Seven retired NFL players asked the U.S. Third Circuit Court of Appeals on Monday to review a recent decision by U.S. District Judge Anita Brody to grant preliminary approval to a proposed settlement of a class action brain damage lawsuit brought by more than 4,500 former players against the league. Why is this happening, and what does this mean? Glad you asked:
Why are the former players asking a federal appeals court to intervene in the proposed settlement?
Simple. They believe that the deal itself is unfair, and that the interests of many NFL retirees have not been represented adequately in the deal-making process.
For starters, the settlement all but ignores the neurodegenerative disease chronic traumatic encephalopathy (CTE), which has been linked to repeated blows to the head.
Hold on. Mike Webster had CTE. So did Dave Duerson and Junior Seau. The neuropathologist who discovered it in Webster's brain, Bennet Omalu, wanted to call it "footballer's dementia." CTE is at the heart of League of Denial. It's a key reason the NFL is being sued for allegedly minimizing and covering up the brain damage risks of football in the first place. Are you saying the settlement doesn't compensate former players who come down with it?
Of course not. That would be crazy. Any NFL retiree diagnosed with CTE is eligible for a cash award. Provided said retiree died between Jan. 1, 2006, and June 7, 2014, and was subsequently diagnosed with the disease.
So if I'm a former player and able to read this, and doctors find CTE in my brain after I die, my family and I will get nothing?
Yep. Sorry you're still alive.
Webster died in 2002. His family gets nothing?
Does the settlement treat any other neurodegenerative diseases the same way?
No. Retirees diagnosed with Alzheimer's, Parkinson's, amyotrophic lateral sclerosis (ALS) and dementia are eligible for cash awards throughout: (a) the 65-year lifespan of the agreement (b) their own individual life spans.
Do we know which neurodegenerative diseases former NFL players are most likely to suffer?
We don't. Chris Seeger, the co-lead players' attorney on the settlement, recently said that he expects between 3,000 and 5,000 retirees out of 20,000 to receive cash awards -- and that's factoring in the deal's CTE cutoff dates, which will shrink the pool of eligible former players. In court documents, the NFL agrees with Seeger's estimates. However, neither party has provided a breakdown of how many retirees they expect to contract particular diseases.
That said, a 2013 National Institute for Occupational Safety and Health study of nearly 3,500 NFL retirees who played at least five seasons between 1959 and 1988 recorded just 17 combined cases of ALS, Alzheimer's and Parkinson's. Meanwhile, a 2010 study found that 33 of 34 deceased NFL players examined had CTE.
The upshot? It's quite possible that the neurodegenerative illness most common among league retirees is the one least compensated by the settlement.
That does seem unfair. But isn't it true that CTE currently can only be definitely diagnosed after death?
Yes. Scientists have to cut the brain into thin slices, stain those slices with marking chemicals and examine the results under a microscope. (Note: Alzheimer's and certain types of dementia also can only be definitely diagnosed posthumously.)
And doesn't CTE share some symptoms with the four neurodegenerative diseases covered by the settlement?
Some symptoms. In some cases.
OK, so if that's the case, what's the big deal about the CTE cutoff date? I mean, if I'm a former player with the disease and I'm suffering from symptoms, can't I just get a diagnosis of Alzheimer's or dementia now and receive a cash award while I'm still alive to spend it?
Maybe. But maybe not. Certain symptoms overlap. Many don't. For instance:
… Sensitivity to noise, visual impairment, chronic pain, chronic headaches, numbness, burning, tingling, incessant ringing in the ears, attention disorders, trouble sleeping, aggression, agitation, impulsivity, suicidal thoughts and difficulty regulating, expressing and controlling complex emotions …
… are all associated with CTE. All will make your life miserable, too. None are covered nor even screened for by the settlement, which uses neuropsychological tests to identify signs of cognitive impairment, like memory loss.
Moreover, the settlement adjusts -- read: reduces -- cash awards based on years of NFL experience and age at the time of formal disease diagnoses. The fewer credited seasons a retiree played in the league and the older they are when diagnosed, the less money they get.
The latter part matters greatly when it comes to CTE symptoms. Why? In a 2013 study of 36 adult males diagnosed with the disease -- 29 of them football players -- scientists discovered two distinct groups: men who first came down with cognitive impairment at older ages, and men who first suffered from mood and behavioral problems (emotional explosiveness, impulsive behavior, outbursts of violence, depression and hopelessness) while younger.
As currently designed, the settlement will do nothing for the second group. Not until they experience cognitive symptoms. Which could mean years of uncompensated, undiagnosed suffering in between. Even though the same 2013 study found that Group No. 2 was twice the size of Group No. 1 -- and that only 10 of the 33 men who suffered CTE symptoms while alive were ever diagnosed with dementia.
Yipes. Still, let's say scientists figure out how to diagnose CTE in living people, something many researchers think will happen within the next decade. Won't the settlement take that into account and begin awarding NFL retirees who have the disease?
No chance. The deal specifically prohibits the NFL and the players' top lawyers from meeting more than once every 10 years to discuss possible changes to both the agreement's qualifying diagnoses and the protocols for making them. Actual modifications require approval from both sides. And no matter what changes are agreed to, the settlement states that in no event will modifications be made to the Monetary Award levels in the Monetary Award Grid, except for inflation adjustment(s).
So yeah, tough break on deciding to live through Fourth of July weekend.
Wow. I'm starting to understand why these seven players have a problem with the settlement. What is their legal argument in terms of seeking appeal?
Basically, they're arguing that Judge Brody made a mistake by granting preliminary approval and class certification in the first place.
What's class certification, and how does that work here?
In action litigation, judges have to determine that a few representative plaintiffs can fairly and adequately represent the interests of a larger group of similarly situated people; in the NFL brain damage lawsuit, Brody decided that lead plaintiffs Kevin Turner and Shawn Wooden were acceptable representatives for approximately 20,000 other former NFL players.
The seven former players disagree. Turner was diagnosed with ALS in 2010. Wooden has not been diagnosed with any neurocognitive impairment. In court documents, neither man pleads an increased risk of developing CTE.
As such, the seven former players say, the interests of former players who have or may develop CTE and/or symptoms of the disease haven't been adequately represented -- creating an untenable class conflict -- with the aforementioned differences between how the settlement diagnoses and awards CTE (stingily) versus other neurodegenerative illnesses (less stingily) reflecting said conflict.
"We believe Kevin Turner and others like him are certainly worthy of relief and should be compensated," says Steven Molo, the lead attorney for the seven former players. "[My] clients have displayed symptoms consistent with the symptoms of CTE. They are not being represented. And the evidence of that is that they get zero."
Do Molo's clients have any other problems with the settlement?
Lots. As I've written before, there are four major ones:
• Any retiree who has suffered a single non-football related traumatic brain injury or stroke will have their award reduced by 75 percent, never mind that 1) there is no scientific reason to presume that a single non-football brain injury accounts for three-quarters of a player's afflictions; 2) NFL team doctors increased former players' risk of stroke (and likely, their risk of brain injury) by administering the painkilling drug Toradol.
• Retirees do not receive credited seasons for playing in NFL Europe, even though time spent on "practice, developmental, or taxi squad[s]," is credited.
• The settlement's diagnostic program and claims process is rife with potential pitfalls that could make it difficult for a completely healthy person to receive an award, never mind a brain-damaged former player with cognitive or emotional challenges -- for instance, retirees who fail to register with the settlement within 180 days of a supplemental notice being distributed are totally ineligible for benefits.
• Seeger and the other top players' lawyers did not conduct any discovery against the NFL -- that is, searching the league's records and conducting depositions of people like commissioner Roger Goodell to find out what the NFL knew about brain damage in football and when it knew it -- before settling. Those same lawyers also are in line to receive a separate $112.5 million payout from the league within 60 days of final approval.
"The absence of discovery is a problem," Molo says. "Why settle without being able to explore the strengths of your claims? Also, a very large attorney fee award that suggests that [the players' top] lawyers weren't putting interests of all the class members first. Particularly when that fee is negotiated at an early stage."
Who are the former players asking for an appeal?
Roderick "Rock" Cartwright, Sean Considine, Alan Faneca, Ben Hamilton, Sean Morey, Jeff Rohrer and Robert Royal.
Are any of them currently suing the NFL?
No. But like every former NFL player who retired before July 7, they'll be covered by the deal unless they opt out and pursue individual suits against the league.
These guys sound familiar. Have they been involved with the settlement before?
Yes. After Judge Brody declined to grant preliminary approval to the settlement in January, they filed a request to intervene in negotiations between the NFL and Seeger. When Seeger and the league submitted a revised settlement in June, they filed an objection with Brody.
Did both filings basically make the same points as above?
So what happened?
Brody ignored them. In fact, her preliminary approval order states that the revised settlement was submitted without objection -- something that isn't actually true.
That sounds odd. Is it unusual for a federal judge to blow off petitioners?
Not necessarily. Definitely not in this case. When Brody initially declined to grant preliminary approval in January, she did so largely because she was unconvinced that a proposed $675 million award fund would be large enough to cover all qualifying NFL retirees over the next 65 years. She also noted that while Seeger and the NFL confidently asserted that they had expert economic and actuarial analysis showing the amount was sufficient, neither party had actually bothered to show her their math.
Shortly thereafter, Bloomberg News filed a request to see the numbers. So did Thomas Demetrio, a Chicago-based lawyer for Dave Duerson's family and other players suing the NFL. Brody has not responded to either request.
Speaking of unusual, why are the seven former players requesting an appeal now? The settlement has yet to receive final approval. Players and other interested parties have time to file additional objections and amicus briefs. Brody has to hold a fairness hearing on Nov. 19 to hear arguments for and against the deal, after which she could ask for revisions. Why not let the normal trial court process play out, and then take their case to appeals court?
Time. Or more accurately, a lack thereof. Some former players, like Turner, are sick right now. They need relief. Anything that speeds the process of producing a fair and adequate settlement is worth trying. From the appeal request:
… the diseases suffered by the class members are degenerative and decline can be rapid, particularly if diagnosis and medical intervention are delayed. One study found that the median survival from the time of an ALS diagnosis is just 1.4 years. Another estimated survival after the onset of dementia at 4.1 years.
The effects of undiagnosed CTE and other neurocognitive diseases can be extraordinary. In two highly publicized cases, retired NFL stars committed suicide - shooting themselves in the heart to preserve their brains for research - after experiencing severe symptoms of CTE and seeing their lives degenerate.10 And the Hall of Fame center on several Pittsburgh Steelers championship teams died with CTE at age 50, after a rapid mental decline that, at times, left him homeless.
Even those fortunate enough to survive through final approval may suffer significant hardship as a result of the delay. The neurocognitive diseases afflicting many class members are expensive to treat. A year of care for a dementia patient alone can cost between $42,000 and $56,000. Until the settlement takes effect, class members must carry these costs themselves, a burden that is particularly heavy for the many NFL players who face financial difficulty in retirement.
Thus, delaying review will have a real human cost. To allow the settlement to proceed to a fairness hearing only to have the matter reversed on appeal due to errors that can be addressed now would work a substantial unfairness on the class …
"If we wait and hold back, it will just delay the process," Molo says. "What we're saying to the court is, 'let's fix these problems now. The health of the players -- the impact of delay on that -- is something worth considering.'"
Right. But couldn't you flip that argument around, making the case that any opposition to the settlement will delay help to those who need it most -- and that by objecting in the first place, the seven players requesting an appeal are selfishly putting themselves ahead of the sickest NFL retirees?
You could. In fact, both Seeger and the league consistently have sold the settlement as the fastest way of assisting players. As NFL executive Anastasia Danias said of the revised deal:
… today's agreement reaffirms the NFL's commitment to provide help to those retired players and their families who are in need, and to do so without the delay, expense and emotional cost associated with protracted litigation. We are eager to move forward with the process of court approval and implementation of the settlement …
Here's the thing, though: There's nothing stopping the league from opening its checkbook and taking care of retirees like Turner right now. Or tomorrow. Or in the next few weeks. Especially given that the NFL plans to pay the worst-off former players once the settlement receives final approval anyway. Why should the league's commitment to provide help to those retired players and their families who are in need require at least some other retired players and their families who likely will have needs in the future to accept a deal that doesn't look after them? Why does the proposed settlement require players with CTE symptoms and future CTE sufferers alike to take one for the retiree team?
Why do the league and Seeger seem to be subtly holding the sickest players as emotional hostages against everyone else?
"First and foremost, we believe that Kevin Turner and all players are entitled to whatever compensation they can get," Molo says. "Underline that fine times with five exclamation points. But that doesn't mean people not yet as sick aren't equally deserving. And the process should be there for other injuries, too."
What do Seeger and the NFL have to say about the appeal attempt?
Reached by The New York Times, the NFL declined to comment. In a statement to the same newspaper, Seeger said, "This petition is entirely without merit, and only serves to confuse and obscure the tremendous benefits retired players will receive if this settlement is approved by the Court."
Does Seeger know anything about confusing and obscuring settlement benefits?
Sure does. In an interview with CBS Sports radio, he said the settlement was "all about symptoms. If you're sick, and your activities of daily living are being interfered with, you can't function, you're going to get paid whether or not you have CTE." Of course, this isn't true. As mentioned above, the settlement neither covers nor looks for the neurobehavioral symptoms of CTE and chronic traumatic brain injury.
Any idea why the proposed deal doesn't cast a wider diagnostic and compensatory net in terms of neurological symptoms and diseases associated with football and repetitive head trauma?
Besides saving serious money for the league? Look at NFL history. Think back to League of Denial. The league's initial reaction to the notion that football causes brain damage was to pretend otherwise. Aggressively so. Of course, that's no longer a viable position. Independent science and medicine marches on. Suffering retirees can't be dismissed as bad apples and swept under a rug. No one is buying whatever cooked scientific studies Elliot Pellman is peddling.
Still, you're a multibillion-dollar sports business. You occupy a unique and exalted cultural space, and you depend mightily on hooking your most loyal and reverent consumers when they're young -- get 'em in Pop Warner helmets, and you can collect their disposable income for decades to come. So what do you do? Work in the background and on the margins to define the kind of football-induced brain damage that actually counts. Tacitly acknowledge that your product may eventually cause or contribute to dementia in older former players. Provide assistance to those in the very worst (and most obvious) shape. And otherwise do your best to ignore and marginalize the symptoms of neurological harm more likely to affect recent retirees.
In short, continue to treat brain damage as a public relations problem, and not as a public health one.
What happens next?
Hard to say. Seeger or the NFL could file a response to the seven former players, though neither party is under any obligation to do so. The judges on the appeals court could direct Brody to make changes to the settlement or decertify the retired player class, forcing a revision of the deal that takes Cartwright and company's concerns into account.
Alternately, those same judges could dismiss the appeal request, or simply refuse to consider it. In either case, the seven former players -- and anyone else seeking a better or different deal -- would next be able to raise objections during the fairness hearing, as well as appeal the settlement with the same circuit court judges following final approval.
So you're saying there's more conflict to come?
Count on it.