We've Only Just Begun: Determining Who Pays After The Approval Of The NFL Concussion Settlement

Abstract

CHRONIC Traumatic Encephalophy (CTE) is a progressive degenerative disease of the brain found in athletes who have a history of repetitive brain trauma, including symptomatic concussions and asymptomatic subconcussive hits to the head. One of the leading groups studying the impact of is the Boston University Center. On its website, (1) the Center provides graphic evidence of CTE's impact on an individual's brain. As the Center points out, CTE has been known to affect boxers since the 1920s. However, recent reports have been published of neurophathologically confirmed in retired professional football players and other athletes who have a history of repetitive brain trauma. This trauma triggers progressive degeneration of the brain tissue, including the build-up of an abnormal protein called tau. These changes in the brain can begin months, years, or even decades, after the last brain trauma or end of active athletic involvement. The brain degeneration is associated with memory loss, confusion, impaired judgment, impulse control problems, aggression, depression, and eventually progressive dementia. (2) It can also be associated with Parkinsonism, speech and gait abnormalities. These types of repetitive closed head injuries occur in a wide-variety of contact sports, including football, boxing, wrestling, rugby, hockey, lacrosse, soccer, and even skiing. In sports like football, hockey and boxing, players may experience multiple subconcussive hits over the course of a single season. (3) The Center for Disease Control estimates that anywhere from 1.6 million to 3.8 million concussions occur each year. Compared to all contact sports, football has the highest risk of concussions. The CDC estimates that there is a 75% chance of concussions for males playing football. (4) In the last five years, football-related concussions have become a hot topic, mostly due to the initiation of multiple lawsuits filed by former professional football players against the National Football League (NFL). The lawsuits filed against the NFL raise many legal implications, including the correct standard to apply; the potential liability of the NFL; the requirement of insurers to defend and indemnify the teams and/or the NFL; and whether there is a causal link between the concussions sustained by the players and the lingering effects on those retired players. In June 2012, more than 80 lawsuits including over 2,000 former NFL players were consolidated into one master complaint, which was filed in the federal District Court for the Eastern District of Pennsylvania, where the Honorable Judge Anita Brody will preside over the case. The Complaint contained twelve causes of action against various entities, including the NFL, alleging that the NFL fraudulently concealed the long-term effects of concussions (fraud) and that the NFL failed to implement proper guidelines to decrease the risk of concussions (negligence). The Plaintiffs consist of numerous retired NFL players, all of whom claim that they are suffering from various lingering effects of concussions sustained while they played in the NFL. They allege that the NFL had research and information many years ago that indicated that concussions could cause these lingering effects, but that the NFL withheld this information from players. In response, the NFL claimed that it never had any information and that it has always made player safety a priority. It has also asserted arguments that these issues are covered by the collective bargaining agreement, and thus Judge Brody had no jurisdiction to decide the case. After years of back and forth negotiations, the former NFL players and the NFL reached a settlement, which was approved in April 2015 by the Judge Brody. Although the settlement is a positive step towards obtaining the funds and medical care to the players, it is far from over. The settlement is still being criticized by many former players since it does not cover future players diagnosed with CTE, which has led to many players opting out of the settlement. …