A four year long lawsuit by 318 former National Hockey League (NHL) players reached a settlement in November 2018. The settlement will reportedly provide the settling players with free neuropsychological tests, up to $75,000 for treatment, and up to $20,000 in cash per player.  A “Common Good Fund” will also be established to assist other players in need. The Washington Post quoted this from the league: “The NHL does not acknowledge any liability for any of Plaintiffs’ claims in these cases,” the league said in a statement. “However, the parties agree that the settlement is a fair and reasonable resolution and that it is in the parties’ respective best interests to receive the benefits of the settlement and to avoid the burden, risk and expense of further litigation.”  Unlike the NFL settlement, this was not a class action settlement.  The lawsuit consisted of just 146 plaintiffs, along with another 172 who retained counsel.  The settlement has a 75 day “opt-in” period, and requires judicial approval.

Judge Anita B. Brody’s “Explanation and Order” of December 8, 2017 concluding that  the anti-assignment language in the NFL Concussion Litigation Settlement Agreement “unambiguously prohibits” the class members from assigning their monetary awards rendering “any such purported assignment . . . void, invalid and of no force and effect” was adopted by Judge Loretta A. Preska, Senior United States District Judge for the Southern District of New York in the case styled as Consumer Financial Protection Bureau and The People of the State of New York,  by Eric T. Schneiderman, Attorney General for the State of New York v. RD Legal Funding, LLC; RD Legal Finance, LLC; RD Legal Funding Partners, LP; and Roni Dersovitz, 17-cv-890 (S.D.N.Y. June 21, 2018).  Judge Preska stated: ” In sum, Judge Brody’s interpretation of the term “relating to” complies with New York contract law and basic principles of contract interpretation by giving meaning to the plain meaning of the phrase. Accordingly, the Court agrees with the Explanation and Order’s conclusion.  Accordingly, the Court agrees with the Explanation and Order’s conclusion.”

If you weren’t worried about concussions before,  “Concussion Protocol“, directed by Josh Begley of The Intercept and produced by Laura Poitras should do it for you.  The masterful film contains footage of each concussion reported during the 2017-2018 NFL season. 281 reported concussions – the most reported in the past 6 years. The NFL Concussion Settlement is lacking in many ways, but hopefully the one good thing that will come out of this lawsuit is more attention paid to concussions at every level of play – from Pop Warner to the NFL, and every sport from football, hockey, baseball, soccer, lacrosse.

Attorney Edward S. Stone helps explain some of the difficulties surrounding the NFL Concussion Settlement in this article “The NFL Concussion Settlement, Traumatic Brain Injury, and CTE: Fact, Fiction, and Spin Doctoring”.  The Journal of Legal Nurse Consulting Vol. 28, Issue 3, Fall 2017, pp. 8-11.  Meanwhile, medical researchers continue to explore new ways to ascertain brain damage, including the possibility of using blood tests to detect concussions.  More on this can be found in this article in The Guardian – “NFL concussion: researchers hope blood tests can better detect head trauma.”

Chronic traumatic encephalopathy (CTE) has been identified in 96% of the deceased NFL players that have been examined by researchers with the Department of Veterans Affairs and Boston University. Signs of CTE can be identified in living persons using brain scans, but as yet the disease can only be positively identified posthumously. Researchers believe that CTE comes from repetitive trauma to the head.  The recent data from the research might be skewed since the study uses brains that have been donated for testing, and many of the individuals who have made provisions for posthumous testing have done so because they suspected CTE. However, in an interview with Frontline, Dr. Ann McKee, Chief of Neuropathology with the VA Boston Healthcare System said the latest numbers were  “remarkably consistent” with past research suggesting a link between football and CTE.

The bottom line is this:  CTE is real and it is seen at high rate in the brain tissue of athletes who were subjected to repeated head trauma. And in a cruel twist, the NFL Concussion Settlement will provide no awards for players who die from CTE after the settlement date.

Sony Pictures released the trailer for Will Smith’s new film, “Concussion” on Monday, just days before the 2015 football season begins.  “Concussion” stars Will Smith as Dr. Bennet Omalu, a Nigerian born neuropathologist credited with discovering chronic traumatic encephalopathy (CTE) in the brains of former NFL players. Among its shortcomings, the NFL concussion settlement currently being appealed does not provide any benefits for former NFL players who die from CTE in the future. Appeals in the NFL concussion settlement are scheduled to be heard this fall, just before “Concussion” opens in theaters on Christmas Day. The science behind the plot of “Concussion” is well explained in the amicus brief filed by the Brain Injury Association of America in the NFL concussion litigation.

The NFL concussion settlement approved in April by U.S. District Court Judge Anita Brody has been appealed and the Third Circuit Court of Appeals is expected to hear these appeals sometime this fall. No payments will be made under the settlement until all appeals have been exhausted. The advocacy group, the Brain Injury Association of America filed an amicus brief supporting a reversal of the settlement asserting that the settlement “neither recognizes nor compensates the majority of players suffering long-term consequences of brain trauma, but merely rewards certain, small, discrete groups.”