The NFL concussion settlement is at an inflection point. Tomorrow morning, at the federal courthouse in Philadelphia, a hearing is scheduled to discuss a series rules changes that were recently approved by Senior Judge Anita B. Brody, who has oversight of the settlement. Those changes, which govern one group of physicians, were supposed to be merely administrative. But three of the co-lead counsels representing the settlement class asked Brody to reconsider, on the grounds that the changes are in fact substantive, and that they stand to make it more difficult for players to get their claims paid. All of this is extremely important for lots of reasons. Let’s discuss.
Why is this so important?
The settlement is supposed to compensate players for injuries sustained in light of the NFL’s manipulation of brain trauma science. And while approximately $660 million in claims has been approved, with more than $485 million already paid out, most of those are for the most obvious and severe cases: death with CTE, ALS, Alzheimer’s, Parkinsons.
But many more claims of early and moderate dementia are being denied, audited, or held up for other reasons. Of the 2,774 total claims received as of April 29, 1,708 (61.7 percent) are for early and moderate dementia. Yet just 341 of those early and moderate dementia claims (20 percent) have been approved, while only 239 have been paid (14 percent). Long story short: A lot of players who are dealing with serious mental, physical, and financial issues are not being compensated by a system that was ostensibly set up to compensate them.
Why is this happening?
In a nutshell, a lot of plaintiffs’ lawyers feel that Christopher Seeger, the co-lead class counsel, isn’t as adversarial with the NFL as he could be—and that, as a result, Judge Brody hasn’t been given a clear indication of how onerous the settlement process can be for most claimants. The settlement has no cap, so the NFL is incentivized to limit its exposure, which it’s doing by trying to nickel-and-dime a lot of the early and moderate dementia claims. In January, after Judge Brody directed BrownGreer, the Richmond, Virginia–based claims administrator, to draw up the new physicians’ rules, Seeger told me in an interview the changes would not be substantive. Yet when the rules were finally approved last month, they created all sorts of new restrictions that seem likely to make it more difficult for players to get paid.
Why is that?
More approvals are coming from the network of physicians (known as the Monetary Award Fund) subject to the new rules—in December, the NFL asserted in a court filing that “over 70 percent” of payable dementia diagnoses came from MAF doctors. The exact number of qualifying diagnoses from the other network of physicians (the Baseline Assessment Program) is harder to pin down. A February status report by the BAP administrator said 142 of the early and moderate dementia approvals came via the BAP, but BrownGreer said in court papers filed on Friday that just 121 BAP claims have been processed in total.
Huh?
Yeah. So much of this is pretty opaque and weird. And for a lot of players and their families, navigating the process has been hell.
What do the rules changes mean, and why were they necessary?
I went into more detail here, but, in general, there have been multiple allegations of players and doctors trying to game the system. From the NFL’s point of view, these changes are an attempt to prevent fraud by placing more restrictions on those doctors—43 percent of all claims have been audited—but one of the side effects of this is to create more hoops for players with legit claims to jump through. As the other co-lead class counsels put in their motion asking the judge to reconsider the changes, “The restrictions compromise a fundamental benefit the class bargained for and received in 2013: the right to choose without restriction an MAF neurologist and neuropsychologist. If the amendments go into effect, that benefit will be gone.” In other words, this stands to be a substantial victory for the NFL, at the expense of the players the settlement is supposed to help.
The other co-lead class counsels said that? Who are they?
The Locks Law Firm and Anapol Weiss, both of Philadelphia, along with Podhurst Orseck of Miami, Florida.
Right, right. But aren’t they supposed to be aligned with Seeger?
They are. Yet their motion also argues that the rules changes “were approved without the consent of Class Counsel.” Which is interesting, to say the least.
Has Seeger said anything about this?
In his own response to the others’ motion, he actually agreed that the restrictions limiting how far players may travel to see an MAF physician and mandates on where they can see those physicians be changed.
So what will come of the hearing?
Well, it’s the first time a class lawyer other than Seeger will get to present anything in open court in front of Judge Brody since May 2018, and no individual plaintiffs’ lawyers have gone before the judge since February 2017. A lot of individual plaintiffs’ lawyers feel they’ve been frozen out of the process, which they say has created an echo chamber whereby Judge Brody only sees that the hundreds of millions of dollars that’s been approved, while also only hearing word of the fraud allegations against players and doctors. One of the consequences of the new rules could be to push more players into the BAP program, and the deadline for players 45 and older to get a BAP evaluation is June 6. A decision from Judge Brody is expected at a later date.