The state of the head-trauma case.
When U.S. District Court Judge Anita Brody last week rejected the proposed $765 million settlement between about 4,500 former NFL players (or their estates), she said she had “concerns about the fairness, reasonableness and adequacy of the settlement.” Basically, Brody was seriously questioning whether the money set aside for the aggrieved players would be enough to care for all the plaintiffs—and future ones.
On Saturday, I spoke with plaintiffs’ attorney Christopher Seeger about his reaction to the ruling, and what lies ahead, from his perspective. I was surprised how confident he sounded that the ruling, once the judge examines some of the actuarial data the players’ side commissioned for the case, will stand. A portion of my interview follows, and I will have a second part on Tuesday, in my On Further Review column.
What was your reaction to the judge’s ruling?
“It was totally expected … The court is the fiduciary of the players and the class, so the court’s doing its job. It’s not unusual for lawyers to have discussions like this with judges in chambers. But this judge is doing everything open and totally transparent, and right in front of the public. So asking for more information so she could determine whether it’s reasonable and adequate is absolutely what we expected. It’s a complicated settlement. Probably the most complicated part is the payouts—the monetary award fund. And I don’t think that anybody would expect the judge to just say, ‘Okay, I see your grid, I trust the fact that you can pay that over 65 years. Go ahead, I’m going to preliminarily approve that.’ ”
“What we’re going to do is follow her order, which was to meet with her special master—she’s appointed Perry Golkin, who is a extremely experienced person in this kind of financial matter. We’re going to provide him with whatever information he wants, and probably a lot of information he might not want. We’re going to basically give him everything and allow him to assess all of the work that was done by the economists and the actuaries, as well as the medical professionals. So it will be his job now to look at that and advise the court.”
Do you believe that the settlement is in danger?
“Oh no. No, no, no. Not at all. To put this in some context, what this judge did makes the settlement healthier. It’s a level of analysis that we totally expected on the plaintiff’s side. And I have to imagine—I can’t speak for the NFL—I have to imagine they did as well. So you know, when we hired the best actuaries, when we crossed every ‘T’ and dotted every ‘I,’ it was in complete anticipation of questions like this, because the deal is so complicated. And more importantly because it needs to last over 60 years, or until the very last retired player dies … What I’m hoping will happen is that players who have had all kinds of information fed to them will finally be able to say, ‘Okay, whether I like it or not, I at least know I can rely on this.’ And that will be a good thing.”
Can you explain how you came to determine that there is enough money in the settlement?
“If you take the payout schedule that we created—it’s attached to our documents and now available to everybody—there is, for lack of a better word, a matrix or a grid that compensates extremely highly for players under 45 who get any of these serious injuries. But there’s a whole spectrum here. There are guys who are going to apply to this fund that are 50 years old. There are guys that are going to apply who are 60 years old. And 70 years old. At the age of 70, a guy would be first diagnosed at 70 with dementia, would still be entitled to compensation here, despite the fact that many medical professionals may say, ‘If you didn’t develop dementia until you’re 70, you have a greater chance of developing that as a result of old age than you do anything that happened to you in the NFL.’ Where this works is that the payouts obviously get reduced. So if you take the dementia bucket—level 2 in the settlement—you’re under 45 and you’ve developed dementia, you get $3 million. You develop dementia at age 65—you get $380,000. What does that reflect? If you’re 45 and under, those concussions probably led to your problem. Very highly likely. Now if you develop this at 65, you shouldn’t get the same as someone under 45. Because you’re more likely to have it as a result of the fact that you’re 65. Maybe the concussions played a role, but it’s such a small role …
“So you can start to see why the values drop down as the players get older, and that is exactly the kind of thing that protects this fund … What we did on the actuarial side is we examined everything there is to know about NFL players and concussions, and the results … We were able to extrapolate and come up with rates we believed will be repeated in the settlement based on what’s going to happen to these NFL players. How many of them from age 25 to 80 will [suffer from] dementia at some point in their life? How many will get ALS? We’re very conservative in doing that and we modeled it in many different ways.”
Can you be more specific on the dementia example, at different stages of a retired player’s life?
“So let me remind you of one other thing that’s critical here. You’re 65 and you played in the NFL, and you’re entitled to a base reward of $380,000. But if you only played two [NFL] seasons, there’s a further 60 percent reduction. If you played four seasons, you will get a 20 percent reduction. If you played five seasons, you get the whole amount. And just a reminder to you, that was our proxy for causation—in order to convince the NFL to not force players to prove concussions and the scientific link. Let’s go to age 75. The payout then is $80,000. If you go to age 80, the payout then is $50,000. We projected across all age groups.”.
If this case ever went to trial, do you think the NFL would try to discredit the cases of your biggest named plaintiffs? [I believe the NFL has video evidence of some of the plaintiffs suffering concussions or taking big hits in college games, and it’s natural the league, in trial, would say, "Prove that your client suffered his injury because of NFL injuries, and not injuries in high school or college football."]
“You couldn’t be more right. These players should not delude themselves here. The NFL had a lot of information about a lot of players. I don’t know exactly what they had, but I can tell you that my suspicion is that they knew every concussion that many NFL players suffered, whether it was high school or college … Take a suicide case, randomly. Was there suicide in that player’s family? Some scientists believe there’s a genetic link involving depression, and depression leads to suicide. So you find that Joe Blow’s mom suffered from depression—that’s an issue at a trial … I’ve already settled cases, much bigger than this one. I’ve had a good career. My legacy case wasn’t going to be a case that didn’t work. It wasn’t going to be a case that I wasn’t totally proud of. Because I know that most of the people involved in this, including the judge, are going to be thought of more for the NFL case than anything else that they will do in their career. That’s silly if you ask me, but it’s reality.”
You are confident. But what happens if the settlement doesn’t get approved?
“I am highly confident it will. If it doesn’t, I guess everyone is back to where they were. We’re back to litigating. The players are back to court. Judge Brody will then rule on the motions before her and these cases will proceed through the system, and you know, we’ll see what happens—if they get sliced and diced by the attorneys at the NFL on legal issues where they think the can win … I’m not sure which aspect of the settlement would not be approvable. I’m highly confident it’s not the financial.”
Maybe the idea is to try to force the NFL to come up with more money.
“I don’t think that is a given. People have to also remember that the judge has a lot of power, but ultimately the judge’s power is to approve or not approve the settlement. So, she can’t really force a party to do anything. This is a piece I’ve been trying to explain to players or laypeople who have said to me that she might force the NFL to put another billion dollars in the deal. There’s only one way to do that. That’s after a trial and you’ve got to get a verdict and a judgment. There’s no process by which any party in a settlement gets forced to do something they don’t want to do. That doesn’t mean that there isn’t some other kind of tweak. The judge mentioned a couple of other things that were non-financial that troubled her. So we take a look at them. Everybody in good faith will work toward trying to make everyone comfortable. I don’t have an expectation that the result of this is a lot more money gets injected into the deal. That’s not what I anticipate happening.”
* * *
Greg Bishop, a well-respected New York Times scribe soon to join Sports Illustrated, is covering the Australian Open for the Times and watched the NFL games Monday morning in Australia. I was curious about how the game is viewed there, and asked Greg to file something about it. Here’s his report from Melbourne:
Monday morning here in Melbourne, joggers plodded along the Yarra River. Businessmen rode bicycles toward offices, clad in suits. It was 7 a.m. This is what all that activity suggested: What NFL playoffs?
Then there was the Crown Casino, where inside a sports bar, a floor above the morning gamblers who wiped sleep from their eyes and ordered the day’s first pint, a crowd had already gathered. One patron wore a Tom Brady jersey; another a Russell Wilson T-shirt.
I asked two gentlemen who shared a table why they were there. Work, naturally. One was Scott Filion, a New England Patriots fan from New Hampshire. The other was Esan Frederick, from Bermuda. Both left their wives upstairs. They would have watched the games regardless.
“It’s early,” Frederick said.
“Too early to drink,” Filion added.
There were several minor differences: commercials about soccer, coffees on every other table, references to “American football.” But it was mostly typical, proof of the NFL’s great reach, albeit with a few “good run, mate” references thrown in. Andrew Poy, a teacher who moved here recently, sat at my table for the second-half of Broncos-Patriots. He loves the San Francisco 49ers, a team he pledged his loyalty to based on Coach Jim Harbaugh and a steely defense. He said the game was growing in popularity here, but hurdles remained, mostly related to the time difference. It is difficult to convince friends to watch football at 5 a.m. on Monday mornings.
“I’ll tell you,” he said, “that Anquan Boldin is the toughest bloke in American football.”