You are on page 1of 20

Fall 2014

Fordham Law School

The NFL Concussion Litigation


Settlement
George W. Conk
Adjunct Professor of Law & Senior Fellow, Stein Center for Law &
Ethics
Certified Civil Trial Attorney
Room 409
gconk@law.fordham.edu
212-636-7446
Torts Today tortstoday.blogspot.com
Otherwise Commentaries on Law, Language & Politics
Blackstonetoday.blogspot.com

NFL Concussion Settlement

Class action complaint - Turner and


Wooden v. NFL

Medical monitoring
Wrongful death and survial actions
Fraudulent Concealment
Negligent misrepresentation
Negligence by NFL 1933 1968, and since
that time
Loss of consortium
Negligent retention and hiring of MTBI
personnel
NFL Concussion Settlement

NFL Concussion Settlement


All Valid Claims of Retired NFL
Football Players to be Paid in Full
for 65 Years
Monetary Awards, Baseline
Medical Exams and Other Benefits
Provided

A federal court authorized this Notice.


This is not a solicitation from a lawyer.
July 7, 2014

https://www.nflconcussionsettlement.com/Home.aspx
NFL Concussion Settlement

The NFL parties agree

The National Football League (NFL)


[has] agreed to a Settlement of a class
action lawsuit seeking medical monitoring
and compensation for brain injuries
allegedly caused by head impacts
experienced in NFL football.
The NFL Parties deny that they did
anything wrong.

Who?

The Settlement Class includes all retired


players of the NFL, American Football
League (AFL), World League of
American Football, NFL Europe League
and NFL Europa League, as well as
authorized representatives of deceased,
legally incapacitated or incompetent
retired players and family members of
retired players who meet certain criteria.
NFL Concussion Settlement

The Settlement will provide eligible


retired players with:

Baseline neuropsychological and


neurological exams to determine if retired
players are:
a) currently suffering from any
neurocognitive impairment, including
impairment serious enough for
compensation, and
b) eligible for additional testing and/or
treatment ($75 million)
NFL Concussion Settlement

Monetary awards for diagnoses of

ALS (Lou Gehrigs disease)


Parkinsons Disease

Alzheimers Disease

Early and moderate Dementia a

Certain cases of chronic traumatic

encephalopathy (CTE) (a europathological


finding) diagnosed after death.
NFL Concussion Settlement

Maximum awards and duration of


settlement

Maximum monetary awards range from


$1.5 million to $5 million depending on
the diagnosis.

No cap on the amount of funds available


to pay these Monetary Awards and

All valid claims will be paid in full for 65


years

NFL Concussion Settlement

Educational program

Education programs promoting safety and


injury prevention with respect to football
players, including safety-related initiatives
in youth football, the education of retired
players regarding the NFLs medical and
disability programs and other educational
programs and initiatives ($10 million).

NFL Concussion Settlement

Wives and dependents

Authorized representatives of deceased,


legally incapacitated or incompetent
retired players and family members of
retired players who meet certain criteria
may also file claims for monetary awards

NFL Concussion Settlement

10

Opt out class

To get money, proof that injuries were


caused by playing NFL football is not
required.
Settlement Class Members will need to
register to get benefits. Settlement Class
Members may sign up at the website or
call 1-855-887-3485

NFL Concussion Settlement

11

FRCP 23 Class Actions

(a) Prerequisites.
(1) the class is so numerous that, joinder
of all members is impracticable
(2) there are questions of law or fact
common to the class,
(3) the claims or defenses of the
representative parties are typical of the
claims or defenses of the class; and
(4) the representative parties will fairly
and adequately protect the interests of the
class.
NFL Concussion Settlement

12

The Settlement Class

Subclass 1 Retired NFL Football Players*


who were not diagnosed with a Qualifying
Diagnosis prior to the Preliminary Approval
and Class Certification Order
Subclass 2 Retired NFL Football Players
who were diagnosed with a Qualifying
Diagnosis prior to the date of the
Preliminary Approval and Class
Certification Orders
NFL Concussion Settlement

13

The Settlement Class

Subclass 2
Deceased retired players diagnosed with
a Qualifying diagnosis prior to death or
who died prior to the date of the
Preliminary Approval and Class
Certification Order and who received a
post-mortem diagnosis of chronic
traumatic encephalopathy (CTE).

NFL Concussion Settlement

14

Defenses

28 U.S.C. 185 Federal preemption


But 301 only preempts claims founded
directly on rights created by collectivebargaining agreements, or claims
substantially dependent on analysis
of a collective-bargaining agreement.

Caterpillar, Inc. v. Williams, 482 U.S. 386,


394 (1987)
NFL Concussion Settlement

15

Causation defenses

Causation. Class Counsel claim they


face significant legal impediments
surrounding [their] ability to prove
causation and obtain verdicts in the
absence of a settlement

NFL Concussion Settlement

16

Assumption of risk

Steeplechase Amusement Co., 250 N.Y.


479, 482-83 (1929) (One who takes part
in [ ] a sport accepts the dangers that

inhere in it so far as they are obvious and


necessary, . . . [but a] different
case would be here if the dangers
inherent in the sport were obscure or
unobserved, or so seriousas to justify the
belief that precautions of some kind must
have been taken to avert them.).
NFL Concussion Settlement

17

Statutes of limitations

State law defenses

Discovery rule?

Fraudulent concealment

NFL Concussion Settlement

18

Is NFL a Statutory Employer?

Workers compensation as exclusive


remedy
Intentional injury exception?

NFL Concussion Settlement

19

Liens

Offsets for
Medicare, Medicaid, workers compensation

NFL Concussion Settlement

20

You might also like