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Attorneys Defend Players Against Bait & Switch NFL Concussion Settlement

sign pointing to Judge Brody's courtroom

May 9, 2019
Sheilla Dingus

Attorney Gene Locks passionately argued on behalf of retired NFL Players in an April 7, hearing, on Concussion Settlement changes.

“This is very personal to me,” said Gene Locks as he made his opening statement at an April 7 hearing of his motion for reconsideration of some newly adopted measures that will be extremely detrimental to retired NFL players with dementia, as they submit claims in the concussion settlement. Locks explained that he once played football and sometimes thinks, “what if.”

The measure that was most elaborated on was a new rule that will limit players to seeing MAF doctors within 150 miles of their primary residence, but Locks said that he was part of the negotiations team and that freedom of choice when it comes to doctors was always the bargain.  He said the NFL wanted to limit doctor choice from the start but plaintiffs’ counsel rejected their attempt and fought to ensure that players have a choice in the doctors they see.

He also asserted that players would have outright rejected the settlement had they not been offered this choice.  “They had bad experiences with the NFL benefit program, both during their playing time and after their playing time, when they felt they were used and abused and were not going to the doctors they wanted to,” Locks said. He explained that players have dealt with the NFL’s disability doctors for years—doctors who seek to deny them despite ample evidence and medical records supporting disability because the NFL is simply hell-bent on not playing former players’ claims unless absolutely forced to do so.  With the disability plan, players may appeal denials in federal court but are not afforded the same opportunity under the terms of the settlement.

The proposed doctor limitations are presented as a fraud prevention measure, but Locks countered that there are numerous fraud prevention measures in place that are working to ferret out fraud and that “former players should not be punished for the violations of a few.”

Judge Brody, however, seems to be convinced otherwise and indicated that she thought the mileage limitations might be necessary.  It seems sadly ironic that with the help of a claims administrator and co-lead counsel who often seems more inclined toward “fairness” for the NFL than for the plaintiffs he was appointed to represent, that a lawsuit based in fraudulent misrepresentation of brain injuries by the NFL has been working overtime to flip the narrative and portray the brain injured players as fraudulent.

Claims Administrator Orran Brown, however, continued to push his position that players must be reined in and made to see doctors close to them, which for many players will mean no choice whatsoever in whom they opt to see.  Brown gave examples of players traveling distances upward of 1,000 miles to be examined by a chosen neurologist, but as I explained in my previous article,  and Locks explained in the motion, there are numerous valid reasons why players may tend to travel to certain doctors, including recommendations from other players whom they trust.

While Brown said players could request an exception, it’s unlikely that he would find a player recommendation as an acceptable reason for seeing a certain physician and would likely frame the request as an attempt to commit fraud.  “The real goal here is to control the forum-shopping for doctors that are perceived, rightly or wrongly, as providing the golden ticket,” he said.

Gene Locks pointed out, however, that only a small handful of maybe around 5 doctors of the 122 physicians currently serving have the required expertise to properly evaluate football-related dementia.  In fact—it seems that the NFL has aggressively rejected numerous doctors who do have experience in treating and evaluating retired NFL players.  Unfortunately, Judge Brody expressed concern that lawyers were manipulating the doctors, which Brown supported.

Brown pointed to a high number of diagnoses from four doctors who were terminated from the MAF program because of “irregularities” in their diagnoses, pointing to $46 million in claims paid to players examined by the doctors before they were “caught.”  Brown says that if the travel limitation had been in place they would have “caught” them sooner.

The NFL speaks with forked tongue when it objects to travel and forum shopping because players who apply for NFL disability are frequently sent to doctors far from their homes.  As an example of this, the NFL scheduled 1,800 miles of travel for Darryl Ashmore, who, because of orthopedic limitations was unable to fly, or drive, and unable to endure long distances when riding in an automobile.  After receiving a doctor’s letter informing them Ashmore was unable to endure that kind of travel and requesting a Florida physician, the Plan scheduled him for exams in Atlanta, a 9 ½ hour ride from his home in South Florida and then denied his claim because he was unable to make the trip.

Though he filed a tepid partial joinder, objecting only to the term “must” regarding the physician restriction, Chris Seeger did not attend the hearing but David Buchannan, of Seeger Weiss, did, and stated, “If somebody wants to travel to Colombia to see a world-renowned physician, knowing that may be the best place for care, that should be their right,” reiterating that physician choice was part of the bargain reached in the settlement.

David Langfitt of Locks Law also argued on behalf of the players, emphasizing that the changes Judge Brody approved materially change the bargained for settlement in violation of FRCP Rule 23 that governs class action settlements.

He also admonished the judge for blocking attorneys who actually represent players from the discussion. Had they not been shut out, Langfitt said he was “sure they could have developed rules that everyone could live with.”  In another irony, just as he voiced his concerns about players’ attorneys having their voices muffled, the judge abruptly cut him off mid-sentence informing him his time was up.

Orran Brown showed a PowerPoint presentation reflecting a lot of numbers, stating that 91% of the class lives within 150 miles of one of the participating MAF neurologists, but the operative word is “one” leaving players with no choice.  On information and belief, the NFL Disability Plan has retained the services of at least one doctor who has never found anyone he examined to be disabled.  Should they be successful in finding another doctor who will deny everyone he examines, all players within his geographic area will be prevented from getting a fair examination, and this was the scenario that the negotiators of the settlement sought to avoid.

As Brown concluded his arguments, Gene Locks sprang to his feet with a fiery response, “I was part of negotiations with the NFL,” he said, and he reiterated Langfitt’s concern that attorneys who actually represent players need an opportunity for input.  He also reminded the court that players are paying $6,000 to $8,000 for their exams and should be able to choose where they spend their money.

Judge Brody interrupted him and said, “You may not like it,” regarding the limitations she approved and inferred that the lawyers representing players were operating in an underhanded way.

“I take exception to that,” Locks responded.

I find it shameful that when an attorney exercises his ethical responsibility to advocate on behalf of his clients he is seen as shady, whereas when the NFL’s attorneys advocate on behalf of the league they are viewed as legitimate and honorable.  This seems like a perversion of justice at the highest level.

During the discussion, some of the other newly imposed MAF rules were lightly discussed, including the claims administrator’s use of the NFL-friendly AAP, which I find almost as unsettling as stripping players of choice.

Once, when a contract was written and signed, it was to be interpreted in accordance with its clear language, but it seems law and rules are out the window and the entire purpose of the settlement now appears to be protection of the NFL to the detriment of the suffering men who built it.

When the hearing was dismissed, Judge Brody called “one member of class counsel” and NFL counsel (without limitation) to her chambers.  Brad Karp and Bruce Birenboim headed back to chambers, without having spoken during the official proceedings. They didn’t need to with Orran Brown fully pushing for the changes they wanted, and a judge who already seemed sold on them. Mr. Locks represented the players in chambers.  One of the reporters present said, “I don’t see the purpose of open court if they’re just going to head to chambers and argue without anyone else having access.”

After the hearing, I approached Orran Brown with some questions and point blank asked him about this statement from the NFL’s appeal.

NFL appeal

I asked him if he agreed with the statement and he said that they administered the settlement in accordance with the diagnostic criteria provided in the settlement. I tried to zero in on what that might be by asking him to describe the condition of a player with Level 1.5 neurocognitive impairment.  He produced a large book and showed me Exhibit 1 from the settlement agreement and the testing it described.  “We follow the book,” he said.  I asked if he could express it in layman’s terms that a non-medical professional or a player might better comprehend, and he pointed to the CDR scale, and specifically Level 1 on the scale which is used to evaluate players’ levels of impairment for Level 1.5 neurocognitive impairment.

Though Brown did not specifically say so, the NFL, and by extension, the claims administrator have focused heavily on the three bottom areas, demonstrating functional impairment.

CDR Scale

I asked about players who have qualified for the NFL’s 88 Plan, or NFL and/or Social Security disability on neurocognitive impairment and why many of them have been denied.  He said that those evaluations are based on a different standard.

When settlement acceptance was sought, Seeger and others named the qualifying conditions under settlement terms and told players if they have a diagnosis for one of the conditions they would be compensated.  I can’t recall anyone ever explaining the settlement definition of dementia except for some of the objectors, who were silenced and accused of spreading misinformation.  Most people associate the word “dementia” which levels 1.5 and 2 neurocognitive impairment were said to represent, as memory loss, inability to retain new information and difficulty in concentration.

I’ve never felt functional impairment was accurately represented to players and asked Brown if he felt that it was when players were encouraged to join the settlement.  “I hope so,” he said.  He referenced the notices to the class as well as the settlement agreement itself.

Here’s what was included in the summary notice:

summary notice

And this is what the long-form notice said:

long-form notice

I mentioned the settlement agreement is a difficult read, especially for players with cognitive impairment and said that I don’t feel the levels of dementia (which were defined outside standard medical practice as Levels 1.5 and 2 solely for the settlement) were explained and that most players would probably view .5 on the CDR scale as “dementia,” especially since the words “early” and “mild” were often interchanged.

“We’re doing the best we can,” Brown replied.

I will give Orran Brown credit for speaking with me, especially since some of my graphics haven’t been too flattering, nor the words I’ve written.  Unfortunately, I gave him an opportunity to get on the record and clarify once and for all what he considers to be a qualifying diagnosis, in simple layman’s terms, but he referred to the agreement, and the class notices, the former of which is far to complex for most non-attorneys or non-medical professionals to understand, and the notices which were over-simplified.

The settlement has turned into a bait and switch scheme that would be illegal in any other setting, although ending the practice is sometimes a game of “whack a mole.”

carpet cleaning bait and switch

In this instance, the $4.95 per room turned out to be 75 cents per square foot, so unless your room only has 6.6 square feet, it’s not getting cleaned for that price. Tack on a $10.00 travel fee, and all the upsells and what was presented as $9.90 for 2 rooms easily turns into $200.00.

Unfortunately, the stakes in the settlement are much higher. Instead of dirty carpets, we’re talking players’ brains and people’s lives.  Judge Brody seems poised to deny the motion for reconsideration, and the question at hand seems to be “when?”  Judge Brody appears deluded as to what she has allowed herself to believe, consistently surrounding herself with those who do not have the best interest of the players at heart and distancing all who do.

Perhaps Locks found a way to reach her, but I have my doubts that anything he might say would influence her since her mind seems to be made up.  Now aside from when Judge Brody decides to act, the remaining question is how or if the plaintiffs’ attorneys challenge.  I asked Mr. Langfitt for a clue, but he said it was “premature.”

Update 5/12/2019:

As an afterthought, after reading about the targeting of a journalist in an unrelated action, I decided to share my little side-adventure in a tweet thread. Click on the tweet to expand the thread.

Also…click here for Locks post-hearing response.

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Editor at Advocacy for Fairness in Sports | Website

Sheilla Dingus founded Advocacy for Fairness in Sports in October 2016, after a stint with Defenders of the Wall, a New England Patriots based blog where she dived deep into the legal aspects of Deflategate. Along the way, she observed many inequities in sports and felt a need to address some of the under-reported stories in sports law. She draws from her background as a former professional dancer, who like many of the athletes she writes about, took an early retirement due to orthopedic injuries. After a return trip to college she worked for a legal software company, with seven years as a Project Manager and Analyst. She brings her analytical skills to the table in breaking down complex lawsuits, and enjoys pursuing her longtime interest in journalism.

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