NFL Concussion Settlement Five Years Later

Just over five years ago, in April 2016, a U.S. federal appellate court approved the settlement agreement in In re: National Football League Players Concussion Injury Litigation.¹ Retired professional football players brought this class action seeking compensation from the National Football League for serious medical conditions they alleged were caused by game-related head trauma. Thousands of player lawsuits were consolidated in a Pennsylvania federal district court in front of Judge Anita Brody, who ordered the parties to mediate rather than litigate the claims.²

A comprehensive settlement agreement resulted, avoiding a court ruling on the defenses raised by the NFL or the merits of the retired players’ claims.³ Without admitting wrongdoing, the NFL agreed to an uncapped compensation fund that would potentially cover over 20,000 retired players in exchange for a release of all concussion-related claims against the league. At the time, it was predicted that the NFL’s outlay would ultimately exceed $1 billion.⁴

As of the 2017 deadline for registering with the fund, 20,558 players or their representatives enrolled. Of those registrants, 12,837 met the settlement agreement’s eligibility requirements.⁵ One-quarter of eligible registrants—3,207 former NFL players—have submitted complete claims packages, and about one-tenth—1,263 former players—have received monetary awards.⁶ To date the settlement fund has awarded a total of $856,808,252 to retired players. Amounts of individual awards range from around $27,000 to $5.3 million,⁷ with an average payment of $678,000 to each claimant who has completed the process.⁸

That claims process has not always run smoothly. Concerns have arisen about unfair treatment of claimants, delays in processing claims, and fraud against both the fund and former players.⁹ These concerns remain vital because the fund for compensating the retired players is uncapped, many players have yet to complete the claims process, and the deadline for doing so is still years away. This article takes stock of the NFL concussion settlement agreement five years in, including the administration of its claims process, criticisms of eligibility requirements for compensation, and fraud and deficiencies that threaten the integrity of the process.

Settlement Agreement Summarized

The NFL concussion class settlement includes all players who had played at least one-half season and retired from the NFL as of July 7, 2014—the date on which Judge Brody granted preliminary approval of the settlement agreement.¹⁰ It offers those players three types of benefits: (1) an uncapped Monetary Award Fund with a 65-year term, (2) a $75 million Baseline Assessment Program that provides former players with free baseline assessment examinations of their objective neurological functioning; and (3) a $10 million research and education fund.¹¹ In addition, the NFL paid $112.5 into a separate fund to compensate class attorneys who worked on the case.¹²

The Monetary Award Fund constitutes the majority of the settlement. With it, the former players scored a major victory by eliminating any causation requirement, that is, they do not need to prove that playing NFL football caused their cognitive decline.¹³ The fund pays individual compensation, up to a maximum of $5 million per player, based primarily on a medical diagnosis of a qualifying cognitive impairment as follows:¹⁴

Qualifying Diagnosis	Maximum Award
Level 1.5 Neurocognitive Impairment (early dementia)	$1.5 million
Level 2 Neurocognitive Impairment (moderate dementia)	$3 million
Parkinson’s Disease	$3.5 million
Alzheimer’s Disease	$3.5 million
Death with Chronic Traumatic Encephalopathy (CTE)	$4 million
Amyotrophic Lateral Sclerosis (ALS)	$5 million

A player who suffers only slight cognitive impairment not sufficient for a monetary award may still be entitled to additional medical treatment and pharmaceutical coverage. Conversely, a player may be entitled to a supplementary monetary award if he later receives a qualifying diagnosis of more severe cognitive impairment.

Monetary awards also depend on the former player’s number of seasons in the NFL, age at the time of the qualifying diagnosis, and medical issues unrelated to NFL play. For example, the older a retired player is at the time of his qualifying diagnosis, the smaller the award. Similarly, monetary awards are offset for players who played fewer than five NFL seasons, or who suffer injury (e.g., in a car accident) or medical conditions (e.g., a stroke), unrelated to NFL play.¹⁵

Efforts at objectivity and impartiality are embedded in the settlement agreement. All medical monitoring, examinations, and decisions as to who qualifies and the amount of any award are made by independent doctors and fund administrators agreed upon by the parties, with Judge Brody retaining ultimate oversight.¹⁶ Each level of impairment or disease is defined according to scientifically established and widely accepted classifications.¹⁷ All examiners are required to use a uniform test battery and standardized impairment criteria.¹⁸

Claims Process Described

Former NFL players had until August 7, 2017 to register as a claimant with the settlement administrator. As that deadline has long passed, the number of potential claimants is now more or less fixed at the number whose registrations were approved—12,837. Those claimants advanced to a formidable claims process detailed in the 161-page settlement agreement,¹⁹ and summarized in 372 Frequently Asked Questions (FAQs) found on the official NFL Concussion Settlement website.²⁰ The most salient provisions of the claims process are summarized here to provide context for the criticisms that have been lodged against it.

Step one of the claims process requires the retired NFL player to undergo a free baseline assessment that includes two examinations—one by a neuropsychologist and one by a neurologist.²¹ Any board-certified specialist may conduct these baseline exams.²² Players who turned 45 by June 6, 2019 must have scheduled their exams by that date. Younger players have until 2027 to undergo an initial examination, meaning the settlement fund could be processing claims through the current decade.²³ If these baseline exams produce a qualifying diagnosis of either early or moderate dementia (the two lowest award levels), no further medical examination is required to submit a claim for a monetary award.²⁴

If a player suffers more severe cognitive impairment eligible for higher award levels, he must bear the expense of examination by a physician who has been approved by the parties, based on strict criteria to establish impartiality.²⁵ These examinations similarly must comport with the settlement agreement’s injury definitions and diagnostic medical criteria.²⁶ Conflicting diagnoses, or player challenges to diagnoses, may be referred to an appellate panel of physicians selected by the parties to review and resolve such disputes.²⁷

From the date a player receives a final qualifying diagnosis, he has two years to complete step two of the claims process: submitting a claim package consisting of a detailed form, proof of the diagnosing physician’s qualifications, medical records supporting the diagnosis, and NFL employment records. Within 45 days of submission, the claims administrator must assess whether the claim package is complete, and give the claimant an opportunity to cure any deficiency.²⁸ As of June 1. 2021, 3,207 players have submitted complete claim packages for monetary awards.²⁹ That number represents about one-quarter of the total number of claimants whose registrations were approved to advance through the process.

Once complete, the claim package is subject to verification and investigation by the claims administrator, who then has 60 days to make a monetary award determination. This determination must adhere to a detailed grid that awards compensation based principally on the diagnosis and the claimant’s age and number of NFL seasons.³⁰ A notice of claim determination is then issued to the parties, who have a right to appeal and/or request independent audits of claims.³¹ In addition, the settlement agreement requires the claims administrator to audit 10 percent of total claims each month on a random basis or in response to specific concerns raised by the parties.³²

As of June 1, 2021, the claims administrator has issued 3,161 determinations, roughly keeping pace with the number of completed claim packages (3,207). These claim determinations break down as follows:³³

Number of Claims	Monetary Award Determination
1,263	Award (totaling $856,808,252)
1,084	Denied
372	Denied after audit
367	Withdrawn
75	Request for additional documents
3,161	TOTAL

Parties may appeal claim determinations to a court-appointed special master, whose decisions are subject to further de novo review by Judge Brody.

Race-norming Controversy

A controversial element of the claims process, now under reconsideration, is the use of “race-norming” in the baseline assessment tests. The settlement agreement’s diagnostic criteria, consented to by all parties, offers physicians three models for predicting “premorbid intellectual ability,” that is, the player’s cognitive functioning prior to experiencing any football-related head trauma. Two of those models use demographic data, including sex, race/ethnicity, and education, to adjust a player’s cognitive test scores according to the average scores for similar demographic groups. Models that rely on “race-norming” are widely used in medicine to ensure accurate diagnosis. But because these “norms” assume that black players start at a lower level of cognitive functioning than white players, the model effectively requires black players to show larger cognitive declines to qualify for compensation from the NFL concussion settlement fund.³⁴

The settlement agreement confers discretion on physicians to “select a model based on the patient’s background and his or her current level of reading or language impairment.”³⁵ In other words, race-norming is not required. Nonetheless, in August 2020, two black former players lodged a race discrimination lawsuit in Judge Brody’s court, alleging the NFL has manipulated the claims process to insist on race-norming, rather than leave it at the physician’s discretion.³⁶ They allege that a “clinician’s interpretation guide,” developed jointly by the NFL and plaintiffs’ class counsel, curtails physicians’ judgment by urging them to correct cognitive test scores based on race in every case.³⁷

Judge Brody dismissed the race discrimination lawsuit as an improper collateral attack on the terms of a judicially-approved settlement agreement.³⁸ However, she expressed concern about race-norming and referred the parties to a magistrate judge to reconsider the settlement agreement’s provisions on this point and the diagnostic methodology the parties adopted.³⁹ She expects a report on the issue, to provide a deeper understanding of the role that race-norming played in assessing former players’ impairment levels. A thorough investigation would also inquire as to how often the NFL challenged a monetary award because the doctor declined to use race-norming, to determine if implicit pressure was being exerted on diagnostic judgment.

While the incorporation of demographic correction into the original settlement agreement was accepted practice at the time, how it has been effectuated is fair game for review, especially as both public and medical opinion has evolved to discredit the methodology.⁴⁰ More generally, the administration and allocation of mass tort compensation funds are routinely subject to quality assurance and auditing. Accordingly, the NFL concussion settlement agreement by its own terms provides for the parties “to discuss in good faith possible prospective modifications to the definitions of Qualifying Diagnoses and/or the protocols for making Qualifying Diagnoses, in light of generally accepted advances in medical science.”⁴¹

As a result, in June 2021, the NFL renounced the use of race-norming in determining monetary awards and convened a panel of neuropsychologists to propose a new testing regime.⁴² The parties have agreed to apply the replacement norms prospectively and retrospectively to re-evaluate whether players denied awards would have qualified but for race-norming. Potentially hundreds of additional black players may now receive compensation from the settlement fund.⁴³

The race-norming controversy elicited two other notable responses. First, a petition circulated seeking the ouster of class counsel, Christopher Seeger, because he agreed to the settlement provisions permitting the offensive diagnostic method. The petition generated 50,000 signatures and has been presented to Judge Brody.⁴⁴ Second, four U.S. senators wrote to the NFL demanding an explanation of how racial benchmarks are used in the monetary claims process.⁴⁵ This inquiry sprang from broader congressional interest in addressing economic practices and computer algorithms that diminish opportunities for people of color.⁴⁶ While the NFL has yet to respond to the congressional inquiry, the senators have redoubled their efforts with calls for public health authorities to review any use of race-based clinical algorithms in standard medical practices.⁴⁷ Thus, federal intervention—whether by legislation or executive order—may also ultimately shape concussion claims outcomes.

Fraud against the Compensation Fund

Fraud is always a concern with mass tort compensation funds, and the NFL and class counsel incorporated in the settlement agreement robust fraud detection and audit provisions.⁴⁸ Notwithstanding those efforts, in April 2018, less than a year after the close of registration for the monetary award fund, the NFL petitioned the court for appointment of a special investigator based on routine independent audit results that flagged almost half of all claims for signs of fraud.⁴⁹ Suspicions of fraud arose when players represented by certain law firms and diagnosed by certain neurologists all presented identical and improbable medical reports. Player complicity in the suspected fraud was supported by evidence that many traveled to distant, out-of-state neurologists for their exams, availed themselves of coaching services to “beat” the tests, and engaged in post-diagnostic public speaking and life activities inconsistent with cognitive impairment.⁵⁰

After initially denying the NFL’s request, Judge Brody reversed course in December 2018 and appointed a special fraud investigator to probe allegations that doctors and former players were manipulating the system.⁵¹ A few months later, in May 2019, the judge approved new rules regarding the doctors who may evaluate former players seeking the higher award levels. Players were for the most part limited to doctors within a 150-mile radius of their primary residence to prevent “forum shopping” for physicians. All doctors were required to provide a written explanation as to how a diagnosis is “generally consistent” with the settlement’s agreed-upon criteria for evaluating cognitive functioning. Further, players were prohibited from using a doctor who has ever served as an expert witness for the lawyer representing that player.⁵²

Players have expressed concern that the incidence of fraudulent claims are providing cover to the NFL to set up stumbling blocks and deny payment of rightful claims. Counsel have protested that the claims process had become so complex, with the NFL setting up so many “roadblocks,” that legitimate claims are chilled.⁵³ According to Sheila Dingus, founder of the website Advocacy for Fairness in Sports, the concussion settlement process has “devolved into a marathon maze laden with hurdles that appear to obscure any semblance of a finish-line,” as players and their families have confronted layers of requirements not specified in the original agreement.⁵⁴

It is true that one upshot of claims fraud is delayed payment to genuinely impaired players. Yet the fraud is well-documented, most notoriously perpetrated by the Howard law firm of Florida, which forged medical records, influenced diagnoses, and inflated costs to extract illegitimate compensation awards.⁵⁵ As a result, audits were ordered of all claims by Howard’s clients.⁵⁶ Another consortium of lawyers contracted for its clients to undergo their medical exams with an entity known as the Neuropsychiatric Institute, which used testing protocols rife with “irregularities” that threatened diagnostic integrity.⁵⁷ All claims submitted by those clients were similarly denied, without prejudice to refiling with new examination results.⁵⁸

In view of these episodes, it is not surprising that the NFL has been so vigilant in pursuing cheaters, especially given an uncapped compensation fund that places all the risk of fraud on the NFL. If the fund had been capped, it’s likely that plaintiffs’ counsel would now be fretting that fraudsters might deplete fund resources before all legitimate claims had been paid. In any event, anti-fraud vigilance will remain a signature feature of the claims process given Judge Brody’s endorsement that “[s]afeguarding the integrity of this claims process is crucial to implementing the Settlement honorably.”⁵⁹

Fraud against the Former Players

Fraud has plagued settlement claimants as much as the fund itself. Predatory lenders and unscrupulous advisors have further victimized the cognitively impaired former players. Shortly after the 2017 settlement registration deadline, class counsel reported to the court that almost 1,000 former players had purported to “assign” to third-party litigation funders the rights to a portion of settlement proceeds in exchange for immediate cash. Many of these cash advance agreements imposed illegal interest rates of 50 percent or more, topped by exorbitant fees. The business was so potentially lucrative that funders were paying fees to brokers for referrals to former players, and then paying some of those former players to convince fellow class members to sign up for a cash advance.⁶⁰ In one flagrant example, a player received $312,000 from a funder but would have to pay back $568,000 from the monetary award he eventually receives.⁶¹

The predatory lending issue came to a head when the federal Consumer Financial Protection Bureau and the New York Attorney General sued a third-party funder for scamming both 9/11 and NFL concussion fund claimants by misrepresenting the terms of litigation loans, lying about speeding up the processing of claims, delaying payouts, and violating interest rate caps.⁶² That litigation led a New York federal court to solicit Judge Brody’s interpretation of the concussion settlement agreement’s provisions on assignment of monetary claims.⁶³

In a December 8, 2017 order, Judge Brody ruled that the unambiguous language of the concussion settlement agreement prohibits the former players from assigning monetary claims to third parties, and any attempt to assign is void.⁶⁴ Judge Brody’s order went further, however, and effectively rescinded all cash advance agreements entered into by player-claimants, instructing the claims administrator to reimburse the funders only the amounts advanced to players, and only if the funders agreed to release and waive all other rights.⁶⁵ In response to third-party funders’ dismay that they would not receive a return on their investment, she chided them for failing to perform due diligence by reading the publicly available settlement agreement.⁶⁶

Funders outraged at Judge Brody’s order appealed and won a partial victory. The appellate court affirmed the order below insofar as it voids all true claims assignments, but ruled that the funders are entitled to pursue any surviving rights in their cash advance agreements.⁶⁷ Without opining as to the enforceability of those agreements, the appellate court observed that the former players retained standard contract defenses, including lack of capacity to contract given that they entered such contracts while, by definition, cognitively impaired.⁶⁸ To comply with the appellate court’s ruling, Judge Brody developed rules for paying out monetary awards where the former player had received a now-disputed cash advance. While the rules aim for transparency and fairness, they add yet another set of obstacles before injured players actually pocket any money.⁶⁹

Former players have also been defrauded by opportunist lawyers and so-called claims service providers who charge excessive fees for filling out the forms and dealing with the claims process.⁷⁰ Although the settlement set aside $112.5 million in attorneys’ fees for class counsel, these other lawyers have solicited former players to enter individual retainer agreements, ranging from 15 to 40 percent of their eventual awards.⁷¹ While such contingency fees are typical for meritorious personal injury claims, they raise questions in the context of this particular settlement fund. On the one hand, the settlement agreement does not require a personal lawyer to participate, and independent administrators are available to assist former players pro bono in submitting a claim package.⁷² On the other hand, the independent administrators are prohibited from providing individualized legal advice, which many of these players desperately need.⁷³ That these players are cognitively impaired and struggle to understand the terms of the services offered to them continues to alarm class counsel and the court.⁷⁴ But each layer of protection added to the claims process also constitutes another impediment to the former players entitled to recompense.

Conclusion

In the five years since appellate court approval of the NFL concussion settlement, the parties have faced all the challenges that regularly confront the administration of a mass tort compensation fund, including complexity, delay, and fraud. The federal district court has made extraordinary efforts to resolve the tension between facilitating awards to legitimate claimants without too much red tape and ensuring that fraudsters do not undermine the integrity of the settlement fund. Particular features of the concussion settlement have exacerbated that tension, including that the compensation fund is uncapped and the claimants are by definition brain-damaged, which makes them more vulnerable to opportunists and less competent to navigate the claims process.

Now, at a point in time when one would expect the settlement apparatus to run like a well-oiled machine, allegations of racially tainted diagnoses and award determinations have called into question the claims process from the outset. Revisiting that process will be even more fraught if efforts succeed to oust class counsel who agreed to the diagnostic method. In the face of this uproar, the NFL not surprisingly has expressed willingness to amend the agreement to address race discrimination concerns. Given the 65-year lifespan contemplated by the settlement fund, the NFL continues to take the long view, standing on its rights as far as it can and rolling with the punches. Despite these controversies, the class settlement undoubtedly continues to offer all parties, the NFL and former players alike, greater efficiency, predictability, and finality than the alternative—individually litigating each player’s damages claim, including proof that an NFL concussion caused their cognitive impairment.

Disclaimer: The author previously held a role as the Counsel for Operations & Litigation at the National Football League. All opinions expressed in this article are her own.

Disclaimer: This article was first published on the LawInSport blog. The original is available to view here.

Written by: Jodi S. Balsam
Jodi is Associate Professor of Clinical Law and Director of Externship Programs at Brooklyn Law School.

Article Sources

¹ 821 F.3d 410 (3d Cir. 2016), as amended (May 2, 2016), https://www.nflconcussionsettlement.com/Docs/Third%20Circuit%20Opinion%20Affirming%20Final%20Approval%204.18.16.pdf.
² “Federal judge orders mediation in NFL concussions case,” NFL.com, Jul. 8, 2013, https://www.nfl.com/news/federal-judge-orders-mediation-in-nfl-concussions-case-0ap1000000216763.
³ In re NFL Players’ Concussion Inj. Litig., No. 2:12-MD-02323-AB, Class Action Settlement Agreement [hereafter “Settlement Agreement”], NFL Concussion Settlement website, https://www.nflconcussionsettlement.com/Docs/Amended%20Class%20Action.pdf.
⁴ Michael McCann, “What’s next for each side after the NFL’s concussion settlement,” SI.com, April 18, 2016,https://www.si.com/nfl/2016/04/18/nfl-concussion-lawsuit-settlement-retired-players.
⁵ NFL Concussion Settlement website, Summary Report (as of June 1, 2021), https://www.nflconcussionsettlement.com/Reports_Statistics.aspx.
⁶ NFL Concussion Settlement website, Reports and Statistics, https://www.nflconcussionsettlement.com/Reports_Statistics.aspx.
⁷ John Kruzel, “NFL accused of ‘systemic racism” in handling Black ex-players’ brain injuries,” The Hill (May 14, 2021), https://thehill.com/regulation/court-battles/553482-nfl-accused-of-systemic-racism-in-handling-black-ex-players-brain. Although the maximum award is capped at $5 million, the settlement agreement provides for inflation and other adjustments, resulting in awards that exceed the stated cap. See Settlement Agreement, supra note 3, at § 6.9.
⁸ NFL Concussion Settlement website, Reports and Statistics4 https://www.nflconcussionsettlement.com/Reports_Statistics.aspx.
⁹ See, e.g., Pete Madden, “Judge orders NFL, class counsel to ‘address the concerns’ about race-norming in concussion settlement,” ABCNews (March 8, 2021), https://abcnews.go.com/Sports/judge-orders-nfl-class-counsel-address-concerns-race/story?id=76321584; Ken Belson, “N.F.L. Says Fraud Plagues the Concussion Settlement,” New York Times (April 13, 2018), https://www.nytimes.com/2018/04/13/sports/nfl-concussion.html.
¹⁰ In re Nat. Football League Players’ Concussion Inj. Litig., 301 F.R.D. 191 (E.D. Pa. 2014).
¹¹ In re Nat. Football League Players’ Concussion Inj. Litig., 307 F.R.D. 351, 365 (E.D. Pa. 2015), aff’d,821 F.3d 410 (3d Cir. 2016).
¹² See Settlement Agreement, supra note 3, at Article XXI.
¹³ See Settlement Agreement, supra note 3, at Exhibit A-5, page 1.
¹⁴ In re Nat. Football League Players’ Concussion Inj. Litig., 307 F.R.D. at 366.
¹⁵ Id. at 367.
¹⁶ Id. at 414.
¹⁷ See Settlement Agreement, supra note 3, at Exhibit A-1.
¹⁸ See Settlement Agreement, supra note 3,at Exhibit A-2.
¹⁹ See Settlement Agreement, supra note 3, at Articles VIII, IX.
²⁰ NFL Concussion Settlement website, Frequently Asked Questions [hereafter “Settlement FAQs”], https://www.nflconcussionsettlement.com/FAQ.aspx.
²¹ See Settlement FAQs, supra note 20, at Baseline Assessment Program FAQ 46. From the former players’ perspective, a welcome byproduct of the baseline assessment program is that a bankruptcy court has found it to render potential future settlement payments akin to a disability benefit, which exempts those payments from the reach of a former player’s creditors in bankruptcy. In re Williams, 586 B.R. 355, 357 (Bankr. S.D. Fla. 2018), aff’d, Salkin v. Darryl Edwin Williams, No. 18-cv-61581 (S.D. Fla. Mar. 26, 2019).
²² Some doctors were subsequently excluded from conducting examinations based on allegations of fraud. See infra notes 51-52 and accompanying text.
²³ See Settlement FAQs, supra note 20, at Baseline Assessment Program FAQ 52.
²⁴ See Settlement FAQs, supra note 20, at Baseline Assessment Program FAQ 66.
²⁵ See Settlement FAQs, supra note 20, at Monetary Awards FAQ 85.
²⁶ See Settlement FAQs, supra note 20, at Monetary Awards FAQs 88, 95.
²⁷ See Settlement Agreement, supra note 3, at Article V.
²⁸ See Settlement Agreement, supra note 3, at Article VII.
²⁹ NFL Concussion Settlement website, Summary Report (as of 6/1/2021), https://www.nflconcussionsettlement.com/Reports_Statistics.aspx.
³⁰ See Settlement Agreement, supra note 3, at Exhibit A-3.
³¹ See Settlement Agreement, supra note 3, at Article IX. The court has largely delegated the claims appeal process to a Special Master, governed by a separate set of rules and procedures. NFL Concussion Settlement website, Rules Governing Appeals of Claim Determinations, https://www.nflconcussionsettlement.com/Docs/Rules_Governing_Appeals_of_Claim_Determinations.pdf.
³² See Settlement Agreement, supra note 3, at Article X. If the player appeals, he must first pay a $1,000 fee to the settlement fund. NFL appeals are subject to challenge by class counsel if vexatious, frivolous, or in bad faith.
³³ NFL Concussion Settlement website, Summary Report (as of 6/1/2021) at 2, https://www.nflconcussionsettlement.com/Reports_Statistics.aspx.
³⁴ See Matt McMillen, Race-Norming in Health Care: A Special Report, Health Central (April 8, 2021), https://www.healthcentral.com/article/health-disparities-race-norming; Marc A. Norman, et al., Demographically Corrected Norms for African Americans and Causcasions on the Hopkins Verbal Learning Test-Revised, Brief Visuospatial Memory Test-Revised, Stroop Color and Word Test, and Wisconsin Card Sorting Test 64-Card Version, 33 J Clin Exp Neuropsychol. 793 (Aug. 2011), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3154384/.
³⁵ See Settlement Agreement, supra note 3, at Exhibit A-2.
³⁶ Complaint ¶ 25 in Henry v. Nat. Football League, No. 20-4165 (E.D. Pa. Aug. 25, 2020), https://www.law360.com/articles/1304275/attachments/0.
³⁷ Id. ¶ 22.
³⁸ Henry v. Nat. Football League, No. 20-4165, Order (Mar. 8, 2021), https://www.law360.com/articles/1362416/attachments/1. An appeal of this order is pending as of this writing.
³⁹ See id.
⁴⁰ See McMillen, supra note 34.
⁴¹ See Settlement Agreement, supra note 3, at § 6.6.
⁴² “NFL to halt ‘race-norming,’ review Black claims in $1 billion concussion settlement,” ESPN.com (June 2, 2021), https://www.espn.com/nfl/story/_/id/31554110/nfl-halt-race-norming-review-black-claims-1-billion-concussion-settlement.
⁴³ Ken Belson, “N.F.L. Concussion Settlement Will Drop Race-Based Assessment for Payouts,” New York Times (June 2, 2021), https://www.nytimes.com/2021/06/02/sports/football/nfl-concussion-settlement-race.html.
⁴⁴ See Kruzel, supra note 7; Mike Florio, “Class counsel in NFL concussion settlement faces ouster attempt over race-norming issue,” NBCSports.com (May 14, 2021),https://profootballtalk.nbcsports.com/2021/05/14/class-counsel-in-nfl-concussion-settlement-faces-ouster-attempt-over-race-norming-issue/.
⁴⁵ Ken Belson, “Lawmakers Ask N.F.L. About Race Norms Used in Concussion Settlement,” New York Times (Sept. 2, 2020),https://www.nytimes.com/2020/09/02/sports/football/nfl-concussion-settlement-race-bias-congress.html.
⁴⁶ Algorithmic Accountability Act of 2019, https://www.wyden.senate.gov/imo/media/doc/Algorithmic%20Accountability%20Act%20of%202019%20Bill%20Text.pdf.
⁴⁷ Letter from Senator Warren to Agency for Healthcare Research and Quality (Sept. 22, 2020), https://www.warren.senate.gov/imo/media/doc/9.22.2020%20Letter%20to%20AHRQ%20re%20Use%20of%20Race%20in%20Clinical%20Algorithms.pdf.
⁴⁸ See Settlement Agreement, supra note 3, at §§ 5.7, 10.3.
⁴⁹ NFL Motion for Appointment of Special Investigator 2, In re NFL Players’ Concussion Inj. Litig. (Apr. 13, 2018), https://www.law360.com/articles/1033422/attachments/0.
⁵⁰ Id. at 3-4.
⁵¹ In re NFL Players’ Concussion Inj. Litig., Order(Dec. 10, 2018), https://www.nflconcussionsettlement.com/Docs/order_appoint_investigator.pdf.
⁵² See In re Nat’l Football League Players’ Concussion Inj. Litig., 962 F.3d 94, 100-01 (3d Cir. 2020) (affirming district court’s order of May 16, 2019).
⁵³ Bob Hohler, “Denied benefits, delayed payments, and the bureaucratic roadblocks of the NFL’s concussion settlement,” Boston Globe (March 17, 2018), https://www.bostonglobe.com/sports/patriots/2018/03/17/denied-benefits-delayed-payments-and-bureaucratic-roadblocks-nfl-concussion-settlement/rEDWWKRygxJod2VvB740aM/story.html.
⁵⁴ Sheilla Dingus, “NFL Concussion Settlement is Becoming More of an Obstacle Course than Finish Line for Retired Players,” Advocacy for Fairness in Sports (Oct. 9, 2017), https://advocacyforfairnessinsports.org/nfl-concussion-settlement/nfl-concussion-settlement-is-becoming-more-of-an-obstacle-course-than-finish-line-for-retired-players/.
⁵⁵ Daniel Kaplan, “Audit finds law firm altered NFL concussion settlement medical forms,” The Athletic (Apr. 8, 2021), https://theathletic.com/2506946/2021/04/08/audit-finds-law-firm-altered-nfl-concussion-settlement-medical-forms/. The Howard firm got into further trouble with the U.S. Securities Exchange Commission by using money raised for an investment fund to make high-interest loans to former players in return for the players signing over their concussion settlement claims. See Ryan Boysen, “Ailing NFL Players and the Law Firm They Say Swindled Them,” Law360 (July 19, 2019), https://www.law360.com/articles/1180152.
⁵⁶ See Boysen, supra note 55.
⁵⁷ In re NFL Players’ Concussion Inj. Litig., Order at 2(Aug. 20, 2019),
⁵⁸ Id.
⁵⁹ In re NFL Players’ Concussion Inj. Litig., Order at 2(Dec. 18, 2020), https://www.nflconcussionsettlement.com/Docs/npi_court_decision.pdf.
⁶⁰ Ken Belson, “Widespread Deceptive Practices May Reduce Payouts in N.F.L. Concussion Settlement,” New York Times (Sept. 17, 2017), https://www.nytimes.com/2017/09/19/sports/football/nfl-concussion-settlement.html?referer=https://t.co/tmmsWQxAIt?amp=1&_r=0. The lenders’ shady practices also implicated fraud on the fund as they would introduce former players to doctors who could provide settlement-friendly diagnoses. Id.
⁶¹ Id.
⁶² “CFPB and New York Attorney General Sue RD Legal for Scamming 9/11 Heroes Out of Millions of Dollars in Compensation Funds,” ConsumerFinance.gov (Feb. 7, 2017), https://www.consumerfinance.gov/about-us/newsroom/cfpb-and-new-york-attorney-general-sue-rd-legal-scamming-911-heroes-out-millions-dollars-compensation-funds/
⁶³ See Settlement Agreement, supra note 3, at § 30.1.
⁶⁴ In re Nat’l Football League Players’ Concussion Inj. Litig., No. 2:12-MD-02323-AB, 2017 WL 8785717, at *1 (E.D. Pa. Dec. 8, 2017), aff’d in part, rev’d in part 923 F.3d 96 (3d Cir. 2019).
⁶⁵ Id. at *5.
⁶⁶ Id. at *4.
⁶⁷ Nat’l Football League Players’ Concussion Inj. Litig., 923 F.3d 96, 112 (3d Cir. 2019)
⁶⁸ Id.
⁶⁹ NFL Concussion Settlement website, In re NFL Players’ Concussion Inj. Litig., Rules Governing Third-Party Funding Resolution Protocol, https://www.nflconcussionsettlement.com/Docs/third_party_funding_resolution_protocol_rules.pdf.
⁷⁰ Ken Belson, “After N.F.L. Concussion Settlement, Feeding Frenzy of Lawyers and Lenders,” New York Times (July 16, 2017), https://www.nytimes.com/2017/07/16/sports/football/nfl-concussion-settlement-lawyers.html?mcubz=3.
⁷¹ Kevin Draper, “The Billion-Dollar NFL Concussion Settlement Is A New Kind Of Disaster,” Deadspin (March 29, 2017), https://deadspin.com/the-billion-dollar-nfl-concussion-settlement-is-a-new-k-1793787616#_ga=2.14977397.218036476.1506087510-670287376.1505136274.
⁷² See Settlement FAQs, supra note 20, at Lawyers FAQ 188.
⁷³ Id.
⁷⁴ Ken Belson, “After N.F.L. Concussion Settlement, Feeding Frenzy of Lawyers and Lenders,” New York Times (July 16, 2017), https://www.nytimes.com/2017/07/16/sports/football/nfl-concussion-settlement-lawyers.html?mcubz=3; see In re Nat’l Football League Players’ Concussion Inj. Litig., No. 2:12-MD-02323-AB, 2017 WL 8785717, at *3 (E.D. Pa. Dec. 8, 2017), aff’d in part, rev’d in part 923 F.3d 96 (3d Cir. 2019).

NFL Concussion Settlement Five Years Later

Settlement Agreement Summarized

Claims Process Described

Race-norming Controversy

Fraud against the Compensation Fund

Fraud against the Former Players

Conclusion

Article Sources

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