January 27, 2018
Sheilla Dingus
More retired NFL players died last year than received an award from the much-heralded “billion-dollar” concussion settlement. According to profootballreference.com, 123 former players passed away in 2017. From the time the claims process began last March, through the most recent claims report filed last week, only 110 claims have been paid to date. In spite of this neurologically impaired retirees are still pursued relentlessly for whatever money they might by chance manage to receive.
The figures so far are stark and sobering. Out of 2,027 claims filed, only 213, or about 10% have been approved for a monetary award, and of these only 110, or around 5% have been paid. Dementia diagnoses make up over half of the claims filed at 1,054, but only 22 of these have been approved and only 4 have actually been paid. The NFL’s relentlessly aggressive attack on claims has resulted in a minuscule .02% of approvals for claims representing the diagnosis of over half of the class of retired players. Some of these claims are still being appealed or otherwise delayed, and the 4 claims which have actually been paid equate to a mere .003% – almost ZERO percent of those filed.
It should come as no surprise that retirees are despondent and quickly losing hope. The delays since the settlement was approved just over 2 ½ years ago account for 20% of the completed suicides in the NFL’s 93-year history, according to an analysis by NFLObjectors.[1] The longer players agonize about the process that portrays sick men as liars and frauds has increased the likelihood of more. Several wives have reported to me that their husbands have voiced suicidal ideations during the increasingly long and stressful waits to see if their claims survive. “Delay, deny and hope we die,” is the sentiment, many retirees have voiced regarding their treatment by the league their labor and injuries helped to build into the $14 billion behemoth of today.
In comparing charts for approved monetary awards and deductions, it appears that many who manage to survive the grueling claims process and receive a letter of approval won’t even be receiving a check.
In comparing the totals from both tables, it appears that deductions for offsets and liens exceed the total amount payable. Since information regarding distribution of the deductions isn’t provided it’s impossible to compute the number of players affected but it is apparent that at least some of those players will have waited and hoped – and even been approved, and will not receive as much as a dime.
In spite of this – predators still circle the players like vultures in the sky preparing to descend on a carcass. In July of last year – as the settlement registration period was drawing to a close – the New York Times reported that a “feeding frenzy” of lawyers and predatory lenders was taking place. Co-Lead Class Counsel Chris Seeger and attorneys for various settlement lenders sparred for months prior to Judge Brody’s issuance of an order which she hoped would end the controversy.
Essentially, Judge Brody seemed to hope that her order would be seen as a truce in which lenders were reimbursed any amounts actually advanced to players while relieving them of the predatory interest they were subject to under the lenders’ agreements. It is possible that some settlement funders will accept her order but it is becoming increasingly apparent that others will not. RDLegal, a litigation funder who is also being pursued by Attorney General Eric Schneiderman of the State of New York has appealed Judge Brody’s ruling to the Third Circuit, further delaying the processing of claims for those who entered agreements with the lender.
Still, others are using deplorable tactics to recover on their own, as evidenced in a motion and memorandum of law filed on January 26, by Co-Lead Class Counsel. The memorandum included excerpts from a recorded conversation between a class member, his wife (the Smiths) and staff of Cambridge Capital as they attempted to further defraud the player.
Aside from the unconscionable and abusive language used to attempt to take this player’s retirement money, Seeger notes that third-party funders are attempting to take money from players whether they are expected to receive an award or not. Judge Brody’s olive branch appears to have been turned into a billy club with which to further beat down men who are already near their breaking point.
As reported in the New York Times article referenced earlier, deception doesn’t only come from lenders but also lawyers eager to snatch clients from other firms.
After signing with some of the “cut-rate” lawyers, many players have been misled and betrayed. A couple of weeks ago a player called me to find out if the neuro-psych exam his lawyer had set up – which was done by way of a phone call with the doctor – was legitimate. For the uninitiated this is a complex examination which generally takes 6 or more hours and in accordance with settlement terms must be done by and in the physical presence of a board-certified neuropsychologist. This is one of the areas of harshest scrutiny in claims evaluation and can make or break a claim. Still others retirees, despite endless promises of scheduling for an exam by their lawyers have received no examination at all and their attorneys have stopped returning phone calls.
Last month, when 153 exams conducted by Dr. Serina Hoover were determined to be fraudulent and rejected from the settlement claims process, at least one attorney who had sent players to her for exams dumped his clients leaving them to completely fend for themselves. One of the players informed me that he returned to the original law firm that he signed with and they are now handling his case in a professional manner. Another told me that he approached the firm he’d originally retained and was not allowed to return.
Despite all this, and the extreme difficulty of getting legitimate claims approved, some lawyers still appear to be deceiving players and dangling misrepresentations in front of them in order to procure what they must perceive as easy money. Note this post from a former player which appeared on Facebook January 26.
I spent the better part of the evening trying to dispel the misinformation and warning that anything that sounds too good to be true probably isn’t. But these men tend to be easy prey. I find it heartbreaking that so many sick men are being manipulated and used, ironically as they seek relief from the league which also manipulated and used them.
Part of the problem in regard to attorneys is the way personal representation was discouraged by both the Court and Chris Seeger. The claims process for players with existing diagnoses was portrayed throughout the enrollment period as “quick” and easy to navigate as you can see on this video of an enrollment meeting conducted by Chris Seeger and Claims Administrator Orran Brown. The settlement sold doesn’t resemble the reality delivered. As a result of this, it is virtually impossible for a layperson to navigate the NFL’s obstacle course which has dedicated and highly experienced lawyers challenged.
With about 30% of the class who have filed claims thus far unrepresented by counsel Judge Brody issued an order on January 8, appointing attorney Dennis Suplee to represent pro se class members.
As I wrote in a January 11 article, Mr. Suplee’s appointment, however well intentioned it may be leaves more questions than answers.
“[W]asn’t this Chris Seeger’s job? Doesn’t she feel he is capable of doing it? Perhaps Mr. Seeger, having already been guaranteed a large payday in claiming the bulk of the $112.5 million common fee fund agreed to by the NFL, doesn’t want to put the effort into straightening out the claims process unless he gets another “bucket of money” to do so. Perhaps since all other attorneys, including the court’s expert Professor William Rubenstein, opposed the 5% holdback that Seeger demanded for “implementation work” he isn’t providing much in the way of getting implementation on track, forcing the court to appoint someone to pick up the slack? Thus far, he along with the NFL has opposed individual counsel in their motions to administrate the Settlement as written in the Settlement Agreement. Could this instead be another attempt to cause players to fire their own lawyers and neutralize the independent attorneys who are trying to solve problems? Could this be an effort to keep critical eyes off the fiasco the Settlement claims process has become? Or perhaps Mr. Suplee will only be dealing with Class Members in regard to disputed attorney fees with their former lawyers as noted in the second paragraph of the order. I’ve spoken with numerous attorneys for their impressions and no one seems quite sure. If they aren’t certain of Mr. Suplee’s role, how are brain-damaged players to know what they should expect from him?”
One class member emailed Mr. Suplee to inquire of his assistance and his response indicates that even he is unsure of the role he is to play.
To the best of my knowledge, there has been no further communication.
A ruling from Special Masters this week states the Court has placed Special Masters in charge of all appeals and indicates that it hopes to discourage “vexatious, frivolous or bad faith Appeals,” such as those the NFL has used to impede the claims process thus far.
The 12-page ruling which is exclusively focused on appeals is complex and while Rule 7 seems favorable to the class of retired players, other measures seem less favorable, such as no new introduction of evidence, deposition or discovery will be permitted. Limited oral arguments may, however, be allowed on a case-by-case basis.
Also less favorable to the Class is the decision that some appeals may be consolidated.
Tex Schramm, former president of the Dallas Cowboys is said to have told then NFLPA Executive Director Gene Upshaw during the 1987 players’ strike, “You guys are cattle and we’re the ranchers.” Many of the players whose claims are deadlocked in the bureaucracy of the claims administrator’s preliminary review or have been denied were the same guys referred to as cattle as they sacrificed to make the NFL a better place for players of the future. Most of these guys worked for average or slightly above average salaries and few benefits as their bodies and minds were surrendered for the game they loved. They laid the groundwork for free agency and the modern NFL and the improved salaries the current players enjoy.
Not only did these guys learn in no uncertain terms that the owners considered them cattle to be easily replaced but they felt their own union sold them out and let them down as the union leadership collapsed. Little seems to have changed in this respect as they have been, in many cases denied disability, or if they finally received it, did so with no help from the union they worked to build. The NFLPA has said absolutely nothing about the NFL’s abuse of settlement procedures to deny, and impose torturous delays on these men. While the union is quick to point out that it represents current and not retired players, the “lifetime memberships” it extends to them seem to be all about show and in reality ties them to a CBA that no longer protects them in any way but often diminishes their legal options against the NFL. Would it be too much to ask for the NFLPA, which spends millions each year in legal fees to write one motion on behalf of these men or at least speak publicly of how the NFL is not living up to the bargain it sold to both the players and public when they agreed to settle? They’re waiting.
Waiting for their suffering to be acknowledged with compassion.
Waiting to merely be recognized a human beings.
They’re waiting and many of them are dying.
Please don’t wait until it’s too late.
[1] I inquired about this number and was given the following information on which the analysis was based: 34 total suicide deaths. 15 suicide deaths recorded in the first 80 years of NFL history. 19 suicides from 2005-present – 7 of these past the settlement cut-off for Death with CTE claims. 10 – or approximately one half of the suicides publicly reported CTE – another was suspect but not autopsied for religious reasons.
