The Incredibly Shrinking NFL Concussion Litigation Opt-Out Class

It is well known that, in 2013, the NFL reached a class action settlement with former players concerning the NFL’s policies toward, and handling of, concussions.  Over the loud objections of many former players and their counsel, the settlement was eventually approved in 2015, In re Nat’l Football League Players’ Concussion Injury Litig. (“NFL Concussion Litig.”), 307 F.R.D. 351 (E.D. Pa. 2015), then affirmed by the Third Circuit, 821 F.3d 410 (3d Cir. 2016), and denied review by the Supreme Court, 137 S.Ct. 591 (2016).  The objections to the settlement were numerous, including, but not limited to, concerns about the medical conditions covered, the amounts to be awarded, and the claims process.  Nevertheless, all objections were rejected by the District Court and Third Circuit (though new ones have recently arisen).

The settlement’s approval left former players (of which there are approximately 20,000) and their families with difficult decisions.  Did they want to take what they could get from the settlement (ranging from $1.5 to $5 million depending on the player’s condition and subject to various reductions) or risk pursuing their claims against the NFL individually or as part of a smaller class of players?  Some former players undoubtedly believed they deserved more than the settlement provides.  Many were also outraged that the NFL was able to settle the lawsuit without admitting any fault and before discovery – through which the NFL’s alleged wrongful conduct might have been revealed.  Of course, pursuing a lawsuit individually posed (and poses) substantial legal challenges, including the possibility that the claims would be barred by the collective bargaining agreement or statute of limitations, or, that despite the player’s condition, he would not be able to prove his condition was caused by the NFL’s wrongdoing.

Interestingly, over time, it appears fewer and fewer former players are willing to take on the risks posed by litigation.  In a November 3, 2014 report, the settlement’s claims administrator stated that 220 former players or their family members had chosen to opt out of the settlement.  NFL Concussion Litig., 12-md-2323 (E.D. Pa.), ECF No. 6340.  On April 21, 2015, the day before the District Court’s decision approving the settlement, the number of opt-outs had shrunk to 198.  Id. at ECF No. 6507.  On May 4, 2015, following the District Court’s decision, that number shrunk to 175.  Id. at ECF No. 6533.  Finally, on November 6, 2017, in the most recent report from the claims administrator, it was revealed that only 94 opt-outs remain.  Id. at ECF No. 8899.

In other words, since the District Court approved the settlement, 104 former players or their family members chose to rejoin the settlement rather than pursue individualized litigation against the NFL.  In each instance, the NFL consented to, and the Court approved, the person opting back into the settlement.

In December 2017, the remaining opt outs filed new short-form complaints in the NFL Concussion Litig., as well as motions to remand their lawsuits back to the various state courts where they had initially been filed (arguing that their claims are not preempted by the collective bargaining agreement).  By pursuing litigation, the opt-out plaintiffs will likely ensure court decisions on complicated issues (such as preemption and causation) that have been the subject of considerable discussion in the sports law community.  Further, those decisions may either push opt-out plaintiffs to opt back into the settlement or embolden those plaintiffs to take their case through trial.

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