NFL CONCUSSION/BRAIN INJURY SETTLEMENT - October Update

By: Dan Chamberlain, J.D., Cohen & Malad, LLP, Indianapolis, Indiana

There are many questions about the status of the National Football League (NFL) concussion/brain injury settlement (NFLcase). Generally, players that retired prior to July 7, 2014 will be eligible for various services and benefits in the largest settlement of its kind in American history. Questions remain about what is the current status of the case and what dates/deadlines are important as retired players move forward in the claims process. 

The NFLcase received final “clarified” approval on May 11, 2015. Several groups then filed an appeal to the Third Circuit, in terms of such things as claims involving chronic traumatic encephalopathy (CTE). The appellate court affirmed the decision to resolve the case and sent the case back to Philadelphia to administrate the settlement. Since that time, various groups (“objectors”) have filed writs to the United States Supreme Court. In other words, the objectors are attempting to have the US Supreme Court hear the case again and change the outcome of the settlement.  Appellate experts opine that the objectors arguments to the US Supreme Court in the NFLcase will be denied and the case will be remanded for administration of the settlement by the end of 2016.   

What is the “Effective Date” (ED) and why is it important?

Once all pending issues have been resolved, the ED will be established as an anchor date. The ED will set in process a series of deadlines that retired players must follow in terms of making claims for cognitive, brain injury or other diseases caused by playing football. Certain dates will be established and must be followed to qualify for maximum benefits under the settlement.

What are the settlement deadlines?

Once the effective date is established, players must register within 180 days. My clients/retired players have already been pre-registered and will be officially registered when the ED and other deadlines are established. Depending on age, players must complete a baseline assessment protocol/examination (BAP). A BAP is a neurologic or brain examination by a board certified brain injury specialist. For retired players age 43 and older, the BAP must be completed within two years of the ED.  Retired players age 43 or younger must have the BAP completed within 10 years of the ED or the sooner of the age of 45. Failure to participate in the BAP program may cause a 10% reduction in benefits of the total projected award. 

What else is important about the ED?

For players with diagnosable conditions that are compensable under the settlement, the ED allows diagnosis by a Board Certified brain injury specialist with a compensable diagnosis before the ED. Retired players that may benefit from this program are those that are currently being treated for dementia, cognition issues, Parkinsons or ALS.  In other words, claimants may be able to receive opinions from their qualified treating physicians that would be admissible if the diagnosis is prior to the ED. Any opinion from a player’s treating Board Certified physician is subject to attack by the NFL’s claims administrator, also known as the special master. Questions of whether a retired player should consult a Board Certified brain qualified physician prior to the ED should be discussed with counsel as there are various issues that may result from the same.   Following the ED, all retired players must consult Board Certified medical providers hand-picked by the settlement administrator. 

What if I do not qualify for compensation now … is my claim over?

No.  Retired players will be eligible for compensation for 65 years. In other words, there are appeals and other options that can be legally pursued to receive monetary compensation.  Brain injury is a life-long on-going disease process that gets worse over time. A brain injury attorney is essential to answer your questions and protect your interests (and your family) in the future.

DAN: Why are you involved in the NFLcase?

Because I care. I am the immediate former Chair of the Brain Injury Association of America based in Washington, DC. I was very active in the NFLcase and concussion litigation in part by advocating for the dissemination of the science and medicine of brain injury in the underlying lawsuit. Understanding brain injury, player rights under the NFLcase, we help players and their families as well. We provide answers and options when playing days have passed.

DAN: How are you different than other Brain Injury/ TBI/ NFLcase attorneys?

There are many excellent attorneys available to represent players and their families. I am Board Certified, AV rated by Martindale Hubbell, a current member of the Brain Injury Association of America, a Top 50 rated Superlawyer and I will be President of the Indiana Trial Lawyers Association. While I am based in Indianapolis, I also have licenses to practice in Arizona and North Carolina. For purposes of the NFLcase, location is really not an issue, but it is comforting to know that our firm is a leader in national representation for our clients.

DAN: Who are other retired players that you represent in the NFLcase?

My players and their families are certainly welcome to talk to friends about what we do for them, because the greatest compliment is a referral from current/past clients, retired players, Players Association designee's doctors and lawyers. We offer referrals for estate planning, medical care and have pursued "line of duty" benefits and have even filed a lawsuit in Federal Court to obtain an extra "eligible season" for a player that was suspended. (Why is this important? Fighting for every potential opportunity for a retired player to receive health insurance and benefit plan compensation, in addition to other benefits under the Players Association plan, is simply the right thing to do.)

Our list of clients is confidential as requested by our retired players and their families.

Does Cohen & Malad, LLP accept retired player referrals from others?

Yes. We provide excellent client care and responsiveness to our referral sources. Based on the Rules of Professional Conduct, we provide business leading co-counsel fee arrangements for our attorney referrals.

What if you have any questions?

Should you have any question about the NFL concussion/brain injury settlement or your NFL benefits, please do not hesitate to contact Dan Chamberlain at 317-636-6481. Dan is a personal injury partner at Cohen & Malad, LLP in Indianapolis, Indiana and is the former Chair of the BRAIN INJURY ASSOCIATION OF AMERICA. 

Dan may also be reached on his mobile phone, 317-549-5454.

Learn more at NFLcase.com.