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

(Editor’s Note: What follows is an excerpt of an article that appeared in the January issue of Concussion Litigation Reporter. For this article and many others like it, consider subscribing to the Reporter at http://concussionpolicyandthelaw.com/subscribe/)

By Richard C. Giller,  of Polsinelli

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 …

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UK Multidisciplinary Team Presents First of its Kind Protocol for Traumatic Brain Injuries in Equine Sports

Health providers, researchers and other professionals from the University of Kentucky who work in the area of traumatic brain injury developed and presented the Saddle Up Safely Concussion Assessment Tool and Return to Riding Protocol for Concussions in Equine Sports at the 5th International Consensus Conference on Concussion in Sports in Berlin, Germany, this past fall.

The conference was hosted and organized by Fédération Internationale de Football Association (FIFA), International Ice Hockey Federation (IIHF), International Olympic Committee (IOC), World Rugby, and Fédération Equestre Internationale (FEI) and has evolved into the world’s most influential process for policy makers on concussions in sport. 

Representing UK at the conference were Dr. Dan Han, associate professor of Neurology, Neurosurgery, and Physical Medicine & Rehabilitation at the UK College of Medicine, Bill Gombeski, senior advisor at UK HealthCare,  Fernanda Camargo, associate extension professor at the UK College of Agriculture, and Carl Mattacola, professor in the Athletic Training Program at the UK College of Health Sciences. Also playing a major role in the development of the concussion tool but unable to attend the conference were Dr. Erika Erlandson, assistant professor of Physical Medicine & Rehabilitation at the UK College of Medicine, and Jill Stowe, director of Equine Programs at the UK College of Agriculture. The multidisciplinary effort represented Saddle Up Safety (SUS), the Kentucky Neuroscience Institute (KNI), the Sports Medicine Research Institute (SMRI), the Spinal Cord and Brain Injury Research Center (SCoBIRC), Physical Medicine & Rehabilitation (PM&R), the Equine Program, and UK HealthCare. 

The UK team identified key questions that needed to be addressed in advance, identified and reviewed relevant articles, and developed early recommendations which they presented to conference attendees. 

“It was clear that in the area of equestrian sports concussion and return to riding protocol, that UK is one of the world leaders,” Gombeski said. “Individuals attending the conference from around the world discussed the work that the UK group shared and to learn more about using the concussion assessment tool and return to riding guidelines that members of the Saddle Up Safely program created.” 

The Return to Riding Protocol for Equine Sport is the first of its kind for equine specific head injury. Presentations (5 in total) by the UK team members will be published in the May 2017 issue of the British Journal of Sports Medicine. The conference recommendations created this year will come out online in February.

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January CLR Features Five Original Case Summaries Involving Concussion

January 2017, Vol. 5, No. 7

Timely reporting on developments and legal strategies at the intersection of sports and concussions—articles that benefit practicing attorneys who may be pursuing a claim or defending a client.

Articles

  • Analyzing SCOTUS’ Decision to Pass on Reviewing Challenges to the NFL Concussion Settlement
  • State Court Judge Holds Discovery Can Proceed in Litigation Involving NFL and Its Insurers
  • Scientists Claim They Have Discovered Concussion Biomarker
  • Judge to Reconsider Disability Claim Based on Past Concussions, Which Were Previously Not Considered
  • Judge Blocks Concussed Arena Football Player from Recovery Under Insurance Policy
  • Family of Derek Boogaard Asks Federal Judge to Remove Tort Claims to State Court
  • Contradicting Other Studies, Experts Claim Rest May Not Be the Best Concussion Treatment for Everyone
  • Court Deals Blow to Riddell, Which Sought to Shield Documents in Concussion Case
  • Ohio Appeals Court Overturns Ruling in Schmitz Concussion Case, Citing ‘Discovery Rule’
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