Although the NFL season ended with last night’s Super Bowl matchup between the NFC champion Seattle Seahawks and the AFC champion Denver Broncos, ongoing concerns surrounding the league’s concussion litigation will ensure that professional football remains in the headlines throughout the offseason. In August 2013, the NFL agreed to a historic $765 million settlement of a class action dispute with over 4,500 retired players. At the time, some commentators derided the settlement as overly advantageous to the league as it represented only a fraction of the league’s estimated $9 Billion annual revenue. Nevertheless, others maintained that the early settlement would allow for quick compensation of sickly players facing imminent declines in health.

Regardless, on January 14th, U.S. District Judge Anita Brody rejected the proposed settlement. According to U.S. District Court Judge Layn Phillips, Judge Brody was tasked with determining whether the agreement was “fair, reasonable and adequate in light of the claims and defenses, and the expense, uncertainty and time inherent in litigating the claims, particularly given the benefits provided by the agreement.” Judge Brody chose to reject the agreement out of concerns that the settlement amount was insufficient and instructed the parties to reveal their methodology in arriving at the agreed-upon figure. Despite this setback, both sides remain confident in the viability of the proposed deal.

Such unbridled optimism may be unwarranted. Indeed, a growing number of ex-players and their attorneys have expressed dissatisfaction with the settlement. Two of the six attorneys who originally oversaw the negotiations have been kept out of recent discussions, while a recent conclave of plaintiffs’ attorneys was more contentious than productive. Ultimately, ex-players are not tethered to the settlement and are permitted to opt-out of the class action suit. In fact, other lawsuits are simultaneously pending against the NFL.

These forces against settlement are to some extent counterbalanced by a clause in the initial agreement that prevents those who opt-out from pursuing separate litigation until after the conclusion of the current action. Given the possibility of a protracted appeals process, this clause tends favor the NFL in that it discourages plaintiffs from opting-out. The precarious health of many of the plaintiffs may further tilt the playing field, particularly among those players who are the most injured and will thus have the most substantial claims. The one certainty is that this NFL offseason will contain continued competition – off the field of play but with potentially larger repercussions.

–Reed Nixon

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