Imagine this: You're in the market for a used car. You go to a dealership, find something promising, sit down with a salesperson. Wary of purchasing a lemon, you ask for a comprehensive vehicle history report.
Sorry. Not now. You can have it when we close the sale. But trust me, the car runs great!
Er, OK. So, have you at least seen the document yourself?
Nope. The head of the sales department won't share it with me. In fact, I'm not even sure it exists. But trust me, the car runs great!
Sounds sketchy, right? Guess what: All of the above basically describes the proposed settlement of the consolidated National Football League concussion lawsuits. The car is the $765 million deal, intended to compensate brain-damaged former football players. The dealership salespeople are the top negotiators for both the NFL and the players. And starring in the role of buyer?
The federal judge presiding over the case. The more than 4,500 retired players suing the league. Oh, and many -- seemingly most -- of the attorneys representing those players.
Like I said: things are sketchy.
Last week, judge Anita Brody refused to grant preliminary approval of the settlement, which allocates $675 million to compensate retired players suffering from neurological diseases and another $75 million for brain damage diagnosis. Why the red light? To give a go-ahead, Brody has to conclude that the deal is fair, reasonable and adequate -- that the settlement is large enough to cover approximately 20,000 former players over a 65-year span, at least by its own terms.
Right now, she simply doesn't have enough evidence to make that judgment.
On paper, the settlement promises to pay as much as $5 million to NFL retirees with conditions like Parkinson's and amyotrophic lateral sclerosis (ALS). Former players with chronic traumatic brain injuries that fail to rise to the level of degenerative disease -- think memory lapses, explosive anger, debilitating migraine headaches -- will receive far less. (Read: nothing or close to it). In a motion for approval and supporting documents submitted to Brody, top negotiators for both the NFL and the players claim that the math behind the deal checks out. That medical experts, actuaries and economists have produced "thorough analyses" predicting: (a) how many former football players are brain damaged; (b) what the extent of that damage will be; (c) how much that damage will cost under the terms of the settlement.
The problem? The NFL and players' lawyers didn't provide their analyses to Brody -- essentially asking her to start the vehicle-buying process without giving her a history report. But trust me, the car runs great! In her rejection of the settlement, Brody noted as much:
… even if only 10 percent of Retired NFL Football Players eventually receive a Qualifying Diagnosis, it is difficult to see how the Monetary Award Fund would have the funds available over its lifespan to pay all claimants at these significant award levels ….
… Plaintiffs allege that their economists conducted analyses to ensure that there would be sufficient funding to provide benefits to all eligible Class Members given the size of the Settlement Class and projected incidence rates, and Plaintiffs' counsel "believe" that the aggregate sum is sufficient to compensate all Retired NFL Football Players who may receive Qualifying Diagnoses. Unfortunately, no such analyses were provided to me in support of the Plaintiffs' Motion …
Believe it or not, things get sketchier. Shortly after Brody's rejection, attorney Thomas Demetrio - who represents the family of Dave Duerson, a former Chicago Bears defensive back who committed suicide and was later found to have the neurodegenerative disease chronic traumatic encephalopathy (CTE) - told ESPN's Outside the Lines that the players' lead co-counsels, Chris Seeger and Sol Weiss, have operated in a "cloak of secrecy" and that he hasn't seen any analyses, either. "Maybe they don't exist," he said. "Maybe they don't substantiate the $765 million figure." Meanwhile, attorney Thomas Girardi -- who represents 1,200 former players and was one of the first lawyers to file a concussion suit against the NFL -- told Outside the Lines that he was analyzing the settlement "right now" to see which of his clients would be better off opting out, a number he predicted would be "substantial."
I contacted Demetrio last Thursday. He said the "majority" of the players' lawyers haven't seen any of the settlement's supporting analyses. Two other player attorneys who requested anonymity told me the same thing. One of those attorneys sits on the players' executive committee, a small group of lawyers overseeing negotiations. He said Girardi was "right on." He also said that he didn't think that anyone on the executive committee had seen the analyses -- and even more significantly, nobody saw them before the initial agreement with the NFL was reached last fall, either.
Also last week, I emailed every player lawyer listed on the preliminary approval motion except Seeger and Weiss. I asked five questions, starting with this: Did you actually see, read and evaluate the analyses before submitting the motion for preliminary approval? Most didn't answer. Those that did declined to go on the record. Not one said they had seen the analyses.
"In decades of practice," the executive committee attorney told me, "I've never seen a deal done with such cloak."
This matters greatly. For two reasons. First, the documents submitted to Brody claim that the settlement is fair, reasonable and adequate. Specifically, they state:
… after hard-fought negotiations, the Settling Parties arrived at an aggregate sum that proposed Co-Lead Class Counsel, Class Counsel and Subclass Counsel believe is sufficient to compensate (bold added) all Retired NFL Football Players who may be diagnosed with Qualifying Diagnoses and their Representative and Derivative Claimants.
If most of the above counsels -- that is, top players' lawyers -- haven't seen the math behind the settlement, then how can they believe it's sufficient? Moreover, why would that make a case in court? Isn't that a bit unethical? Doesn't that pretty much mean they're bulls----ing Brody?
Is bulls----ing a federal judge ever a good idea?
Next point: Similar to Brody, the 4,500-plus former players -- and/or families of deceased retirees -- suing the NFL have a decision to make. Is the settlement fair? Will it take care of their needs? Is the money enough? Or should they opt out of the agreement, and continue to fight the league in court for a bigger, better deal?
In order to answer those questions, they need to see settlement's supporting numbers. So do their attorneys. All of their attorneys, and not just the ones who negotiated the proposed agreement with the NFL. To continue the used car analogy: if you hired someone to help you find and buy a vehicle, wouldn't you both want to see the history report?
"Because I have not seen the analyses, I don't have a clue as to whether or not they will help me evaluate the fairness of any proposed settlement," Demetrio said. "Will they help me decide if any of my clients should opt out? I don't have a clue."
"Without the numbers, you can't provide your clients accurate information and advice," said another players' lawyer who asked to remain anonymous. "All I can do is look at my 500 people and say, 'my numbers [of players with neurodegenerative diseases] are way above 10 percent. So how the hell is this going to work?'"
Believe it or not, things get sketchier still. According to a document submitted to Brody by former federal judge and settlement mediator Layn Phillips, the players' top attorneys planned on presenting a summary of their experts' analysis -- but not until the final settlement hearing, scheduled to take place after the player opt-out period.
In used car terms, that's like being handed a vehicle history report as you drive off the lot.
"Unconscionable," said the executive committee attorney.
"You're the lawyers who asked a judge to approve the settlement, and you didn't attach the documents, and now lawyers who are on your own executive committee don't have those numbers, either?" said Dionne Koller, a University of Baltimore law professor. "Plus you're litigating a case of this much importance and this much public awareness? This thing will be torpedoed if they don't come up with the numbers. And by holding them back, they've created a question: do they even have them?
"Is it unethical? There's a fine line between stupid and unethical. As a legal strategy, I'm scratching my head."
Me, too. How could this happen? Four theories:
1. Hubris: According to the executive committee attorney, both Seeger and Weiss and the lead negotiators for the NFL -- league legal mastermind Jeff Pash and outside counsel Brad Karp -- may have believed they could push the settlement through federal court with little resistance. "My clue," the attorney said, "is that there was a high degree of arrogance."
Assuming that's true, the NFL and the players' top lawyers have miscalculated. While a truly fair, reasonable and adequate settlement is in everyone's interest -- our overloaded judicial system; brain-damaged former players who need medical care and financial help; an image-conscious league that would like to avoid the public relations water-boarding that would accompany prolonged litigation, damaging discovery and the drip-drip-drip of news stories pointing out that football can be very bad for the human brain -- a lemon of a deal would be the opposite.
Hurting players would be left to suffer. The NFL would appear even more sociopathic, capping its legal liability without fully addressing the damage left in its industrial wake. Meanwhile, Brody would look like a duty-shirking, rubber-stamping stooge, something no judge aspires to.
As such, it's hardly surprising that Brody wants to see the numbers. The lead negotiators should have known better.
2. The NFL has something to hide: Any complex analysis supporting the adequacy of the settlement ultimately has to answer two simple questions -- what percentage of retired professional football players will end up with neurodegenerative diseases resulting in cash awards, and what percentage will end up with brain damage that doesn't rise to that level but still may qualify for some form of medical monitoring and/or limited assistance by the terms of the settlement? Ten and 30 percent? Five and 20? Whatever the number, it isn't good for the league: Together We Make Football, and also 2,000 cases of early-onset dementia.
"What if the data is worse than the public knows, a higher percentage of serious trauma and injury?" said Warren Zola, a Boston College sports law professor. "That could be something that one side does not want released because of an overwhelming negative response."
Speaking of data: We're talking about projections. Risk models. Future figures based on imperfect assumptions, given that football-induced brain damage isn't well-understood and that no one -- not the NFL; not the players' union; not the Centers for Disease Control -- has ever bothered to conduct a rigorous clinical census of the retired player population. Moreover, we're talking about financial projections as well -- how much money the settlement fund will actually pay out to injured retirees based on their diagnoses, age, number of years played in the league and factors that reduce awards or disqualify players altogether. (Diagnosed with depression? No money for you.) What if the settlement's math only adds up because the qualifying diagnostic process deliberately has been engineered to limit or deny the vast majority of claims -- a familiar, all-too-common phenomenon when it comes to health benefits and workers' compensation for former NFL players?
If that's part of what's going on, the league's lawyers may not be the only ones with something to hide.
3. The players' lawyers are covering their tails: Let's get a little more conspiratorial. Could it be that all or most of the top players' lawyers saw the settlement's math and knew it was somehow shaky. In the interest of expediency and a nice guaranteed payday -- thanks to a settlement-mandated, NFL-funded $112 million legal fee fund -- they nevertheless decided to roll the dice and see if Brody would fall for an okey-doke.
Now that the judge has called their bluff -- in embarrassing public fashion, no less -- they're covering up. Claiming they've been kept in the dark. Throwing Seeger and Weiss under the bus. And why would they do that?
"To reassure their clients," Zola said.
Consider: Girardi told Outside the Lines that the settlement might not make financial sense for many of the former players he represents after Brody rejected the deal. Not before. If the numbers don't work, why did he wait so long to either (a) run them; (b) speak up?
4. The players' lawyers are fighting for more money: Follow me down the rabbit hole. The NFL wants the concussion lawsuits resolved as soon as possible -- otherwise, why settle in the first place? Seeger and Weiss know this. They know the league doesn't want any football brain damage statistics made public. They also know that the Super Bowl is coming up.
Timing is everything. Perhaps creating negative headlines and casting doubt on the agreement is part of their overarching strategy -- a way to pressure the league into throwing a few more coins into the cup, the better to seal the deal, shut up squabbling lawyers and make the whole thing go away.
"Maybe you don't attach the numbers knowing full well that judge Brody won't accept it," Koller said. "Now this clouds the Super Bowl, continues to drag on, and it becomes 'let's get to a billion and call it a day.'"
Maybe. Or maybe there's another reason the settlement's main lawyers haven't shown their work. Whatever the case, Brody is right. No more. Phillips, the mediator, says the numbers are sound. Let's see 'em. The court needs to know. Player attorneys need to know. Players themselves need to know -- not just the players suing the league, but all retired players, since the settlement covers them, too. Even the public should get a look. After all, we're the ones trying to figure out if our children should play football; if the settlement is inadequate, we'll be the ones picking up ex-player medical bills through Medicare and higher insurance premiums. We deserve to know the costs. We deserve to know the risks. This is a large private settlement with larger public ramifications. It should never be comparable to a sketchy used car deal.
If anything, said sketchiness is a loud and clear signal that the entire deal merits additional scrutiny. Skepticism, too. Negotiations between the NFL and the top player lawyers should be re-examined, both by Brody and a third-party representing the interests of former players who haven't filed suit. Every actuarial assumption should be examined; every medical and economic data point picked apart by independent experts; every part of the agreement subject to a basic question: does this serve the interests of a small group of highly skilled lawyers? Or does it serve the interests of brain-damaged men and their suffering families, people who need appropriate care and recompense? After all, the NFL concussion settlement doesn't cover a 2002 Honda Civic with a funky smell and a flickering CHECK ENGINE light. It covers human lives. Caveat emptor. Show the math.