Third Circuit Asked to Rehear Concussion Settlement

(Editor’s note:Partner Joseph M. Hanna of Goldberg Segalla posted the following this morning on the firm’sblog – Sports and Entertainment Law Insider)

On Thursday, April 28, 2016, objectors to the approved $1 billion uncapped settlement agreement between the National Football League and a class of former players over concussion injuries sustained during their playing careers, filed a petition with the Third Circuit Court of Appeals, asking the court to rehear their appeal en banc. In a unanimous decision handed down earlier this month, the court, hearing the appeal with only three presiding justices, affirmed the district court’s decision approving the settlement, holding that the agreement was both reasonably under the circumstances and bargained for by both the League and the players.

The petition for a rehearing by the objecting members comes as no surprise; some objectors expressed their displeasure at the court’s decision almost immediately after the approval was affirmed. Continuing one thread of objection that was a focal point of the original appeal, the petitioners on Thursday cited to the fact that the current deal as agreed to – which demands the NFL only settle claims with former players who can prove they suffer from specific degenerative neurological diseases like Alzheimer’s and Parkinson’s as a result of their football days – fails to provide any remedial measures for players who suffer CTE. CTE, which stands for chronic traumatic encephalopathy and exhibits symptoms such as memory loss, mood swings, uncontrollable anger, and suicidal tendencies, has been the subject of intense media backlash throughout the last few years. Unfortunately, CTE can only currently be diagnosed posthumously – an area of contention the objectors continue to raise, arguing that the settlement cannot cover even the basic medical expenses of former players suffering from the disease.

Focusing on CTE harshly, the objectors rely on the fact that even the Third Circuit admitted the science on the subject was still in its infancy, arguing that until more is known about this specific brain disease and how to protect players from experiencing it, any settlement should be postponed or renegotiated to evolve with that science as it continues to develop.

If their petition shall fail, however, the objectors would only have the opportunity to appeal directly to the Supreme Court of the United States. And unfortunately for those members of the class already suffering, the longer this appeals process is dragged out, the longer it will be until settlement claims can actually be handed out to the former players.

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