NFL concussion settlement appeal focuses on compensation for brain disease

Whether the National Football League’s estimated $1 billion deal to settle injury claims survives an appeal may hinge on provisions for football players suffering from a particular neurodegenerative disease.

In a packed federal courtroom in Philadelphia Thursday, judges heard arguments from lawyers opposed to and in support of the NFL’s settlement with retired players over concussion-related injuries.

The deal, as approved by Judge Anita Brody in April, provides up to $5 million to players who are diagnosed with Lou Gehrig’s disease (ALS), Parkinson’s, Alzheimer’s, or dementia — but is less generous when it comes to chronic traumatic encephalopathy, known as CTE.

Only players who die with the disease before settlement approval are eligible for the maximum $4 million award. In the future, those suspected of having CTE will get a much smaller payout — on average less than $200,000 — and only if they have signs of dementia. In many athletes, CTE includes depression, aggression, and an increased risk of suicide as well as memory loss.

“What we are trying to have done here is have this settlement changed and improved so that it is compliant with law, and so that people are at risk of getting CTE in the future can get some compensation for that claim,” said Steven Molo, an attorney fighting for the settlement to be sent back to district court.

The league maintains that the settlement was never designed to cover all possible conditions related to concussions, and it is wary of including payouts for symptoms such as depression that are common and not specific to CTE.

In court, NFL attorney Paul Clement called the deal “more than reasonable,” and pointed to the fact that less than 1 percent of players have objected or opted out.

Part of the problem, both sides acknowledge, is that the science behind CTE is still evolving. The only way to definitively diagnose the condition is through an autopsy. Former NFL stars Dave Duerson and Junior Seau, among others, committed suicide and were found to have the disease.

Some already-injured players, including ALS patient Kevin Turner, want the settlement appeals process to move forward as quickly as possible.

Shawn Wooden, a former safety with the Miami Dolphins and Chicago Bears, said he was happy with the settlement terms as they were.

“I don’t know what’s going to happen five, 10, 20 years from now,” he said.  “It gives me that insurance policy, that safety blanket that’s going to always be there for the rest of my life.”

Wooden, who serves as the class representative for players who have yet to develop symptoms, added that even if he went on to develop CTE and faced zero compensation, it was a risk he was willing to take.

“We’re the ones that really are deciding our own fate,” he said.