An Attempt for One More Appeal in the N.F.L. Concussion Case
Lawyers for the former running back Cookie Gilchrist have asked the Supreme Court to hear their appeal of a concussion-related settlement between the N.F.L. and all retired players that is worth hundreds of millions of dollars.
The move is a last-ditch attempt to alter an agreement that has been amended several times and survived other challenges. There is only a slim chance that the justices will hear the case, particularly because an appeals court twice approved the existing deal.
But a small number of former players still object to the settlement. They say the agreement does not adequately cover medical improvements that make it easier to diagnose cognitive disorders related to repeated head hits.
Specifically, lawyers for the estate of Gilchrist, a hard-charging running back in the old American Football League who died in 2011 at age 75, say that the categories of retired players in this settlement — those with diagnosed injuries and those without — are insufficient.
They also contend that some players were not properly represented in the settlement as a result of inadequate discovery on the “disputed ‘scientific’ propositions regarding head trauma that were the basis for vastly disparate relief to the class members.”
Lawyers representing the plaintiffs said the Supreme Court should deny the petition to hear the case because “these objections have now been exhaustively examined and overruled” by both the district court and the Court of Appeals for the Third Circuit.
No benefits, which can reach $5 million for players with severe neurological conditions, will be distributed until all appeals are exhausted. About 9,000 retired players have tried to enroll for benefits in advance.
Although Tuesday was the deadline for asking the Supreme Court to take up the case, lawyers for at least two other sets of players received extensions to file separate appeals of the settlement. They were given until Sept. 19 to submit their petitions. Lawyers for the plaintiffs typically have 30 days to respond to those petitions, although extensions are not unusual.
Once that process is complete, the court typically decides whether to take the case within several weeks. A minimum of four justices is needed for the court to agree to hear a case. But the justices agree to hear about one in 100 petitions seeking review, which means the chances of this case getting one last hearing are remote.
The Supreme Court has heard cases involving the N.F.L. before, as in 2010, when the league sought immunity from antitrust regulations. That case involved a cap manufacturer, American Needle, which claimed the league had conspired to stifle competition when it granted Reebok exclusive rights to produce licensed apparel.
The N.F.L. said it deserved to be exempt because it was a single entity, not a collection of 32 teams. The court, however, unanimously rejected the league’s request that it should receive broad antitrust immunity. The N.F.L. and American Needle settled their differences in 2015. The terms of their deal were not disclosed.