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NFL settles concussion claims, but insurers' role in paying costs still unclear

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NFL settles concussion claims, but insurers' role in paying costs still unclear

The National Football League's tentative $765 million settlement for concussion-related liability claims will cover more than 18,000 retired professional football players, whether or not they sued the league over brain injuries, but may not stop workers compensation claims already in play from these athletes.

Sol Weiss, co-lead counsel for plaintiffs in the NFL concussion litigation, said the settlement will apply only to players who have retired as of the date the settlement receives final judicial approval. U.S. District Court Judge Anita B. Brody in Philadelphia is expected to hold a hearing about the tentative settlement by the end of this month.

Retired players who have filed concussion-related workers comp claims in various states may choose to go forward with the claims, Mr. Weiss said. Some players, he said, could opt to drop their comp claims in states where the NFL settlement would reduce a workers comp benefit award, or where their portion of the settlement could be subject to subrogation from insurers.

“The overwhelming number of players I've spoken with have been very favorable and appreciative of the settlement, and they hope it goes through,” said Mr. Weiss, who is a Philadelphia-based senior partner at law firm Anapol Schwartz.

The NFL announced on Aug. 29 it had reached a multimillion-dollar settlement agreement with more than 4,500 retired players who had sued the league over concussion-related brain injuries. In court filings, the players alleged the league misled them about the dangers of concussions, and said they suffer from various neurological and cognitive problems related to head injuries suffered while playing in the NFL.

The settlement “does not represent, and cannot be considered, an admission by the NFL of liability, or an admission that plaintiffs' injuries were caused by football,” according to the tentative settlement agreement posted on the league's website.

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The settlement amount includes $75 million for baseline medical exams for the retired players, $675 million to compensate players and the families of players who suffered brain injuries, a $10 million fund for concussion research and education, and the payment of legal fees for the players, according to the tentative agreement.

The NFL plans to pay 50% of the settlement in the next three years, and the balance during the next 17 years. The league could add up to $37.5 million to the players' injury compensation fund, if the $675 million is insufficient to pay claims, the agreement said.

The amount of money paid to retired players “will be based upon the specific diagnosis, as well as other factors including age, number of seasons played in the NFL and other relevant medical conditions,” according to the agreement. The diagnoses will be made by independent doctors working with a court-appointed settlement administrator.

“We thought it was critical to get more help to players and families who deserve it rather than spend many years and millions of dollars on litigation,” NFL Executive Vice President Jeffrey Pash said in a statement. “This is an important step that builds on the significant changes we've made in recent years to make the game safer, and we will continue our work to better the long-term health and well-being of NFL players.”

While the NFL denies wrongdoing, it's likely the league settled to avoid a potentially costly legal process and uphold its reputation with football fans, said Steve Smith, a Colorado Springs-based partner in the sports law practice at Bryan Cave L.L.P.

“Even if the NFL were to win the case, the court of public opinion would probably be very upset with what happened to these players and would be very sympathetic to them, so the win would be very hollow and would probably come at great cost in the media,” Mr. Smith said.

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In a statement to Business Insurance, the National Football League Players Association said, “All of the plaintiffs involved are part of our player community and we look forward to learning more about the settlement.”

Ronald S. Katz, Los Angeles-based partner and chair of the national sports law practice at Manatt, Phelps & Phillips L.L.P, said the concussion litigation and settlement agreement could hinder similar future lawsuits from current players.

“Future claims in court would be more difficult because the risks of concussions are well-known now and current players are assuming these risks when they play in the NFL,” Mr. Katz said.

“However, if a team physician, for example, was negligent in the future, there could still be a claim in court.”

Mr. Weiss said future claims from current players would be subject to provisions in the collective-bargaining agreement, such as a program established in 2011 that provides at least $3,500 in benefits a month for players who suffer neuro-cognitive disabilities. Retired players also can receive those benefits without reducing payments they would receive under the concussion settlement, he said.

It's unclear what role insurers will play in the concussion settlement. Last year, the NFL sued 32 insurers in California and New York state courts over 187 commercial general liability policies that were issued within the past 60 years.

The NFL claimed the insurers — including Fireman's Fund Insurance Co., Travelers Cos. Inc., American International Group Inc., XL Group P.L.C., and Chubb Corp. — breached their duty to defend the NFL against concussion-related liability claims. Fireman's Fund and Travelers declined comment, while AIG, XL and Chubb did not return a reporter's calls last week about the NFL litigation settlement.

In May, California's 2nd District Appellate Court upheld a ruling from the Los Angeles County Superior Court, which halted the lawsuit pending the outcome of litigation in New York.

A hearing was set to be held last week in New York Supreme Court for the parallel case in that state.

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