Speaking in front of a Congressional committee Monday, the NFL’s top executive for the health and safety of players acknowledged a connection between football and a degenerative brain disease that has plagued numerous former players. It marked the first time any league representative has admitted a link between football and the condition known as chronic traumatic encephalopathy, or CTE.
Almost immediately, NFL executive vice president Jeff Miller’s declaration triggered questions about the controversial class-action concussion settlement the NFL has made with hundreds of former players:
Q: That concussion settlement was several months ago, though, right?
A: Indeed it was, but it’s not exactly finalized, and Miller’s statement could mix things up a bit.
The settlement that provides nearly a billion dollars in benefits for players but very little for those who suffered from CTE is under consideration by a three-judge panel of the U.S. Court of Appeals. The judges are pondering objections and appeals from several groups of players. These objections were made long before Miller made his statement Monday.
The judges listened to oral arguments from all sides on Nov. 19. Until Miller’s statement, the next step would have been the judges’ decision. But Steven F. Molo, an attorney for a group of players objecting to the settlement, rushed Tuesday to inform the judges, via a letter, of the NFL’s admission. Molo told the judges that Miller’s testimony “directly contradicts [the NFL’s] position in this case” and that the admitted link between football and CTE “cannot be reconciled with the NFL’s position” in the high court.
Q: So what could Miller’s admission do for players who are seeking compensation?
A: The players who sued the NFL faced two major difficulties. The first was the possibility that their claims would be limited to arbitration awards under the players’ union contract with the league. The second was the difficulty in showing that it was medically and scientifically certain that the concussions caused neurodegenerative diseases such as CTE.
The settlement that is under consideration was based on evaluation of these difficulties. The players and their class counsel settled for less money overall because of these issues. Miller’s statement, though, now potentially resolves one of the two critical issues in favor of the players. The value of their claims increased significantly when he made his statement. To exploit this change in their position, the players now must find a way to use Miller’s admission to improve their settlement. It will not be easy, but players’ attorneys are now trying to find a way to reconsider the settlement.
Q: Do the players and their attorneys have a realistic chance to exploit Miller’s statement at this late hour in the settlement process?
A: It is difficult to predict how an appeals court will respond to this kind of late-breaking development.
Attorneys who initially favored the deal and the NFL attorneys are likely to respond quickly to Molo’s letter. Christopher Seeger, the lead class counsel, said Tuesday afternoon any challenges to the settlement are “without merit.”
“We welcome the NFL’s acknowledgement of what was alleged in our complaint: that reports have associated football with findings of CTE in deceased former players,” he said in a statement. ” … As the district court correctly held, the scientific study into CTE is in its infancy, and a reliable method for detecting it in living people does not exist. Therefore, the settlement provides compensation and care for those who exhibit neurocognitive symptoms associated with CTE — dementia, Alzheimer’s, Parkinson’s and ALS — importantly without having to prove the cause or link to CTE.”
Seeger and the other attorneys who favor the deal as-is can respond to the three-judge panel. Under the rules of the court, they are limited to a letter of no more than 350 words, and their letters must be filed “promptly.” The court could then make its decision on the basis of the letters describing Miller’s admission. Or it could decide to send the settlement back to a lower court in Philadelphia for additional inquiry into Miller’s statements.
At least one of the judges, Thomas L. Ambro, 67, who was appointed to the court of appeals by President Bill Clinton, demonstrated a firm grasp of the sports industry and the NFL in the arguments in November. But it is difficult to say what the three judges will do with this unexpected development.
Q: How important is the NFL’s admission that football-related brain trauma can be linked with CTE?
A: It is extremely important, a blockbuster development in the NFL’s long history of tortured and occasionally embarrassing attempts to manage one of its most difficult challenges. As recently as last month, Dr. Mitch Berger, a member of the league’s Head, Neck and Spine Committee, refused to admit the connection, suggesting that the disease was found not only in retired NFL players “but in all spectrums of life.” Berger is one of a series of physicians whom the NFL has hired to fight the notion that concussions cause CTE. If Miller’s statement had been discovered in the course of the players’ lawsuits against the NFL, it would have been a “smoking gun” that would have changed the course of the litigation.
Q: Why would an important official of the NFL admit what the league has been denying for years?
A: There are a number of possibilities. Some might say that he just made a mistake and did not understand the league’s talking points on football and CTE. It’s also possible that the NFL leadership is ready to acknowledge the evolution of the science that is showing the connection between head trauma and CTE. The research has been trending in the same direction for several years. It’s hard to know, though, at this stage why Miller said what he did — he did not make himself available for follow-up questions from reporters, and league spokespeople have not responded to inquiries from ESPN reporters.