New concerns are being raised about the proposed NFL concussion settlement, although only a small fraction of the nearly 20,000 retirees are expected to opt out of the deal by Tuesday's deadline.
They would be left to sue the NFL on their own over claims the league hid known concussions risks for many years. The NFL expects about 6,000 former players to be diagnosed with at least moderate dementia and qualify for an award.
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Critics can still raise objections before a Nov. 19 court hearing in Philadelphia, and perhaps ask Senior U.S. District Judge Anita Brody to amend the award scheme.
The proposed settlement pays millions to young retirees battling severe neurological disease, and an average $190,000 to older men with Alzheimer's disease or dementia.
However, former players exhibiting rage, depression or mood disorders would get nothing. Several leading brain researchers link those behavioral problems to repetitive head injuries, and believe the men may be suffering from the brain decay known as CTE, or chronic traumatic enchephalopathy. Currently, CTE can only be diagnosed after death.
The advocacy group Public Citizen asked Tuesday to intervene in the case, arguing that the two class representatives — one with Lou Gehrig's disease, one asymptomatic — do not represent the myriad injuries seen in the large group of ex-players.
"You can't have that person who has ALS, who was in the NFL for more than five years, or who is older, be the representative for people who have CTE, or were in the NFL for two years, or are battling much less or nothing," said Allison Zieve, director of Public Citizen's litigation group. "I don't doubt that the lawyers had good intentions, but I think they need to keep working,"
Other critics have been less kind to the negotiators, which included a small group of players' lawyers and NFL attorneys who met for months before a federal mediator. The players' lawyers insist they got the best deal they could from the NFL, and bypassed the difficult legal hurdle of proving the brain injuries were caused by the NFL.
Critic Stephen Molo accused the lead negotiators of "collusion," and asked again Monday for the right to depose them. He represents about a dozen players, including the family of the late Chicago Bears safety Dave Duerson, who had CTE and committed suicide.
"(Class) counsel and the NFL gain so much from the settlement but class members gain so little," Molo said in a filing late Monday.
He noted that the NFL, as part of the agreement, agrees not to challenge the proposed $112 million in plaintiffs' lawyer fees (which Brody must approve). They would come on top of the minimum $765 million set aside for awards, medial monitoring and research. Additionally, many ex-players who retained lawyers have agreed to have contingency fees of perhaps 33 to 40 percent deducted from their awards.
Another objection filed Tuesday came from the family of Hall of Famer Frank M. "Bruiser" Kinard, who toiled from 1938 to 1947 for the football-playing Brooklyn Dodgers, Brooklyn Tigers and New York Yankees. Kinard began suffering from dementia in 1980, and died five years later at age 70, his lawyer said.
The family wants his case included in the settlement because of the NFL's alleged "concealment" of head-trauma risks. The tentative settlement only includes deaths since 2006.