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1 Judge 3 Rulings and the Balance of Power in the NFL Concussion Settlement

Roger Goodell NFL Concussion Settlement Balance of PowerJune 20, 2019
UPDATED June 21, 2019
Sheilla Dingus

Much of what takes place in the NFL Concussion settlement quietly remains hidden, on a private portal, or “shadow docket” and this includes the battles waged as players and their attorneys fight to see claims approved through an onslaught of NFL opposition.  It makes sense to shield the identity of players and their health records but the arguments made by the NFL in seeking to wear down resistance and discredit the diagnoses and claims of all but the most severely impaired players should be in public view.

I’ve been fortunate to obtain documents for two major off-docket appeals months before rulings and any other public murmurs of the issues, those being appeals that affected multiple claims regarding the NFL’s demands for mandatory use of the AAP and AAPC as opposed to the discretionary use by special masters as designated in the settlement agreement and the interpretation of “generally consistent” diagnoses as weighed against the rigid BAP protocols.  The NFL withdrew the “generally consistent” appeal in a manner similar to a Trojan horse in that prior to a public hearing, private negotiations took place that resulted in a sua sponte order issued by Judge Anita B. Brody that effectively gave them what they asked for, and though the AAP objection was formally denied, through another sua sponte order, the Judge changed the balance of power negotiated in the settlement agreement by allowing the claims administrator to consult with the AAP and AAPC during the front end of claims processing rather than only the special masters when deciding appeals leaving a King Kong-sized obstacle in between disabled players and their ability to prevail on their claims.

The AAP are neurologists who have been recruited to advise the special masters on medical issues and the AAPC are neuropsychologists who have been appointed to the same task.  As brought out in numerous NFL briefs, the AAP and AAPC for the most part, seem strongly aligned with the NFL’s views and interpretations as to the levels of impairment to qualify a retired player for compensation, and as stated previously this only covers the most severely impaired, leaving many players with severe, but less obvious impairment in the cold.

I’m aware of another NFL appeal involving multiple claims that could if the NFL prevails permanently disqualify certain players from participation in the settlement, and I will present further details after the pertinent documents have been hopefully obtained and reviewed.

balance of powerLast week, Judge Brody issued rulings in three individual appeals, and in each instance, the appellee prevailed.  Two appeals were by players who sought to reverse denied claims and in the other, the NFL sought to kill an approved claim.  In the first two instances, the player was the appellant and in the third, the appellant was the NFL.  The party who had previously seen a favorable ruling is the appellee, and it is the appellee who has the greatest chance of success in an appeal.  The new rules which permit AAP and AAPC review initiated by the claims administrator at the beginning of the evaluation of a claim will result in more denials in which players must take the role of the appellant, thus diminishing their overall chances of prevailing in an appeal.  Let’s take a look at the three decisions which originated under the previous rules.

Settlement Implementation Ruling #1

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In this appeal, the representative claimant, presumably the widow of a deceased player filed a claim for Alzheimer’s disease but did not have a formal diagnosis according to Judge Brody’s determination.  The claimant submitted evidence of the player’s declining cognitive abilities, but prior to the settlement, and perhaps even now, many players have refused to go to a doctor because they just don’t want to hear a doctor confirm that their minds are slipping away.  They don’t want to hear the word, “Alzheimer’s.”  As one widow explained to me, her husband’s memory and judgment went from bad to worse but he was in denial. He sometimes forgot to turn burners off on the stove while his wife was working, or would take off in the car only to get lost, often only a few blocks from home.  Though his wife tried to talk him into seeing a doctor, he refused until one day when he drove further than usual and his wife had a difficult time locating him.  He feared being found by someone other than his wife and having his name and impairment spread across the news, and finally, his fears overcame his reluctance to see a doctor.  He was, of course, diagnosed with Alzheimer’s disease and died just a couple years later. Before his death, his wife was forced to quit work and become a full-time caregiver and by the time he died, she was bankrupt from medical bills and on the verge of foreclosure, saved only by a settlement funding loan that wiped out almost all her eventual award.  I suspect the player who was the subject of this appeal was probably of a similar disposition to the player I referenced.

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In keeping with the strict language of the settlement agreement, Judge Brody upheld the special master’s decision to deny the claim.  As you will see the settlement is not about doing the right thing and compensating injured players and their families but rather obtaining roping as many claimants as possible into a highly legalistic deal and denying as many of them as possible.

UPDATE June 21, 2019:

Ken StablerAdvocacy for Fairness in Sports has learned that the family who was denied was none other than the estate of legendary Raiders quarterback Ken Stabler.

As has been widely reported, Stabler died in 2015 after a prolonged battle with cancer.  As he struggled against cancer, he also had to battle a failing brain, but like the player I referred to above, the thought of Alzheimer’s was too much for him to bear as he tried to overcome the ravages of colon cancer.  As any compassionate family would do, they focused on attacking the cancer and saving his life, rather than diverting their attention to a brain diagnosis that might benefit them in the NFL settlement, but realizing. that he suffered neurological damage as a result of his long career that spanned from 1968 through 1984, they donated his brain to Boston University’s CTE research after his death.  It was there, that Dr. Ann McKee posthumously diagnosed Ken Stabler with Stage 3 CTE and Alzheimer’s disease.

Just as Stabler’s family was denied a ring and gold jacket when he was inducted to the Hall of Fame in 2016, the NFL was intent on denying them any settlement compensation.  Ken Stabler died on July 8, 2015, barely over two months from the settlement cut-off date for Death with CTE, which was April 22, 2015.  Only the survivors of players who died in the tiny window between July 7, 2014, and April 22, 2015, were eligible for compensation according to settlement terms.  Because Stabler had also been diagnosed posthumously with Alzheimer’s disease, the family submitted a claim under that diagnosis.  The diagnosis was also supported by neuropsychologist Todd Solomon, Ph.D.

Because the settlement stipulates that any diagnosis aside from CTE must be rendered when the player was alive, the claims administrator denied the Stabler family’s claim.  The Stabler’s appealed the denial and the NFL filed an opposition to their appeal.

Few players can boast of a 16-year career that included a Super Bowl Championship, an NFL Most Valuable Player award and Offensive Player of the Year award, four trips to the Pro Bowl, two years as a First-team All-Pro selection, and election to the 1970s All-Decade Team.  Stabler played in the era before free agency when many players were lucky to earn $10,000 per year and stars only $20,000 to $30,000.  In other words, they didn’t get rich playing football.  They didn’t get much in the way of post-career benefits – a 16-year veteran’s pension might just get him over the poverty level if forced to live off it.  Adding insult to injury, the settlement structure provided absolutely no way for Stabler or others in his position to receive any compensation whatsoever in the settlement unless an exception was granted, and the NFL doesn’t grant exceptions.  This is how much the NFL values the stars that brought it to the height of popularity.  If revered stars are treated in this manner, what hope does any player have of seeing an ounce of compassion from America’s richest sports league?

Settlement Implementation Ruling #2

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As with the first appeal, this one also involved the representative claimant of a deceased player, who submitted a claim for Parkinson’s disease.  Based on a footnote, it appears the deceased player had a diagnosis but apparently it was questioned. Judge Brody provides few details in her decision.

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The special master consulted the AAP who concluded “that no medical professional made a ‘conclusive and convincing diagnosis of Parkinson’s disease while [the Retired Player] was living,’” and the special master didn’t find that the claimant had provided clear and convincing evidence to the contrary.  Here’s where a player or his representative is disadvantaged as an appellant.  In this instance it seems the claims administrator and AAP questioned the player’s diagnosis, forcing the claimant to have to appeal the decision. The special master applied the bargained for standard of “clear and convincing” and determined that the claimant did not meet that standard.  When a doctor’s medical opinion is deemed invalid, it is very hard to meet that bar.  What else might a claimant present to show clear and convincing evidence of the impairment?

If the situation had been reversed, however, and the player had been approved with the NFL appealing the award, then the medical evidence would have been deemed sufficient, and the NFL as an appellant would have had to provide clear and convincing evidence the doctor got it wrong.  Because of the high bar of this standard of evidentiary review, which is just below the criminal justice standard of “beyond a reasonable doubt,” it would have been difficult to discredit the claim, and the widow would have most likely prevailed.  Note the decision was based on an AAP opinion, and now that the claims administrator formally has access to the AAP on the front-end of the claim, this will place the player in a disadvantaged position more often than not, as Gene Locks and other class counsel attempted to explain before they were fired for their efforts.

UPDATE June 21, 2019:

As with the Stabler appeal, no documentation was attached to Judge Brody’s order.  I don’t know who the player was, but I wouldn’t be surprised if the situation prompting this family’s denial was very similar to the situation the Stabler family faced.

Settlement Implementation Determination #3

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In this instance, the balance is reversed, and the NFL is the appellant seeking to discredit a retired player’s diagnosis of Level 2.0 Neurocognitive Impairment.  This ruling was the only one that attached briefs filed prior to Judge Brody’s decision.

According to the documents, the NFL Objection was filed on April 8, 2019. The gist of the appeal was that the NFL alleged abuse of discretion by the Special Masters when they opted not to consult an AAPC neuropsychologist when evaluating a player’s (I’ll refer to him as Player X) claim.

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A brief filed by Player X’s attorney Mike McGlamry of Pope McGlamry, PC, gives the procedural details.

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As McGlamry points out, Player X did exactly as the settlement instructed him to do. The NFL pushes the free, but stringent BAP exams and Player X opted to participate in that program and the BAP administrator assigned doctors for him to see.  The neurologist and the neuropsychologist disagreed on the diagnosis with the neurologist diagnosing at Level 1.5 Neurocognitive Impairment and the neuropsychologist rendering no diagnosis.  Per settlement stipulations, their medical reports were referred to the largely NFL-friendly AAP for review.  In a strange twist of fate, the AAP neurologist agreed with the BAP neurologist that the player suffered impairment but his evaluation deemed the player to more significantly impaired that either doctor and upgraded Player X’s claim to Level 2.0, which was approved by the claims administrator.

The NFL must have been furious that the normally league-friendly AAP not only approved the award but upgraded it.  They appealed to the special masters, who ruled in favor of the player finding that the NFL presented no clear and convincing evidence that the diagnosis was in error.

As McGlamry states, the NFL refused to pay the award but because they are not permitted under settlement terms to question the special master’s finding of facts, alleged abuse of discretion against the special master for not consulting an AAPC neuropsychologist, despite the fact an APP neurologist had already reviewed the medical records.

From the NFL appeal:

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345 Park Avenue must have declared a state of emergency!

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Player X, failed several validity tests, therefore, the NFL concluded, without evidence, that the player was guilty of “flagrant intentional malingering.” Since two doctors found him to be impaired, including an AAP neurologist, their only chance was to hope a league-friendly neuropsychologist would have their back, but to their dismay, the special master was quite satisfied with the doctors’ evaluations of the player.  In fact, it wasn’t so very long ago (October 29, 2018, to be exact) that the NFL seemed to think very highly of the AAP physician panel.

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In addition to Mike McGlamry, Class Counsel Christopher Seeger also responded to the NFL’s appeal.

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As Seeger stated, the settlement calls for review by a neurologist, not a neuropsychologist, and it seems absurd to have a neuropsychologist overruling a doctor’s medical opinion (although I’ve seen it happen on some claims, unfortunately.)

Fortunately, Judge Brody kept with the clear language of the settlement agreement in this instance and ruled that the special master’s decision not to consult an AAPC neuropsychologist was “within the range of reasonable choices” available to him.

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This is another instance in which the position of appellee is far favorable than that of the appellant.  Sadly, Judge Brody’s prior order will leave many players in the uncomfortable position of winding up on the appellant side with about a 2% chance of prevailing.  If nothing else, at least hopefully Judge Brody can see that the NFL will stop at nothing to bar the claims of neurologically impaired players.  Unfortunately, since this appeal has been before her since April and other NFL-friendly rulings have been issued since then, this decision seems to be the exception rather than the rule.


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