Nearly three years ago, the N.F.L. and lawyers for thousands of retired football players agreed to resolve lawsuits brought by former players who alleged that the NFL failed to inform them of and protect them from the risks of concussions in football. The District Court approved a class action settlement that covered over 20,000 retired players and released all concussion-related claims against the NFL. Objectors have appealed that decision to the United States Court of Appeals for the Third Circuit, arguing that class certification was improper and that the settlement was unfair.
The huge case had its birth in California. In July 2011, 73 former professional football players sued the NFL and Riddell, Inc. in the Superior Court of California. The NFL removed the case to federal court on the ground that the players’ claims under state law were preempted by federal labor law. More lawsuits by retired players followed and the NFL moved to consolidate the pending suits before a single judge for pretrial proceedings which was granted. The cases ultimately ended up in a federal court for the Eastern District of Pennsylvania as a multidistrict litigation.
Under the settlement, retired players or their beneficiaries are compensated for developing one of several neurocognitive and neuromuscular impairments or “Qualifying Diagnoses.” This award is subject to several offsets, that is, awards decrease: (1) as the age at which a retired player is diagnosed increases; (2) if the retired player played fewer than five eligible seasons; (3) if the player did not have a baseline assessment examination; and (4) if the player suffered a severe traumatic brain injury or stroke unrelated to NFL play.
The Monetary Award Fund is uncapped and will remain in place for 65 years. Every retired player who timely registers and qualifies during the lifespan of the settlement will receive an award. If, after receiving an initial award, a retired player receives a more serious Qualifying Diagnosis, he may receive a supplemental award.
Of the over 20,000 estimated class members (the NFL states that the number exceeds 21,000), 234 initially asked to opt out from the settlement and 205 class members joined 83 written objections submitted to the District Court. Before the fairness hearing, 26 of the 234 opt-outs sought readmission to the class. After the District Court granted final approval, another 6 opt-outs sought readmission. This leaves 202 current opt-outs, of which class counsel notes only 169 were timely filed.
This appeal principally presents two questions – whether the District Court abused its discretion (1) in certifying the class of retired NFL players and (2) in concluding that the terms of the settlement were fair, reasonable, and adequate. Objectors (95 in all) have filed 11 separate briefs totaling some 500 pages addressing these questions.
On April 18, the Court of Appeals approved the settlement in the 69 page decision. After reviewing the case and all of the arguments submitted by the objectors, the Court concluded. “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. They aim to ensure that the claims of retired players are not given up in exchange for anything less than a generous settlement agreement negotiated by very able representatives. 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. It is a testament to the players, researchers, and advocates who have worked to expose the true human costs of a sport so many love. Though not perfect, it is fair. In sum, we affirm because we are satisfied that the District Court ably exercised its discretion in certifying the class and approving the settlement.”