As the concussion settlement moves toward preliminary approval by Judge Anita Brody, there appears to be only one potential factor that could derail the deal: If enough retired players choose to “opt out” of the proposed settlement, the settlement will be scuttled.
The proposed settlement expands the pool of plaintiffs from the 4,500-plus former players who sued to all former players. But each former player will have the right to abandon the settlement and pursue his own package of compensation.
Per a source with knowledge of the situation, a specific limit on opt outs has not been identified. The NFL, however, will have broad protections against the possibility that $765 million will be paid out to significantly less than the full complement of former NFL players.
Whatever the eventual maximum number of opt outs, it’s not likely to be a problem. By including in the settlement not only the 4,500-plus who sued by the 14,000-plus who didn’t, the pool of potential opt outs has been significantly diluted. For the 14,000-plus who hadn’t sued, the chances that they’ll decide to go their own way now are slim.
For the 4,500 who sued, the chances of an opt out are higher. Under the terms of the deal, only players with “severe” cognitive impairment will receive compensation. For plenty of the plaintiffs, the decision to stay in the settlement entails risk. If they exit the settlement, they may get nothing. If they stay in the settlement, they’ll get nothing unless their impairment is “severe.”
Still, a strong sentiment that former players on the borderline of “severe” cognitive impairment will walk away from the deal has yet to emerge. There’s plenty of time for that to happen, but for now there’s little or no momentum building toward a mass rebellion against the deal.