My Recommendation on the proposed Concussion Settlement
Article written and sent out to 8,000 former players on December 24, 2013
Before I comment on the proposed Concussion Settlement, I want to wish everyone a Merry Christmas, a Happy Hanukkah and joyful holiday season.
Unfortunately, many of our alumni brothers will not be celebrating with us this coming year, because they have passed on to the great hereafter. I will soon be providing you with the annual list former players that fought the good fight and are now resting in the eternal light of God. To the families and friends of our Alumni brothers, I hope and pray that you are comforted by the knowledge that they have shed their mortal coil and are now free of all pain and suffering.
Some of our Alumni brothers are still suffering and hopefully they will soon be rewarded with compensation provided under the proposed Concussion Settlement. This is a rather lengthy article on the Settlement, but I hope you can take the time to read it from beginning to end.
Although I have discussed my disappointment with some of the provisions of the Settlement, I have already gone on the record as supporting it because of several reasons that I want to share with you today.
As you know Judge Anita Brody did not rule on the NFL’s Motion to Dismiss the Concussion Lawsuit. Instead, she ordered the parties, through their lead counsels, to engage in mediation to determine if consensual resolution was possible. Judge Brody appointed Judge Layn Phillips to preside over the mediation.
In the Press Release announcing that a proposed Settlement had been reached, Judge Phillips said “Rather than litigate literally thousands of complex individual claims over many years, the parties have reached an agreement that, if approved, will provide relief and support where it is needed at a time when it is most needed. The alternative was for the two sides to spend the next 10 years and millions of dollars on litigation, which would have been great for lawyers, expert witnesses, trial consultants and others. But it would not do much for retired players and their families who are in need. This resolution allows the sides to join together, do something constructive, and build a better game for the future. Both sides faced major risks and uncertainties that made a class settlement far and away the best path for resolving these issues.”
Fighting on behalf of former players during the Settlement negotiations was Chris Seeger from the law firm Seeger Weiss. They have been frequently cited as one of the nation’s foremost law firms, earning accolades from the Legal 500 and the National Law Journal, which named Seeger Weiss to its prestigious Plaintiffs’ Hot List two years in a row.
I recently met with Chris Seeger in New Jersey to hear, first hand, why he thought this was the best Settlement we could possibly achieve.
I don’t usually get too excited when lawyers are called upon to resolve disputes, but I have to say, I was impressed with Mr. Seeger’s knowledge and understanding of all the legal issues with respect to our case. I think he and several of the other attorneys would like to have seen this case go to trial, but in the final analysis, the risks were too great.
Chris said there were several issues of concern in getting this case to trial. The most prominent being the NFL’s “Pre Emption” argument.
So what does that mean?
Chris showed me the language in the NFL’s motion to dismiss that had most of our lawyers very concerned. In their motion, the NFL lawyers said that “parties whose terms and conditions of employment are determined by a collective bargaining agreement must grieve their employment-related disputes by the dispute resolution process prescribed by the CBA—not by bringing claims in court. The CBAs, like all collective bargaining agreements affecting interstate commerce are governed by section 301 of the Labor Management Relations Act (the ―LMRA). Section 301 ensures that disputes between parties to a labor agreement are resolved under a uniform body of federal labor law and adjudicated in accordance with the parties‘ agreed-to grievance procedures. Thus, section 301 provides for preemption of all state-law claims—whether based in negligence or fraud—whose resolution is substantially dependent upon or inextricably intertwined with the terms of a CBA, or that arise under the CBA.”
The NFL’s lawyers also said that “All CBAs have contained a broad arbitration clause providing that all disputes involving the interpretation of, application of, or compliance with, any provision of the CBAs, player contracts, or any applicable provision of the Constitution pertaining to terms and conditions of employment of NFL players, will be resolved exclusively in accordance with agreed-to arbitration procedures. It is a fundamental tenet of labor law that when resolution of a state-law claim is substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract, the plaintiff‘s claim is pre-empted by § 301 of the Labor Management Relations Act”.
These were powerful arguments that Judge Anita Brody did not rule on, but based on legal precedents, there was good reason to believe that the Judge could dismiss our case. Chris Seeger and the other lawyers representing us were concerned that if we did not win that ruling, our case would be severely damaged.
Chris also said that in addition to Preemption, there were also issues pertaining to the Statute of Limitations, Assumption of Risk and the big issue of Causation. What caused our injuries? When did we get injured? Could former players prove that their brain injuries were solely the result of their play in the NFL? What about injuries sustained in Pee Wee, Pop Warner, high school and college? There is no doubt that these arguments and legal challenges would also be raised by the NFL lawyers. They could also bring into evidence any other mitigating factors like alcohol and drug abuse, family histories of mental illness and injuries sustained outside of football. Physician records could and would be subpoenaed.
Under the proposed Settlement, we don’t have to show that our injuries were caused by football. That is a very important aspect of the agreement.
This may not be the best Settlement we could have hoped for, but if the agreement is approved by the Judge, I will not take the chance of opting out and fighting another 5 or 10 years – especially when the outcome is so uncertain. I would recommend that all former players carefully consider their options in this case, before they make any final decisions about opting out.
Some of our alumni brothers are still uncertain about the Settlement and have been misinformed about many of the provisions that are in the proposal. In order to fully inform as many players as possible, my good friend and lawyer, Craig Mitnick has started visiting some of the NFL Alumni Chapters to discuss the proposed Concussion Settlement.
I should note that in one of my most recent articles, I said that it did not appear that the Settlement would be compensating players for mild or “moderate” cognitive impairment – or treatment for those injuries.
In our meeting, Chris Seeger informed me that although the press release on the proposed Settlement did not thoroughly cover those issues, it does in fact cover “moderate” impairment under Dementia and “treatment services” for players that need it now and in the future. He said that those details would be forthcoming when the Judge makes preliminary approval of the Settlement.
The Judge is not allowing Mr. Seeger, or the other attorneys in this case, to discuss some of the finer details of the proposed Settlement, but he has assured me that the amount of money set aside will be enough to cover former players that are diagnosed with severe cognitive impairments. Those payments will be based on a specific schedule that includes not only the severity of the injury, but also the age of a player and how many years they played in the NFL. The Judge has hired independent analysts to make sure that the financial aspects of the agreement are solid.
Once Judge Brody is satisfied with the proposed Concussion Settlement, it is likely she will approve it and then order the proposal to be sent to all former players that are part of the Settlement. Former players will then have an opportunity to be a part of the class, object, or opt out.
There will be some players that decide to opt out because they don’t currently have dementia, Alzheimer’s, ALS or Parkinson’s, but keep in mind, the Settlement will cover you if you develop these neuro-cognitive impairments later in life.
Some former players will opt-out because they truly believe the case can be tried and won – and that there will be better compensation for them if they win. It will be a risky proposition, but I wish them the best.
I, for one, will not stand in the way of this Settlement because first and foremost, it will be the fastest way to compensate the men that are most severely affected by brain injuries they have sustained and are suffering from now and in the future.
Your Alumni brother,