Roger Goodell must be doing his happy dance in front of his “Integrity” etched windows at 345 Park Avenue upon learning of success in the NFL’s latest tactic to defeat the claims of retired players with brain damage.
July 4, 2019
Sheilla Dingus
UPDATE: July 29, 2019
The Gordons have appealed the denial and Judge Brody’s “implementation decision” to the Third Circuit Court of Appeals. When asked for comment, Mrs. Gordon said, “We pray that the appeals court will see what is happening and make some changes in the form of justice.”
If there’s one thing consistent about the NFL, it’s their passion for denying benefits to former players. Roxanne Gordon described how the NFL fought and fought until her husband Amon’s thrice approved claim was denied when the NFL was given a 4th bite at the apple, and then backed up with a final denial by Judge Anita B. Brody on July 2.
Judge Brody’s order was cryptic at best, alluding to references that were nowhere to be found. She did not attach supporting documents with the arguments she viewed just as she didn’t in two rulings on June 13, which I wrote about shortly afterward. The article had barely been published when I was contacted by Kendra Stabler Moyes, daughter of beloved Raiders quarterback Ken Stabler, to tell me one of those denials was her father’s claim. I updated the story to reflect what the Stablers’ had been through and then Dom Cosentino at Deadspin knocked it out of the ballpark as he brought the Stabler story to life in a recent article. Now the family affected by Judge Brody’s most recent ruling has come forward. Amon Gordon was a defensive end for numerous teams during his NFL career spanning from 2004 through 2012 and his wife, Roxanne wants people to know what the NFL is doing..
I’ve followed their case for a while, unaware of who the player was. Their attorney, Wendy Fleishman of Lieff Cabraser filed an objection to Special Master Wendell Pritchett’s ruling, reversing the award on her client’s three times approved claim with little to no explanation on June 21, 2018. Fleishman wrote, “the Special Master cryptically stated that the ‘Special Master was assisted by a member of the Appeals Advisory Panel and/or an Appeal Advisory Consultant.’ There is no indication what the analysis from either member of the AAP or AAC to the Special Master was or why it was different from numerous prior approvals of claim – award approvals from the Claims Administrator; the Advisory Physician Panel; the audit process and the Claims Administrator again.”
(Note Mr. Gordon’s name was redacted from the documents that were publicly filed.)
Fleishman then notes that upon the Special Master’s review, records from Gordon’s disability claim were presented, in which the not-so “neutral” neuropsychologist used by the Disability Plan did not consider Mr. Gordon disabled. She points out how the manner in which the NFL appealed is in conflict with the Settlement Agreement, stating, “If the Court upholds this Ruling by the Special Master, it will be contradicting every system the Settlement Agreement put into place to make a determination on this claim.”
Fleishman is correct—at least to the rules and determinations in place at the time of her June 21, 2018 objection.
The Special Master’s Rules Governing Appeals issued on January 18, 2018, says that a party may not introduce new evidence that was not submitted to the Claims Administrator. That was then. This is now.
Typically a contract is a contract and is interpreted in accordance with the clearly written language. If it’s modified, the modifications can’t be retroactively applied. At least that’s how it’s supposed to work. The FAQs and Special Masters’ Rules have been presented as the Rules of the Road for the Settlement, but how can anyone navigate that highway if the rules for driving constantly change? For at least the past year and a half, the Settlement Agreement has been progressively contorted in favor of the NFL, at times in conflict with the clearly written provisions.
It also seems noteworthy that if a player receives the rare favorable determination by a disability Plan doctor or has been treated by his former team doctor, the NFL refuses to see it entered as evidence, but when their largely biased doctors present unfavorable information the NFL insists that the records be admitted and given a great deal of weight. Roxanne Gordon told me that until this time, she’d never even seen the neuropsychologist’s report on her husband. In addition to the report by the NFL neuropsych, the NFL had another problem with Amon’s claim.
“They said my husband went to Stanford. There’s nothing wrong with him because he went to Stanford,” Roxanne told me. She said her husband is very distraught.
“He can’t even deal with it anymore. He knew Judge Brody wouldn’t rule in our favor and to think about it, my husband had, he went on to work after his career. He retired in 2012 he has a Stanford education. He could have went on and did well, but you know, his brain is so messed up. He gets so fatigued and annoyed and he can’t…I see a man with a brilliant mind and a man that’s not the same man that I met, you know, years ago.”
“He can’t even deal with it anymore. He knew Judge Brody wouldn’t rule in our favor and to think about it, my husband had, he went on to work after his career. He retired in 2012 he has a Stanford education. He could have went on and did well, but you know, his brain is so messed up. He gets so fatigued and annoyed and he can’t…I see a man with a brilliant mind and a man that’s not the same man that I met, you know, years ago.” |
She explained that in addition to Amon’s neurological impairment, his body is about 80 percent impaired as well. She said that he can’t sit or stand for very long at a time and it’s quite difficult for him to get comfortable. She also told me that when he retired from the Kansas City Chiefs in 2012 his brain was literally bleeding but they would not release any of his medical records. She said her husband can no longer focus for any length of time. Sometimes, she said, the longest he can focus anymore is maybe an hour or two, and when he is able to, he’s still the brilliant man she fell in love with. He’s “scary sharp,” she said describing when Amon is lucid, but then she explained that after trying to focus for a while he has to back away and decompress for six hours or so.
Roxanne related that during Amon’s career the teams he played for hated the fact that he went to a top-ranked school. “They would tell him, ‘You think you know everything ’cause you went to Stanford. That’s what they would tell him,’” she said. Now he deals with impaired concentration, light sensitivity, constant headaches, and becomes annoyed very easily. In retirement, the settlement is punishing him for being an over-achiever too.
I thought about what Roxanne said after we ended our conversation, and how the NFL is intent on basing a diagnosis on very subjective T-scores as outlined in Exhibit 2 of the Settlement Agreement describing BAP protocols.
Note that for Level 1.5 impairment for an individual considered to have below-average intelligence on (A1) He must show 4 or more test scores below 35 or meet Level 1 requirements and have 2 scores below 30. For (B1) he must have 2 or more scores below 35 or meet Level 1 with at least one score under 30. Now, look at the requirements for those considered average and above average in intelligence.
For “A” he must have 3 or more scores below 35 (average) or below 37 (above average). That’s only a one-point difference distinguishing average and below average test-takers, with the bar raised from 35 to 37 for above average. For “B,” the exact same requirements. As I looked at the test requirements, my first thought, was “If Einstein suffered from a brain injury, he would have to seem dumb as a rock to qualify as impaired as opposed to merely showing regression from his genius-level brain.” So—I decided to check my hypothesis and also noted the presumed IQ scores given in the settlement agreement.
Right away, I see a problem. There’s no accounting for someone with MENSA level scores between 130 and 140. In fact, there’s a rather thin margin of 20 points differentiating between low and above-average intelligence, which doesn’t line up with standard literature. (Note, I checked about 5 different sources that are easily found through a Google search.)
See the difference? I then started searching for T-score ranges and found that a control group in one study of unimpaired adults scored in ranges of high 30s through 60s in various areas. So if a person with a 120 or above !Q would normally test at, let’s say “50” and a person in the high 80s to 100 range high 30s or low 40s, you can see how much a truly intelligent person would have to drop in order to be considered impaired enough by settlement standards. I located two studies (here and here) that urged caution in using these tests with younger people or those of high or low intelligence, citing a prevalence of inaccuracy. Add on top of that, one of Roxanne’s concerns, which I’ve also heard from others’ racial and cultural bias, which does have some support in literature.
This is where “generally consistent” comes in because dementia doesn’t fit into a nice tidy package. A doctor needs leeway to properly evaluate his patient and that is something the NFL wants to eliminate and based on this portion of Judge Brody’s order; it appears they’ve succeeded.
As Fleishman pointed out and numerous attorneys before her for over the past year and a half, the settlement has one provision for pre-effective date claims and another for MAF claims regarding being “generally consistent” with the BAP. They’ve also indicated a tendency by the claims administrator to evaluate at the wrong level. It appears that now, based on the emphasis the NFL has placed on neuropsychological testing and strict adherence to the BAP protocols, probably the last claim that didn’t have neuropsych testing done that cleared the barriers to an award will probably be the last one. Never mind that it wasn’t widely used until the last few years and the jury’s still out as to its reliability.
Everyone I’ve spoken with has seemed baffled as to the vague references in this sentence from Brody’s order, especially since she made no attempt to link any events, nor did she include the briefs in which the case was argued.
The Events
On the docket, attorney Fleishman presented a compelling argument as noted in the first objection she filed. This objection was accompanied by 36 pages of medical records including those of acclaimed neurologist Michael Lobatz, who had the benefit of prior neurological and neuropsychological testing to reference.
Yet the NFL argued:
This would seem to confirm my earlier hypothesis. Prior testing had Mr. Gordon showing scores that continued to decline, but as a person of “gifted” or perhaps even “very gifted” intelligence, he was basically told his decline doesn’t matter because he hasn’t hit “dumb as a rock” yet. A top scholar can’t perform much better than an impaired grocery store bagger with a fifth-grade education in order to meet the Settlement’s terms according to the NFL, and now, apparently Judge Brody.
So much for that “free” college education, the NCAA loves to brag about. The only thing the NCAA gave Mr. Gordon was a ticket to further physical and neurocognitive damage that no one wants to take responsibility for. That he has a wife and eight-year-old son that he’d planned to support with that education, “too bad, so sad.”
After the Special Master finally sided with the NFL after Mr. Gordon’s claim has already been through the fire of an appeal and audit, not to mention the scrutiny of the AAP, Fleishman filed another objection on the public docket. She reiterated her previous arguments and clearly pointed out that Mr. Gordon’s approvals had been based on the correct pre-effective date standard set forth in the Settlement Agreement and the denials were incorrectly based on a post-effective date standard.
Numerous attorneys beginning with Patrick Tighe, who has had to deal with trying to defend the claims of nearly every player he represents as they dropped into audit, emerged with no wrongdoing found, only to be plunged into audit again, to Class Counsels Gene Locks, David Langfitt, Steven Marks and Sol Weiss who were unceremoniously discharged from their roles when they pointed out the argument one too many times.
Wendy Fleishman’s objection included a letter from Dr. Lobatz, who has treated Amon Gordon for four-years, firmly defending his diagnosis, against a 2-hour evaluation by Dr. Delis, who was hired by the Disability Plan.
Judge Brody’s response to Ms. Fleishman’s properly argued brief? For all practical purposes, it was, “Get this off my public docket!”
To this point, Roxanne explained that she, Amon, and Ms. Fleishman had made a conscious decision to file on the public docket in the interest of bringing transparency to a very opaque process.
Feeling unheard and betrayed by the system she and her husband had been convinced to trust, Roxanne Gordon sent a heartfelt plea to Judge Brody.
If by chance you glossed over it, go back and read the letter. EVERY WORD. Roxanne makes her case passionately and clearly. She lets down her guard and expresses her deepest fears only to be ignored yet again. Judge Brody neither responded to or even acknowledged the letter. Roxanne told me she tried writing Special Master Wendell Pritchett too, with no acknowledgment or response.
Fleishman complied with Judge Brody’s order and presented a supplemental briefing off the public record on the private settlement portal, or shadow docket as I sometimes refer to it.
“That additional requirement violates the spirit and terms of Section 6.4 and the differences afforded to Pre-Effective date diagnoses throughout the Settlement Agreement.”
Indeed, it does.
And Judge Brody’s order implies now that it was an “error” to follow the clearly written and carefully negotiated terms of the settlement agreement in this respect and also regarding the rules governing MAF physicians and the role of the AAP.
On January 8, Fleishman filed a motion to reconsider, and then on May 16, made one final plea in a letter to the judge, in which she tosses formalities aside and staunchly stares down the elephant in the room.
Fleishman, along with her clients Amon and Roxanne Gordon and their young son who will never really know the man his father truly is received their response about two-weeks later in Judge Brody’s cold and cryptic denial. This part doesn’t seem cryptic at all, but rather a blatant re-write of what was agreed upon under the guise of an administrative “settlement implementation determination.”
After rubbing salt into the very raw wounds of the Gordon family, who’ve been tossed onto a perpetual rollercoaster regarding the status of their claim for over two-years, Judge Brody in an act that can only be seen as immense cruelty, adds a footnote, to place them on that rollercoaster indefinitely.
What part of not toying with the emotions of those already struggling to hold it together does this court not understand?
Or does it and merely not care?
Should Mr. Gordon receive a diagnosis that the NFL will begrudgingly accept one day, it won’t be the same award he’d have received this time. For a man diagnosed with Level 1.5 Neurocognitive Impairment at age 33, his award would have been just over $1.5 million. He is now 37 and unless he receives a diagnosis before age 45, this compensation will drop steeply. If he receives the same diagnosis at age 50, it drops to $769,669. If he is diagnosed at age 55, which by the way, is the age at which NFL life insurance policies become void, he’d receive. $546,049. The NFL Disability Plan which has always been notoriously hard to qualify for, outside neurocognitive impairment, has begun replicating the Settlement and denying compensation there also.
I’m sure Mr. Goodell and the 32 owners are dancing like the devil with delight in what they’ve accomplished.
While Judge Brody’s precedential order gave 345 Park Avenue cause for celebration, with her gift adding the final blows to the generally consistent standard, this group of billionaire bandits isn’t one to rest on its laurels.
Part 2 reveals the NFL’s next plot to cull qualifying players down to a bare minimum for the remainder of the settlement’s 65-year term.
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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.
