The potential $1 billion settlement of NFL concussion claims appears very close to winning final approval from a federal judge, to the chagrin of critics who believe the plan remains murky or pays too little to struggling former players.
Hours after Tom Brady led the New England Patriots to another Super Bowl title, the judge weighing the plan to cover some 20,000 NFL retirees suggested only a few minor revisions.
"There were no deal-breakers. There were tweaks," said lawyer Craig Mitnick, who represents more than 1,000 ex-players. He expects the lead players' lawyers and NFL to resolve Senior U.S. District Judge Anita Brody's concerns and revise the plan by her Friday deadline.
Brody suggested that the awards include time spent in NFL Europe and other affiliated leagues, and they cover brain-trauma deaths through the day the deal is finalized.
Missing from her proposed fixes was any mention of the broader criticisms raised at a November fairness hearing.
They include three key concerns:
— That the average payout of $190,00 for aging men struggling with Alzheimer's disease or dementia is too low;
— That the plan has too many variables to estimate what families should expect, and decide to opt out or appeal; and
— That there are no future payouts for what many call the "signature" scourge of football concussions — CTE, or chronic traumatic encephalopathy.
"We have been screaming that CTE is the most serious ... injury that will occur to these players over time," Chicago lawyer Thomas Demetrio said last week. "The portion of the brain that controls our mood, our anger, suicidal tendencies — that's all gone (from future payouts). The NFL has gotten rid of it for all time."
Demetrio represents the family of the late Dave Duerson, the popular Chicago Bears safety who was found to have CTE after his 2011 suicide.
Currently, CTE can only be diagnosed after death, and has been found in the brains of dozens of concussed ex-athletes. However, some scientists believe there may be tests for the living within 10 years.
The settlement would pay up to $4 million to the families of those who died with CTE between 2006 and, if the deal concludes this year, 2015.
But there would be no award for future deaths involving CTE, to avoid "incentivizing" suicide. And there's no plan to include men with non-cognitive problems, such as depression, rage and other mood disorders.
"There's no solid scientific data that suggests those symptoms absolutely correlate with concussions," Mitnick said. "You have to draw the line somewhere or the settlement becomes unfair to the NFL."
The settlement could pay out $1 billion over 65 years, including interest and $112 million for potential lawyer fees, according to court filings.
All retirees would get baseline testing. And the NFL expects some 6,000 men — or 28 percent — to qualify for an award because of Alzheimer's disease or moderate dementia.
The lawsuits accuse the league of hiding studies linking concussions to neurological problems for decades. However, the NFL has argued that, unless a settlement is reached, the cases should be heard in arbitration and not in court.
"The thing that's very disheartening, (with Brody's order coming) the day after the Super Bowl, the day after such a blatant show of extravagance, (that) so many people are going to be left out in the cold," said Eleanor Perfetto of Annapolis, Md., whose husband, Ralph Wenzel, had both Alzheimer's disease and CTE when he died in 2010. He had played for Pittsburgh and San Diego from 1966 to 1973. He was 69 when he died, and had been ill for more than a decade.
Perfetto, a health sciences professor at Johns Hopkins University, said the factors involved in the award grid, including the age of diagnosis, are unfair and hard to calculate.
"It's virtually impossible for (former players) and their families to figure out exactly what is being offered," she said.