New Concussion Settlement a Win-Win

[Prime Time]

New Concussion Settlement a Win-Win
In a change to the initial agreement, the NFL's monetary award fund for retired players with brain injuries will now be uncapped. It's the right move for everyone
By Andy DeGory

A new proposed settlement in the NFL concussion litigation should alleviate many worries when it comes to compensation for players affected by brain injuries. The revised agreement removes the cap on the NFL’s obligations to the monetary award fund, and guarantees that any retired player who develops a qualifying neurocognitive condition will receive compensation. Ultimately, it looks like a win-win for the NFL and the players.

In a Wednesday conference call, Chris Seeger, co-lead counsel for the retired NFL players, said the plaintiffs’ counsel team had been confident that the $765 million initially agreed upon last August would have been enough to cover the 65-year lifespan of the fund. They were supported by actuarial estimates from both parties. However, concerns over the fund’s long-term future arose from both the court and the players.

“We heard concerns from players who needed to trust that the money would be there in, say, 40 years,” Seeger said.

U.S. District Judge Anita B. Brody denied the motion for preliminary approval for the settlement in January. After six months of work under the supervision of Brody and the court’s special master, Perry Golkin, the agreement was reached to uncap the fund and fully guarantee that retired players would receive the necessary benefits during the 65-year plan.

The compensation of Kevin Turner, a class representative in the suit who suffers from ALS, will not change. (Charles Dharapak/AP)

In regards to the actuarial estimates that led to the initial $765 million agreement, Seeger stated that those are now irrelevant due to the removal of the fund’s cap.

“There is no scenario where a player won’t get paid,” said Seeger. “The biggest news of this is that in 15 or 25 years, you are still guaranteed to be compensated.”

According to Seeger, aside from tightening some details the agreement between the players and the league remains largely unchanged. The standard will remain the same for players seeking benefits; severe cognitive impairment will need to be proven to receive benefits. If, during a baseline assessment, mild cognitive issues are identified, players will be eligible for follow-up treatment as part of the program.

The monetary grid and scale to determine a player’s compensation will remain unchanged as well. Seeger said that the plaintiffs never thought of trying to change the grid or its pay values during the revision of the settlement.

One change of note is that the NFL’s ability to appeal claims is now unlimited, whereas they were limited to 10 appeals a year in the July agreement. Some argue that this could give the league a loophole to minimize claims.

Kevin Turner, a former Eagles and Patriots fullback, now suffers from ALS. A class representative in the lawsuit, his compensation ceiling of $5 million will not change with the new agreement. Turner’s statement:

“The compensation provided in this settlement will lift a heavy burden off of the men who are suffering,” Turner said in a statement. “I am also personally comforted by the knowledge that this settlement is guaranteed to be there for any retired player who needs it. This settlement is another important step for ensuring that future generations of football players do not suffer the way that many in my generation have.”

It appears as though both sides got it right on the second iteration. The uncapping of the fund ensures the effectiveness of the compensation program. It alleviates concern over the long-term viability of the initial $765-million agreement, and expedites the process for players who are in need right now.

Judge Brody and Special Master Golkin deserve credit for working through the initial settlement and ultimately ensuring that the appropriate compensation was allocated. Brody’s decision to reject the first settlement looks like it was the right move.

During the conference call, Seeger used the phrase “100% guarantee” multiple times when addressing players’ ability to receive benefits. The NFL and the retired players have to be pleased on two fronts: Once the settlement is approved, the compensation program will come into effect soon and start providing benefits to players in need; and recent retirees who could be affected in the future now know that the coverage will be there.

 

[Stranger]

what recourse do the players have if the NFL abuses its appeal powers? The uncapping is awesome, but are they just going to deny claims like some health insurers do, when the bills start piling in? Man, these families must be going thru some tough times.

 

[Prime Time]

David Goldman/AP

A Tie’s a Win for the NFL
The latest turn in the concussion lawsuit saga—a judge gave her preliminary approval to a revised settlement—was good news for both sides. Here, we explain why the league and its owners ultimately will be the biggest beneficiaries
By Andrew Brandt

While away on vacation a couple weeks ago I received animated calls—within minutes of each other—from attorneys representing both the NFL and the concussion plaintiffs suing the NFL. They were informing me of revisions in the purported settlement between the two sides, one reached Aug. 29 of last year yet never advancing towards resolution. Their respective enthusiasm for the amended settlement was well placed: while the original settlement could not gain preliminary approval for almost 11 months, this revised settlement received such sanction in 11 days!

While there are still some hurdles to cross, this week’s turn of events was an important step towards resolution of what I saw as a viable threat to the NFL’s continued unsurpassed prosperity.

Settling always was the clear option

Beyond the posturing on both sides of this dispute, I always thought this case would settle. From an NFL perspective, owners wanted to curb the negative publicity, remove the threat of billions of dollars of exposure, and have no admission of liability (standard in comprehensive settlements).
From the players’ perspective, the focus of this suit has always been the players suffering the most, the ones without the luxury of time. Without years to litigate, settlement became a clear strategy. Further, causation was a challenge for many plaintiffs. Had the case continued, NFL lawyers would depose former players about other causes of neurocognitive impairment, with prickly questions such as:

• “If you played football for 20 years and only four of them were in the NFL, aren’t you only suing them because they have the deepest pockets?”

• “What kind of lifestyle did you lead while playing? What about since you played?”

• “How much do/did you smoke or drink?”

• “What about that time you had a bike accident? Couldn’t that be a cause?”

• “What about that time you slipped on the ice? Couldn’t that be a cause?”

Settlement removed the potential for these uncomfortable interrogations into causation. As part of the settlement retired players do not need to demonstrate causation from playing football, only that they played for a certain amount of time and now have a certain level of impairment.

How Brody helped negotiations

Once settlement became the preferred option it became a negotiation, nothing more and nothing less. Plaintiffs’ lawyers certainly tried to negotiate a number in the billions but faced formidable negotiators from the NFL, and a $765 million global settlement was struck. Or so we thought.

Judge Anita Brody, aware of the magnitude of the case, demanded assurances from both sides that the figure was suitable to fund all future claims going forward 65 years. Those assurances—and whatever documentation was provided—were not enough to satisfy her.

Judge Brody thus assigned her designated financial expert, Special Master Perry Golkin, to broker an amended settlement with the major revision removing the $765 million cap (or a cap of any amount) to ensure the funding will not run dry. Also, another provision in the original settlement, denying plaintiffs the right to also sue the NCAA or other amateur organizations, was removed at Judge Brody’s urging.

Thousands of retired NFL players owe a debt of gratitude to Judge Brody; she drove this critical change in the settlement.

The importance of audit rights

The NFL, however, was also able to wrangle a “win” in the amended settlement: they can now challenge any player claim, removing the limitation on its number of challenges.

League owners and executives have long thought that this case was lawyer-driven, with lawyers signing up many undeserving players with form contracts to drive up the numbers. And as someone who received many inquiries from former players, I admit to seeing some of that, with calls like this:

Player: “Do you think I should join that lawsuit?”
Me: “Do you have any symptoms?
Player: “No….but I might. And the lawyers say it’s all contingent, I don’t pay anything.”
Me: “Well, how do you feel about suing for something you don’t have?”
Player: “Well, the NFL got over on me and I don’t feel bad getting a little more.”

I see a lot of bitterness from many retired players about the way things ended in their career, with a sense they deserved more: more playing time, more money, more respect, etc. Unfortunately, this settlement will not answer many of those players’ issues. And the NFL’s now unlimited “audit rights” to challenge what they see as purely lawyer-driven claims is meant to ferret out frivolous claims.

(Note: even with the settlement, all players still maintain their collective bargaining agreement rights to pension plans, disability payments, 88 Plan, worker’s compensation, etc.)

There will be detractors

Even with the improvement of removing the cap on funding, there are still players upset with the amended settlement.

Seven former players, including Alan Faneca and Sean Morey, filed a formal objection to the settlement. Their complaint focuses on the “grid,” the complicated matrix formula identifying award amounts to players. As per the grid, players suffering from depression, mood changes, sleep disorders, attention deficits, etc. yet not at the stage of chronic traumatic encephalopathy (CTE) at time of settlement receive no compensation (unless deceased). Their objection is also highly critical of the lead attorneys for the plaintiffs, who are receiving $112.5 million in fees (paid by the NFL) for a case in which there was no inquiry into NFL concealment and misrepresentation.

With thousands of former players, I would expect more objections and “opt outs” of this class action to pursue their own litigations against the NFL. However, they will face the same challenges of delay and causation discussed above.

What happens now?

Now that preliminary approval has been granted—with notable swiftness—the settlement will now lurch forward with two flashpoint dates on the calendar:

Sept. 15: By this date, publication notice about the settlement terms must be given to all of the approximately 20,000 retired players through various media including: Sports Illustrated, People, Time, NFL Network, CNN.com, NFL.com, Facebook.com and Weather.com. The notice also will outline the procedures for players to opt out of the settlement. As per the settlement, notice costs of up to $4 million are paid by the NFL.

Nov. 19: This is the date of the all-important Fairness Hearing, where Judge Brody will consider objections before granting final approval sometime soon thereafter. And then, and only then, we will move toward the writing and cashing of checks.

The wheels of justice do not move swiftly.

The NFL’s threat is removed

While the settlement presents the possibility of more costs to the NFL, they have to be pleased. Assuming approval, the league has prevented any admission of liability and avoided the threat of billions of dollars in exposure and legal costs.

Their initial funding requirement of $120 million—$20 million a month for six months after approval—amounts to less than $4 million per team, roughly the cost of a mid-tier free agent. Moreover, a large amount of that cost will be borne by insurance companies (although there are ongoing skirmishes with carriers trying to avoid this burden). Further funding will be on a month-to-month basis depending on approved claims.

As is often said in this space, there has never been a better time to be an NFL owner. There is a team-friendly CBA in place through 2020; record long-term broadcast contracts are now kicking in and franchise values are all near or above $1 billion (and rising). Now the major litigation threat for the future is being removed. In this case, a tie is a win for the NFL.

THOUGHTS ON JIMMY GRAHAM DECISION

Jimmy Graham recently lost an arbitration decision but still might become the highest paid tight end ever in the NFL, if he and the Saints can agree to a new contract. (Bill Haber/AP)

1. I think the arbitration decision was a referendum on the tight end position, one that contemplates a broader definition than when originally negotiated into the CBA 20 years ago. Franchise tag designations—not only for tight end/wide receiver, but also cornerback/safety, defensive end/linebacker, etc.—need to be addressed in the next CBA negotiations, if not sooner.

2. I think the power of the franchise tag cannot be overestimated; it is a truly powerful management tool. Whether this arbitration resulted in the higher or lower tag number, the tag has given leverage to the Saints in their ongoing negotiations with Graham towards a long-term deal.

3. I think the fact that coach Asshole Face testified “against” Graham is not a big deal. The offseason is business time in the NFL; both sides understand that. And although coaches can be close to players, they are clearly on the management side of the equation: they know where their bread is buttered.

4. I think the arbitrator’s references to social media—it was noted that Graham identified himself as a tight end—are a sign of the times and a cautionary tale to all players in disputes of any kind with teams. Their social media behavior is being watched. Players are taking note, such as Browns tight end Jordan Cameron, now a “Pro Bowl pass-catcher.”

5. I think this tag dispute was always a secondary concern; the real issue is a long-term deal. Similar to what happened with Drew Brees two years ago, the Saints at the deadline will offer a long-term deal that they can live with. And, after some haggling by experienced agent Jimmy Sexton, my strong belief is they will make a deal. The tag, at either number, is just a placeholder.

 

[Dodgersrf]

what recourse do the players have if the NFL abuses its appeal powers? The uncapping is awesome, but are they just going to deny claims like some health insurers do, when the bills start piling in? Man, these families must be going thru some tough times.

Yeah, it looks good on paper.
Hopefully the men with legitimate issues will be well taken care of.
Unfortunately, there will be guys that will make false claims, creating more hurdles for the men that truly need help.

I'm sure the NFL is relieved. We all know they don't care much for bad publicity.