Lawyers appealing the NFL's $1 billion plan to address concussion-linked injuries in former players asked a court Thursday to reject the settlement because it excludes what they call the signature brain disease of football.
Critics insist that any settlement include future payments for chronic traumatic encephalopathy, the brain decay found in dozens of former players after their deaths.
"CTE was the soundpiece of the original (legal) complaint," lawyer Steven F. Molo argued before the 3rd U.S. Circuit Court of Appeals. "It is a fundamental issue in the case. It is mentioned 14 times."
The settlement would cover more than 20,000 NFL retirees for the next 65 years. The league estimates that 6,000 former players, or nearly three in 10, could develop Alzheimer's disease or moderate dementia.
They would receive an average of $190,000, although the awards could reach several million dollars in the most serious cases, which include men with Parkinson's disease or Lou Gehrig's disease.
The lead negotiators say the players would have had a tough time proving their case in court, especially when it comes to CTE. The science behind the disease is in its early stages, and CTE cannot currently be diagnosed in the living.
"The science could determine that all that matters for CTE is the concussive hits you took before your 18th birthday," lawyer Paul Clement, a former U.S. solicitor general, argued Thursday for the NFL.
The settlement grants up to $4 million for prior deaths involving CTE, but it set an April 2015 cutoff date to avoid incentivizing suicides in the future.
Senior U.S. District Court Judge Anita B. Brody approved the settlement in April, after persuading the NFL to remove a $765 million cap so the fund doesn't run out. The settlement also sets aside money for baseline testing, education and research.
The objectors complain that it compensates only a few neurological conditions, and not the depression and mood disorders they link to concussions and CTE.
That led Circuit Judge Thomas M. Hardiman to ask if the settlement should be "watered down by every field goal kicker who's depressed?"
The NFL said the settlement can't address every condition faced by the retirees, but instead provides an insurance plan for the most serious neurological diseases.
The lead players lawyers who negotiated with the NFL argued that retirees like former Philadelphia Eagle Kevin Turner, who is battling Lou Gehrig's disease, which attacks motor neurons, or cells that control the muscles, need the money immediately for their care. They stand to collect up to $112 million in fees from the NFL if the deal goes through.
Negotiators on both sides acknowledge the players would have had an uphill fight if the cases went to trial. The NFL had tried to have the lawsuits thrown out of court and heard in arbitration. Brody steered them toward mediation before she ruled on that question.
"(Their) claims faced substantial legal and evidentiary hurdles," NFL lawyer Brad Karp wrote in a recent brief. Instead, he said, the thousands who filed suit "secured relief that provides immediate, significant, and enduring benefits."