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Special Master appointed to assist with assessment of concussion settlement

Gavel AP

More than three months after the NFL and thousands of retired players struck a deal to settle the concussion lawsuits, the settlement finally is moving toward receiving preliminary approval from the presiding judge.

On Monday, Judge Anita Brody appointed a “Special Master” to assist with the assessment of the proposed deal.  The need for an outside expert to assist Judge Brody arises from the financial complexity of the settlement, which would create a $675 million fund to compensate all retired players who have severe cognitive impairment.

“We are pleased that Judge Brody has appointed Mr. [Perry] Golkin as Special Master and we look forward to working with him, and continuing to work with the Court, as we seek prompt preliminary approval of the settlement agreement,” lead counsel for the players and the NFL said in a joint statement.  “We will proceed on any schedule that the Court directs.”

Judge Brody’s order, a copy of which PFT has obtained, explains that the parties still have not filed a formal motion for preliminary approval of the settlement.  If/when Judge Brody grants preliminary approval to the settlement, all players who are “retired” at that time will become eligible for current or future compensation, if/when they develop a severe cognitive impairment, regardless of its actual cause.

The ongoing delay necessarily means that players who retire after the 2013 season (like Tony Gonzalez) will be eligible for future compensation.  When the settlement was struck in August, many believed that preliminary approval would come before the 2013 season ended, shutting out players like Gonzalez.

While apparently necessary for the proper evaluation of the proposed settlement, the involvement of a Special Master could serve only to slow down the process of concluding the case — which in turn could make some of the players who have sued antsy and upset about the perception that it’s taking too long to wrap up a deal that was reach in August.  Even after Judge Brody grants preliminary approval to the deal, several additional months of paperwork, formal notices, opt-out deadlines, and other tasks related to the settlement of a class action will be required before the deal becomes finalized.

After that, retired players who believe they have severe cognitive impairment will be subject to a potentially cumbersome exercise of proving the existence of a severe cognitive impairment and obtaining payment for their condition.

While the cradle-to-grave settlement process likely will take far less time than litigation would have consumed, the perception that payment was on the horizon could make it hard to persuade the retired players who have sued to remain patient, even though patience currently remains the best option for most of them.

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