By Saranac Hale Spencer and P.J. D’Annunzio, from The Legal Intelligencer

The highly contested settlement between the NFL and its former players who allege they suffered head injuries while playing for the league has gotten final approval from the federal judge overseeing the case.

The settlement will, however, almost certainly be appealed.

The case has been marked by discord among the plaintiffs’ lawyers in the case, dozens of whom say the deal isn’t a fair one.

U.S. District Judge Anita Brody of the Eastern District of Pennsylvania, who has handled the case, rejected the first deal the parties struck for $760 million just over a year ago and sent them back to the drawing board. The lead counsel for the plaintiffs and the lawyers for the National Football League came back last summer with a second deal that did away with the $675 million cap on the fund from which injured former players would draw—that was the judge’s chief concern with the first settlement, that there wouldn’t be enough money in the fund to compensate all eligible players over the 65-year life of the fund.

“I am primarily concerned that not all retired NFL football players who ultimately receive a qualifying diagnosis or their related claimants will be paid,” Brody had said when she rejected the deal in January of last year.

Getting rid of the cap and making other, smaller changes answered her concerns.

According to The Associated Press, the NFL projects that 6,000 of about 20,000 retired football players will suffer from dementia or Alzheimer’s disease. The approved settlement would pay each of them an average of about $190,000, meaning the NFL could owe a little more than $1 billion, the AP reported.

Plaintiffs lawyers who weren’t involved in the negotiations with the NFL, however, still had significant qualms with the second deal, which has now gotten final approval.

The likelihood of appeal is “very strong,” said Thomas Demetrio of Corboy & Demetrio in Chicago, who represents plaintiffs in the case and has expressed concerns about the settlement terms.

Another lawyer who had objected to the settlement, Steven Molo of MoloLamken in New York, said in a prepared statement, “We are pleased that the settlement was substantially improved as a result of objections that we made. We are reviewing the court’s detailed opinion to determine where things go next.”

Molo had tried to bring the case up to the U.S. Court of Appeals for the Third Circuit in the fall, but the appeals court declined to exercise jurisdiction on an unusual approach to appellate review, through Federal Rule of Civil Procedure 23(f), which allows for an appeal of an order granting or denying class certification. The threshold issue in the case was whether the July order from Brody granting preliminary approval of the settlement and granting conditional certification of the class for settlement purposes would even trigger the Third Circuit’s right to review. The appeals court didn’t take it up.

Now that the approval of the settlement is final, though, it can be appealed.

Christopher Seeger, co-lead counsel for the plaintiffs who struck the deal with the NFL, called on lawyers who are critical of the deal not to appeal it during a conference call with reporters Wednesday afternoon. Seeger is of Seeger Weiss in New York.

A single appeal will delay settlement benefits to all of the eligible players, he said.

But, Demetrio said, “Nothing changes the fact that this was a CTE case from the get-go.”

The settlement’s failure to compensate players who have chronic traumatic encephalopathy, or CTE, is the primary objection to the deal.

It is structured to compensate former players who are diagnosed with Alzheimer’s disease, dementia and other neurocognitive diseases, but it only compensates for CTE if the player has died.

At this point, with research on the disease still in its infancy, it can only be diagnosed after death.

“Retired players cannot be compensated for CTE in life because no diagnostic or clinical profile of CTE exists, and the symptoms of the disease, if any, are unknown,” Brody said in her opinion granting final approval. “But the settlement does compensate the cognitive symptoms allegedly associated with CTE.”

She addressed the objections lodged against the settlement in her 132-page opinion and laid out a summary of the four-year-old case, which faced significant legal hurdles at the start that could have landed the case in arbitration instead of federal court.

From the beginning, Brody has signaled her preference for a settlement in the case, saying in a two-page order announcing that the parties had reached the first accord in August 2013, “From the outset of this litigation, I have expressed my belief that the interests of all parties would be best served by a negotiated resolution of this case.”

Saranac Hale Spencer can be contacted at 215-557-2449 or [email protected]. Follow her on Twitter @SSpencerTLI.

P.J. D’Annunzio can be contacted at 215-557-2315 or [email protected]. Follow him on Twitter @PJDannunzioTLI.

(Copies of the 132-page opinion in In re National Football League Players’ Concussion Injury Litigation, PICS No. 15-0649, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.)

For more on this story go to: http://www.thelegalintelligencer.com/id=1202724250229/NFL-Concussion-Settlement-Approved#ixzz3Y9TjUKsR