T.G.I.B. Thank Goodness It's Brody
When the Third Circuit Court of Appeals handed down their decision on the NFL Concussion Settlement, I’m sure there was a sigh of relief from the woman who presided over the case for over 3 years - Judge Anita Brody.
Of course, no Judge likes to see their decisions overturned on appeal, so one of the best ways to make sure that doesn’t happen is to use the “Fairness Hearing” to allow all the objectors and their lawyers the opportunity to present their complaints and recommendations for making the Settlement better.
Judge Anita Brody had our backs throughout this whole process and in my opinion, she did a masterful job presiding over the NFL Concussion Litigation. On several occasions she asked the lawyers to go back to the drawing table and put additional provisions in the Settlement to benefit former players. Back on January 14, 2014 she denied the preliminary approval of the Settlement because she wanted "evidence" that the amount of money - $675 million - was sufficient to pay all claims throughout the 65 year term of the Settlement. The NFL subsequently agreed to pay all claims by uncapping the monetary award fund.
After the Fairness Hearing, Judge Brody asked for 5 additional revisions – all of which were agreed to by the NFL.
Now that the Appeals Court has affirmed Judge Brody’s approval of the Settlement, the one thing that should be encouraging to former players is the fact that she will continue to preside over the entire Settlement. The Settlement states that "the Court (Judge Brody) retains continuing and exclusive jurisdiction over the Action, Parties and their counsel, all Settlement Class Members, the Special Master, BAP Administrator, Claims Administrator, Lien Resolution Administrator, Appeals Advisory Panel, Appeals Advisory Panel Consultants, Trustee and Settlement Agreement, including its enforcement and interpretation, and all other matters relating to it. This Court also retains continuing jurisdiction over the “qualified settlement funds,”
Many people are concerned that very few former players will qualify for an award. But, before I talk about that, I should point out that in almost all Settlements there are members of the class that never even bother to participate. On page 4 of the Special Master’s report entitled NFL Concussion Liability Forecast it is expected that 2,300 players will not even register for benefits. That number was calculated using information gleaned from previous class action Settlements.
I hope that every player that is eligible to register for the Settlement does so. Settlement Class Members must register on, or before, 180 days from the date that the Settlement Class Supplemental Notice is posted on the Settlement Website. If a Settlement Class Member does not register by that deadline, they will be deemed ineligible for the BAP and BAP Supplemental Benefits, Monetary Awards and Derivative Claimant Awards.
I will do everything in my power to make sure that former players know when, where and how to register, but in the meantime, if you haven’t already done so, please join the 8,000 guys that have gone to the NFL Concussion Settlement website at this link: NFL Concussion Settlement Website and sign up to get additional information as it becomes available. This website will eventually be transitioned for claims administration purposes. The Claims Administrator will post all necessary information about the Class Action Settlement on the website, including, as it becomes available, information about registration deadlines and methods to participate in the BAP (Baseline Assessment Program), the Claim Package requirements and Monetary Awards, and the Derivative Claim Package requirements and Derivative Claimant Awards.
Keep in mind, the Settlement still hasn’t received final approval. Former players that appealed the Settlement have 30 days to ask the entire Third Circuit Court to hear their appeal and 90 days to file an appeal with the Supreme Court, so we’re still in limbo. I hope the guys that appealed the Settlement will finally come to the realization that it's time to move forward and allow the process to begin. It's been almost 5 years since the first lawsuits were filed.
Once the Settlement receives final approval, we will all be keeping a close eye on how many players are registering, filing claims and getting the monetary awards and other benefits of the Settlement.
So, how will we know what's happening?
Judge Brody and the lead counsel for former players will receive monthly reports from the Special Master. The reports will provide details on the number of players registering for benefits, the number of claims filed, the number of claims approved for monetary awards, the number of claims that have been denied, the number of claims that have been appealed, the identification of physicians that have rendered a diagnosis and the expenses and costs for administering the Settlement.
The Special Master will be Judge Brody’s enforcer when it comes to settling disputes and making sure everyone is held accountable. For example, if the Claims Administrator approves a monetary award, the NFL has the right to appeal that award, but if the Special Master thinks that the NFL is abusing the appeals process, they can inform the Judge and she has the power to sanction them and/or fine them.
There is also a provision in the agreement that requires the two parties to review new medical evidence and discoveries every ten years. Some people think there is no enforcement power in this provision and that the NFL would never agree to compensate players for some of the other symptoms that have been associated with CTE. But what happens if researchers and scientists eventually prove that these other symptoms are directly attributed to concussions and sub-concussive blows to the head? I think Judge Brody and our lawyers would have some major influence in getting the NFL to do something to compensate players – especially if former players start beating the drums of injustice.
Former players did a damn good job of getting the NFL to agree to a settlement. It all started with public pressure created by former players complaining to the media and our congressional representatives. Trust me, they will be in our corner again if we can show that the science is on our side and our squeaky wheels aren’t getting the oil.
Thank goodness it’s Friday………and thank goodness Judge Brody will still be in charge of this Settlement when it receives final, final, final approval.
