An attorney representing former NFL players in the concussion settlement in Pennsylvania federal court said Friday that “institutionalized” and other unrepresented ex-players should be given two years to register for potential settlement benefits, upping his initial, one-year request from earlier this month.
Tim Howard of Howard & Associates said in a reply brief that the court should create a two-year window so “homeless, institutionalized, incarcerated or incapacitated” ex-players can still seek benefits under the settlement program, building on an initial motion filed Aug. 3 where he asked for only a one-year time extension. Howard said the settlement lays out “limited circumstances” in which the deadline can be extended for up to two years, contending that those former National Football League players experiencing homelessness and other hardships are by definition facing limited circumstances.

Howard noted that while the settlement does contain a “good cause” exception, the term is ambiguous and requires each player to request an extension on a case-by-case basis.

“These individuals, although currently unidentified, are settlement class members and should not lose their right as such because they are unrepresented, and mentally and physically incapable of asserting their rights,” Howard said.

He had said in his initial motion that there were potentially “hundreds if not thousands” of concussion settlement class members who are currently incapable of filing a claim.

He highlighted former Tampa Bay Buccaneers offensive guard Arron Sears as “unquestionably a class member” but unable to meet the deadline. Sears had 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 responded Thursday, saying the settlement already allows late claims for “good cause,” for “legally incapacitated or incompetent” retired NFL players who were unrepresented before the settlement registration deadline, which passed on Aug. 7. The league also argued that Howard did not file the request on behalf of any of his over 200 class-member clients but is instead seeking to “fill the role of class counsel.”

In addition to disputing the “good cause” exception and arguing for less ambiguity, Howard said Friday that class counsel supports his motion, referencing an email exchange he had with Seeger Weiss LLP attorney Chris Seeger, who said class counsel does not object to the motion.

Howard told Law360 in a statement Friday that “justice, fairness, morality and human decency” is the impetus behind the two-year window, which would also allow time for outreach to locate previously unfound players.

“The two-year limited ‘good cause’ extension of time to locate these retired NFL warriors is just and moral, despite the NFL’s objection,” Howard said. “We look forward to finding and advancing justice for these retired NFL warriors.”

Counsel for the NFL did not respond Friday to a request for comment.

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.

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.

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