May 23, 2018
Who’s defrauding whom? The NFL has decried massive fraud in the much-heralded uncapped settlement purposed to compensate retired NFL players for brain injuries but far from living up to its promise, HBO reports in a May 22 segment, “only ten percent of players who’ve filed claims for payment have received any money. That includes only one percent of all claims for dementia. One percent.”
The settlement, estimated at $1 billion states that claims for players living with Alzheimer’s disease, Parkinson’s, ALS, and dementia are compensable, but as the settlement moves into the second year of claims processing, the vast majority of paid claims have been for ALS and Death with CTE, leaving many retirees with other longstanding diagnoses out in the cold.
One of those players is Scot Brantley, an 8-year NFL veteran, who was first diagnosed with dementia in 2012 and later with Alzheimer’s disease. Jon Frankel interviewed Scot Brantley and his wife, Mary about their experiences:
JON FRANKEL: “Scot, how old are you today?”
SCOT BRANTLEY: “I am 50 years old. Fifty, turned 50 the 24th of February. And– is that right?”
MARY BRANTLEY: “No. He’s 60.”
SCOT BRANTLEY: “Oh I’m sorry, 60.”
JON FRANKEL: “Mary, how often do you see that happen?”
MARY BRANTLEY: “It’s all the time.”
As HBO reported, though Brantley was diagnosed by numerous doctors and receives Social Security Disability because the federal government acknowledges the legitimacy of his condition the NFL does not. Among the reasons excuses given by the NFL is that Brantley purportedly has a job.
JON FRANKEL: “In the denial it said, you have a quote, ‘cognitively demanding job working three hours a day.’ That was one of the reasons given. Scot, do you have a job at all?”
SCOT BRANTLEY: “No.”
JON FRANKEL: “When’s the last time you had a job?”
SCOT BRANTLEY: “Can’t remember.”
Mrs. Brantley clarifies that his “job” consisted of appearing with a friend who was a local radio host several years back – an act of friendship to try and keep Brantley somewhat active and get him out of the house.
JON FRANKEL: “So based on the fact that you made appearances on a local radio show due to the kindness of the host, the administrators of the settlement denied you, claiming that you had a job?”
MARY BRANTLEY: “That is correct.”
JON FRANKEL: “The N.F.L. says that, ‘No legitimate claim has been rejected.’”
MARY BRANTLEY: “If they were sitting in front of me, I’d say, ‘You’re a liar, because this is a legitimate claim.’ And I’m sure there are many other people who have been denied.”
Brantley is far from alone. HBO also interviewed Ken Callicutt, who like Brantley was an NFL linebacker who is now suffering from Alzheimer’s.
JON FRANKEL: “There is an expression that you hear among former NFL players, which is–”
KEN CALLICUTT: “Deny, deny, until you die.”
JON FRANKEL: “And you think that’s what’s happening here?”
KEN CALLICUTT: “I think that’s exactly what’s happening here.”
JON FRANKEL: “How’d you know your brain wasn’t working as well?”
KEN CALLICUTT: “Getting lost when you’re a block and a half from your home.”
JON FRANKEL: “You last worked when?”
KEN CALLICUTT: “I don’t know.”
JON FRANKEL: “You can’t remember? Does that frustrate you?”
KEN CALLICUTT: “Yeah.”
JON FRANKEL: “Does that happen often?”
KEN CALLICUTT: “More than it should. I talk to people that I’ve played with and they’ll bring up things that we did, and I’ll laugh and act like I remember.”
Though he requires a full-time caregiver, the NFL isn’t convinced. They state the reason for Callicutt’s impairment is the medications he takes – medications that were prescribed for him for the physical injuries he sustained while playing football.
One of the express provisions of the settlement was that football causation did not have to be demonstrated in order to qualify for an award. In the November 19, 2014 Fairness Hearing just prior to settlement approval NFL attorney Brad Karp testified:
Who is defrauding whom?
Other players who have experienced CTE related symptoms and filed claims in the settlement have been denied because CTE – the primary condition that precipitated the lawsuits that were consolidated into the settlement was not included.
One of the players caught in this trap is former Patriots standout Ronnie Lippett
JON FRANKEL: “Do you have depression?”
RONNIE LIPPETT: “Yes.”
JON FRANKEL: “Do you have anger control issues?”
RONNIE LIPPETT: “Yes.”
JON FRANKEL: “You have trouble sleeping?”
RONNIE LIPPETT: “Yes.”
JON FRANKEL: “Have you ever tried to kill yourself?”
RONNIE LIPPETT: “Twice. But my oldest daughter helped me at the time. She explained that she needed me. She needed me.”
JON FRANKEL: “In December of 2017 the claims administrator sent you a letter denying your claim.”
RONNIE LIPPETT: “Unfortunately, yes.”
JON FRANKEL: “Does that make any sense to you?”
RONNIE LIPPETT: “No. I didn’t wanna talk to anybody. My wife, she kept close watch on me to make sure, you know, I was okay.”
Dr. Wayne Gordon of Mt. Sinai Hospital in New York, and one of the nation’s top neuropsychologists was one of the doctors who examined and diagnosed Lippett.
DR. GORDON: “I think they’re basically looking for ways not to pay out…They could be agitated, they could be emotionally dysregulated, they could be blowing up at family members for no apparent reason, they could be severely depressed.”
JON FRANKEL: “So all of these key issues are not on the table?”
DR. GORDON: “That’s correct.”
JON FRANKEL: “How do you explain that?”
DR. GORDON: “Well, if you’re trying to maximize basically your ability to hold onto your pot of gold, this is the way to do it.”
Another settlement flaw pointed out by Jon Frankel and HBO is that only a very small window of Death with CTE claims will be recognized in the settlement. Outside that window is the family of Iron Mike Webster, the first player to be diagnosed with CTE. Despite five doctors concurring that Webster was too cognitively impaired to work and earn a living, the NFL denied him disability until he died at age 50 in 2002, at which time Dr. Bennet Omalu discovered the tau proteins that entangled his brain.
The NFL refused to compensate him prior to his death and now they refuse to compensate his family. Webster’s widow, Pam, now lives out of suitcases, traveling from the home of one friend to the next while their son delivers pizza in order to make ends meet.
PAM WEBSTER: “I haven’t had a home for seven years. This family has been so broken by what’s happened to Mike.”
JON FRANKEL: “When you say you haven’t had a home for seven years, what are you doing?”
PAM WEBSTER: “I’m kind of like a gypsy. I go from couch to couch.”
JON FRANKEL: “If Dr. Omalu doesn’t study your dad’s brain, is there an NFL lawsuit? Is there an NFL settlement?”
GARRETT WEBSTER: “No.”
PAM WEBSTER: “Not without Mike Webster.”
Frankel questioned Chis Seeger as to why the Webster’s would not be compensated:
JON FRANKEL: “Given that we’re not sitting here without his case, most likely–”
CHRIS SEEGER: “There’s no doubt.”
JON FRANKEL: “–that if we go back to what the NFL said and you, as a partner in the settlement, said that the NFL actually wants to do the right thing by retired players, doing the right thing is paying Mike Webster.”
CHRIS SEEGER: “You are 100% right. I wish there was an NFL representative right now answering that question, because that’s a question that I would pose to the NFL.”
JON FRANKEL: “But you had the chance to pose that to the NFL when you constructed this settlement, didn’t you?”
CHRIS SEEGER: “Of course. And it was attempted.”
Though Seeger says, “it was attempted,” since the lawsuit would not even exist with out Mike Webster, it seems clear that his unsuccessful attempts were weak at best. On the other hand, Seeger was very successful in securing $112.5 million from the NFL in fees for Class Counsel, of which Seeger is slated to receive approximately $70.4 million. Frankel inquires of Seeger as to why he should be reaping the windfall when so many players have been left out in the cold. Seeger’s response: “If you’re asking me is the fact that some people are not happy with the settlement if that’s the basis for me not getting paid, that would be a pretty high bar that I don’t think many lawyers could clear. I think, generally, that we’ve done a very good job, merely based on the fact that we have forced the NFL to pay a lot more than anybody thought they would.”
Though Seeger claims that the NFL has exaggerated claims of fraud, he supported their motion to appoint a special fraud investigator which other attorneys have pointed out will only serve to further impede and delay claims. In fact, since the settlement implementation commenced and claims processing began, Seeger has not opposed a single motion filed by the NFL, nor has he supported any motion filed by other attorneys who sought to interpret the settlement as written and presented to the players.
In the Fairness Hearing prior to settlement approval Seeger stated: