July 14, 2019
UPDATED August 1, 2019
On July 12, Daniel Kaplan of the Athletic reported on a staggering drop in profits for the Green Bay Packers as revealed in their 2018 Financial Report. Kaplan stated that on earnings of $8.4 million on revenue of $477.9 million there was barely a 1% profit margin for the 12-month period ending on March 31, 2019. “And using a different measure- profit only from operations- the team barely scratched above red ink with a $724,000 surplus,” he wrote.
This was a huge departure from the prior financials, in which the team gained $75 million in profit from operations in 2016 and $65.3 million in 2017. Since the publicly owned Packers are the only team required to release financial reports, their reports have often been viewed as a barometer for the NFL as a whole.
While revenue continued to grow, expenses outpaced it by a strong margin, as Kaplan explains.
Expenses soared $56.4 million to $477.2 million, just $724,000 less than the revenue number. Of that increase, $30 million came from player signings. Murphy noted the player costs were particularly high with the re-signing of quarterback Aaron Rodgers in a $134 million reported deal, and the salary cap rising more than $10 million for the sixth season in a row.
Concussion Settlement costs were one of the increased expenses cited by Packers President Mark Murphy.
The concussion settlement, currently estimated to cost $1.4 billion, is uncapped and lasts 65 years. So unless the NFL wins its battle with the insurance companies, this will not be the only time the Packers’ income is hit. This is also not the first time the concussion settlement, finalized in 2016, hit Packers’ earnings, Murphy said. However, it is believed to be the first time the Packers pointed it out in an earnings statement.
After reading this, I wanted to learn how much of the bill teams are footing and recording as expenses, but I was unable to locate a detailed financial statement. I inquired of Kaplan to see if it was broken down in the documents he had, but he indicated that it wasn’t. I did a quick calculation and shot it at Kaplan for his impression. Since the fiscal year runs March to March, this is what I came up with:
Kaplan pointed out that the figure may not be accurate due to a revenue sharing fund the NFL has designated for this purpose as detailed in a May 2016 article he wrote for Sports Business Journal. According to the article, owners voted at their spring meeting to take $150 million out of the fund to prevent teams from having to dip into reserve funds to pay settlement claims. When the article was written, the supplemental revenue pool, initially created to help teams in need, was at around $300 million, of which $150 million was earmarked for the settlement. While it’s likely the fund has grown since 2016, it’s unknown if the owners have since elected to take more than $150 million for concussion settlement funding; if not, due to gross miscalculations in the actuarial reports, the Packers and other teams may be feeling an impact on their profits despite the supplemental revenue pool since the designated $150,000 covered less than half the actual cost of paid claims during that period.
UPDATE August 1, 2019: According to Mike Ozanian, managing editor and co-host of Forbes Sports Money:
In 2018 every NFL team took $13m hit to operating income because concussion settlement liability increased to $40m per team from $27m
— Mike Ozanian (@MikeOzanian) August 1, 2019
In what is perhaps the biggest irony of the settlement, despite the NFL’s scorched earth assault on individual claims and groups of claims through, filed objections with the court, and finding success in this regard, it has still found itself on the hook for a lot more money than anticipated because the retired NFL population is sicker, at younger ages and in greater numbers than the NFL was ever willing to acknowledge.
By the numbers
One of the actuaries the NFL relied on was the Vasquez Report. This section shows the funding the NFL expected.
This table breaks it down further.
The note at the bottom “Funding plus earnings is actually slightly in excess of the amount needed to pay all claims,” is an extreme miscalculation that has the NFL’s lawyers scrambling to put a lid on payouts.
In December 2017 when the first claims report was published, $75,064,512 had been paid to claimants with $240,687,567 approved. A year later in December 2018, the number had grown to $411,144,091 in paid claims surpassing the $367 million set-aside for 2018 and exceeding projected compensation by $118,844,091.
Currently $516,469,342 has been paid (with $674,257,082 approved), surpassing budgeted funding of $467,700,000 by $48,769,342. Of perhaps greater concern to the NFL, anticipated payments of $370,500,000 have been exceeded by $145,969,342, eliminating the interest they expected to accrue, and we are only just past the half-way point of 2019. As you can see from the funding table, the NFL only anticipated funding $675 million with over $300 million expected to be earned in interest. If all currently approved claims in the funding cue are funded and paid, the NFL has essentially used up its 65-year budget in 2½ years, with 62 ½ years remaining in the settlement term that will require additional funding without the benefit of accrued interest and possibly insurance coverage depending on the outcome of its lawsuit with its insurance companies.
The Vasquez report greatly underestimated the prevalence of ALS, Parkinson’s disease, and the number of valid Death with CTE claims.
Table 7-1 estimates paid claims for the life of the settlement, showing 18 ALS claims valued at $49.4 million; 14 Parkinson’s claims valued at $3.2 million; and 46 Death with CTE claims valued at $64.9 million.
Currently, at the 2 ½ year mark, 37 ALS claims have been approved, doubling +1, the 65-year estimate. The monetary value of $92,822,506, exceeds the 65-year estimate by $43,422,506.
129 Parkinson’s disease claims have been approved at $79,591,391. This is 115 more claims than anticipated and 9.2 times the estimated affected population. The dollar value difference in Parkinson’s claims of $76,391,391 is even greater at 23 times the projection of $3.2 million. In addition to indicating that many more players than were previously known, suffer from Parkinson’s disease, the players are much younger than the actuary indicated. Based on 14 awards valued at $3.2 million, the average award would have been $228,571. The approved award total of $76,591,391 divided by 129 players equates to $616,987 per player. Award amounts are based on a player’s age at diagnosis.
Death with CTE claims were projected at 46 with a monetary value of $64.9 million. To date, 77 Death with CTE claims have been approved for $92,822,506. The additional 31 claims brought the NFL $27,922,506 over budget.
In summary, these conditions were projected to equate to 2.2% of approved claims and 18.2% of awards but instead have mushroomed to 24.6% of approved claims and 47.7% of monetary award payouts. As of now, this is $147,736,403 beyond 65-year estimates for these conditions.
Neurocognitive Impairment) was projected to consume 49% of paid claims and 36.5% of monetary compensation, but because these are more subjective diagnoses and subject to the rigid BAP protocols adopted in the settlement, the NFL has focused on rejection and discrediting of dementia claims in order to try to re-cap the settlement before more bottom lines begin to resemble that of the Green Bay Packers instead of attacking the non-BAP subject diagnoses which are harder to dispute. Generally, those claims are denied on technicalities rather than a full-out assault on the diagnosis.
Dementia claims represent 62.3% of all claims submitted, but only 389 (21%) of 1,771 dementia claims submitted have been approved. To date, 389 dementia claims have been approved, representing 42% of the 917 approved awards. On the surface, this doesn’t look too bad.
BUT if you look at approved versus paid claims you’ll see a big difference. Only 264 of 915 paid claims have been for dementia diagnoses bringing the percentage of paid claims to only 28.8%.
Alzheimer’s disease was the most accurate of Vazquez’s projections but still appears to have been grossly underestimated. Alzheimer’s was supposed to equate to 48.9% of paid claims (1,757) and 50.9% of award dollars ($474.9 million.) In 2 1/2 years, 285 Alzheimer’s claims have been approved at $133,537,781. Based on the actuary, the average Alzheimer’s award would be $270,290, but the average actual award is $468,533. Based on this, Alzheimer’s projections seem to have been undercalculated much as the other diagnoses were.
Based on the inaccurate actuaries and exacerbated by the uncertainty of insurance coverage, I believe that’s why the NFL is using every tactic imaginable to try to put a lid on claim approvals and the only place where they can do much to any degree is dementia diagnoses.
This chart represents the reality of the Settlement
The big story here is found in the columns labeled “Percent of Submitted Claims” and Percent of Approved Claims.” Here’s a close-up comparison.
As you can see, submissions for all diagnoses except dementia have been approved at rates ranging from 60% to 78% of submissions. In the case of Death with CTE, the denials have been on mere technicalities such as when a player died or how long it took to receive his pathology and denials in other areas such as ALS and Parkinson’s have also been denied on technicalities like when the diagnosis was received, a dispute on a player’s active seasons, and similar.
Most dementia denials are based on a different type of technicality that seeks to discredit the medicine and the player. The Settlement engineered BAP protocols designed for evaluating dementia are a departure from generally practiced medical standards and though diagnoses “generally consistent” with these standards was a bargained-for part of the Settlement Agreement, the NFL has found (likely by design) this as the most effective point of attack against these claims, and their best shot at mitigating their losses.
In confidential submissions submitted to Advocacy for Fairness in Sports, which I’ve reviewed, I’ve seen highly respected board certified neurologists attacked, discredited, and portrayed as fools and/or crooks because they dare to diagnose patients in line with accepted medical practices and based on their experience in treating neurological disease rather than rigidly following the BAP.
Players have been attacked as not impaired enough if they drive, even a little, or attend church, or play with their children, or are spotted on the sideline at a game and worse, have been accused of fraud if they dare file a claim while they’re capable of thinking a thought.
Lawyers who have no relationship to one another have been portrayed as engaging in a vast conspiracy to defraud the NFL if they live up to the ethical demands of their profession and provide vigorous advocacy for their clients.
The worst part is that Anita Brody, the judge presiding over the settlement seems to have completely bought the NFL’s arguments. She has consistently resisted hearing from players’ individual counsel in her courtroom and has attempted to keep claim implementation disputes off the public docket and instead confined them to the private claims portal where only the affected attorney (or Class Member if pro se), the Claims Administrator, Class Counsel, NFL Counsel, and the Court have access to the documents. Recently Judge Brody fired all Class Counsel aside from Seeger Weiss, further restricting access to implementation information.
Judge Brody’s recent rulings have been driven by NFL objections and requests, effectively rewriting vast portions of the settlement agreement to favor the NFL.
One particularly egregious double standard that has been adopted by Judge Brody in recent months is a restriction as to which MAF doctors a player may use. Despite the fact that the NFL, in its disability plan, often sends players on a “Where in the world is Carmen Sandiego?” style expedition forcing them to travel hundreds, and in one instance I’m aware of, close to 2,000 miles to visit the doctors they’ve elected to send the players to, players are now forbidden from seeking a MAF doctor further than 150 miles from their homes, without special permission from the Claims Administrator. While there are numerous valid reasons why a player might choose a doctor located outside the 150-mile radius, as brought out by former Class Counsel, only limited narrow reasons appear to be under consideration by the Claims Administrator.
Consider this–if Player A visits Dr. Z who is located 149 miles away from his residence, and receives a qualifying diagnosis from Dr. Z, then the Claims Administrator will most likely view it as a legitimate claim. But if Player B, who lives 200 miles from Dr. Z wishes to obtain an examination from him, he will be looked upon with suspicion and likely Dr. Z for examining Player B. This might, in turn, cast doubt on Dr. Z’s diagnosis of Player A, because Dr. Z could be “one of those rogue doctors.” The next thing you see is that all or most of Dr. Z’s diagnoses are in audit, and then months later Dr. Z disappears from the MAF program. This is pretty much how the settlement has worked to date when a program doctor provides qualifying diagnoses for several players.
Through narrowing the choices players have available to them, the NFL has increased the likelihood of players being forced to see an NFL-friendly doctor, or one with questionable ratings from patients, rather than a doctor with experience in dealing with patients with post-sports career latent brain damage.
I believe we’ll continue to see more of the same on the part of the NFL as it seeks to re-cap the uncapped Settlement until and unless media-fueled public outrage forces the league to reconsider, or another judge is appointed to preside over the settlement when Judge Brody retires That is — unless Chris Seeger, the lone member of Class Counsel left standing, changes strategy and mounts visible opposition to the direction the Settlement has taken. This could spur the needed media interest. Many players and attorneys have stated they’ve lost confidence in Seeger, as he has often seemed a bit too friendly toward the NFL. His recent letter to players, which included an alert to NFL tactics might possibly indicate a change of direction, however. Only time will reveal the answer.
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Numbers Behind the Settlement (Text)
Realities Compared With Actuaries (Text)
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.