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Lawyer asks judge to approve NFL concussion deal, predicts 'scorched-earth' trial otherwise

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PHILADELPHIA — The NFL on Wednesday urged a judge to approve an estimated $1 billion settlement of concussion lawsuits despite concerns raised by former players or survivors who feel left out.

The 65-year fund would resolve thousands of lawsuits that accuse the NFL of long hiding what it knew about concussions and brain injuries to keep players on the field.

The NFL now expects 6,000 of nearly 20,000 retired players — or 28 percent — to suffer from Alzheimer's disease or at least moderate dementia someday. Their average payout would be about $190,000. The awards reach several million dollars for Lou Gehrig's disease or Parkinson's disease.

"The NFL ... should have done the right thing years ago, and it can do the right thing now," said Eleanor Perfetto of Annapolis, Maryland, who objects to the steep cuts in awards given to men diagnosed later in life.

Her husband, Ralph Wenzel, had both Alzheimer's disease and chronic traumatic encephalopathy, or CTE, when he died in 2010. He was 69 and had been ill for more than a decade.

Some critics feel the fund lets the NFL off lightly, given its $10 billion in annual revenues. Others complain that there are no awards for depression, mood swings, dizziness and other problems they link to football concussions.

A chief concern is that the plan leaves out future payments for CTE, which some call the signature disease of football. The estates of players who died and were diagnosed with CTE from 2006 to 2014 can seek up to $4 million, but future deaths are excluded to avoid "incentivizing" suicide. The brain decay cannot currently be diagnosed in the living.

"The research in this area is in its infancy. (It) would be hotly contested at trial," NFL lawyer Bruce Birenboin argued. "The resolution was that CTE, per se, wasn't covered, but that significant symptoms were."

Lawyer Thomas Demetrio suggested the deal is a steal for both the lead players' lawyers who stand to divide $112 million and the NFL.

PHOTO: Co-lead players' lawyer Christopher Seeger, left, and client former NFL player Shawn Wooden speak with members of the media after a hearing on the proposed NFL concussion settlement Wednesday, Nov. 19, 2014, outside of the U.S. Courthouse in Philadelphia. (AP Photo/Matt Rourke)
Co-lead players' lawyer Christopher Seeger, left, and client former NFL player Shawn Wooden speak with members of the media after a hearing on the proposed NFL concussion settlement Wednesday, Nov. 19, 2014, outside of the U.S. Courthouse in Philadelphia. (AP Photo/Matt Rourke)

"The NFL, by this settlement, will never have to say what they knew, when they knew it, and CTE — Poof! It's gone," said Demetrio, who represents the family of former Chicago Bears safety Dave Duerson. A fan favorite, Duerson's life was on the decline before he fatally shot himself in the chest in 2011. He left behind notes asking that his brain be tested for CTE. The tests were positive.

The NFL insisted that it would have strong legal defenses if the cases proceed to trial.

The league's lawyers have argued that the dispute belongs in mediation under the contract, that former players can't prove which concussion caused which injury and that many former players filed suit too late.

"It would have been an expensive, scorched-earth litigation (without a settlement). We know that because of other parties that have litigated with the NFL," lead plaintiffs' lawyer Christopher Seeger argued Wednesday.

On the other hand, the NFL would have to open its files before trial and potentially disclose damaging information.

Former Indianapolis Colts tight end Ben Utecht testified about the five concussions he suffered during a career that earned him a 2007 Super Bowl ring. He is now married with three young daughters.

"I do have memory issues. That's why I walked away," Utecht, 33, said after the hearing. "The thought of (my daughters) losing their dad, before they actually lose their dad, is challenging."

Senior U.S. District Judge Anita Brody granted preliminary approval of the plan in July after the NFL lifted a proposed $765 million cap. The total includes $75 million for baseline testing and $10 million for research. With inflation and lawyer fees, the NFL could pay out $1 billion or more over 65 years.

"The league really is proud of this settlement," Birenboim said.

Brody is expected to rule on final approval in the next few months.

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PHOTO: Former NFL player Ben Utecht speaks with members of the media after testifying in a hearing on the proposed NFL concussion settlement Wednesday, Nov. 19, 2014, in Philadelphia. (AP Photo/Matt Rourke)
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