U.S. District Court Judge Anita Brody rejected a motion for preliminary approval of the class action settlement, saying she was "primarily concerned" there is not enough money to pay impacted players.
PHILADELPHIA - One law of sports also applies in the court of law: It's not over 'til it's over.
When a tentative $765 million settlement was reached in August in concussion suits filed by more than 4,500 former players against the NFL, both sides lauded it as a way to get help to players in a timely fashion and avoid years (maybe 10 or more) of costly legal battling and delays en route to a jury trial.
Now, that's at least on hold until a federal judge agrees there's enough money in the deal to make it work. Absent that, the legal wrangling continues to trial.
In Philadelphia on Tuesday, U.S. District Court Judge Anita Brody rejected a motion for preliminary approval of the class action settlement reached by mediation. She said she was "primarily concerned" there is not enough money in the settlement and insufficient "analysis" to show it's workable.
Both sides expressed confidence they can show Brody the settlement is sufficient. NFL spokesman Greg Aiello said the league was "confident that the settlement is fair and adequate" and looks forward to "demonstrating that to the court."
But attorneys not associated with the settlement told USA TODAY Sports there are other options, including upping the price tag for the NFL -- or a potential trial that could shed light on allegations in the suits that for decades the league knowingly misled players about concussions and such long-term effects as depression and dementia.
Attorney Michael Kaplen, critic of the settlement from the start, welcomed the judge's decision. Although other legal observers say it's unlikely, he would like the case to go to trial.
"I'm quite impressed on the judge's ability to parse through this settlement and understand the weaknesses," said Kaplen, who practices brain injury law in New York and teaches it at George Washington University in Washington.
"The pot is just not big enough to compensate just the players (named in the suits). But when you add in the (estimated) 20,000 additional (former) players, it's just a drop in the bucket."
In the settlement, the NFL made no admissions about how it handled concussions in decades past.
"The attorneys who took on this litigation made some very, very significant and serious allegations of fraud and deceit on the part of the league," said Kaplen. "When the drum starts to bang and gets louder and louder … the court is going to be compelled ... to do its job of protecting the public interest and say (it's) just not approving the settlement."
Joe Farelli, labor attorney with the New York City firm of Pitta & Giblin, sees a reworked settlement bolstered by more NFL money.
"The judge is saying it doesn't add up to me," said Farelli.
He anticipates the sides will try to show the funding will work. He doesn't expect that to satisfy the judge.
Brody noted the settlement contemplates an award fund estimating a 65-year lifespan for the former players. In the proposed settlement, for example, retired players with a qualifying diagnosis of Lou Gehrig's disease may receive up to $5 million. Those with Parkinson's disease would be eligible for $3.5 million.
"Even if only 10 percent of Retired NFL Football Players eventually receive a Qualifying Diagnosis, it is difficult to see how the Monetary Award Fund would have the funds available," said Brody.
Said Farelli: "Part of the settlements are going to be, 'We're going to give you X amount of dollars for medical care over your lifetime.' Right there, you know medical costs are going up. ... The judge is saying I'm not buying it. ... Or at the very least, 'You haven't given me enough documentation.' "
Robert Boland, who teaches sports law and management at New York University, expects a better explained or reworked deal will be approved. He said it's not just the two sides.
"The judges are third parties. ... Even though they encourage settlement strongly, they do have to sign off," Boland said. "That's the important piece. Judge Brody wants to be sure that her settlement is appropriate in the interest of justice as well."
Boland does not anticipate a trial:
"It certainly is open, when rejecting settlement, that the case could be rescheduled for discovery (pre-trial probing of documents and sworn statements) and trial. I think the odds of going down that path are astronomically small. ... We'll see a new proposed settlement built off the framework of the prior one."