Ken McClain figured the National Football League was preparing to screw his clients. Question was, just how badly?
A Kansas City-based attorney, McClain represents two dozen former professional football players in their mid-30s to 60s whom he says suffer from depression, impulsivity, and other life-altering symptoms of brain damage—damage presumably accumulated during years of on-the-job helmet-knocking. In theory, all of them ought to be covered by the proposed NFL concussion lawsuit settlement; a multimillion dollar class action agreement that promises to compensate ailing retirees and is moving toward final approval in federal court.
In practice, McClain discovered, the deal works a bit differently.
Over a two-month span and at a rough cost of $10,000 per person, McClain says, he had his clients screened using the specific neurocognitive tests and diagnoses spelled out in the settlement. He then had those same former players evaluated by doctors at Boston University who specialize in chronic traumatic encephalopathy (CTE), football's industrial disease—a neurodegenerative condition that was found in the brain tissue of deceased retirees Junior Seau and Mike Webster and sits at the heart of both the suits against the league and the damning investigative journalism of the documentary League of Denial.
"Our worst fears were realized," McClain says. "We found our players had significant emotional and impulse control problems that according to [Boston University] are tied to head injury. All of our guys. And none of them qualify for awards under the settlement.
"It's a bogus deal. A fraudulent deal on its face, completely illusory, designed to pay very few people except the lawyers and the players in the most extreme [illness] category. All of these men saddled with neurological problems throughout their lifetimes are not the NFL's concern. The NFL's concern is containing risk, just as if they were [General Motors] and these players are faulty ignitions."
Of course, the NFL doesn't put things that way. Nor do the top lawyers representing the more than 4,500 former players suing the league. They call the settlement"extraordinary." A deal that "reaffirms the [league's] commitment to provide help to those retired players and their families who are in need." When federal judge Anita Brody gave the agreement preliminary approval last July, both sides touted it as being "uncapped," and with good reason: Brody had previously rejected a settlement paying out a maximum of $675 million over 65 years. Now, the max has been removed. Every retiree who qualifies for an award will receive cash, regardless of the total cost to the NFL. Suffering men and their families won't—can't—be left high and dry.
"If you get sick, period, you still get paid," says Chris Seeger, co-lead counsel for the players and one of a handful of attorneys who negotiated the deal with the league.
Er, not exactly.
Seeger is lying. Or at least bullshitting. As currently written, the settlement isn't designed to help hurting former players. To the contrary, it's designed to save the NFL as much money as possible, to the tune of billions of dollars of potential brain damage liability. If the deal goes through, many sick retirees won't get paid. Most of those who do will receive minuscule sums, hardly commensurate with their injuries, far from the hefty maximum awards—amyotrophic lateral sclerosis sufferers get $5 million! Parkinson's victims get $3.5 million! Everyone gets a car!—reported in the press and cited by the settlement's supporters. Only don't take my word for it. Or even McClain's.
Instead, ask the people who cut the deal in the first place.
Then, check the math and the fine print.
According to documents filed in federal court, an actuary for the top plaintiff's lawyers—note: the people who are supposed to be negotiating the best possible deal for former players—predicts that while 5,900 of the approximately 21,000 retirees covered by the settlement will be sick enough with specific neurodegenerative ailments to receive compensation, only 3,600 of them will actually receive cash awards. As for the awards themselves, the same actuary estimates that the average former player will be 77 years old at the time the settlement's diagnostic tests qualify them for payment.
Why does that matter? Simple. The deal reduces payouts on a progressive, age-based scale: the older retirees are when they're deemed worthy of awards, the smaller those awards will be. For a 77-year-old former NFL player with amyotrophic lateral sclerosis (ALS), that means an 80 percent reduction from the maximum payout, from $5 million to $1 million; for the same player with Parkinson's, Alzheimer's, or debilitating dementia, that means reductions of 96 to 97 percent, from as much as $3.5 million to as little as $40,000.
Small wonder, then, that both the NFL's lawyers and Seeger have told Brody that they remain confident that total payments by the league over the lifetime of the settlement will not exceed the deal's original $675 million cap. Small wonder, too, that Wisconsin-based brain injury attorney and advocate Gordon Johnson—who has actually read the through entire 163-page settlement and supplemental court filings—says the league will probably end up paying out even less, as little as $250 million, all thanks to a deal he describes as a "hoodwinking."
"It looks like going into negotiations, the NFL authorized its attorneys to pay a billion dollars, or at least three quarters of a billion," says Johnson. "And then it became a contest among the lawyers for the league to see how they could define the terms of the settlement so that they didn't have to pay up."
It's a horrifying thought, but imagine you are the NFL. How do you win said cost-cutting contest, creating a settlement that only looks sufficient? Follow along…
Step 1: Ignore Your Industrial Disease
Picture a pair of clear plastic jars. Each contains the brain of an NFL retiree. Both brains have been examined by neuropathologists and diagnosed with CTE. Under a microscope, both brains show the same telltale tangles of tau protein that are the hallmark of the disease.
One retiree died between January 1, 2006 and July 7, 2014. Under the settlement's qualifying diagnoses of "Death with CTE," his family qualifies for an award of as much as $4 million. The other retiree died outside of those dates. Under the same settlement, his family qualifies for nothing.
CTE is largely why the settlement exists in the first place. Pittsburgh-based lawyer Jason Luckasevic, who filed the very first brain damage lawsuit against the NFL, calls the consolidated suits against the league "a CTE case." The actual class action complaint devotes nine paragraphs to the disease; by contrast, ALS, Alzheimer's, and Parkinson's merit two paragraphs—combined.
A 2013 National Institute for Occupational Safety and Health study of nearly 3,500 NFL retirees who played at least five seasons between 1959 and 1988 recorded just 17 combined cases of the aforementioned three diseases among the former players surveyed. Meanwhile, 76 of the 79 deceased league retirees whose brains have been examined for CTE have been diagnosed with the condition.
And yet, the proposed settlement pays out for ALS, Alzheimer's, and Parkinson's disease going forward. It limits "Death with CTE" awards to the families of former players who died after January 1, 2006 and before July 7, 2014. Seeger argues that the cutoff is both appropriate and necessary for two related reasons: 1) As of now, CTE can only be definitively diagnosed via autopsy, and the settlement is designed to put cash in the hands of living, suffering retirees; 2) said retirees with CTE will be able to qualify for the settlement's generalized "neurocognitive impairment" awards, which are as high as $3 million.
"I think people got really hung up on CTE, but, you know, this is all about symptoms,"Seeger said during a CBS Sports radio interview this summer. "If you're sick, and your activities of daily living are being interfered with, you can't function, you're going to get paid whether or not you have CTE."
This makes sense. Unless, of course, you know the first thing about the science of the disease. To qualify for the aforementioned neurocognitive impairment awards, retirees must undergo and perform poorly on a battery of neuropsychological tests that measure cognitive decline, which is measured using symptoms like memory lapses and executive dysfunction. Problem is, CTE patients often suffer from mood and behavior disorders: emotional explosiveness, impulsive behavior, poor judgement, outbursts of violence, depression, and hopelessness. Think Seau's reported gambling, drinking, and relationship woes before his suicide via gunshot wound to the chest, or Dave Duerson assaulting his wife, getting divorced, and watching his business empire implode before his own suicide via gunshot wound to the chest.
Last year, Boston University CTE researcher Robert Stern and other scientistspublished a detailed study of 36 adult males who had CTE. Thirty-three suffered symptoms while alive. Twenty-nine played football. As I've written before, the men fell into two distinct groups. One group, 11 men, first suffered from cognitive symptoms. They tended to live longer, and their symptoms tended to show up later in life, typically in their late 50s. By contrast, the 22 men in the second group first suffered from mood and behavior issues. They generally died younger, and their symptoms appeared earlier.
Mood and behavior disorders are a sign of brain damage. They absolutely interfere with your daily life, with having a family, or holding down a job. Only the settlement doesn't compensate players suffering from those symptoms. It doesn't even screen for them, something McClain's clients learned the hard way. If the deal goes through, the lone cold hope for them and all CTE-afflicted retirees who fall into Stern's second group—the bigger group—is to live and suffer long enough to develop cognitive problems. Then, and only then, will they possibly qualify for cash awards.
Of course, those same awards will be subject to age-based reductions.
If the above sounds like it was purposefully engineered by NFL lawyers to both save money and perpetuate the ongoing lie that CTE doesn't really exist, then you're starting to see how the game is played. After all, the league certainly is aware of Stern's study. Moreover, the NFL has known about CTE's mood and behavioral symptoms since at least 2009, when neuropathologist Dr. Ann McKee—an expert on the disease—met with league doctors and a group of independent researchers at NFL headquarters in New York City.
In a transcript of the meeting obtained by VICE Sports, McKee says the following:
"… personality and behavior changes are usually prominent and are seen in about two-thirds [of CTE patients]. Aggressive or violent behaviors are most common, followed by confusion. There's dysphoria, meaning depression or mania. Most of them are depressed but some of them have sort of a bipolar look. They have alternating euphoria and depression. Many of them are irritable. A lot of them have poor insight or judgment, agitation, and some of the things that are less frequently seen are apathy and hypersexuality…"
Later, McKee discusses a CTE-afflicted boxer who retired at age 22 and was misdiagnosed with Alzheimer's disease in his 70s. Someone else at the meeting asks: was the boxer okay until then?
"He was not okay. He would get disoriented when he went traveling and his wife called him punch drunk, but he stayed more or less stable until his 70's, when he started deteriorating more. It's a slowly progressive disease. Sometimes it smolders for years."
As for only being able to diagnose CTE after death? In September, researchers at Mount Sinai Hospital in New York City announced thatan experimental brain imaging technique allowed them to identify the disease in the brain in former New York Jets lineman Dave Herman—who played in the 1969 Super Bowl and happens to still be alive. Stern believes a verified, Food and Drug Administration-approved test for the disease will be available within the next decade, probably sooner. So how does the settlement account for future scientific advances?
By foreclosing on them. The deal specifically prohibits the NFL and the players' top lawyers from meeting more than once every decade to discuss possible changes to the tests used to determine brain damage, with each side holding a veto. (If the league doesn't like the Mount Sinai test, for instance, it simply can refuse to incorporate it.) Moreover, the actual diagnoses that qualify retirees for money can "in no event" be modified, which means there will never be a "Life with CTE" award, no matter what researchers learn over the next 65 years about identifying and treating the disease.
Again, the NFL knows what it's doing.
How much is the league saving through a settlement that eliminates and/or deeply discounts future CTE cases? The answer depends on how you crunch the numbers. Start with how many former players can reasonably be expected to develop the disease. No one knows for sure. But we can make a conservative, reasonably informed guess.
Between 2006 and the middle of last year, 1,128 former NFL players died. Fifty-two of the tested retirees—4.6 percent—were diagnosed with CTE. Apply that rate to the 19,400 living retirees covered by the settlement, and you end up with approximately 892 future cases.
For an even more conservative number, assume that the settlement had no Death with CTE cutoff date, and instead paid for future cases. Court documents filed by top player lawyers identify 46 CTE cases among 1,700 deceased retirees, which equals a disease rate of 2.7 percent. Apply that number to the same 19,400 living former player pool, and you get 524 future cases.
In court documents, the NFL estimates that Death with CTE cases will pay out $1.44 million per player after accounting for age and other built-in settlement discounts. Multiply that number by our 524 still-to-come cases, and you end up with roughly $755 million the league will keep in its coffers—a windfall larger than the total sum it expects to pay out under the current settlement.
If asbestos companies could write mesothelioma out of their settlements, they'd save an awful lot of money, too.
Step 2: Define Away Other Types of Brain Damage
Last week, former NFL quarterback Kevin Kolb wrote about retiring from the league at age 29 because of concussions and about the brain damage symptoms he continues to suffer:
"…some symptoms are impossible to ignore. The ringing is like someone shooting a shotgun right next to my ear, every second of every day. It doesn't go away.
The sensitivity to light also has a profound impact. I'll be in a business meeting indoors and have to politely ask to put on my sunglasses before the headaches and double vision start…"
Neither of those problems is covered by the settlement. Nor are chronic headaches, numbness, burning, tingling, attention disorders, sleep disorders, loss of sense of smell and taste, balance problems, and other life-altering symptoms of brain damage. While people who suffer a single traumatic brain injury have a 150 percent greater risk of developing epilepsy than those who don't, seizures aren't part of the deal. Similarly, pituitary dysfunction doesn't qualify—even though (a) brain injury increases the risk of a problem that can result in fatigue, mood and cognition problems, and hardening of the arteries; (b) a recent study of 68 retired playersfound significant hormonal abnormalities in 25 percent (16) of them.
Randy Benson is a neurologist and clinician at the Michigan-based nonprofit Center for Neurological Studies. He once testified before the House Judiciary Committee about brain injuries in football, and has studied and treated dozens of former NFL players, some sent to him by lawyers suing the league over concussions. "I get a checklist," Benson says. "Do they have ALS? Do they have Alzheimer's? The answer is, the bulk of the guys I see don't have that stuff. But what they do have is neurological impairment—we can see it with imaging—and they're in a bad way psychologically because of their brain injuries. These guys can't earn a living any more. They don't have a lot of money left. They end up alienating and isolating themselves."
Based on experience, Benson suspects damage to the pituitary gland—a pea-sized gland that sits at the base of the brain and secretes hormones that regulate many bodily functions—is common among the group. "We know with non-sports brain injuries the rate of pituitary deficiency is about a third of population," he says. "You can imagine people exposed to hits day in and out are really at risk. And those deficiencies can have pretty devastating consequences to people from the standpoint of psychological health."
The good news? Some of the same deficiencies are treatable. Working carefully with an endocrinologist, Benson has prescribed hormones to many brain injury patients, including a retired NFL lineman who came to Benson's clinic from a psychiatric ward, depressed and wanting to take his own life. "He is not suicidal anymore," Benson says. "He went home and hasn't felt this good in years."
The retired lineman wouldn't be helped by the settlement. Nor will Kolb. Again, how much is the league saving by pretending that certain types of brain damage don't matter, and that only severe neurodegenerative diseases saddle former players with pain, suffering, and medical costs? Impossible to say, but consider this: according to the Brain Injury Association of America (BIAA), human growth hormone and other drugs given to treat pituitary dysfunction can cost $15,000-$20,000 a year. For one person. For life. If a quarter of living retired players (4,850) have pituitary damage and need an average of, say, 30 years of treatment costing $17,500 annually, that's another $2.5 billion. Of course the NFL would rather not fork it over.
Step 3: Rig the Rules
Let's say you're a retired player who does qualify for settlement compensation. As mentioned earlier, your maximum possible award is subject to reductions based on age and the amount of time you played in NFL. The older you are at the time of a qualifying diagnoses and the fewer credited professional seasons you have, the smaller your payout.
On paper, this makes a kind of rough sense—players who had longer careers were exposed to more head injury risk, and cognitive ailments are more common among older people, regardless of having played in the league. In a memo filed with Brody, however, the BIAA argues three key points:
1) A single concussion can result in permanent brain damage.
2) Multiple concussions sustained over a single season or a short period of time can be more harmful than those sustained over a long career.
3) As a result, "the nature and extent of the impairment - not the number of seasons played - should be the determining factor in any monetary award."
University of Maryland health policy professor Eleanor Perfetto has a related concern with the settlement, which she shared with me last summer. Her husband, NFL veteran Ralph Wenzel, died in 2012 at age 69 and was posthumously diagnosed with Alzheimer's and CTE. He originally was diagnosed with dementia in 1999, and began experiencing memory loss five years earlier.
"With many of the older [NFL retirees], the date of their formal diagnoses is probably many years after they became sick," Perfetto told me. "So, like Ralph, maybe they had symptoms for five or 10 years before a formal diagnosis. And one of the reasons they didn't realize they needed to get checked out, or did get checked out but doctors couldn't figure out what was wrong with them, was all of the efforts the NFL made to smokescreen that this problem didn't exist."
Perfetto says her attorney told her that her husband is due a $1.4 million payout for his postmortem diagnosis of CTE, based on his official dementia diagnosis at age 56. Had Wenzel instead been diagnosed in 1994, his award would have been closer to $3 million.
"This is the one thing that bothers me a lot," Perfetto told me. "The NFL has actually managed to reward themselves for their deceit."
Also saving the league money? A series of settlement eligibility hoops that act as a kind of bureaucratic poll tax for brain-damaged retirees. If former players fail to register with a claims administrator within 180 days of a class notice being distributed following final settlement approval, they'll be denied awards. The same holds true for retirees over age 43 who fail to undergo baseline neurological exams within two years, and for younger former players who fail to do the same by their 45th birthday or the 10th year of the baseline program, whichever comes first. Now, imagine that you're a homeless retiree like Terry Tautolo, or living in a dementia ward like Willie Wood. Are deadlines and paperwork really your forte?
(Speaking of paperwork, the settlement also requires all former players to produce "objective evidence beyond [a] sworn statement" of NFL employment and participation in more than one eligible season or have their awards reduced by 80 percent—even though the league keeps historical records of its own players. Do they want retirees to produce old copies of Madden NFL? Dog-eared football cards? As far as obvious cost-cutting measures go, this would be funny if it wasn't so transparent.)
To receive a qualifying diagnoses—and with it, cash—former players have to be examined by doctors who have been approved by both the top players' lawyers and the NFL. Those same retirees have to pay for their travel and exams, no matter how poor or sick they happen to be. The league can appeal an unlimited number of awards per year at no cost; by contrast, former players have to pay a $1,000 fee to appeal denied claims, and are limited to submitting just five pages of supporting evidence. "You can't do that in five pages," says Johnson, the brain injury lawyer. "I'm in the middle of a relatively straightforward mild brain injury case right now—I have to persuade a mediator—and those documents could fit into a banker's box. I have 80 pages summarizing 500 pages."
Further, Johnson says that the neuropsychological tests used by the settlement to determine impairment are both flawed and insufficient, and figure to disqualify deserving, brain-damaged NFL retirees. Stern, the Boston University CTE and neurodegenerative disease researcher, agrees. For payout purposes, the settlement places former players into three neurocognitive impairment buckets: Level 1, Level 1.5, and Level 2. Only the latter two groups receive cash awards. In an affidavit filed in support of an objection to the settlement, Stern states that:
"…the algorithm used in the Settlement to translate test performance into compensable Neurocognitive Impairment categories is not one that is used in any known or published set of criteria for the determination of dementia, and utilizes a threshold of impairment that would exclude many [retired players] with dementia … the criteria used in the Settlement would require that [retired players'] test performance be even more impaired than what is often seen in well-diagnosed cases of moderate stage dementia…"
To illustrate, Stern notes that under the settlement's testing and diagnostic criteria, two retirees of the same age and same number of credited NFL seasons could score exactly the same on a series of memory and intellectual functioning tests with the exception of a single word pronunciation exam—an exam stacked against people with dysarthria, a speech impediment that affects 10 to 12 percent of people who have suffered brain injuries—and as a result, one player would qualify for Level 1.5 impairment while the other would not. Never mind that both retirees, Stern writes, would be "so severely impaired in several areas of cognitive functioning that they would require assistance in many activities of daily living."
To weed out people who are attempting to fake brain injuries, neuropsychological testers use a concept called "malingering." Over a series of exams, sometimes lasting as long as five hours, patients are expected to give a consistent, emotionally-neutral effort—if they don't, there's a good chance they'll be labeled as frauds. Johnson says NFL retirees run a high risk of earning the same designation, even if they're truly sick. "This is a group of people who are emotional wrecks," he says. "And they're in pain. Pain makes you moody, makes you irritable. Most of these guys are probably too sore to sit in the same chair for five hours.
"If I were a defense neuropsychiatrist, my goal would be to piss off one of these guys during the exam and then say he's malingering. Not that the doctors will have to be that dishonest. People getting to this level of senility won't test well, anyway. Now add in the personality of someone who has played pro football, who has progressing CTE, who is in pain—it's all going to work together to come out badly."
Step 4: Ding 'Em With Demographics
Retired NFL lineman Craig Heimburger is 37 years old. A fringe pro, he played for five league teams over a four-season span, spent much of his career on preseason or practice squads, and appeared in 15 games for the Rhein Fire of NFL Europe. Heimburger suffered at least three concussions that he played through, including one with the Fire that caused memory loss and vomiting. In court papers, he claims that he now suffers from "personality changes, cognitive impairment," and pituitary damage, and that it's "virtually certain" he has CTE.
Under the terms of the settlement, however, any award Heimburger qualifies for will be reduced by as much as 60 percent. The reason? Time spent in NFL Europe doesn't count toward the deal's "eligible seasons," even though players across the Atlantic were still getting hit in the head while working for the league, and even though injured players were often flown back to the United States for surgery and rehabilitation. Given that approximately 3,500 retirees spent some or all of their careers overseas, that's likely millions more dollars that will remain in the league's hands for no good reason.
But wait. It gets worse.
All former players who suffer a single stroke or non-football-related traumatic brain injury—for instance, a concussion during a car accident—are subject to 75 percent award reductions. Does this make scientific sense? Not really. There's no way to determine that a stroke or slip-and-fall on an ice rink has caused three-quarters of the brain damage suffered by someone who has spent years bashing helmets on a football field. Nevertheless, NFL actuaries expect 4.5 percent of league retirees to suffer strokes, which means it also expects at least 162 settlement award recipients to forfeit three-quarters of their cash.
Oh, and about that 4.5 percent figure: it's likely to be higher. After all, concussions increase the risk of stroke. So does using Toradol, a painkiller league doctors spent two decades administering to players. Moreover, obesity and large body size make strokes more likely, and black people are 1.3 times more likely to suffer strokes than other races.
In other words, the settlement isn't just parsimonious. The case could be made that it's structurally racist.
Step 5: Sweeten the Deal
A few weeks ago, lead player lawyer Seegeradmitted to ESPN that he "couldn't get the NFL to pay on every single set of injuries." True enough. And perfectly fair. But left undiscussed? Just how hard he and others negotiating on behalf of league retirees tried to get those same players paid at all.
Fact: Seeger and the other top player lawyers did not subject the NFL to discovery, nor did they take a single deposition to test the strength of their claims.
Fact: They reportedly engaged in only twelve days of mediation with the league before producing the initial settlement, a deal that is almost identical to the one awaiting final judicial approval.
Fact: The NFL has agreed to pay Seeger and a handful of other lawyers a separate $112.5 million fee within 60 days of final approval, in addition to their individual client fees and a provision in the deal that allows them to petition the court for five percent of every settlement award going forward.
Did the league buy itself a favorable settlement for less money than itcosts to buy 15 minutes of television ad time during the Super Bowl? Not necessarily. Were the top player lawyers incentivized to fight tooth and nail for the best deal possible? Not in the least.
"The way the class counsel's fees are structured, they don't pay the price down the road for this having turned out badly," Johnson says. "Wouldn't it have been a lot fairer to make their fee based on contingency, like one-third of what gets paid out in the future? They could still get to $112 million, but I bet the qualifying diagnoses would be a lot different. They would have wanted players to get paid as soon as possible, not when they are 77 years old."
Earlier this month, Debra Pyka wrote a letter to Brody, the federal judge overseeing the settlement. Pyka's son, Joseph, committed suicide at age 25. He played Pop Warner and high school football. He never played in college or the NFL. After his death, he was diagnosed with CTE.
The settlement, Pyka wrote, isn't just unfair to former players. It's unfair to mothers like herself:
"…to this date the NFL has not made the research re: head trauma and concussions public … I am furious with the NFL for keeping this research from the public. The NFL sponsors these young kids in Pop Warner through high school. I, and every parent along with the players, have a right to know of the dangers of playing football along with the brain diseases and brain trauma our children could possibly suffer in the future.
I do not know whether you are married or have children, but I'm sure you can relate to my pain and suffering. Try to imagine what life would be like without your child or spouse. Imagine watching them suffer from a brain disease or head trauma due to the negligence of an organization to fail to release information to prevent the suffering and death of many. Had the research been made public many years ago, these tragedies could have been prevented. I look forward to the day that those who knew of the dangers and let people suffer and die will be banned from the NFL and prosecuted…"
The league is not settling out of the goodness of its corporate heart, or because it truly cares about its brain-damaged former employees. The league is settling out of fear. Fear of liability. Fear of accountability. Fear of Pkya's question, the same one haunting McClain's clients, 24 of whom have opted out of the deal to pursue their case in state court: What did the NFL know, and when did it know it?
For a price that will likely be significantly lower than the $1.17 billion value of the average team, the league will never have to answer. So maybe Seeger is right. Maybe the proposed settlement truly is extraordinary. After all, the NFL isn't just buying silence. It's buying it on the cheap.