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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 https://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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