Vocal doubters on NFL's $765 million concussion-claims proposal

Kevin Turner with Lisa McHale, widow of ex-Eagle Tom McHale, who was found to have brain trauma.
Kevin Turner with Lisa McHale, widow of ex-Eagle Tom McHale, who was found to have brain trauma. (   AP)
Posted: January 27, 2014

The ink has barely dried on the National Football League's $765 million proposal to settle concussion-related claims from former players. But already the nay-saying has begun.

In the two weeks since a federal judge in Philadelphia said she needed more information before approving the plan, a top lawyer involved in negotiations with the league has said he would advise a substantial number of his 1,200 clients to reject it.

Others suggest the proposal overcompensates the lawyers. And a vocal handful of players say they have grown increasingly skeptical the longer it takes to seal the deal.

Meanwhile, a cottage industry of lawyers has emerged seeking to poach clients from their current attorneys with questionable promises of big paydays for those who take their chances in court.

The drumbeat of public skepticism has grown so pronounced, some fear a significant number of players could opt out of the deal, undermining the overall impact of the NFL's offer.

"My clients don't see how this is a fair deal for them," said Jason Luckasevic, a Pittsburgh attorney who represents more than 500 former players. "These guys don't need another mirage in the desert."

Now, in an effort to keep together the coalition of more than 4,500 retired players that helped drive the league to the negotiating table, the attorneys who helped craft the proposal are planning a nationwide strategy to ease anxieties and sell players and their lawyers on the plan.

"I honestly believe this is the best deal the players are going to get," said Sol Weiss, a Philadelphia lawyer and colead counsel on the team that negotiated the proposal. "There are a number of very tough legal hurdles they'll have to overcome in a lawsuit if they're going to take the NFL to court and win."

Concerns over payouts

Last week, about 50 lawyers representing clients in the case met in a Manhattan hotel conference room for the first time since details of the proposal were filed Jan. 6 in a Philadelphia federal court.

The tone remained mostly civil, according to interviews with seven attorneys present at the meeting, but the atmosphere grew tense at times as the group posed tough questions to Weiss and his colead counsel, Christopher Seeger, about the details, which many of the lawyers complain remain under wraps.

"Very little information was imparted at this meeting," said Chicago lawyer Thomas A. Demetrio. "Repeatedly, the answers to rather simple questions posed to Mr. Seeger and Weiss were 'There is a gag order' or 'Our hands have been tied [by the court].' "

Chief among Demetrio's concerns was whether the $675 million fund the settlement would create for compensation would be sufficient to cover the 20,000 potentially eligible players who develop symptoms over the next 65 years of conditions ranging from mild dementia to amyotrophic lateral sclerosis (ALS), better known as Lou Gehrig's disease.

Seeger and Weiss maintain they settled on that figure with league lawyers after an extensive actuarial analysis to predict the likely number of claims.

U.S. District Judge Anita Brody, the Philadelphia-based magistrate handling the case, shares the concerns of their doubters.

Earlier this month, she refused to grant the settlement proposal preliminary approval and ordered the lawyers to provide her with more information on how they arrived at the $675 million figure.

Under terms of the proposal, retired players would be compensated along a sliding scale based on a player's age, the number of seasons played, and whether injuries after retirement may have contributed to a cognitive diagnosis.

The diagnosis can come at any time in a player's life.

Maximum awards of $5 million would go to players under 45 who played for five or more seasons and require extensive treatment over their lifetimes for Parkinson's disease or ALS.

"Even if only 10 percent of retired NFL football players eventually receive a qualifying diagnosis, it is still difficult to see how the monetary award fund would have the funds available over its life span to pay all claimants at these significant award levels," Brody wrote.

Weiss said in an interview last week that he remained confident the judge would approve the plan once she had a chance to review the actuarial analysis. But Brody's opinion appears to have given cover to those who had previously questioned Seeger and Weiss' decisions only behind closed doors.

Thomas Girardi, a Los Angeles-based attorney representing 1,200 former players who also serves as a member of the plaintiff's executive committee, told ESPN this month that he worried the proposal would benefit his most severely impaired clients at the expense of others.

"We're analyzing it right now to see who fits and who doesn't," he said. "A heck of a lot of them don't fit."

Others have questioned how the plan effectively divides retired players into two camps: those who sued the league early on and must pay their lawyers a cut of any payment they receive, and those who never sued but are now eligible for compensation due to the NFL's insistence on a class-action settlement.

Philip W. Thomas, a Mississippi lawyer representing 177 players, said that structure penalizes the players who took the league to court, making the settlement possible in the first place.

"It's a real problem with the settlement," he said. "I've been told it will be fixed, but I'm not buying it yet. Settlements tend to be final. You don't go back and change them later."

More vexing to many of the players, however, is the realization that many may never see a dime. The proposal favors those with the most severe neurocognitive disorders such as ALS.

But the vast majority of the plaintiffs - such as Brent Boyd, who played seven seasons as an offensive guard for the Minnesota Vikings in the 1980s - suffer only from milder symptoms such as severe headaches and memory loss.

Under the terms proposed, Boyd may not be eligible for a monetary payout but could have some of his future medical treatment covered. That's little consolation to a man who says his condition has left him unable to hold down a job, forcing him, at 56, to move in with his 25-year-old son.

"This settlement is just for the catastrophic," he said. "Ninety percent of the players involved in this suit are people you've never heard of. Those are the voices we need to get out there."

Difficult decisions

Georgia attorney Michael L. McGlamry, like many of the lawyers who attended last week's meeting in New York, said he left feeling more optimistic about the proposal than when he arrived.

But the individual advice he gives to his clients will largely depend on the information Seeger and Weiss file with the court in the coming weeks, he said.

"I'm on the plaintiff's steering committee and I still haven't seen most of it," he said.

Still, those who opt out could face tough realities in court. Before agreeing to settle last year, the NFL had questioned whether the players' contracts prevented them from filing lawsuits. Additionally, any player who opts to pursue a legal fight would have to prove their current disorders stemmed directly from injuries they sustained on the field.

Once presented with those challenges, the settlement's doubters often change their mind, said Craig Mitnick, a Haddonfield attorney who has traveled across the country meeting with former players.

"The problem is that the settlement came out and no details followed it," he said. "Players were not getting any information, so they were getting misinformation."

On a recent trip to Ohio, Mitnick said he met with 19 retired players, nearly half of whom had made up their minds to opt out. "But after they received accurate information, every single one of them decided to stay in the suit," Mitnick said.

He plans, along with Seeger, to host a similar town hall for former players attending Super Bowl XLVIII in East Rutherford, N.J. next weekend.

For former Eagles fullback Kevin Turner, the decision comes down to meeting his immediate medical needs.

Diagnosed with ALS in 2010, Turner has frequently been put forward by players' lawyers as the face of their class-action lawsuit. In a telephone interview last week, he spoke in slurred sentences and often apologized for the havoc his disease has wreaked on his ability to communicate clearly.

Still, he said, he could not second-guess any former colleagues who decide the settlement offer is not for them.

"The longer this draws out, the more I'm thinking whether this is the right thing," he said. "But looking at it from my standpoint, I don't know if I have two years left, much less five."

He added: "So far, ALS is batting a thousand. So until that changes, any help I can get at this point would be better than waiting."


The settlement proposal at a glance. A16.




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