The NFL on Thursday opposed a motion made by an attorney representing former football players in the concussion settlement class in Pennsylvania federal court asking for a yearlong extension for “institutionalized” ex-players to register for potential settlement benefits, arguing that the settlement already allows such late claims for “good cause.”
The league said the motion does not present a ripe issue as the attorney who filed the motion, Tim Howard of Howard & Associates, did not file it on behalf of any of his over 200 class member clients and is instead seeking to “fill the role of class counsel.”
Howard filed the motion on Aug. 3 telling the court there are “hundreds if not thousands” of potential class claimants who are “institutionalized, homeless, or too ill to exercise their rights.” He asked the court to give these former players another year until Aug. 8, 2018, to register for settlement benefits as he planned to find the players and help them seek benefits.
But the league argued that there is already a provision in the settlement for this very purpose, allowing the deadline to be extended “for good cause” for “legally incapacitated or incompetent” retired NFL players who were unrepresented before the settlement registration deadline, which passed on Aug. 7.
“Through this negotiated provision, the parties specifically protected the rights of retired NFL football players who were legally incapacitated or incompetent prior to the registration deadline, but did not yet have authorized representatives to serve their interests and register for the settlement program,” the NFL said.
Howard’s motion pointed to former Tampa Bay Buccaneers offensive guard Arron Sears as an example of a player who is “unquestionably a class member” but unable to meet the deadline. Sears left the NFL in 2009 and has lost almost all function and the ability to care for himself as a result of neurological problems from a concussion.
The NFL argued that Howard and such players must first file a late registration with the settlement administrator BrownGreer PLC with an explanation “of the good cause grounds for having missed the deadline” before anything else can happen procedurally.
“This court or its designated special masters may ultimately review any resulting disputes that are raised at an appropriate time and in an appropriate manner, but doing so now on a hypothetical set of facts and circumstances is unnecessary, wasteful, improper, and in conflict with the clear terms of the settlement agreement,” the NFL said.
The dispute comes as 16 former players earlier this week accused BrownGreer of impeding the implementation of the uncapped settlement, which was reached in 2015, telling the court it is “reading” additional language into the settlement agreement by requiring players to submit additional material not mandated by the deal.
The settlement provides benefits for former players or survivors of players who were diagnosed with degenerative cognitive conditions connected to traumatic brain injuries, including dementia, Alzheimer’s disease and Parkinson’s disease. The highest payouts of $5 million are reserved for class members with amyotrophic lateral sclerosis.
Class attorneys said on Aug. 4 that approximately 18,400 former players or their relatives had registered for settlement benefits out of an estimated 21,000 class members.
Howard told Law360 on Thursday that he plans to immediately file a response to the NFL’s objection.
Counsel for the NFL and the class did not immediately respond to requests for comment Thursday.
The motion was filed by Tim Howard of Howard & Associates PA.
The settlement class is represented by co-lead counsel Seeger Weiss LLP and Anapol Weiss.
The NFL is represented by Brad S. Karp, Bruce Birenboim and Lynn B. Bayard of Paul Weiss Rifkind Wharton & Garrison LLP.
The case is In re: National Football League Players’ Concussion Injury Litigation, case number 2:12-md-02323, in the U.S. District Court for the Eastern District of Pennsylvania.