Some hulking former pro football players owe a debt of gratitude to a gray-haired, semiretired federal judge. Because of her stubbornness in seeing that ex-athletes with head injuries get their due, Judge Anita Brody, 79, has, in effect, forced the mighty National Football League to sweeten the pot of a precedent-setting settlement of the concussion litigation.
Brody, appointed to the U.S. District Court in Philadelphia by the first President George Bush, declined in January to approve a settlement that included a $675 million compensation fund. She expressed concern that not all former players with head injuries and related ailments would receive adequate coverage for medical needs and other expenses. The judge sent lawyers for the NFL and the players back to the negotiation table. (Memo to other federal jurists: You always have this authority to second-guess settlements, and you should probably use the power more often.)
Under a revised pact resubmitted to Brody today, the NFL agreed to remove the cap from the $675 million fund. Additional amounts originally included in the settlement for medical testing and education programs would remain the same. When administrative expenses and attorneys’ fees are added to the total it could easily exceed $900 million, or even $1 billion, according to earlier calculations by Bloomberg News.
“We’re definitely talking millions more in payments, but no one really knows at this point whether it will grow into billions more,” John Banzhaf, a public-interest law professor at George Washington University who has been following the settlement talks, told Bloomberg News today.
The revised fund agreement “should quell any concerns the court has about the fairness, reasonableness and adequacy of the proffered settlement,” players’ lawyers said in court papers explaining the new accord. The players might want to ask their attorneys, who stand to pocket some $112 million in fees, why it took Judge Brody’s refusal to go along with the first version of the settlement to force the NFL to remove the cap.
In any event, the chances just improved that ailing former players will get the care they need and the NFL will escape at least one public relations cloud hanging over its 2014-15 season. Not that organized football is in the clear. The settlement awaiting Brody’s reassessment covers more than 5,000 former pros who sued the NFL.
That still leaves the question of what to do about the thousands of players—at all levels of the game, from Pee-Wee to high school, to college, to the NFL—who will suffer potentially crippling head injuries in the future. No legal settlement can remove the intrinsic violence from football.