Yesterday the 3rd U.S. Circuit Court of Appeals confirmed a settlement for a class-action suit against the NFL. The $1 billion settlement covers more than 20,000 retired NFL football players who have suffered or may suffer from chronic traumatic encephalopathy, or CTE.
CTE is a progressive degenerative brain disease that is found in people who have experienced repeated concussions and head traumas. CTE causes the brain to deteriorate over time and lose mass. It can only be diagnosed post-mortem.
The disease was first noticed in a 2002 autopsy of football player Mike Webster. Since then researchers at Boston University have found over 60 cases of the disease in brains of former football players who had donated their brains for study. Some players found to have CTE had only played football through high school or college.
The first stage of CTE has no outward symptoms. A protein called “tau” begins to build up around the brain's blood vessels, interrupting function and eventually killing the nerve cell. In the second stage, the player begins to exhibit signs of rage, impulsivity, and depression as more nerve cells are damaged. The damaged cells eventually cause confusion, memory loss, and advanced dementia. The brain may shrink to half its original size and lead to an early death.
For years, the NFL has denied the association with CTE. Players have individually brought other cases against the NFL alleging that since the 70s, the league has failed to disclose findings about the danger of repeated head trauma. Earlier this year, the New York Times reported that the NFL had omitted 100 cases of concussions from the database it used to diminish studies about the dangers of repeated head injuries.
About 200 players opted out of the class-action settlement to continue their own individual legal cases with the NFL.
The settlement will allow for damages up to $5 million for certain injuries. Payments are awarded based on the severity of injury as follows:
- Level 1.5 neurocognitive impairment (early dementia with moderate to severe cognitive decline): $1.5 million
- Level 2 neurocognitive impairment (moderate dementia with severe cognitive decline): $3 million
- Parkinson's disease: $3.5 million
- Alzheimer's disease: $3.5 million
- Death with CTE: $4 million
- ALS: $5 million
The biggest critique of the case is its ability to cover past and future cases of CTE in the NFL. While the settlement will cover past cases of CTE, it will not cover future cases of the disease, and may have actually closed off the option for current and future players to take legal action against the NFL. Some critics also argued that the settlement should have left open the possibility that medical researchers will develop a test to diagnose CTE within a player's lifetime.
Class action settlements of this size are very rare. The last two famous ones being the BP settlement for the Deepwater Horizon oil spill and an early 2000s case against a diet drug by American Home Products. The rarity of these lawsuits is attributed to two late 90s Supreme Court cases, Amchem v. Windsor and Ortiz v. Fibreboard.
The court's decision on the NFL settlement included specific wording that separated this class action settlement from Amchem and Ortiz, possibly paving the way for more class action settlements in the future.