More than 10 months after the NFL’s high-profile concussion settlement with retired players, only a small percentage of those who have made claims have received monetary awards, with many claiming the process has been flawed and others defending it as necessarily deliberate.
Before the settlement went into effect in January after more than a year’s worth of objections and delays, the NFL had estimated for the court that it expected 665 settlement claims to be paid out in the first year of an agreement many estimated eventually would cost the league more than $1 billion.
Thus far, just 140 notices of monetary awards have been issued for a total of $195 million. Of that, about $100 million has been distributed.
“The current administrative structure of the claims process is flawed, cumbersome and moves at a glacial pace,” attorney Thomas Girardi, who represents more than 500 former players, said in one recent court filing.
The company charged with administering the claims process submitted a progress report to U.S. District Judge Anita Brody last week saying that more than 17,000 players and their families had registered and more than 1,400 had submitted monetary awards claims through Nov. 1. Many of those claims have become ensnared in the administrative pipeline, with many former players receiving deficiency notices and others being denied altogether.
Christopher Seeger, the New York-based attorney who serves as co-lead counsel for the class of former NFL players and is credited as the principle architect of the settlement, defended the process and said early hiccups are to be expected in large, complicated cases such as this one.
“That rate is going to pick up every single day. So it’s working well,” he said in an interview this week. “Is it perfect? No. Is it working as well as I would like? No. I would like more claims approved and things moving along. But you can’t anticipate Day 1 every single thing that’s going to come through.”
Seeger is the target of much ire from many former players and their attorneys, particularly after he made a court filing last month outlining a proposal for attorney compensation, which requested $70 million for himself and his firm and $42.5 million to be split among two dozen other attorneys. He also requested 5 percent of every claimant’s award to compensate for future legal work in the case. That prompted a flurry of filings from others who said attorneys in the case should not be compensated before the players involved.
Bruce Hagen, a Georgia-based attorney, told the court, “Mr. Seeger’s insatiable greed seems to know no bounds.”
Steve Yerrid, a high-profile Tampa attorney, said he has filed nearly 200 claims on behalf of clients and not a single one has been granted thus far.
“The public perception is that Class Counsel are now asking for millions of dollars in compensation while brain damaged players continue to deteriorate and even die while awaiting payment of their claims as the process is being ‘slow played’ and unnecessarily delayed,” Yerrid wrote to the court.
While some former players have assigned blame to both the class counsel and the league, NFL spokesman Brian McCarthy pointed out that the court appointed a third-party company to administer the claims process and said the league hasn’t been involved in any efforts to delay that process.
“The NFL is committed to promptly paying all legitimate claims and, to that end, is working with co-lead class counsel, the settlement administrators and the court to ensure the effective implementation of the settlement program and the payment of benefits,” McCarthy said.
A tough process
Some ex-players and their families said the complicated claims process only has added to the frustration and heartache they feel. Mary Brooks is the daughter of George Andrie, a former defensive lineman for the Dallas Cowboys who suffers from dementia and requires a full-time caregiver. With power of attorney for Andrie, she filed a claim in August. More than two months passed before she was told the claim was deficient, and she’s not sure when she might receive a definitive answer on her father’s case.
“When I started this journey, I had no idea the lion’s den I would be walking in to,” she wrote to the court last week. “I have lost all faith in justice and have seen the law manipulated in ways I have only seen in movies.”
Brody issued an order last week saying in part that former players “must proceed through the Claims Administration process” and that an “attempt to circumvent those processes by directly petitioning the Court is improper.” She has called for a conference to take place Monday in her chambers “to address any issues regarding the implementation of the Settlement Agreement.” That meeting will be closed to the public and media and will include only Seeger and the NFL.
Her order, issued Wednesday, further enraged many players and their attorneys because they blame both parties for the early problems.
The claims process is administered by a third-party entity, BrownGreer, a Richmond-based company that is supposed to operate independent of the NFL and the class of players. Asked Thursday about the process, BrownGreer founder Orran Brown replied, “I will review this with the parties and the court before I may respond.”
According to the status update filed last week with the court, 20 claim determinations have been appealed, including eight by the NFL. (An unspecified number of claims also have been placed into audit for “potential fraud concerns and/or the audit requirements.”) Seeger said the relationship with the league can be adversarial but “there’s no doubt the NFL is operating in good faith.”
“Just to be clear: Have they done anything to hold up claims? Have I seen any evidence of their desire to deny claims or their interference in claims? Absolutely not,” he said. “And if I did, I’d go to court.”
Doing it all over again
Many of the ex-players filing dementia claims have seen their claim kicked back as deficient, usually requiring more information, clarification or medical evidence. But some of those players say the claims administrator nitpicks the claims and unnecessarily rules them as deficient.
Debra Fellows initially filed a claim May 23 on behalf of her husband, Ron, a cornerback with the Cowboys and Los Angeles Raiders from 1981 to 1988. He had been diagnosed with Alzheimer’s more than two years ago.
“We just had another decline a couple days ago,” she said this month. “He woke up and told me he was going to call his mom and see how she’s doing. Well, she passed away 17 years ago. Those are the kinds of things that are happening now.”
Fellows, 60, already qualified for the NFL’s 88 Plan, which provides financial assistance to former players suffering from neurocognitive disorders. He and Debra submitted the same paperwork and documentation to the settlement administrator. Six weeks after filing the claim, they were asked for more paperwork. More than three months passed before they received a notice of deficiency Oct. 20.
“And you know what? This isn’t just happening to us,” Debra said. “It’s happening to everybody I speak to. They’re being asked for information that they’ve already been given multiple times. It’s all a delay gimmick.”
Fellows’s claim was finally approved last week, and now the family must wait 30 days for the NFL to decide whether it will appeal. Even then, the claim is subject to an audit.
One neurologist who is among those approved by the NFL and class counsel to offer diagnoses related to the settlement said he has an “uneasy feeling” because his reports are being questioned. He requested anonymity out of concern for jeopardizing his ability to continue treating the players.
“What we’ve been doing is applying the same scholarly approach that we do in our daily practices, yet what we’re encountering is a real pushback where our judgment, intelligence and conclusions are being nitpicked by people who really do not have a medical background,” the doctor said.
The doctor acknowledged that a screening process is necessary to weed out false claims and defended physicians’ integrity.
“I have found many of them not to be hurt, and I’ve reported that. Not everyone is injured. That’s a fact,” he said. “The purpose of this thing is to screen who’s hurt and who’s not hurt. But I think what’s happening is we’re finding out more are hurt than [the NFL] expected.”
Though he couldn’t provide any details, Seeger said the number of deficiency notices isn’t particularly high and they’re “really right on track with every other settlement that I’ve ever done.”
“If you ask me what grade would I give us right now, I’d give us a B,” he said earlier this week. “But I think if you give us a few more months, we’ll get up to an A.”
Kenneth Feinberg, the attorney who has administered high-profile compensation funds such as those for victims of the Sept. 11 attacks and the BP Deepwater Horizon disaster, said victims and their families are rarely satisfied with the compensation process, in part because “compensation is a pretty poor substitute for loss.”
Feinberg said in this NFL case the complexities of determining which players are eligible for compensation make the delays “understandable.”
“It’s not like 9/11, where there is a death,” said Feinberg, who is not involved with the concussion litigation. “Here there is a requirement where there needs to be a careful review of medical records, and it’s not all long-term traumatic injury or death. It’s long-term, gradual harm. And how you diagnose that brain injury can be problematic and time-consuming.”
Meanwhile, players such as Andrie wait. He played for the Cowboys from 1962 to 1972, appearing in five Pro Bowls. Andrie, 77, remembers games he played and teammates he had, but his short-term memory is shot.
“He won’t remember the conversation you just had,” said Brooks, his daughter. “He won’t remember what he’s doing. He won’t remember to bathe. It’s so sad to see.”
And, Brooks said, there’s no way people such as her father can navigate the settlement process alone.
“The people in this lawsuit, they’re brain-damaged,” she said. “If you don’t have an advocate, a wife or a daughter, how are you supposed to do this? Look, if they can beat you down and exhaust you — and your loved one is sick and suffering — you will eventually succumb.”
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