Judge will rule on fairness of NFL concussion settlement

Critics of the NFL's $765 million settlement proposal to compensate former players for concussion-related health problems will finally have their day in court Wednesday, as the designers of the landmark deal push for final approval from a federal judge.

U.S. District Judge Anita Brody, who has overseen the massive case involving more than 5,000 individual lawsuits and 20,000 potentially eligible league retirees, is set to preside over a fairness hearing in what could be one of the final steps to resolving a legal fight that began three years ago with allegations that the league hid or ignored the long-term dangers of head-hits for decades.

Some ex-players, led by former Eagles wide receiver Sean Morey and safety Sean Considine, still remain sharply critical of the deal and say it fails to fairly compensate players who will receive diagnoses in the future of chronic traumatic encephalopathy (C.T.E.), a degenerative brain disorder that has been linked to repeated concussions and the high-profile suicides of former players such as San Diego Chargers linebacker Junior Seau.

But their opposition to the proposal has opened rifts between them and their peers, including some former teammates who are eager to see the deal quickly approved.

"I sure hope you are smarter than the lawyers that are advising you," former Eagles running back Reno Mahe recently wrote in a posting to Morey on an online forum set up for ex-players to discuss the deal.

Mary Anne Easterling, the widow of former Atlanta Falcons safety Ray Easterling, who was found to have C.T.E. after his 2012 suicide, also chimed in.

"Ray Easterling envisioned the needs of our hurting friends being met through this lawsuit we filed three years ago," she wrote. "Please opt out!"

Morey, who could not be reached for comment, has since opted out of the deal along with 225 others - less than 1 percent of all potentially eligible retirees. To collect any damages from the league, they will have to fight their cases against the NFL individually.

Considine, on the other hand, along with 206 other ex-players, plans to air objections to the proposal in court Wednesday hoping to change it before its details are finalized. Chief among them, said Steven F. Molo, Considine's lawyer, is the C.T.E. issue.

After Wednesday's hearing, Brody can sign off on the deal as is, send it back to the lawyers for revisions, or reject the plan outright, sending negotiations back to square one.

Lawyers on all sides viewed that last choice as unlikely, given that the judge granted the plan preliminary approval in July.

Under the terms of the proposal before her, retired players would be compensated on a sliding scale based on age, the number of seasons played, and whether post-career injuries might have contributed to their diagnoses.

Maximum awards of $5 million would go to players under 45 who played five or more seasons in the NFL and require extensive treatment over their lifetimes for conditions such as Parkinson's disease or Lou Gehrig's disease.

The settlement was specifically designed to compensate players for symptoms of C.T.E. such as dementia instead of the condition itself because it can be properly diagnosed only after death. (Families of deceased players who received C.T.E. diagnoses post mortem are eligible for payouts up to $4 million.)

NFL officials have said they are confident the $765 million sum - which also sets up funds for player health tests and concussion-related education - will cover all payouts for the 65-year life span of the deal. But if claims exceed that total, there is no cap on total payouts to players.

"With over 99 percent participation, it is clear the retired player community resoundingly supports this settlement," said lawyer Christopher Seeger, who negotiated the deal on behalf of the players along with co-counsel Sol Weiss.

Still, some have objected to clauses that give the NFL unlimited rights to appeal any payout or those that exclude time players may have spent on NFL Europe teams in calculating of their total time with the league.

That truth has weighed heavily upon lawyer Jason Luckasevic in recent weeks. The Pittsburgh attorney filed the first concussion-related case against the league in 2011 on behalf of 75 players. Since then, his role in the case has become overshadowed by more experienced lawyers with superstar clients.

While he hopes Brody approves the deal, he said he can't help feeling the settlement "misses the boat in many respects."

Nearly two dozen of his more than 525 current clients have decided to opt out, a move Luckasevic concedes could be risky.

Those opting to take the league to court will have to prove that their time in the NFL directly caused the health problems they now suffer. It is possible, too, that they will never even get that far.

"It's not a one-size-fits- all decision," Luckasevic said of the various factors his clients have weighed in deciding whether or not to accept the deal. "There are some really good legal and factual reasons why someone might not want to take this settlement."

Still, he added: "There are other players that need money now."

Chief among them is Kevin Turner, a former Eagles fullback and one of the lawsuit's lead plaintiffs.

A year ago, he struggled to speak as he described his life with Lou Gehrig's disease, a condition he blames on the poundings he took during his seven years in the league.

He won't be attending Wednesday's hearing. His health is too far gone.

These days, he is completely reliant upon a feeding tube. He can no longer brush his teeth, shave, or dress himself and requires round-the-clock medical assistance.

"As a father, one of the most difficult things I have had to face was telling my children that I was diagnosed with this fatal, incurable disease and knowing that I may not be able to be there for them in the future to offer the support and care they will need," Turner wrote in an affidavit submitted to the court last week.

"So for my family, my countless brothers who are suffering from serious neurocognitive symptoms and myself, it is imperative that we receive help now."