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The NFL just released the following statement:
The NFL and NFLPA have reviewed the application of the Concussion Protocol by the Dolphins’ medical staff in the January 8th Steelers-Dolphins game.
The Miami Dolphins were notified in a letter co-signed by Dr. Hunt Batjer, Co-Chair of the NFL Head, Neck & Spine Committee and Dr. Thom Mayer, Medical Director for the NFLPA, that the NFL-NFLPA review determined that the Protocol was not strictly followed. The letter further advised the Dolphins that they must engage their staff in a full review of the Protocol and conduct additional education, if necessary. The Dolphins were also advised that any future deviation from the Protocol may result in enhanced discipline, including monetary fines assessed against the Club.
In the second quarter, Dolphins quarterback Matt Moore incurred a hit to the chin and mouth area which drew a roughing the passer penalty. Mr. Moore was attended to by medical staff on the field and on the sideline. The team doctor took appropriate steps to promptly and fully involve the Unaffiliated Neuro-trauma Consultant (UNC) in the medical evaluation of the player and review of the video. They jointly cleared Mr. Moore to return to the game, but did not recognize that Mr. Moore presented a documented symptom, bleeding from the mouth, that required further evaluation in the locker room under the protocol. There is no indication that competitive issues had an impact on the care that Mr. Moore received, nor did Mr. Moore demonstrate any concussion symptoms either during or at any time following the game.
It is important for us to ensure everyone understands and follows the Protocol and that we continue to reinforce its importance. The co-chairmen of the NFL’s Head, Neck and Spine Committee sent a memo to the medical staffs of the clubs participating in the playoffs reminding them of that point.
The objective of the Concussion Protocol is to ensure a standardized process composed of best practices is used to identify and manage potential concussions. Concussion diagnosis and management is often a difficult and complex exercise, compounded by hectic game conditions. Accurate diagnosis and management of concussion requires a collaborative approach among experienced physicians on the sideline, each acutely aware of his or her responsibilities and all committed to the strict application of the protocol designed to protect players.
(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 …
(Editor’s Note: What follows is an excerpt of a case summary that appeared in the December issue of Concussion Litigation Reporter. For this summary and the case citation and many others like it, consider subscribing to the Reporter at http://concussionpolicyandthelaw.com/subscribe/)
A federal judge has declined to reopen the claim of a former professional football player, who alleged that he was entitled to more disability benefits than he was originally awarded by the NFL’s Retirement Board.
The plaintiff began playing in the NFL in 1995. His 8-year career included stints at multiple teams, including the Jacksonville Jaguars, the Chicago Bears, and the Atlanta Falcons. After his retirement, he began experiencing health issues, such as anxiety, sleep problems, social withdrawal, headaches, memory loss, and sensitivity to lights. The plaintiff claimed many of the issues were attributable to the head trauma he suffered as an NFL player.
Before beginning its analysis, the court noted that the Bert Bell/Pete Rozelle NFL Player Retirement Plan (the Plan) provides retirement, disability, and related benefits to eligible players. Under the Plan, players can file applications to receive benefits. The Retirement Board (the Board) administers the Plan and possesses the sole authority to grant or deny players’ applications.
“Once a player files his application, the Board makes an initial determination as to whether the player is totally and permanently disabled,” wrote the court. “If the Board finds that the player is totally and permanently disabled, the player is entitled to total and permanent disability benefits (T & P benefits). However, the amount of money the player receives depends on which of four T& P benefit categories the Board determines is appropriate. The four categories are: Active Football, Active Non-football, Football Degenerative, or Inactive. The latter two categories are relevant here.
“The Plan defines a Football Degenerative injury as a disability that ‘arises out of League football activities, and results in total and permanent disability before fifteen years after the end of the Player’s last Credited Season.’ The Plan provides that the Inactive category applies if ‘(1) the total and permanent disability arises from other than league football activities while the Player is a Vested Inactive Player, or (2) the disability(ies) arises out of League football activities and results in total and permanent disability fifteen or more years after the end of the Player’s last Credited Season.’ Thus, the difference in the two categories is whether or not the player’s injury arose from football activities. Importantly, the minimum benefits for the Football Degenerative category is no less than $4,000 per month while the minimum benefits for the Inactive category is offset by any disability benefits provided by an employer other than the NFL or another employer. Thus, it is financially beneficial for a player to be placed in the Football Degenerative category.”