Former NFL players who have made medical claims under the settlement agreement of their class-action concussion lawsuit are not being paid because the league is muddling the claims process, lawyers representing the players have asserted in multiple court filings.
The latest 21-page filing, submitted Tuesday by a class counsel, says the agreement “is failing to provide a fraction of what the NFL promised” and the league “will argue virtually anything to evade payments.”
While the players argue the NFL is trying to manipulate the settlement process, the league insists it lacks such influence and that the claims are administered by an independent third-party firm appointed by the court.
“The NFL seeks to rig the Settlement system. This is part of the League’s DNA,” said the filing, written by Gene Locks, a Philadelphia-based attorney who represents 1,100 players in the case and has asked the court to grant him more authority for the entire class. “Historically, it has always engaged in scorched-earth litigation, and that is what the League is doing here, making it a Settlement in name only.”
The NFL vehemently denied the claims.
“The notion the NFL is throwing sand in the gears and trying to block and obstruct, nothing can be further from the truth,” said a league official familiar with the case but not authorized to discuss it publicly.
BrownGreer, a Richmond-based firm that previously oversaw high-profile cases such as Vioxx and the BP oil spill, is in charge of reviewing claims and administering the settlement, which became final Jan. 7, 2017, and was projected to cost the league as much as $1 billion. The company’s founding partner, Orran Brown, said the NFL doesn’t have any role in that process and pointed to several nuanced reasons for the delays many former players experienced.
Still, many former players, whose claims have lingered for several months, point a finger directly at the NFL and say the ex-players need more help to fight for their claims.
Dementia claims represent by far the largest segment under the settlement, and they’ve gone virtually unpaid. Out of 1,712 claims made in the first year of the settlement, 1,113 cite a diagnosis of neurocognitive impairment. And of those, just six have received a check — for a total payout of $4.85 million.
These numbers, which come from the settlement’s latest report issued Monday, fall well short of the NFL’s own projections, which were filed with the court in 2014. At the time, the league’s analysis anticipated paying out 430 dementia claims in Year 1 of the settlement for a total of $72.3 million.
Despite a slow start to the claims process, in all, 183 ex-players have received money under the settlement — a total of $150 million. The NFL’s first-year projections anticipated awarding 665 claims for a total of $243 million. According to the most recent settlement report, another 143 claims have been approved but not yet paid out — $198 million — though some are still subject to appeal.
“We are exceeding expectations in every respect except for one, and that’s dementia,” said Christopher Seeger, the co-lead class counsel. “The only reason we’re not — and we’re starting to catch up — is because the court-appointed claims administrator had identified hundreds of suspicious claims. I think we have now worked through a lot of that and we’re back on track.”
According to the most recent report, some of the claims that have been awarded thus far fall closely in-line with the NFL’s initial projections, including those related to death by chronic traumatic encephalopathy (CTE), amyotrophic lateral sclerosis (ALS), and Parkinson’s disease — a total of 95 claims that have been awarded. But the three largest categories all significantly trail the league’s projections. In addition to the dementia numbers, 55 Alzheimer’s claims have been paid ($24.4 million), compared with a projection of 153 ($70.7 million).
“To me, it’s pretty obvious that it’s a numbers game,” said Liz Nicholson, an advocate for wives and family members of ex-players, and whose husband Gerry Sullivan played eight seasons with the Cleveland Browns. “They’re saying, ‘Okay, we’ve got to pay out the ALS cases, we’ve got to pay Parkinson’s. But where we can really fudge things are the dementia cases’ — which is the bulk of the claims.”
Under terms of the settlement, the NFL has no say in approving or denying claims, but it does have the ability to appeal. The latest settlement report counts 35 cases in which BrownGreer has approved a financial award but the NFL then appealed. Most of those are still being processed but 10 have been upheld and two overturned.
“Ninety-four percent of the claims rewards have not been challenged on appeal,” said the league official. “In the overwhelming bulk of the awards made so far, the NFL has not filed an appeal. I just don’t think the statistics lie and there’s certainly been an emphasis on the few disappointed players and their representatives to try to suggest something — mainly that the league is obstructing the settlement process — when the actual facts are completely the opposite.”
Brown said the dementia claims have been particularly troublesome. Around 75 percent, he said, were lacking required documentation and records, apparently over some confusion of the requirements. Brown said the settlement administrators weren’t able to explicitly spell out the requisites until Dec. 8, nearly 10 months after it began accepting claims.
“We do it as fast as we can, we do it as transparently as we can, we get all the input we can. But taking from March until December is actually pretty fast,” Brown said. “. . . nothing is fast enough when you’re injured or you have an injured family member and you want a result. It’s never fast enough. We understand that, we get that. That’s why we push.”
Even as the NFL and BrownGreer say the league has limited say in the process, Locks said in Tuesday’s filing the league has implemented a schedule “to create a labyrinth of changing standards of review, secret procedures, audits, appeals and innumerable technical readings of the Agreement to delay and defeat claims and payments.”
League spokesman Brian McCarthy said in a statement Tuesday that the “process of review and payment is becoming more streamlined and claims will be processed even more efficiently going forward.”
“We are ensuring that legitimate claims are processed and paid in a timely way to those individuals and families who deserve these benefits,” McCarthy said. “We believe that it is entirely appropriate to continue to oppose fraudulent and unsupported claims. No legitimate claim has been rejected.”
While nearly 600 of the pending claims have been kicked back to players requesting additional information, court filings suggest that nearly half the claims have been referred to audit, red-flagged and forwarded for indefinite further review. Locks called it a “black hole.” Many attorneys in the case feel the audit is being used systemically to delay, deny or complicate claims.
The principals in the case says the vetting is rigorous for good reason, and the dementia claims have been particularly suspect. According to Brown, 60 percent — 670 — of the dementia claims have been red-flagged and sent into the audit process. By comparison, 17 percent of the claims from the settlement’s other four diagnoses have been in audit.
Seeger, who is also the subject of ire from many players frustrated with the process, said that while he has not noticed the NFL involved with anything untoward, the league;s motivations are clear.
“When the settlement became uncapped, effectively what’s happened is the NFL has interpreted that as now they’re going to litigate each and every potential claim in the settlement,” he said.
Any case involving degenerative medical conditions can be tricky, but the ex-players’ dementia claims have proven to be an especially complicated diagnosis for the settlement administrators, not as clear-cut to those reviewing claims as death by CTE, for example, or ALS. The settlement calls for two categories of dementia, classifications that are unique to the case and not otherwise used in medical or scientific communities. Former players in the “1.5 category” — akin to early dementia — for example, must show evidence “of a moderate to severe cognitive decline,” whereas those in the 2.0 category — likened to moderate dementia — must show “evidence of a severe cognitive decline.”
Because these classifications aren’t listed in medical literature, there’s not necessarily uniformity in the interpretations by various neuropsychologists who are testing the ex-players. Of the dementia claims that have been denied outright, the vast majority — 98 of 111 — has been because of concerns with the diagnosis or the physician.
Michael Kaplen is a New York attorney who specializes in brain injury law and co-authored a 2016 brief for the Supreme Court on behalf Brain Injury Association of America outlining some of the potential problems with the settlement and the unique challenges posed by the brain trauma.
“It’s played out the way I anticipated,” Kaplen said in an interview. “These players are beginning to wake up and understand the settlement is a fraud. The majority of players who deserve compensation are not going to get compensation.”
One neurologist who specializes in Alzheimer’s and neurocognitive disorders says he’s diagnosed several former players in the suit with dementia only to have those claims kicked back. He says the claims administrators appear to be conflating symptoms — such as sleep problems, depression or anxiety — with the larger issue.
“They’ll rebuff them saying, ‘You have depression.’ Yes, but why do they have depression? It’s this crazy catch-22. It makes no sense,” said the physician, who requested anonymity so he could continue to treat the players. “They’re getting denied because of the symptoms of their disease. They’re essentially using our data against us. It’s infuriating. It makes your blood boil.”
Ronnie Lippett, 57, was a cornerback with the New England Patriots from 1983 to 1991 whose job, he says, was “to hit hard.” His Alzheimer’s claim was denied in December and he was told his dementia could be a byproduct of the sleep apnea or depression from which he was suffering. “I stopped using my sleep apnea mask because I was scared,” he said. “Is this the cause of it or what?”
He says he knows now that dementia should be the diagnosis — not the symptom — but he’s not currently appealing his claim because the neuropsychologist that evaluated him is currently under audit.
“My family is scared right now,” he said of his uncertain future.
There has been an uptick lately in dementia claims approved — 26 more last week, though they’re all still subject to appeal. The Post spoke with one of the six men whose dementia claims were granted and paid. He requested anonymity to keep his medical condition private but said has no idea why his was paid while so many friends and former teammates are left waiting. “I often wonder, why me?” he said. He’s continued to monitor the process and speaks regularly with other former players’ about their claims. He fears they’re only waiting for inevitable bad news.
“Nobody’s going to get paid who has dementia,” he predicts. “If dementia claims conceivably represent 90-plus percent of the settlement agreement, it’s obvious to me: They want to shut down dementia. That’s all the money.”