There’s only one story today, still. I know the season is three days away, and the concussion case settlement is four days old. But this head trauma issue was the nuclear cloud that hung over the game, and I think there are things you need to know—particularly you who would trash the settlement as being too meager. “Chump change,’’ I believe many of you called it on Twitter and elsewhere. We’ll have all week, and the bottom 3,500 words of this column, to trumpet the opening of the league’s 94th season. This morning, you need to hear the story of 44-year-old former battering-ram fullback and current ALS sufferer Kevin Turner, and of the lead plaintiffs’ attorney who woke up more than once at night thinking of Turner, and how men like Turner pushed this case to get settled.
“I have a policy of not getting involved with the plaintiffs in cases like this, whether it’s NFL players, ballerinas or regular people,’’ Chris Seeger, one of the lead attorneys for the 4,500 former players and estates of former players, told me Sunday night. “I like to keep a level head. But I met Kevin several times. Nobody had a bigger impact on me in this case than Kevin did. I’d wake up at night, sometimes in a cold sweat, thinking about this man and how important it was to him that he provide for his family, that his children get the college education they deserve.”
I spoke with Turner over the phone for an hour Sunday afternoon. His voice is often garbled, because amyotrophic lateral sclerosis—known by many as Lou Gehrig’s disease—is in the process of robbing all his muscles of their vitality, including the ones that form words in his tongue and mouth and vocal cords. But this was a pretty good afternoon; he’d taken medication to ensure he could be well understood.
Turner is an Alabama boy. He played for the Crimson Tide, then got drafted by the Patriots in the third round in 1992. He played eight years for the Patriots and Eagles, and retired following the 1999 season. He lives in Birmingham now. He is divorced with three children, the oldest of whom played his first varsity high school game ever on Friday night. That filled Turner with pride, knowing his son loved the game enough to pursue it, and now as a sophomore he was playing at a high level.
He knows what you’re thinking: How can he let his son play? And how he can he not hate the sport that very likely gave him—such a young man—this cruel disease with no cure?
“It’s not complicated,’’ Turner said. “I love football. I always will love football. I love football so much I let my oldest son play the game, because I knew he would love it too.’’
There are a few reasons this case settled when it did last Thursday morning, with a ruling by U.S. District Court judge Anita Brody announcing the mediated $765 million deal that she still must formally approve. The key points:
The deadline. Brody had told both sides they had until a date in July to reach a settlement. When they went to her at the appointed time nearly two months ago and said they were deadlocked, she assigned a mediator, Judge Layn Phillips, and told each side they had until Sept. 3 to reach a deal. If they didn’t have a deal by then, she’d rule, and she told both sides there would be parts of her ruling that could well be injurious to each.
Each side was motivated to settle. ESPN reported over the weekend that Brody “signaled” that she agreed with part of the NFL’s argument—that a large percentage of the plaintiffs, those who played from 1994 to 2010, should be omitted from the suit because the collective bargaining agreement precluded them from filing lawsuits over health issues. The players, instead, would have had to file cases with the NFL and go through the regular grievance process. No way they wanted that. The players also were pushing for a quick resolution because many of the sicker ones, Turner included, needed the money now and not years from now when the appeals had been exhausted. From the NFL’s side, there was no way it wanted the dirty laundry of stories of team doctors ignoring or minimizing concussions during games aired in depositions before the trial, or in testimony at trial. The NFL didn’t know what would or wouldn’t be admissible at trial. One rogue doctor or ruthless trainer would have been enough to turn all public sentiment against the league, whether it won the trial or not. And the league was motivated to get the focus on the field, instead of it continually getting pummeled by the bad publicity of a continuing black cloud of head trauma.
The players’ side controls the payout pool. This was important to the players. They didn’t want the NFL controlling which doctors would examine the players in baseline testing, which would be the base provision for determining how much money each injured player is awarded. And the players’ side got accountants and actuaries—professionals who use statistics to assess risk and figure long-term disbursements for huge cash pools—to figure out fair payouts to former players depending on their individual cases. The experts tried to figure a way this payout pool would be financially viable for 65 years, so the last player who could file a claim generations down the road would be one cut this preseason.
It’s complicated. But at the end, the attorneys for the players felt they got as much as they could from the NFL before the two sides would have had to appear in front of Judge Brody on Tuesday—at which point the players knew the case could have been weed-whacked if Brody removed all the players who had played since 1994.
So the deal got done: a $685 million pool for compensation (a $5 million individual ceiling for ALS sufferers, $4 million for Parkinson’s, $3 million for Alzheimer’s or dementia), $75 million to fund baseline testing on retired players to see if they’ve been cognitively impaired, and $10 million for research. In addition, the NFL will pay lawyers’ fees for the plaintiffs, which will likely be $200 million or more. Over the next 20 years, then, NFL teams will pay out about $1 billion, half in the first three years to fund the compensation pool.
Kevin Turner’s payout, depending on his exam and findings, will be maxed out at $5 million. When he was asked in confidence by one of the plaintiffs’ attorneys about the deal—with all details, including the part about the judge possibly throwing him out of the case because he played during the 1994-2010 time period—he was clear with his desire.
“I told him [the attorney] I was happy with it,’’ Turner said. “I really wasn’t expecting closure of this within my lifetime, honestly.”
I’m told a large majority of NFL owners approved the details of the settlement in conversations with commissioner Roger Goodell in the last couple of weeks. (But it was not unanimous.) And why wouldn’t they approve? For about $16 million per team all told in the next three years and $12 million over the following 17 years, nuclear winter was averted. If individual players are unhappy with the amount of compensation and want to file claims, they’ll run into some of the best litigators in America, the NFL’s, and it’ll take years and millions of dollars to fight the fight. So for now, most experts feel the crisis has been averted, and the game will go on.
Seeger was one of the lead attorneys in the Vioxx case that won $4.8 billion from the pharmaceutical giant Merck. He’s been down this road before, figuring how hard he can push a giant company. He’s heard the criticism of what the players got, and he’s hot about it.
“I would love to debate any sane person about this settlement,’’ Seeger said. “We plotted how much these players who need the money now and in the future, and who are eligible for it, would need, and we got it. We got it now, not 10 years from now. I’ve heard the criticism. A pittance … chump change. That is stupidity. We got exactly what we needed for the players and the families who need it most.
“I’ve seen people say because the NFL has $9 billion in [annual] revenue, that $765 million is too little. Suppose we sued GE, and GE has $50 billion a year in revenue, and we didn’t get $50 billion. Would that have been a bad settlement?
“It’s easy to sit in the cheap seats and have a conviction that the settlement is no good. You weren’t in the game. You just don’t know. What I asked myself at the end as a lawyer was, ‘Is this enough? Is this enough for Kevin?’ ‘’.