December 5, 2018
For nearly two years the NFL has been seeking ways to knock down settlement claims one-by-one like stray bowling pins. In their latest move they’re going for a strike in order to shut down most future claims by retired NFL players suffering from brain injury by revising the terms of the agreed upon settlement.
While findings of fact on the part of the court-appointed Special Masters are not appealable under settlement terms, the NFL has filed an appeal nonetheless and convinced the court to grant a stay on payment of claims as it seeks a decision altering the settlement agreement. In response, Co-Lead Class Counsel Chris Seeger writes:
While Seeger specifically referred to a qualifying diagnosis by a MAF physician, MAF diagnoses only started to be filed in large numbers during the second year of claims processing. The NFL has been waging a war on the “generally consistent” standard from the beginning.
The first year of settlement implementation consisted primarily of pre-effective date claims; those of players who were diagnosed with a qualifying condition prior to the effective date of the concussion settlement. These claims were designated by §6.4 of the Settlement Agreement to be “generally consistent” with diagnoses obtained after the effective date of the settlement.
The settlement was presented to players consistently in the manner described by Co-Lead Class Counsel Chris Seeger in an Alumni Town Hall in Miami, Florida on June 29, 2017:
“[T]he case is now final as of January 7, 2017. That is actually the effective date. That’s very important because 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.”
Sections 6.3(d) and (e) of the Settlement Agreement define the doctors considered “legitimate” to make a diagnosis.
Section 6.4(a) Defines the manner in which the doctors and diagnoses would be evaluated regarding player eligibility for monetary awards, including designation of the Appeals Advisory Panel (AAP) to review the claims.
Section 6.4(b) provides additional instruction including the diagnosis is to be based on “principles generally consistent” with the BAP. The settlement agreement specifically designates the diagnoses need not be identical.
When settlement implementation began nearly two years ago the number of ALS diagnoses surpassed projections for the entire 65-year settlement term within a few months. Death with CTE claims were also higher than expected, along with those for Parkinson’s Disease and Alzheimer’s. The players were also being diagnosed much younger than projections indicated.
While claims for these more readily diagnosed conditions were receiving approval during the first year of the settlement, very few dementia claims were being approved.
The first claims report of 2018 indicates that out of 1,569 claims submitted, 206 had been approved, consisting of 53 Death with CTE, 20 ALS, 75 Alzheimer’s Disease and 34 Parkinson’s Disease claims.
Neurocognitive Impairment Levels 2.0 and 1.5 (dementia) claims showed a very different picture than the previous diagnoses. 66%, or 1,040 of the 1,569 claims submitted were dementia claims; of those, only 24 had been approved with merely 6 dementia claims paid in the first year. 61 dementia claims had been denied at that point; the NFL had appealed 7 of the 24 approved claims, and many others were under audit.
The first time the problems with dementia claim approvals surfaced was in August 2017, when attorney Patrick Tighe filed a motion seeking guidance from the court. By March 2018, Class Counsel Gene Locks filed a motion stating “the settlement was in danger of failing its execution” and requested permission to intervene.
The settlement had been receiving a fair amount of bad press between the motions filed by Tighe and Locks, coming to a crescendo with the Locks motion. The pace accelerated somewhat on dementia claim approvals after that, appearing almost reactionary to quiet the press. Then the NFL decided to take control of the press narrative.
The NFL upped its rhetoric in an attempting to turn public opinion and began making accusations of widespread fraud, requesting appointment of a special fraud investigator. Six months later in September, Judge Brody ruled in favor of the NFL.
I attended the hearing for the fraud investigator in May, and witnessed first-hand the NFL’s scorched earth accusations based predominantly on the most circumstantial of evidence. Now into the second year of claims processing, many of the pre-effective date claims had already been submitted and/or processed and players were beginning to see program MAF and BAP doctors. At the hearing, Mr. Locks said almost jokingly, “Surely you’re not going to accuse the BAP of widespread fraud.”
Apparently, he spoke too soon.
The NFL has been going after players, lawyers, program doctors, and even the settlement Special Masters like a bargain-hunter on Black Friday. Much to the NFL’s dismay, not only were players being diagnosed with impairment outside the rigid structure of the settlement, but now diagnoses were being rendered by doctors agreed upon to perform settlement negotiated exams.
Players have a choice in going through the free (as the NFL likes to emphasize) BAP program or they can alternately see an approved MAF physician. Many players have opted for the latter. Section 6.5 of the Settlement Agreement defines the role and required qualifications of MAF doctors.
Section 6.3(b) designates that all diagnoses obtained after the effective date of the settlement must be rendered by a MAF or BAP physician.
The settlement’s injury definitions permit a generally consistent diagnosis of Levels 1.5 and 2.0 Neurocognitive Impairment by MAF physicians. Any other diagnosis must be supplied by a MAF doctor.
While many MAF physicians are also BAP providers and it isn’t immediately clear, the overlap since only a list of MAF physicians is available, and BAP exams are scheduled through the BAP administrator, the NFL accuses players who receive MAF rather than BAP exams of trying to buy a diagnosis.
The NFL claims that permitting the “generally consistent” diagnoses in accordance with Special Masters’ ruling “upends the bargained-for and judicially-approved neuropsychological testing regime.” They purport that no one argued that “the BAP testing battery could be evaded—and more relaxed criteria substituted.” Perhaps no one argued because the “generally consistent” provision was integral to the settlement and has never been defined or even assumed to be “identical.”
Seeger notes that the NFL’s reaction was anticipated and that very reason that the settlement explicitly states Injury Definitions do not require “identical diagnostic criteria, including without limitation, the same testing protocols or documentation evidence.” He points out that players who participate in the MAF program, including its application of “generally consistent” are in compliance with settlement terms. “The express terms of the Settlement Agreement provide two separate paths for obtaining a Qualifying Diagnosis,” he writes. “Retired Players have the right to pursue either path for whatever reason they wish.” He explains that players have many valid reasons for electing to bypass the BAP for a MAF exam, including:
I’ve written extensively about the NFL’s aggressive and relentless attack on claims for the past two years.
The NFL is either delusional, desperate, incredibly evil or perhaps a bit of all three. While their normally stellar legal teams typically construct credible, legally sound arguments, when it comes to the settlement and related cases such as that of the daughter of Aaron Hernandez, they seem to be grasping. Consider:
- The NFL’s aforestated efforts to deny pre-existing date claims.
- The NFL’s largely unsubstantiated allegations of wide-spread fraud including their demand for a fraud investigator
- Everyone else is wrong, players, doctors, lawyers, and the Settlement Special Masters. Everyone who concedes that retired NFL players are facing a devastating crisis
- The appeals filed regarding AAP and “generally consistent” are of themselves illegal appeals of Special Masters’ finding of fact.
- Huge pre-emption loss in the Dent painkiller lawsuit that weakened their thus far strongest defense.
- Attempts to rewrite the Aaron Hernandez timeline to make him a class member.
- Attempts to insert claims that Hernandez never made into their complaint in order to justify federal jurisdiction and invoke preemption
- Extremely quiet confidential settlements with, on information and belief, 33 opt-out plaintiffs.
- Holdings in other courts that statute of limitations is delayed for latent brain injury.
If that’s not enough to convince you, consider their reactionary handling of domestic violence and player discipline. The NFL thought by omitting CTE and imposing very stringent criteria for settlement awards, that it had neutralized the issue of football related brain injury. Nothing could be further from the truth, and the NFL is using every tactic imaginable to avoid a day of reckoning.
As an MDL judge, Anita Brody has broad power to enforce and interpret the settlement formed and agreed to in her court. Will she rescue the NFL, or will she apply law judiciously and preserve the integrity of the settlement she oversaw and deemed to be “fair, adequate, and reasonable”? The fates of many are in her hands.