-- The lawyers who negotiated the proposed NFL concussion settlement disclosed additional materials on the agreement Friday. The materials included statistics on retired players, actuarial projections of future medical problems and additional details on the settlement proposal. The materials raise questions about the settlement -- its terms, its actuarial basis and its acceptance or rejection by the retired players:
Q: The settlement has been pending for months, and the players are now deciding whether to accept it. Why did the lawyers file new material today?
A: The lawyers include a team for the NFL and a committee of players' attorneys appointed by the court and known as "class counsel."
The class counsel acts on behalf of the 5,000 players who filed the lawsuit, and the players each have personal attorneys as well. As players and their personal attorneys and the media scrutinized the settlement proposal, all demanded to know how the negotiating lawyers reached the proposed agreement. What statistics did they use? Did they calculate the number of players likely to suffer from the effects of concussions? How did they determine the extent of future medical problems?
News organizations, including ESPN and Bloomberg News, intervened in court to demand documentation of the settlement process. Recognizing that the settlement proposal was in jeopardy of being rejected by the players without additional explanation and supporting material, the lawyers filed detailed reports on Friday.
Q: Will the new materials satisfy the demands of the players and their personal attorneys?
A: No. The players and their lawyers wanted to know the process that led to the settlement. The settlement provides awards of compensation for six medical conditions that are known to result from concussions and provides awards of compensation based on the number of seasons in the NFL and the age of the retired player at the time the condition arose.
The newly filed reports do not explain how the lawyers arrived at the list of six conditions, nor do they explain the rationale for the age-based awards. Instead of outlining the negotiation process and disclosing the materials that were used as the basis of the process, the filings are new reports prepared after the settlement proposal was formulated. They simply add additional statistics and verbose explanations of the six medical conditions. The filed materials are not the basis for the settlement, they are an argument in support of the settlement. The experts who wrote these reports worked back from the terms of the settlement instead of describing the beginning and the ending of the settlement process.
Q: Many players have objected that they were left out of the settlement. Do these materials offer them any hope for awards of compensation?
A: No. The gaps in the settlement discovered by the objecting players, according to these materials, were deliberately included in the proposal. These retired players are suffering from some of the symptoms of chronic traumatic encephalopathy, the most common affliction in players who have suffered concussions.
Their symptoms include visuospatial difficulties, executive function deficits, chronic headaches, difficulty recalling names and words, emotional instability, increased impulsivity, and deficits in their attention and concentration. None of these conditions, as serious as they appear to be, are included in the settlement proposal's list of six impairments that merit awards of compensation. How many former players are suffering or will suffer from these conditions? The filed materials do not say. Did the lawyers who made the settlement consider these players and their problems? The materials offer no information.
The players who are suffering these CTE symptoms and have been left out of the settlement will continue to object to the proposal, hoping to prompt a new round of negotiation during a "fairness" hearing scheduled for Nov. 19 before U.S. District Judge Anita Brody. If they cannot reopen the negotiations there or in an appeal, they will opt out of the settlement, and the NFL will face hundreds of lawsuits from CTE-suffering former players.
Q: What will be the result of the filing of these materials?
A: These reports are likely to fuel the fires of objection that have been smoldering for months. The players and their personal lawyers have been waiting for months for material that would explain the process that led to the proposal. Although the statistics in these reports add some interesting information to the process, they offer very little on the statistical basis for the six diagnoses, the age discounts and the awards of compensation. This will succeed only in adding to the frustration that has built up in the players and their personal attorneys during this long and frequently delayed process.