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Will the NFL’s latest appeal blow up the Concussion Settlement?

hydrogen bomb
November 8, 2018
Sheilla Dingus

EXCLUSIVE: Last week, while requesting a stay on payment of claims, the NFL stated intent to appeal the NFL Concussion Settlement’s Special Masters ruling on “generally consistent.”  The off docket appeal, obtained by Advocacy for Fairness in Sports was filed on November 7, escalating a volatile disagreement as to how non BAP claims and claims appeals should be handled.  Judge Brody’s ruling will determine if the settlement will achieve its goal of compensating former players who’ve suffered brain impairment, or if it will instead, “fail its execution,” as Class Counsel Attorney Gene Locks phrased it in motion filed in March.

At the time the Locks motion was filed very few dementia settlement claims had been approved.  Attorney Patrick Tighe was the first to bring this to the court’s attention in a motion filed in August 2017.  Though his motion was joined by numerous independent counsel, it was denied by Judge Brody, as was the later motion to reconsider.  On March 19, Co-Lead Counsel Sol Weiss filed a motion to intervene stating, “ten months after Registration opened, over 1400 Retired NFL players had submitted claim packages. However only 140 players had received compensation for the harm they suffered.” This was closely followed by the aforementioned Locks motion asking for an administrative role in settlement implementation.  This motion was joined by numerous law firms including Co-Lead Counsel Weiss and Plaintiffs Executive and Steering Committee members, seeking to have claims processed fairly and in a reasonable time, yet this motion was also denied.  Curiously, after these motions were filed, more claims, including dementia claims of which approvals were for all practical purposes non-existent previously started finding their way to approval.

As the battle to have claims fairly adjudicated heated up, the NFL revved up its rhetoric.  They vigorously opposed the Locks motion alongside Co-Lead Class Counsel Chris Seeger, and then decried massive fraud in the settlement, filing a motion asking the court to appoint a special fraud investigator. This motion was granted by the Court on September 18.

Despite defining extremely vigorous criteria for claim approval, to the NFL’s dismay, even some claims through the settlement-designed MAF and BAP programs found their way to approval.  Try as they may, they haven’t been able to prove massive fraud either.  They’ve singled out some doctors that (gasp) refused to bow to them and presented diagnoses as their own medical experience dictates.  The NFL managed to get some of them kicked out of the program, but still there’s little if anything to support allegations of intentional fraud.

So, what’s a bewildered multi-billion-dollar league supposed to do when all these sick former players are being approved for remuneration? It seems they’ve decided to mount an all-out frontal assault launching their proverbial grenades, tanks, missiles and bombs in order to finally decimate the claims of those pesky brain-damaged ex-players who refuse to die and just keep asking for compensation.  Their appeal strategies are detailed below.

Strategy 1 – Create Doubt

As in their appeal of the decision regarding mandatory use of the AAP, and accusations of abuse of discretion, the NFL seeks to create doubt regarding the court-appointed Special Masters.

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Wow! The casual reader might say, and tend to agree with the league.  There’s just one minor point they omitted as they pushed this agenda in multiple sections throughout their entire 24-page brief.  The scenario they are describing has never happened!  I contacted some attorneys including the ones whose clients are specifically targeted in the NFL’s appeal and they have stated that they do not have a single player who has been examined though both the BAP and MAF programs and on information and belief find no indication this has occurred with any player.

The NFL presents straw-man hypotheticals as fact to indicate that players who have been examined through the MAF either have or would have received a different diagnosis through the free (as the NFL emphasizes no less than nine times) BAP.

The NFL quickly admits that some physicians are enrolled as both BAP and MAF providers, and asserts without any supporting evidence that the players bought their diagnosis by opting to be examined through the MAF.  In reality, most players who’ve opted for a MAF exam likely were unaware that the doctor they saw was also a BAP provider.  The terms of the MAF agreement dictate that a MAF physician charge only their standard market rates, and as such most exams were covered by the player’s insurance.

It’s true that players who have insurance are more likely to choose the MAF program over the BAP for several reasons. First, there are more MAF than BAP providers available, which sometimes results in a shorter wait for the exam.  Even when the physician serves in dual roles, it’s quicker and easier to receive testing results when dealing directly with the provider than for all practical purposes becoming a third-party after a BAP exam is completed.  I’ve heard numerous reports of players waiting a year for the results of a BAP exam.  This is because BAP exams are scheduled through the claims administrator and not directly between doctor and patient, and when the results are available, BAP results go to the claims administrator first and are then eventually forwarded to the player and his family.

The NFL alleges that it’s easier to get a diagnosis in the MAF because “generally consistent” diagnostics are accepted.  This may also be a reason that some players choose to forgo the BAP, but since the MAF physician is working from the same handbook as a BAP doctor, the deviation is minimal at best.  Retired NFL players have learned to be skeptical of the NFL’s chosen doctors through the disability plan’s “neutral” physicians.  Just as with a disability claim, the player has no choice in the doctor he sees if he goes through the BAP.  With the MAF, a full physician list is provided on the settlement website, in which the player or his family can research the doctor’s background and make an informed choice.

MAF

It appears the NFL seeks to strip players of any manner of choice in addition to stripping many of their dignity as they attack the claims and endeavor to prove them fraudulent.

Strategy 2 – Force the Court to Impose Their Desired Standard of Evaluation

The NFL does not deny the players who seek compensation are impaired, but rather bluntly states that not all players suffering from dementia (neurocognitive impairment) qualify for an award.

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Contrast this with the discussion which took place during the fairness hearing prior to final settlement approval:

Fairness Hearing

Mr. Karp is the lead attorney representing the NFL.  His assertions in the appeal directly contradict his statement at the fairness hearing.  It appears that he is intentionally trying to mislead the Court, the players, and the public. Both statements cannot be true.

The NFL attempts to temper the harm they seek to inflict on impaired players by stating that if they don’t qualify now, they can resubmit a claim later on when their condition worsens.  What they don’t make clear to the court is they have no intention of paying claims until a player is in desperate condition and basically unable to communicate a cognizant thought, dress himself, or control his bodily functions.  This often occurs in late-stage dementia and sometimes not at all even in Alzheimer’s disease.  What the strategy does, if the court buys it, will prevent payment to men who could be helped now, and with the funds made available for proper treatment, prolong their diminishing cognitive function for a longer period.  It will also save the NFL millions of dollars since compensation decreases with age, and since Death with CTE is not compensable for players who will die in the future, if they do not receive a diagnosis satisfactory to the NFL while alive, neither they nor their families will ever be compensated.

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Since implementation began, the NFL has forcefully insisted that claimants submit raw T-scores which are not required under the “generally consistent” terms of the settlement agreement for pre-effective date diagnoses and some post-effective date diagnoses done through the MAF program.  This was the subject of Mr. Tighe’s motion filed well over a year ago – a motion that was supported by numerous players’ counsel, but for whatever reason, not by Co-Lead Class Counsel Chris Seeger.  It wasn’t until the Locks motion that other lawyers with an official role in the settlement structure began to speak out, and at this juncture, it seemed it was every other lawyer involved in the settlement aside from Mr. Seeger and Mr. Karp.  Later in the brief the NFL asserts, “Co-Lead Class Counsel, however, have now changed their tune in argument to the Special Masters.”    In not supporting the motions of Tighe, Locks, and others, Seeger may have committed a fatal error.  I sincerely hope I’m wrong.

Strategy 3 – Discredit Special Masters

“The Special Master’s interpretation of the “generally consistent” standard upends the bargained-for and judicially-approved neuropsychological testing regime,” writes Brad Karp for the NFL.  His brief again re-emphasizes the unfounded allegations of players receiving one diagnosis in the BAP and a different one in the MAF. While it’s a redundant argument, marketers will readily admit that repetition sells, and this is apparently the technique Karp is attempting to capitalize on.

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Perhaps the Special Masters refused to discuss or mention a purely speculative issue which in fact has no supporting evidence aside from the words of an attorney who’s probably been instructed to keep saying it until someone buys it.  At best the arguments are mere speculation that a physician would have evaluated a player differently had he gone through the BAP rather than the MAF, since players thus far have either participated in one or the other but not both.  A large portion of the brief is spent in disagreement with Special Masters as to if their determinations were based on “factual determinations” which are not subject to appeal or “points of law,” which are.

The NFL then reinforced their argument of Special Masters opting not to consult the AAP as “an abuse of discretion,” in order to discredit their final and binding factual determinations.

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Throughout the brief, the NFL relentlessly advances this argument, despite upon information and belief this scenario has never occurred!  It’s also worth mentioning that in prior filings the NFL has cited objections of Special Masters reliance on the MAF and BAP diagnoses without further consultation with the AAP because they have not been able to vet and train the other doctors as they have the AAP.

Strategy 4 – Dispute the Settlement FAQs

Following the long and contentious debate on the definition of “generally consistent,” the court adopted an interpretation and included it in the settlement FAQs posted on the settlement website as instruction for both attorneys and self-represented players.

FAQ 95

The NFL argues that settlement FAQs are not binding, despite their representation as the “rules of the road” for the settlement.

NFL FAQ arguments

The NFL fails to acknowledge that the FAQs were presented for debate and adopted by the court as a means of instructing class members and their attorneys in navigating the complex agreement.  While the NFL emphasizes, they objected to this particular FAQ and submits exhibits demonstrating their objections, it was adopted by the court and published as a factual representation of the settlement. The NFL’s displeasure with the court’s accepted and published FAQ doesn’t nullify its correctness or applicability.

Should the court reverse itself on the interpretation of “generally consistent” after publishing the FAQ as fact, then class members could credibly claim they have been subjected to fraudulent misrepresentation—especially since the court adopted interpretation comports with the way both Mr. Seeger and Mr. Karp presented the agreement when opting out of the settlement was still possible.

Strategy 5 – Fundamental Unfairness

Those who’ve followed NFL litigation for any length of time will see the irony here.  In many lawsuits, especially those in which a different contract is at issue, namely the CBA between the league and the players’ union, the NFL has repetitively attacked “fundamental fairness.”  In fact, they were so successful in convincing the Second Circuit Court of Appeals in the Tom Brady “Deflategate” case, the panel wrote in their opinion, “We see no impropriety and certainly no fundamental unfairness because the resolution of this matter fell well within the broad discretion afforded arbitrators.”

In the Ezekiel Elliott case in the Southern District of New York, Judge Failla wrote in her opinion, “The arbitrator gave Mr. Elliott ample opportunity, in terms of both proceedings and evidence, to challenge the Commissioner’s decision before the arbitrator; the arbitrator’s ultimate decision against Mr. Elliott does not render these proceedings any less fair.”

Likewise, the Eighth Circuit Panel opined in the Adrian Peterson appeal, “The Players Association does not identify any structural unfairness in the Article 46 arbitration process for which it bargained. The Association’s fundamental fairness argument is little more than a recapitulation of its retroactivity argument against the merits of the arbitrator’s decision.”

I could add many more examples of lawsuits in which the NFL argued that “fundamental fairness” was irrelevant.  While these cases were labor disputes in which a CBA is given much deference and the cases centered around overturning an arbitration, and arbiters are typically given a great deal of deference, as well, there are relevant similarities. The Settlement Agreement, like a CBA (which includes Article 46) is a contract.  In class action and multidistrict litigation, the court-appointed Special Masters are typically afforded a great deal of deference in a similar manner as an arbitrator.  While labor law has its unique constraints, these similarities cannot be ignored.

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“We are therefore not authorized to review the arbitrator’s decision on the merits despite allegations that the decision rests on factual errors or misinterprets the parties’ agreement but inquire only as to whether the arbitrator acted within the scope of his authority,” wrote the Second Circuit panel in Brady.  As agents of the court, clearly Special Masters acted within their authority, and as the arbitrators in the labor cases made a factual determination so did the Special Masters as provided for in the Settlement Agreement.

The multi-billion-dollar league now seeks portray itself as a victim of the Special Masters’ “fundamentally unfair” decision, rather than the men who now suffer immensely after generating its fortune. Can there exist any stronger or more despicable irony than this?

Conclusion

The stakes of Judge Brody’s decision could not be higher.  The rulings of Special Masters will be put aside for a de novo, or from the beginning review.  Hopefully the attorneys representing the players will present strong arguments and thoroughly expose the inherent flaws in the NFL’s well-written, marketing-savvy, yet highly speculative and unconscionable appeal.

 

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