Court’s conclusions granting class certification and granting final approval of the concussion settlement. [In re: National Football League Players Concussion Injury Litigation, 821 F.3d 410 (3d Cir. 2016)]. In that opinion, the Court of Appeals noted that “it is the nature of a settlement that some will be dissatisfied with the ultimate result. Our case is no different, and we do not doubt that objectors are well-intentioned in making thoughtful arguments against certification of the class and approval of this settlement… . But they risk making the perfect the enemy of the good. This settlement will provide nearly $1 billion in value to the class of retired players…. Though not perfect, it is fair.”
Thereafter, the estate of former Buffalo Bills running back Carlton Chester “Cookie” Gilchrist and an additional 31 former players (including NFL Hall of Famer Charles Haley and 1996 Super Bowl MVP Larry Brown) filed petitions with the U.S. Supreme Court seeking a writ challenging the Third Circuit’s approval of the settlement. For more than 90 years, most Federal Court decisions have not been appealable to the Supreme Court as a matter of right. Instead, litigants are required to request by way of a writ of certiorari (meaning “to be informed”) that the Supreme Court exercise its discretion to review a lower court decision. In this case, the objecting players filed such a writ and argued that such discretion should be exercised because the settlement (1) did not take into account the evolving science behind the head injuries; (2) lacked any adversarial discovery regarding the scientific evidence of the “complex and diverse multitude of class members’ head trauma issues”; and (3) left out many former players who may still be diagnosed with chronic traumatic encephalopathy (CTE) which can only be definitively diagnosed after death. With respect to the third point, the lead class plaintiff (Kevin Turner, a former running back for the New England Patriots and the Philadelphia Eagles) tragically died in March of 2016 and, following his death, was diagnosed with CTE. The objecting players also argued to the Supreme Court that, under the approved settlement, Turner’s family would be foreclosed from recovering for his CTE because that diagnosis took place after the cut-off date. In response, the settling plaintiffs claimed that the Turner issue was a red herring because he suffered from amyotrophic lateral sclerosis (ALS), which he would have been able to recover for during his lifetime if not for all of the appeals. In denying the writ petitions, the Supreme Court was apparently unpersuaded by the arguments of the objectors.
The Supreme Court’s decision to deny, without comment, the writ petitions filed by Gilchrist and the other objectors, was not all that surprising to Court observers given that the case did not involve an issue over which there was a split of authority among the Circuit Courts of Appeal and there were no overriding Constitutional issues involved. According to the website, the Supreme Court “usually is not under any obligation to hear these cases, and it usually only does so if the case could have national significance, might harmonize conflicting decisions in the federal Circuit courts, and/or could have precedential value. In fact, the Court accepts 100-150 of the more than 7,000 cases that it is asked to review each year.” It appears that because none of these factors were present with respect to the NFL concussion settlement and that, coupled with the highly fact-intensive nature of the head trauma issues, is what most likely swayed the Justices from refraining from weighing in on the issue.
According to one of the lead attorneys for the non-objecting retired players, the Supreme Court’s refusal to hear the writ petitions means that “finally, retired NFL players will receive much-needed care and support for the serious neurocognitive injuries they are facing.” The NFL also chimed in after the Supreme Court decision, noting in a statement that the League was “pleased” with the decision “not to review the unanimous and well-reasoned decision of Judge Brody and the Third Circuit approving the settlement” and that “we look forward to working with class counsel and Judge Brody to implement the settlement and provide the important benefits that our retired players and their families have been waiting to receive.” 
Under the final settlement agreement, the NFL this month must make the first of six $20 million monthly deposits into a special account to fund the settlement and, by April of this year, the parties and the Court must agree on the method by which players can start filing claims. Under the terms of the now final settlement agreement, a younger retiree with a significant neurological disorder (like ALS) would receive a $5 million settlement while others suffering from serious dementia would receive $3 million whereas an 80-year old retiree with early onset dementia would only get $25,000. Former players who are asymptomatic would receive baseline screening and follow-up care if needed. It has been estimated that the average payout will be close to $190,000 per player. Nearly 11,000 former players have pre-registered for benefits under the settlement and it is anticipated that once the proper documentation has been received, retired players may start to receive settlement checks beginning in the second quarter of 2017. In addition to payouts, Judge Brody must also determine the status of more than 100 retired players who had opted out of the settlement and she must also make a decision regarding the $112 million the NFL agreed to pay counsel for the retired players as part of the settlement.
Giller is a partner at Polsinelli.


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