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Concussion Settlement Judge Delivers Gift to NFL

Brody-Seeger-GoodellApril 15, 2019
Sheilla Dingus

“She’s gone too far now.” This response reverberated as strongly as a blast at ground zero because it came not from an attorney who frequently laments the difficulties of the NFL Concussion Settlement, but rather a voice seldom critical of Senior Judge Anita B. Brody of the U.S. District Court for the District of Pennsylvania.

I contacted numerous attorneys, asking for their impressions of Judge Brody’s newly imposed restrictions on MAF physicians, and everyone I spoke with expressed unanimous feelings of anger, betrayal, and dismay—including a few attorneys who rarely respond to my requests for comment.  One attorney who is seldom at a loss for words declined comment except to say that it was going to take him a bit of time to digest what just happened.  All were in agreement the ruling she delivered last Thursday threatens the very fabric of the settlement that suffering retired players have counted on for vital care and relief.

While I’ve reported on problems within the NFL Concussion Settlement for over two years, always thinking in the back of my mind, “ok, this is it, it can’t get any worse,” let me clearly state for the record this time feels different…and chilling.

The lead-up

Beginning in August of 2019 I obtained off the docket filings pertaining to NFL appeals of decisions issued by the court-appointed Special Masters regarding settlement provisions as opposed to individual claims.  I said at the time, should the NFL prevail, this would amount to a gross revision of the settlement agreement that would present devastating consequences for players.  This has now occurred.  Perhaps equally disturbing as the fact this has taken place is the manner in which it happened.

In their appeals, the NFL challenged the “generally consistent” standard of evaluating players when lined up with the rigid settlement BAP protocols and demanded mandatory AAP review of all claims.  Through its filings, the NFL indicated that the AAP were more critical in evaluating claims than the Claims Administrator or Special Master.  These excerpts provide a concise summary of the NFL’s objectives.

NFL concussion settlement appeal

Before I dive into how Judge Brody delivered an early Christmas gift to the league, it’s worth examining some of the key statements from the NFL.  First, in the middle segment, the NFL indicates that MAF physicians selected and appointed to serve and provide player examinations were not “personally interviewed” or “trained” by the Parties, namely the NFL Party.  The implication is that the APP were carefully vetted by the NFL and “trained” to be extremely critical of players seeking awards.  The first segment alludes to the success the NFL has had in “training” them.

The last segment basically sums up the NFL’s intent, “not every retired player with cognitive or neurological issues is entitled to a Monetary Award.”  This was not at all how the settlement was presented to retirees when they had a choice of participating or opting out.

How we got here

I went back over some of the information presented to players as preserved in my files and multiple court documents that was rampant when players still had a choice of opting out of the settlement.  Here’s a small sample of what players were led to believe.

pitch 1

“The NFL has NO control over the testing, treatment, and diagnosis of any player.”  It doesn’t appear to have worked out that way.  The BAP protocols are not medical standards but rather settlement engineered testing designed to weed out as many players as possible.  Here’s another reference to the “independent network” of doctors “not associated with the NFL.”

pitch 2

“Immediately available?” Technically this is true, but no one bothered to mention how the claims could be delayed by repeated audits and appeals, and normally are.

Here’s a good one:

pitch 3

The first component refers to the BAP and the second the Monetary Awards Program. Among the compensable symptoms listed are headaches, tingling in the extremities, depression, and anxiety.  Not only are these symptoms NOT covered but they can even get a player disqualified upon AAP review.  The NFL and AAP are using these symptoms to discredit the neurological diagnoses rendered by physicians and attributed to football concussions, even though causation was expressly exempted as a requirement for compensation.

Dementia is deemed compensable through a Level 1.5 or 2 Neurocognitive impairment diagnosis, and most people normally associate “short-term memory loss” as the defining characteristic of dementia.  Nowhere were players told that they must be as placid as a potted plant and unable to drive, shower, or be seen unaccompanied in public to qualify for an award without waging a war with the NFL and possibly the Claims Administrator too.

Finally, a bit of Opt-Out advice:

pitch 4

“Very unique situation that is not addressed in the settlement.”  See above and note that most of the most common symptoms are not compensable and the most frequent diagnosis, that of dementia, is the crux of the NFL’s claim war.  “It compensates those who are truly injured.”  Well, those with ALS and Parkinson’s have generally been compensated.  A solid Alzheimer’s diagnosis, according to the most recent claims report, seems to stand about a 56% chance of approval.  Levels 1.5 and 2 Neurocognitive impairment are faring much worse.  In an article for Deadspin, Dom Cosentino wrote:

[Of the 2,751 total settlement claims submitted for all diagnoses (death with CTE, ALS, Alzheimer’s, Parkinson’s, early and moderate dementia) by all claimants, a total of 1,187 (43 percent) have already been in audit, with 196 denied after audit (7 percent), 339 currently in audit (12.3 percent), and 643 (54.2 percent) placed back in the claims process for review. Brody has also appointed a special investigator to ferret out fraudulent claims.

Early and moderate dementia claims make up 61.3 percent of those 2,751 claims submitted, yet just 329 of them (19.5 percent) have been approved, and only 219 (12.9 percent) have been paid. A total of 361 early and moderate dementia claims—more than the approved total—have been issued a final denial.

That leaves 997 of the 1,684 dementia claims filed somewhere in a flux of a claims process that often seems never-ending.  The NFL would portray the situation as a virtual army of players, doctors, and lawyers intent on defrauding them, but the reality is that the shifty characters were weeded out early in the claims process and the party sued for its wreckless deception, the NFL, is out to deceive once again by  capitalizing on the small handful of people trying to game the system in order to gain the advantage and mitigate its losses.  From the league’s perspective there is ample reason for the ruse since in two-years, they are already on the hook for nearly the amount anticipated for the entire 65-year term of the settlement ($645 million in approved claims versus the projected $675 million in funding which with interest would have amounted to a little under $1 billion over the term).

Players were pitched hard to join the settlement and not object or appeal.  Objectors who saw the writing on the wall and tried to warn were often vilified. (I’ve redacted the names of the players as not to shame anyone.  I feel certain most, if not all have since changed their positions.)

Player 1

Player 2

Player 3

Player 4

Player 5

These are just a few of the attempts made to shame and pressure players to shut-up and stop objecting.  I have no doubt that at the time the remarks were made and distributed, the players were sincere because they drank and became intoxicated on the tainted the Kool-Aid that had been distributed.  Desperate people tend to latch on to whatever hope they’re offered, and in view of how players are treated now, it’s an act of extreme cruelty to have deceived and then snatched this hope from so many of them.

Player 6’s statement is the epitome of this.

Player 6

Sadly, he referenced psychological conditions which are not covered in the settlement but apparently was never made aware of this.  Often when it appears a player who would otherwise qualify for the settlement based on his neuropsychological testing or a neurologist’s evaluation, the NFL, often with the assistance of the AAP, who on information and belief have never examined a single player, attempt to discredit the diagnosis and blame his symptoms on mental illness.

After the settlement became final many of the players who did opt-out were wooed back in, by lawyers pressured to seal the deal, greatly decreasing their chances of compensation, as 36% of the players who opted out have now reached a settlement with the NFL, whereas only 29% of submitted settlement claims have been approved for a monetary award, a disproportionate amount to those with neuromuscular disorders or Death with CTE.

Former behemoths of the gridiron were now frail, frightened men who were in extremely sad condition and they begged others to have mercy.

Player 7

Tragically, I fear that the NFL may have fought Player 7’s claim because he drives a little.  “[T]he Judge who is battling for the retired players” is an especially hollow statement now.  Players believed in Judge Brody, and since the implementation process has been in place, seldom has she ruled for player interest over that of the NFL.

Some attorneys I’ve spoken with have questioned if Judge Brody really knows what she is doing to the players.  One attorney indicated to me that it’s an attorney’s job to try to “push the judge around” but his anger was directed more at Seeger than NFL counsel.  He said he believed that Seeger is content to allow the NFL to push the fraud narrative since his pay is not proportionate with how players are paid and is more dependent on the NFL.

The attorneys I spoke with who addressed that issue stressed that the bad apples and those trying to game the system were weeded out early on, but the NFL is still blowing that horn because it seems to be working, and the acts of avoiding the BAP or helping players with doctor appointments, defending a legitimate diagnosis, or writing forceful appeals are now alleged as fraud, even though these are things private attorneys are expected and obligated to do.  Ethics has been turned upside down to the point ethical behavior is under extreme scrutiny while the lead counsel’s ethical obligations to the class seem conflicted.  Seeger speaks of “integrity of the settlement” in much the same way Roger Goodell uses the “integrity” word to defend NFL misdeeds. Class members and attorneys have indicated to me that both Seeger and the Claims administrator have addressed some of their concerns by saying, “but we have to be fair to the NFL too.”

As I’ve said before, that’s not his job.

It’s people like Seeger and Avenatti that make our profession look horrible,” one lawyer said when I asked for his thoughts.

“Seeger’s only interest at this point is in stealing 1/4 of all attorneys’ fees from the payments that have already been made to players,” asserted another attorney.

“Seeger will never again have any credibility,” added a third.

A fourth declared:

I’m extremely frustrated and I’ve lost all faith in the settlement. It is completely rigged against the players. Worse, we have been stripped of all our rights. There’s nothing we can do. Every motion we file appears to be an exercise in futility. And she crafted the order so that it cannot be appealed.

“The attorneys involved in the NFL litigation are the best in the country,” said a fifth attorney.

Beyond a doubt, the Paul Weiss attorneys representing the NFL advocate the league’s interest quite aggressively and competently.  It’s Seeger’s responsibility to oppose them and Judge Brody’s role to determine what is fair, but it’s difficult for her to do this if the only people with access to her avoid players’ needs and concerns and paint private counsel as untrustworthy.

“The overall concern should be the best interests of the retired players and their families,” an attorney offered in rebuke. “Representing NFL players and their families is a frustrating endeavor,” he explained, pointing tothe progressive nature of the disease the NFL continuously and contentiously endeavors to evade.  “Most troubling is that the NFL fails to recognize is that the settlement is a binding contract.  Now the terms and conditions of the contract are being contested.”

The here and now

I won’t rehash all the obstacles players have faced to this point because they are far too numerous to squeeze into a single article.  I’ve written about the incessant hurdles for over two years and those articles can be found here.

Instead, I’ll focus on how Judge Brody’s orders have essentially rigged the settlement to function as an instrument of the NFL.

Her April 11 order mandated new rules for MAF physicians as instructed in her “generally consistent” ruling.  Her April 12 order denied the NFL’s appeal for mandatory AAP review of all claims, however, the April 11 order, for all practical purposes gave the NFL all they wanted, though their appeal was formally denied.  Attorneys have informed me that because of the manner in which this was done, it will be very difficult to appeal.

Judge Brody states in her denial of the NFL’s AAP appeal that the claims in question “would benefit from application of the revised Rules” and “will be remanded to the Claims Administrator for application of the revised Rules.”

Order

Whereas utilization and discretionary use of the NFL-friendly AAP previously was available exclusively to the Special Masters, Rule 23 of the revised Rules designates AAP consultation by the Claims Administrator.

Rule 23

The Claims Administrator has already been eager to audit and question claims.  The Claims Administrator’s early use of the AAP will most likely result in even more frequent denials.  Though the Special Masters have reversed some appeals, in most instances they have upheld the initial ruling.  To date, 115 payable approved claims have been appealed by the NFL, but only 7 of them have been reversed, with 108 players surviving the appeal.  Alternately, 193 players have appealed denied claims but only 6 have had the denial overturned.  In other words, the party seeking the appeal has a very small statistical chance of reversing the original decision (As an appellant, the NFL has prevailed 6% of the time and the players 3%); aggressive denials prompted by AAP consultation will most likely place even greater numbers of players in this undesirable position.

In evaluating Judge Brody’s order enacting the revised MAF Rules, I started with the actual settlement agreement and compiled all language and references to MAF physicians.  The settlement defines a MAF doctor as stated below.

MAF definition

It says that following the settlement effective date diagnoses shall be made only by BAP and MAF physicians, with MAF physicians the only designees who can submit a qualifying diagnosis for Alzheimer’s or Parkinson’s disease, or ALS.  The settlement agreement also defines the role of the AAP and how their role relates to MAF and other doctors.

Settlement role of AAP

Note, there is no requirement for AAP review of MAF Physicians, but numerous review requirements for non-MAF physicians, alluding to a certain degree of trust.  Co-Lead Counsel Seeger’s opposition response to the NFL’s appeal confirms as much.

Seeger arguments

Note, Seeger, agreed that mandatory AAP review is not within the scope of the settlement agreement, and his assertion that the NFL wants to make the AAP “a de facto medical review board,” and put as many obstacles as possible between players and a monetary award.  The highlighted text he cites is from the Special Master’s denial of the NFL’s appeal, clearly stating, “Such compulsory review would also burden the Settlement Class Member with an additional requirement for approval of claims beyond the requirements set forth in the Agreement.”

While I felt this rebuttal was among his best work, it appears to have been little more than a show. Seeger has abandoned his own words.  While Judge Brody’s second order basically gives Seeger an empty win at motion practice, her first order re-defining the scope of MAF Physicians, and doubling the rules placed upon them while at the same time assigning AAPs to the claims administrator puts additional burdens on the class that the Special Master cautioned against, establishes them as a de facto medical review board, and places a formidable obstacle between players and their awards that is not defined in the settlement agreement.

Seeger, however, doesn’t seem to have a problem with this.  Through a spokesperson, he released the following statement to Deadspin, effectively walking back every position he took in his own briefs.

Seeger's comments to Deadspin

In addition to the burden of being eternally under the auspices of the AAP other restrictive measures have been implemented, outside of any authority in the settlement players agreed to.

“The NFL desires to control all aspects of the brain damage settlement,” one attorney said.  “Restrictions, restriction, restrictions represent the NFL’s interest in recognizing the devastation of traumatic brain injury.”

Rule 9

This rule effectively eliminates any choice of doctors for players.  Previously a MAF Physician List was published and players were free to research the various doctors on the list and schedule appointments with the doctors they felt most comfortable visiting.  Some players I’m aware of chose a doctor that practiced near where their kids lived instead of a doctor in their area.  Others sought guidance from their lawyers or other players regarding their choice of doctors.  Imagine if your insurance company issued a book of network providers and then decided that they, rather than you would pick your doctor.

Retired players are acutely aware of the nightmares the “independent” disability doctors have imposed for decades.  On information and belief, one doctor who has been used by the Plan for a number of years and who has examined dozens of players has failed to find a single one disabled despite ample medical evidence to the contrary.  On appeal, numerous players won their disability benefits when a neutral judge reviewed the record and confirmed their medical records were sufficient to support a disability determination;  and Some players already had a Social Security disability award based on the same condition, they asserted with the NFL Plan.

If the NFL is so fortunate as to find a doctor like “Mr. No-Approvals” and he is the only physician within 150 miles of a player’s residence, he’s forever doomed.  Every other neurologist in the United States could issue a qualifying diagnosis and it wouldn’t matter because of this restriction.  The NFL owners should be erecting statues to Judge Brody and Chris Seeger in front of their tax-subsidized stadiums to celebrate their victory.

50-mile neuropsych rule

As if the 150-mile neurologist restriction wasn’t enough, Judge Brody has adopted a 50-mile rule for neuropsychological exams, meaning within 50 miles of the MAF neurologist.  Nothing like betrayal in tandem, I guess.  Some players who live in metropolitan areas may get lucky, but I fear that most will find their integrity questioned, their medical diagnoses invalidated or found “inconclusive” and their only means of compensation blocked by the only doctors they’re permitted to see.

It’s a brilliant plan.  Devious, diabolical, and sheer evil on the part of anyone who understands what this means for players who were guided like sheep to the slaughter toward the settlement, but brilliant, nonetheless on the part of the NFL, whom I along with numerous others are convinced this was their roadmap all along.

One attorney related:

A physician has an unlimited license to practice medicine.  The physical location of a physician, qualified by the NFL, to render relevant opinions is irrelevant.  Retired players are encouraged to see any physician they desire.  Ultimately, each retired player is entitled to the best medical opinion, despite geography and distance to the examiner. Players are entitled to the greatest probability of diagnosis.

While I feel the AAP and travel limitations are the most damaging aspects of the revised MAF Rules, they are far from the only detrimental changes expanding a 5-page rule book to 10.

Rule 12

Rule 12 appears to be a trap.  Previous rules indicated that the MAF would charge his normal fees, which of course is a reasonable safeguard to ensure players are not paying inflated costs because of the necessity of a MAF appointment, and it also protects the settlement against the rare doctor who may be inclined to deal more favorably with big spenders.  But while it’s reasonable for the claims administrator to know the cost of the exam, it’s unreasonable for him to know how the payment was made.

One attorney said:

There is a sense of paranoia on the part of the NFL.  Retired players are examined by Board Certified physicians that are bound by the Hippocratic Oath, “Do no wrong.”  It is wrong for the NFL to overturn the educated opinions of physicians that are of the highest caliber in the country.

From the Hippocratic to the hypocritical, another rule encoded into the revision dictates that a MAF doctor may not render a diagnosis based on the review of another physician’s records, but this is the sole purpose of the AAP, whom, collectively are believed to have never examined a single retired football player.

On information and belief, on average a 2-part MAF exam would cost about $8,000.  Also, on information and belief, it’s unlikely that Medicare or Medicaid would cover a MAF exam, and iffy regarding private insurance.  While for some former players $8,000 might not be a big deal, for others, it’s an impossibility and those who depend on Medicare and/or Medicaid will be the most severely impacted.  The retired player who’s sleeping on the floor of a cheap one-bedroom attic apartment because he can’t afford a bed or sofa, or the guy living in a camper (and I know players in both situations) will be in the least likely position to be able to pay for a MAF exam.  Settlement Funding advances have been prohibited and men in these situations typically have little if any credit available to them so that leaves a single possibility for them to obtain an exam—and that is if their attorney covers it.  While attorneys upfronting the costs of examinations was common-place early on, before attorneys learned their chances of recovering the expenditures were iffy, few attorneys that I’m aware of are currently assisting players with exam costs.  If an attorney should do so, I can’t help but wonder if his or her name on the receipt would trigger an audit or unfair suspicions of improper conduct?  While there is a provision for attorney payors, the tone of the stipulations above, leaves a feeling of uneasiness.

Here’s another troubling provision.

communications

While players vary in their preferences and in their abilities to comprehend because of neurological impairment and short-term memory loss, it stands to reason that this is an area in which a player might depend on his attorney.  I’ve done three-way calls with a few players and their lawyers because they couldn’t comprehend what their attorney was trying to communicate or were afraid, they’d forget.  I’ve also conversed with a player who seemed quite lucid on the phone but would put his wife on before we disconnected because he “probably wouldn’t remember the conversation the next day and wanted to make sure I told her anything important.”  For guys in situations such as these, this restriction is especially unfair.

Rule 15

Perhaps a Miranda reading should accompany this rule, because any semblance of occasional lucidity or functionality may be used against a player in the court of the claims administrator.

One attorney said:

This is the “get smart” moment where the NFL will pull out all stops to deny a deserving claim.  Now the NFL desires to change the settlement terms and conditions to limit paying rightful damages to deserving NFL players.

If not for promises of anonymity, I could share some stories about player employment and how they lost their jobs because of problems associated with dementia but their claims were denied nonetheless because they tried unsuccessfully to do a job.  One player that I’m aware of was even penalized for being scammed.  Another pattern I’ve observed is a reluctance to believe a player is impaired enough for compensation if he goes to church.

While not explicitly required in the settlement agreement, Rule 19 has been enforced for at least a year-and-a-half. Now it’s official.

Rule 19

In Judge Brody’s order regarding “generally consistent,” she said that she would ask the claims administrator to draft a requirement for the MAF doctor to explain why his diagnosis is “generally consistent.”  Here it is, in Rule 20.

Rule 20

Both Chris Seeger and Judge Brody portrayed this as procedural, rather than substantive.  The stipulation was accomplished in under one page, yet the Rules governing MAF physicians expanded by 5 pages of requirements that are not drawn from or based upon any provisions within the settlement agreement.  The previous MAF Rules were supposed to be and were represented as “the rules of the road.”  It’s pretty difficult to drive the speed limit if they continuously change the signs, however. It also seems to be a violation of due process to enforce rules or laws retroactively.  Then again, it’s supposed to be forbidden to unfavorably alter the provisions of a settlement agreement without notice to the class and an opportunity to opt-out.

public information

The surveillance retired NFL players have been subjected to, which has now been extended to doctors is beginning to resemble the Orwellian dystopia of 1984.

While constant monitoring of social media or any internet presence has been taking place relentlessly in regard to players, it now appears doctors are going to be an additional subject of internet stalking.

On information and belief, in addition to Google and social media checks, the claims administrator and/or the NFL regularly conduct Lexis Nexis background checks on players to see if any corporations are registered to them.  Arrest and conviction information, mortgages, bankruptcies, various financial, and relatives are also revealed so it appears likely that any private affairs of the doctor and his family will also be under scrutiny.

Chris Seeger took offense at my Trojan horse analogy as I applied it to Judge Brody’s order.  If this doesn’t resemble an onslaught by the Greek army then I’d be hard pressed to find something that does, but the Trojan Horse analogy as applied to the settlement didn’t originate with me, but rather a non-party attorney, Tim O’Brien, interviewed by Law360 who was merely observing what is taking place.  He likened the AAP to a Trojan horse.  He was correct.

Another attorney told me, “The AAP is formed and for the benefit of the NFL and against the retired NFL player.”  The NFL has all but admitted training the AAP to their liking and now Judge Brody’s order dictates that they may now train the MAF physicians.

Rule 25

The NFL was looking for a field goal when they sought AAP review of all appeals. Instead, Chris Seeger abandoned the playbook and allowed them to score a touchdown followed by a 2-pointer through integration with the claims administrator and authority to reprogram board-certified neurologists to the NFL way, and convince them to avoid their oaths of “do no harm.”

I’ll wind up with the remarks of one attorney I spoke with.

“When a retired player shows impairment, they should be compensated.  Retired NFL players never consented, nor were aware, that multiple concussions start a lifelong disease process that only gets worse with time.  The families and players are horribly affected.  One client’s kids said that my Dad looks the same, but his actions are of someone I do not know.”

If football fails to survive, it will not be because of brain injury but because of the NFL’s, treachery, deceit and lack of compassion for former players.  Current and future players are watching.  It’s up to you, NFL.  Quick ill-gotten cash or longevity? The choice is yours.


Note: I spoke to numerous attorneys conditioned on anonymity because retaliation is a very real threat in the settlement, and while they would like the public to understand what is taking place, they choose not to place their player-clients at greater risk than they already inherently face due to the inequities in the settlement.

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