Seven former NFL players filed a motion in federal court on Monday disputing the league's proposed $765 million concussion lawsuit settlement, the latest challenge to the increasingly troubled deal. What does this mean, and what happens next? Glad you asked:
What, exactly, is happening?
As first reported by Nathan Fenno of the Los Angeles Times, a group of seven retired players are attempting to intervene in the settlement, arguing that the deal as currently proposed doesn't represent their interests nor the interests of all former players.
Who are the former players involved?
Roderick "Rock" Cartwright, Sean Considine, Alan Faneca, Ben Hamilton, Sean Morey, Jeff Rohrer and Robert Royal.
What does it mean to intervene in a proposed class action settlement?
Essentially, the seven players are asking federal judge Anita Brody for a seat at the table -- the opportunity to participate in negotiations with the NFL, the current plaintiffs and the court in order to come up with a modified agreement that better serves and protects retired players like themselves.
So why are the former players intervening?
Simple. They believe the current settlement -- which would apply to all retired players who do not opt out, including those not involved in the current litigation -- is woefully inadequate.
How so? $765 million sounds like a lot of money.
The proposed settlement provides varying financial payouts as large as $5 million to former NFL players diagnosed with the very worst types of degenerative neurological disease: Alzheimer's, Parkinson's, amyotrophic lateral sclerosis -- also known as Lou Gehrig's disease -- and some types of dementia.
As the intervention motion notes, however, the deal provides:
… no monetary recovery -- nothing at all -- for class members suffering from many of the residual effects most commonly linked to recurrent and repetitive mild traumatic brain injury ("MTBI"), while releasing every claim these class members may have against the NFL …
… [the] deal did not provide a single dollar, nor adequate medical treatment, to the many more class members who suffer from afflictions that inhibit their ability to work or function fully in their daily lives. Symptoms may include memory loss, headaches, chronic pain, depression, impulsivity, diminished executive function, speech impairment, concentrations and attention deficits -- all conditions that have been associated with CTE [chronic traumatic encephalopathy] …
The seven former players who have filed the intervention claim that they are suffering from a range of the above symptoms, which developed as a result of enduring multiple concussions and subconcussive hits during their NFL careers.
Under the current settlement proposal, would former players like the seven intervenors get any help at all?
All former players qualify for participation in a proposed Baseline Assessment Program, which screens for cognitive deficits and signs of dementia -- but does not test for many of the above neurobehavioral conditions and neuropsychiatric presentations, even though they also have been linked and associated with football-induced brain damage.
Say I'm an ex-player. Football left me with brain damage. I don't have dementia. But I have trouble focusing, which makes it hard to run my small business and show up on time for charity events. I explode in near-random, wildly disproportionate fits of rage around my wife and children. I have debilitating migraines that leave me bed-ridden for days at a time. I'm working hard, not asking for a handout, trying to be a productive member of society. Only my life is falling apart. Does the settlement help me out?
Nope. You're on your own.
What about CTE?
Good question. In order to receive a cash award for CTE under the current terms of the deal, a former player diagnosed with the disease must die before the settlement receives preliminary approval by Brody.
Drop dead even a single day later, on the other hand, and your family is out of luck -- no matter how much destructive tau protein has built up in your brain.
Wow. That doesn't sound good for former players.
The seven intervenors agree. After all, their particular afflictions -- which, at least from what this writer has researched, are shared by many other former players -- could be signs of early-stage CTE, a disease that currently can only be diagnosed after death.
From the intervention motion:
… former players like the Intervenors who are currently managing the cumulative effects of MTBI -- many of which are consistent with the presentation of CTE -- would have received no compensation and would continue bearing their medical costs even if their condition progressed to full-blown CTE.
That limitation on CTE compensation is remarkable: Given that 33 of the 34 deceased NFL players whose brains have been examined for CTE have been diagnosed with the condition, one of the lead CTE researchers has wondered whether "every single football player doesn't have" CTE. Yet not withstanding the widespread prevalence of CTE among NFL retirees, the settlement provided no compensation to players with CTE who die after preliminary approval of the settlement -- likely a large percentage of the 20,000-member putative class …
Sounds like the NFL is trying to save itself some money.
Sure does. Then again, skipping out on its tabs is what the league does best.
Okay, so why would the lead attorneys for the 4,000-plus former players suing the league agree to a deal that shuts out future CTE cases from any sort of compensation, even though some of those players very likely will develop the disease?
You'd have to ask them.
Could it have anything to do with the current settlement calling for the NFL to pay a separate $112 million to those same lead attorneys, who spent a whopping 12 days in mediation with the league and did not, as ESPN's Lester Munson notes, "take a single deposition from any NFL executive or employee and never began the process of searching NFL records for any possible evidence that the league and the owners had concealed the effects of concussions from the players?"
Do the former players attempting to intervene have any other concerns with the current settlement?
Yes. Specifically, they don't agree with provisions that would:
1) Bar former players who receive monetary awards from bringing separate concussion lawsuits against the National Collegiate Athletic Association, an organization that is not a party to the case;
2) Narrowly define and freeze in writing the types of neurological diseases and brain damage presentations that qualify for monetary awards, even though scientific and medical understanding of football-induced brain damage is rapidly evolving and much remains currently unknown;
3) Reduce monetary awards by 75 percent for any former player who has suffered a single non-football related traumatic brain injury or stroke -- never mind that (a) there is no scientific reason to presume that a single non-football brain injury accounts for three-quarters of a player's afflictions; (b) the NFL itself increased former players' risk of stroke by administering the painkilling drug Toradol.
Toradol. Sounds vaguely familiar. What is that, exactly?
Toradol is a prescription-only anti-inflammatory drug often used to manage post-operative pain. Considered dangerous enough that some European countries have banned its use, the drug was used widely in the NFL in the 1990s and 2000s. From the Washington Post:
… in the Post survey of retired players, 50 percent of those who retired in the 1990s or later reported using the controversial painkiller during their careers; roughly seven out of 10 who left the game in 2000 or later said they used the drug.
A 2000 survey of NFL physicians found that 28 of 30 teams used Toradol injections on game days. Another study two years later found an average of 15 pregame injections per team. Players describe pregame lines of as many as two dozen players deep waiting for a shot or a pill. "No doubt about it, I was in that line," Hall of Famer Warren Sapp said. "They're like Tic Tacs. You walked in, you got it and you played the game" …
According to the drug's Food and Drug Administration warning label, Toradol can cause kidney damage, ulcers, gastrointestinal bleeding and increased risk of cardiovascular problems, including stroke. The FDA warning also advises that the drug not be used as a pre-surgical analgesic -- exactly the sort of prophylactic use that was commonplace in the NFL.
Moreover, the drug acts as an anti-coagulant, which means it can increase the risk of damage due to microscopic bleeding in the brain that can occur during concussions and repeated subconcussive blows to the head. As the intervention motion puts it:
… NFL-administered Toradol injections increased risk in two ways. First, as a pain-killer, Toradol masks injuries that players may have suffered, encouraging their continued participation in the game and increasing the risk that a player would suffer multiple instances of MTBI in one game. Second, MTBI suffered after a Toradol injection occurs at a time when the cerebrovascular architecture of the brain is particularly weak … Toradol is a powerful blood-thinner that increases the risk of stroke and micro-hemorrhaging in players …
Yipes. NFL team doctors spent nearly two decades giving players a painkiller that's banned in some countries and can increase the risk of stroke and brain damage. Plus, they administered said drug in a manner that seems inconsistent with its FDA warning label. That sounds -- at the very least -- legally actionable. Was Toradol ever mentioned in any of the original concussion suits against the league?
Actually, yes. A suit filed in 2011 by 11 former players, including former New Orleans receiver Joe Horn and New York Giants player Jim Finn, focused on the connection between Toradol and football-induced brain damage, both short-and-long term.
So why isn't widespread Toradol use accounted for in the proposed settlement's stroke provisions? Why let the NFL off the hook?
No idea. The drug's absence is all the more curious given that the lead attorney on the above 2011 suit, Christopher Seeger, is also the co-lead attorney for the plaintiffs on the settlement.
How does this attempted intervention fit into the bigger picture of what has been happening with the proposed settlement?
If anything, some sort of settlement intervention seems overdue. As I've written before, the deal is troubled. A mess, even. The agreement will cover approximately 20,000 former NFL players over a 65-year span; as the intervention motion makes clear, only retirees with the very worst brain damage -- besides CTE -- will be helped or compensated.
In addition, the settlement's $675 million compensation fund may not be sufficient to cover the retirees who do qualify for payouts. Lawyers for the NFL and lead plaintiffs' attorneys insist that the numbers add up -- 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.
However, those same lawyers haven't shown said math to anyone. Not to the retirees suing the league. Not to most of the attorneys representing those players, who have complained that the settlement's lead negotiators have operated in a "cloak of secrecy." Not even to Brody, who in January refused to grant preliminary approval of deal because she had no way of evaluating whether it was fair, reasonable and adequate by its own proposed terms.
"That's a tremendous concern for us, too," says attorney Steven Molo of the New York-based firm MoloLamken, which is representing the seven players attempting to intervene in the settlement. "No one has seen the math. And as far as we know, there was absolutely no discovery done in the case. The ability to land on $765 million without doing any discovery to the strength of the clams or how strong the evidence is seems wholly inappropriate. And the general lack of transparency in the process has been very troubling to many players.
"We are all in favor of players suffering seriously now to receive some kind of monetary relief now. But it's important to recognize that as sad as those cases are today, there will be cases five, 10, 15 years from now that will be equally sad -- and the money will have run out. That is a clear problem with what has been negotiated."
How does this intervention -- and the criticisms it makes of the settlement -- fit in with the bigger picture of brain damage in football?
Both the proposed settlement and football's response to brain damage are flawed and inadequate in the same fundamental way: neither is an honest, urgent effort to understand the scope and nature of the problem, which means neither can provide sufficient solutions.
Imagine this: a large number of current and former professional soccer players start having heart problems. Some suffer sudden cardiac arrest; others develop coronary artery disease or heart valve abnormalities; many are fairly functional but sometimes feel faint or experience mysterious chest pains.
You're in charge of helping these people. Of preventing further victims. Of figuring out what to do. Wouldn't your first step be to conduct a comprehensive medical census of the entire professional soccer-playing population, active and retired, the better to understand the incidence and prevalence of the ailments and diseases you're facing? Don't you need to see and hold a Rubix Cube before you can solve it?
Football isn't doing this. Isn't even trying. Maybe because it seems too impractical. Too expensive. Or maybe -- likely -- because nobody who cares about or makes money from the sport really wants to know. After all, the answers might be disturbing, and as a result, damaging. Who wants to hurt the thing they love? Or dry up their revenue streams?
Similarly, the proposed settlement is based on incomplete information. Which former players are most at risk? For what kind of ailments, specifically? How much will it cost to treat and compensate them? Truth is, no one has a great idea. Yet in limiting compensation to the very worst cases, pretending that former players like the seven intervenors don't exist and ignoring the possibility -- the near-certainty -- of future advances in scientific and medical knowledge, the settlement makes a lousy guess.
An intervention motion has been filed. What happens next?
If Brody grants the motion, the seven intervenors and their lawyers will be able to participate in settlement negotiations and seek a better deal.
What if Brody says no?
In that case, the seven intervenors will be shut out of the process until the settlement receives preliminary approval and Brody holds a subsequent fairness hearing, at which time they could file an objection with the court.
Is this just a money grab by another group of greedy former players who knew the risks and want to kill football?
Nope. For one, no current NFL retiree knew the risks of football-induced brain damage. Not when the league was producing bogus science and covering up said risks. (For that matter: Nobody knows the full risks now. Scientific understanding keeps advancing, and a lot of it looks scary).
More to the point, considers the players on the list. All of them have jobs. Many of are involved in charity work. Faneca is an advocate for epilepsy research. Royal founded an organization that promotes childhood health and fitness. Morey co-chaired the NFLPA's brain damage committee and coaches sprint football at Princeton University.
These are men who have played football for most of their lives. Who love the sport, even though it damaged them. If they were simply looking to make a quick buck, they already would have sued the NFL directly. Instead, Molo says, they're simply worried about their families, their futures and others like them.
"When you look at who they are, these are pretty extraordinary guys," he says. "Their average is over nine years in the NFL. Super Bowls and Pro Bowls. The kinds of players who are the heart and soul of the league, not fly by night. People who have gone out and tried to do good after having played.
"Just because they have been able to piece together a life for themselves now doesn't mean they should be denied fair and adequate compensation and remedy for harm that was caused them -- and which they may experience in the future. The frightening thing about all of this is the degenerative nature of these medical conditions. Someone at the time of the settlement who may not be exhibiting terrible symptoms may find themselves much worse down the road."
So what kind of settlement changes are the intervenors looking for?
According to Molo, they want:
1) Compensation for players who have demonstrated symptoms of CTE "if, in fact, that is what they have";
2) The elimination of the automatic 75 percent payout reductions in the case of post-football TBI or stroke;
3) The elimination of any clause barring concussion-related claims against the NCAA;
4) Language that would allow for future compensation based on changing science and medical knowledge;
5) An overall settlement fund that is large enough to cover expected claims, based on estimates that are reasonable and transparent.
"All we're looking for is fairness," Molo says. "That's it."