February 24, 2020
Courtroom or Leopard Lounge? When you consider the NFL and its highly paid Paul Weiss lawyers are the symbolic leopards in this picture it’s really hard to tell the difference. There’s an adage among lawyers that says, “If the facts are on your side, argue the facts. If the law is on your side argue the law. If neither the facts nor the law is on your side, yell the loudest.” Brad Karp and Bruce Birenboim of Paul Weiss have refined the latter to an art in their representation of the NFL, along with developing mastery in deflecting away from the real issues their opponents raise while echoing a one-sided refrain that repeats over and over until the officers of the court are sufficiently programmed to sing along.
Perhaps nothing illustrates this better than their latest briefing in the Amon Gordon appeal. For those who haven’t been following Gordon’s unprecedented challenges of the denial of his claim, here’s a recap of the facts you need to know.
Amon Gordon is a Stanford graduate who entered the NFL with an IQ in the superior range-just below what’s considered the genius level. His nine-year NFL career as a defensive lineman was spread among eleven teams mostly at league minimums. The injury toll for players like Gordon is just as great if not greater than for the star players whose salaries are often the fodder of sports media and the envy of fans. For Gordon, when the injuries finally mounted to a level that forced him in into retirement, the trauma to his brain has haunted him above all others—brain trauma that resulted in a dementia diagnosis at only 33 years of age.
Gordon has been under the long-time care of renowned board-certified neurologist Michael Lobatz in Encinitas, California for several years, including prior to the time the NFL Concussion Settlement became final. When the settlement was finalized, he submitted his numerous medical records including images showing brain-bleed and evidence of his concussions that he sustained as an NFL player. Neuropsychological examinations and testing supported Dr. Lobatz’s diagnosis.
Amon Gordon’s pre-effective date claim was one of the early dementia claims approved by the claims administrator, but the NFL objected and wanted the claim audited. An audit took place and no evidence of deception or inaccuracy was found so approval of his claim was affirmed. The NFL appealed and the Special Master upheld the favorable claim determination but again, the NFL objected and insisted on review by an AAP member. The AAP, which has been vetted carefully by the NFL and has been very league-friendly in many of their decisions said that Gordon didn’t meet the level of impairment to qualify for an award and at that point, the Special Master denied Gordon’s thrice approved claim. Through his attorney, Wendy Fleishman of Lieff Cabraser, Gordon appealed the Special Master’s decision to Judge Brody who upheld the Special Master’s denial.
To illustrate as clearly as possible, a brilliant scientist’s intelligence and functioning would have to sink to the level of an impaired garbage collector to satisfy the NFL.
With Judge Brody upholding the denial, Gordon was left with few options, so Fleishman appealed his case to the Third Circuit, and when ordered by the appellate court to submit a brief justifying their jurisdiction over the discretionary rather than right of appeal case, Fleishman, in a surprise move, asked the appeals court to stay the appeal pending an unusual Rule 60 motion that she stated intent to file with Judge Brody’s court.
Put simply, a Rule 60 motion is used to ask a trial court to correct a serious mistake. After filing the Rule 60 motion and asking for a stay at the Third Circuit, the NFL filed a brief asking Judge Brody to deny the motion for lack of jurisdiction, which I’ll explain further in a bit.
The case re-ignites
For four months, nothing happened and not a peep was heard from Judge Brody or the court of appeals, then on January 27, Judge Brody issued the following show cause order.
Wendy Fleishman responded to the judge pointing out that while she technically doesn’t have jurisdiction at this point, it’s merely a formality since through Rule 62.1 she has the authority to enter an indicative ruling that would assert her jurisdiction in the case.
With this in mind, we’ll take a look at their most recent opposition brief to show how the leopard whose spots never change, works “yell the loudest” and do so repeatedly to distort reality and deflect from the real issues they don’t have legitimate arguments to defend.
The Leopard’s Latest Attack
The NFL Leopard, in the vein of diversion, opens it’s brief with a patently nonsensical argument.
Gordon’s Response Was Timely
Every first-year law student knows that while a court sets briefing schedules for attorneys, judges are not bound to issue their rulings on any particular timetable. As far as the “meritless” argument, the NFL only wishes this was so. Numerous players have been impacted by the NFL’s inflexibility regarding raw scores and a large portion of the medical community questions their accuracy for people of very high intelligence like Amon Gordon, and people with a lower than average premorbid IQ. There are also questions as to if the testing is culturally biased against African Americans and this is a subject of great merit that the NFL hopes to avoid at all costs.
The NFL recaps the procedural history reported in the background section of this article, albeit with a slant that tries to paint Gordon as gaming the system, as if this was even possible since his diagnosis and medical records pre-date the settlement making him a patient in a doctor-patient relationship, with no system in place at the time to allegedly game.
I’ll pick up with their arguments regarding the Rule 60 Motion which are the only arguments in the brief that seem to have any basis in fact and law.
Technically the NFL is correct on this point. When the Third Circuit asked for briefing as to why they should accept the appeal, Fleishman, in a surprise move, requested a stay at the Third Circuit and leave to file a Rule 60 in Judge Brody’s court. No ruling whatsoever has been issued by the Third Circuit, however Fleishman proceeded to file her Rule 60, perhaps assuming leave would be forthcoming or perhaps, anticipating that the Third Circuit might argue that she hadn’t exhausted all remedies available at the trial court, she hoped to preempt that argument.
The NFL’s next statement is representative of their attempts to divert the court’s attention from the merits of the Gordon appeal, by instead directing attention to non-issues and misrepresentations based on partial truths.
It’s true that Fleishman responded to the NFL’s letter and also true that she “agreed that the Court lacked jurisdiction,” as noted below.
It’s also true that Fleishman agreed that she’d file a Rule 62.1 motion “as recommended by the NFL,” but the context of her letter that the NFL ignores was clear; Fleishman was waiting on direction from the court before submitting further briefing.
Yet the NFL complains ” After nearly four months of delay by Claimant, the Court issued a January 27, 2020 Order for Claimant to show cause why the Rule 60(b) Motion should not be denied, noting the lack of any ‘follow-up’ motion,” while the reason she hadn’t followed up seemed clear in that she was waiting for the instruction and permission of the court. While judges set schedules for attorney briefing, attorneys have no control over the amount of time a judge takes to consider a motion.
If you take a look at a sampling of motions filed in the MDL over the past couple of years that required a substantive ruling from Judge Brody, you will see that there is no predictable timetable to indicate when she will rule.
As you can see from the table the shortest wait for a decision was a very swift 17 days, whereas the longest wait was a year, 2 months and 18 days with the average being 4 months and 5 days. The Rule 60 motion is the last entry in the table, highlighted in yellow, with a wait of 5 months and 2 days for Judge Brody to issue the Show Cause Order, and only a bit over 4 months since the NFL’s letter and Fleishman’s reply; therefore the delay wasn’t unreasonable or out of line with other motions in which petitioners waited to hear from the judge following their briefing on a matter. Of the 22 motions tracked in the table, six had longer delays of 6 months or more.
One thing all of the motions had in common whether there was a swift ruling or a lengthy delay was that the attorney who filed the motion waited patiently for the judge to rule on it, knowing quite well it wouldn’t sit well with the judge to pester her with additional motions to try to dictate her scheduling and force her hand. That the NFL even raises the issue of Ms. Fleishman filing a motion and then waiting her turn in line for the judge to ask for briefing is disingenuous on the part of the NFL
There’s absolutely nothing to see here. To think that a judge could be influenced by this argument would be, for lack of a better word, “strange,” although a footnote in Judge Brody’s show cause order might indicate a miscommunication as to if she expected the Rule 62.1 motion to be filed prior to granting leave to do so.
The paragraph below is the crux of the NFL’s argument and where it really becomes apparent as to how the NFL endeavors to distort the clearly pled arguments that Gordon, through his attorney asserts.
Gordon’s Claim is Generally Consistent and Seeks to Have that Standard Applied
Note the NFL claims that Gordon identifies the legal error as applying the “generally consistent” standard to his claim. Nothing could be further from the truth, Gordon asserts that the Special Master, under the advisement of the AAP on the NFL’s fourth bite at the apple failed to apply the generally consistent standard as is provided for in the settlement agreement regarding pre-effective date claims. Failing to apply a negotiated provision of the settlement agreement is a grave legal error and one that Gordon is correct to appeal.
This single issue—application or misapplication of the generally consistent standard has been the greatest barrier to approval of dementia claims. The FAQs set forth by the Claims Administrator by direction of the Special Masters dictate that in order to be generally consistent, a claim must have more commonalities than differences with BAP protocols. The NFL has fought tooth and nail to change the clear meaning of “generally consistent” to identical.
In Amon Gordon’s claim, there is only one variance from the BAP standard, which didn’t even exist when Gordon was diagnosed with dementia at age 33, and that is that his raw scores were slightly higher than those indicated in the BAP. But even here, his claim is consistent with the BAP scores when adjusted for his high premorbid IQ, since BAP protocols failed to address individuals who once fell into the superior or genius categories of intelligence prior to their NFL careers and the brain injury that resulted.
Here’s where the NFL’s tactic of twist the assertions actually made by a claimant into something they’re not, then yell the loudest and keep repeating the twisted assertions until the court is convinced manifests itself.
The reason Fleishman didn’t dispute the court’s July 2, order is that Judge Brody basically wrote a dissertation as to why the “generally consistent” standard applies to pre-effective date claims. That the generally consistent standard applies to Gordon’s claim is what Fleishman has argued all along, in addition to the argument that it was misapplied because it wasn’t identical to the BAP. It’s puzzling as to why the judge can’t seem to comprehend this. Fleishman appears to have tried to make this point in almost every conceivable way, as have other attorneys whose clients were denied due to misapplication of generally consistent and the NFL’s repetitive refrain.
In order to demonstrate this point and amplify how the NFL distorts the claim, it seems prudent to go back to the time when the claim was denied after having withstood scrutiny through three examinations and approvals to examine the arguments.
|June 21, 2018||Objection to the Special Master’s May 31, 2019 Ruling|
|Here, [redacted} claim had already passed the increased scrutiny of an initial review by the Claims Administrator, including an internal review by the Advisory Physicians Panel; then, followed by a full audit by the Claims Administrator in which the diagnosing neurologist was interviewed and five years of medical records and employment records were reviewed. claim passed all three of these rigorous reviews and his claim was approved a second time after providing a litany of further information. The NFL then challenged the monetary award on grounds that are not stated in any description of the underlying Settlement Agreement, and now introduces a new set of requirements to monetary awards under the settlement that were never negotiated by the Class Counsel and the NFL and were never approved by the Court.|
|During the [audit] interview, Dr. Lobatz made clear that he did not rely on the Hopper report to formulate his opinion that [redacted] suffered from a 1.5 deficit. Dr. Lobatz explained to the Claims Administrator’s representatives that his opinion was independent of Dr. Hopper’s testing. In his written opinion, he refers to multiple bases for his opinion including, Dr. Hopper, a psychiatric evaluation in December 2014, the Amen Clinic, Dr. Fink, and the Crosby Center “document evidence of functional impairments, depression and anxiety that are generally consistent with the criteria set forth in the National Alzheimer’s Coordination Center’s Clinical Dementia Rating Scale (CDR) 1.5 (Neurocognitive impairment) in the areas of Community Affairs, Home and Hobbies and personal care.” Dr. Lobatz’s opinions are also based on the CT scans of brain, the medical records, medical exams and testing Dr Lobatz performed over a four-year period.|
|November 14, 2018||Judge Brody ordered Fleishman to take the appeal off the public docket|
|Apparently the judge was uncomfortable with transparent public scrutiny so, the next series of briefing took place on the private portal, however, Advocacy for Fairness in Sports was successful in obtaining the documents.|
|November 27, 2018||(Off Docket) Supplemental Briefing|
|Amon Gordon respectfully submits this reply to the NFL’s Response in this matter and again requests the Court to intervene to correct a misapplication of the terms of the Settlement Agreement.|
|Exhibit 2 [of the Settlement Agreement] has detailed requirements to meet the “generally consistent” for post-Effective date claims, and Exhibit 2 (Section 1(b) refers diagnoses made pre-Effective Date back to Section 6.3(d).|
|Here Fleishman copies language from the actual settlement agreement regarding how the generally consistent standard was bargained to be applied for pre-effective date claims and asks that the settlement be administered as written to apply generally consistent to the Gordon claim rather than imposing a standard of “identical.”|
|January 8, 2019||Motion to Consider Supplemental Brief as Part of Claimant’s Objection|
|Fleishman filed the motion to make sure the supplemental briefing referenced above was noted and taken into consideration.|
|May 16, 2019||(Off Docket) Letter to Judge Brody|
|Four months having, passed Fleishman sends a letter to Judge Brody further explaining to Judge Brody that the only medical record apparently not “generally consistent” was rendered by a not-so neutral NFL Disability Plan Doctor who, on information and belief is strongly encouraged to find players he examines “not disabled.”|
|Advocacy for Fairness in Sports recently did an audit of a decade’s worth of Plan form 5500s that reveal Dr. Delis made over $820,000 from the Plain in a span of eight years. Due to claims of bias which resulted in Summary Judgment in favor of Charles Dimry by a Northern District of California Judge, the Plan has “hidden the doctor payment records under a separate EIN which Advocacy for Fairness in Sports eventually tracked down.
Since the situation was so clear to Judge Donato who presided over Dimry’s lawsuit, it’s puzzling as to why it’s so elusive to another.
It’s also puzzling as to why NFL Disability records would be permitted as evidence in this settlement since Class Counsel has implied that there would be no overlap or commonalities between the NFL’s Disability Plan and the concussion settlement. At a 2017 webinar streamed from Judge Brody’s courtroom, Chris Seeger took questions that had been submitted by players. At the 22:16 mark someone asked, “Will BAP providers have any conflicts due to prior work for the NFL?”
Seeger responded, “If you’ve done prior work for the NFL, that is a basis for conflict and it is a basis to eliminate a provider.” It’s worth asking if a doctor who’s done work for the NFL or Disability Plan is disqualified from participation as a BAP physician, why are the medical records from an NFL neuropsychologist given weight for a pre-effective date claim?
At the Miami Dolphins Alumni NFL Concussion Settlement Town Hall on June 29, 2017, host Matt Moore stood before the group and at the 2:39 mark of the video said, “It is not the NFL doctors. I want to stress that because a lot of people ask,” and then at the 2:54 mark, he stated: “No matter how much it cost at first you might have heard stories of several hundred thousand– $980,000,000. However, it’s unlimited. Now guys, the NFL has said that they will make sure that every one of those 20,000 people, if something happens with a serious neuro–neuro cognitive injury or disease happens to you, you will be covered.” While it could be argued that he’s not an official representative of the settlement, he spoke at an official meeting in the presence of lead counsel and the claims administrator, so a reasonable person would likely believe the information he related was accurate.
From the May 16, 2019 letter:
|At the 6:55 mark, Chris Seeger announced to the group, “If you have a diagnosis—every neurocognitive or neuromuscular problem before that date and it was done by a board-certified legitimate doctor, those diagnoses will be honored in the settlement.” Either this is how the settlement is supposed to work or Lead Counsel Chris Seeger made misrepresentations to the Class. If the former is correct, then the court should delay Amon Gordon’s claim no longer; if the latter is correct, we have a serious problem.
Fleishman’s letter to the judge continued:
|From the settlement website, FAQ 101 defines “generally consistent.”|
|Contrary to the NFL’s argument that Amon Gordon seeks to evade the generally consistent standard, Ms. Fleishman has repeatedly asked that it be applied correctly as written to Mr. Gordon’s claim.|
|September 9, 2019||Letter to Judge Brody in Response to the NFL’s Opposition of the Rule 60 Motion|
It’s hard to imagine how Ms. Fleishman could have expressed herself more clearly. Gordon was approved three times because his claim is generally consistent with the BAP protocols and completely in compliance with the terms of the settlement agreement and it’s also hard to imagine how the NFL’s lawyers can argue with a straight face that Gordon wants to be exempted from the standard he clearly met.
In the wild, a leopard’s unchanging spots serve as a form of camouflage amid the grasslands of the African prairie. Apparently the NFL leopard’s spots serve a similar function in the weeds of civil procedure. The Model Rules of Ethics dictate candor to the court, but ethical concerns seem to have been long abandoned. One must assume this predatory stance must be dictated by a league that simply doesn’t want to admit that young men like Amon Gordon can be so severely damaged from their gridiron careers.
When actuaries were drawn up to justify a $650-$700 million settlement the projections anticipated that players would be diagnosed much later in life than the reality of the settlement has unfolded, and it seems that the NFL insists on denying the claims of younger players. The table at right shows the projections from the Segal Report commissioned by the NFL. The Vasquez report commissioned by Class Counsel paints a similar picture with the average age of diagnosis at 77.
I’ve only made it halfway through the NFL’s brief since I wandered in the weeds a bit to demonstrate the absurdity of the arguments raised so far and underscore the facts supporting Amon Gordon’s claim. Fleishman’s response brief is likely to drop this week so I’ll leave the remaining spots on the leopard for when the counter-arguments land.
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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.