The retired National Football League player sounded apoplectic. He also sounded exhausted. Brain damage can have that effect. So can extended litigation.
This was last week. We were on the phone, discussing the proposed settlement of the class action concussion lawsuit against the league. The retired player had been a plaintiff in the case for years, followed most of the news, seen some of it unfold from behind the scenes. He wasn't opting out or objecting to the deal. But he wasn't happy, either. He didn't want to go on the record, because he figured the NFL would use whatever he said against him.
Oh, and he didn't trust his own lawyer—a prominent, powerful attorney on the suit—not to do the same.
"A lot of guys feel like something is coming to them, and that something is better than nothing," the player said. "But we know that we got fucked. Across the board, everybody knows that."
On Wednesday, federal judge Anita Brody will hold a fairness hearing in Philadelphia to evaluate the settlement, a multimillion-dollar agreement that promises to compensate some— but far from all—ailing former players while allowing the NFL to turn the page on the League of Denial era, at least from a public relations perspective. League attorneys will insist that the deal is fair, even generous. The top player lawyers who negotiated the agreement will concur. A group of objectors will argue the opposite. Precedent will be invoked, expert testimony will be cited, expensive shoes will be polished to a non-distracting sheen, and because federal court is, well, federal court, no one will use the term fucked. At least not within earshot of Brody.
Nevertheless, that will be the underlying question of the day: are former NFL players getting fucked by the settlement, or not?
I think they are. After analyzing the deal's payouts, provisions, and underlying math and science in detail, I've written as much. A number of retirees agree with me. Some of their lawyers, too. I know because they've told me as much. Of course, most prefer to speak privately. Players are afraid of ticking off their attorneys. Attorneys are afraid of antagonizing Brody. No one wants to get punished for speaking out of turn. Still, they have serious concerns—not only about the settlement itself, but also about how it came together.
So do I.
With the agreement on track for final approval—likely followed by a legal appeal—here are some lingering questions about the settlement that deserve better answers.
Just how cozy is Chris Seeger, the players' attorney, with the NFL?
The core case against the NFL goes like this: getting hit in the head while playing football can cause brain damage. The league knew this. Yet instead of being honest with its employees and doing everything it could to protect them from danger—for instance, not sending concussed players back onto the field during games—the NFL aggressively dismissed and downplayed the problem, creating a brain injury committee stocked with league doctors who produced junk scientific papers full of bullshit proclamations about concussions: like that concussions in professional football not being "serious injuries," and "many [concussed] players can be safely allowed to return to play on the day of injury. In turn, players received lousy medical advice and care, and now are either suffering from or at greater risk of developing long-term brain injuries and neurological diseases—including dementia, Alzheimer's, Parkinson's, amyotrophic lateral sclerosis (ALS), and chronic traumatic encephalopathy (CTE). Found in the brains of dozens of deceased NFL players—including Mike Webster, Dave Duerson, Junior Seau, and Jovan Belcher—CTE has been linked to mood, behavioral, and cognitive disorders. The disease lies at the heart of League of Denial, the book and PBS documentary that exposed the NFL's dissembling. The first lawyer to file suit against the NFL, Pittsburgh-based Jason Luckasevic, calls his a "CTE case." The attorney chosen by Brody to lead the retired players in federal court, New York-based Chris Seeger, posted on his firm's website that "CTE is believed to be the most serious and harmful disease that results from NFL and concussions."
However, the settlement itself all but ignores the disease. Only the families of former players who died between 2006 and July 7 of this year and were diagnosed with CTE are eligible for cash awards. The deal neither tests for nor compensates the disease's mood and behavioral symptoms—if you're depressed, suicidal, anxious, antisocial, impulsive, or prone to rage and domestic violence because of brain damage, you're out of luck.
Moreover, last week, both the NFL and Seeger filed lengthy pro-settlement briefs in federal court that happen to double as attacks on CTE science. "We do not yet understand the association between mild repetitive [traumatic brain injury] and CTE," stated NFL expert and neuropathologist Julie Schneider. Similarly, plaintiff's expert David Hovda of UCLA—you know, a scientist used by player lawyers to strengthen their case—wrote that "it has not been established scientifically that CTE is a unique neurodegenerative disease."
To better understand how the NFL and Seeger could end up on the same page—down to Seeger inexplicably removing the description of CTE as "serious and harmful" from his website in September—I recently contacted a second retired player, a client of Seeger's law firm. He was pissed. Deeply disappointed. He felt betrayed.
Early in our conversation, he had a question for me.
"I know the court appointed Seeger [as lead class counsel]," the former player said. "Do you know if the NFL recommended that in any way?"
The implication? The settlement is rigged. The NFL wanted Seeger in charge of pressing the players' case—wanted him in a negotiating room—because the league knew it could roll or cajole him into accepting a crummy, cash-saving, CTE-denying deal.
I'll be the first to admit: this sounds a bit conspiratorial. Tin foil hat talk. Roger Goodell spotted on the grassy knoll! Thing is, I've heard similar sentiments from a number of players and lawyers. None of them are unbiased. To the contrary, everyone I've spoken with freely admits they have an axe to grind. Players think Seeger sold them out. Lawyers resent Seeger for cutting them out of negotiations with the NFL, operating with secrecy, and smartly positioning himself to collect the lion's share of the $112.5 million in attorney's fees the league is set to pay the top player lawyers within 60 days of the settlement being finalized.
Still, there's a widespread suspicion the relationship between the NFL and Seeger is too cozy—that at the very least, the latter has fallen victim to what federal judge Alex Kosinski calls a tendency for attorneys in large class action settlements to "buy themselves off."
Last year, Kozinski filed a blistering objection—as a class member, not as a judge—to a proposed settlement of a case involving Nissan and its electric car, the LEAF. The deal called for the automaker to repair or replace weak lithium car batteries, and for opposing lawyers to collect $1.9 million in fees. Kozinski castigated those same attorneys for agreeing to collect their checks without conducting any discovery into what Nissan knew and when they knew it, information that could have resulted in a bigger payout to drivers. "Plaintiffs' counsel sat down to the negotiating table and cut a deal, without knowing a single thing about what cards their opponents held," he wrote. "For all counsel knew—for all they know even today—there are memoranda and reports in Nissan's internal files disclosing that the LEAF's Lithium-Ion battery suffers from a variety of defects, and that Nissan nevertheless decided to go to market with it."
A group of objectors to the NFL settlement, led by former player Sean Morey, have made the same basic argument to Brody, noting that Seeger and co-lead counsel Sol Weiss conducted no discovery into what the NFL knew about brain injuries and when the league knew it, and only spent 12 full days in court-ordered mediation before agreeing to general terms of a deal last August. Privately, some retired players involved in the litigation wonder if most or all of the settlement was drawn up by the NFL before the first negotiating session. "I think it's pretty obvious that the settlement was reverse-engineered," said the second former player. "The first number they reached was legal fees. Then they got to the $675 million [compensation fund that was part of the initial deal] and worked backwards."
A lawyer involved in the case has similar feelings.
"What happened?" he said. "I think the NFL said, 'we know we have bad press [with concussions]. We have to deal with this. We will tell [Seeger and Weiss] that this is the deal we want. We'll give them money and they'll go for it.'"
In Seeger's defense, former federal judge Layn Phillips disagrees. His opinion carries weight. Appointed by Brody in July of last year to mediate talks between Seeger and the NFL, Phillips wrote in a legal declaration that negotiations between the two sides were "intense, vigorous, and sometimes quite contentious. There was no collusion." Similarly, lead league attorney Brad Karp wrote in court documents that the settlement "is the result of hard-fought, arm's-length negotiations that commenced in July 2013 and lasted one year."
Seeger's court declaration says much of the same: the league was a formidable adversary, back-and-forth was heated, the final deal on the table was the best he could possibly do. Seeger also mentions that he approached the NFL prior to court-ordered mediation to discuss the possibility of a "global settlement." He doesn't specify when those talks took place. According to emails obtained by VICE Sports and confirmed by sources with knowledge of the situation, Seeger and Karp began meeting and talking about a brain damage settlement for retired players as far back as October 2010—eight months before the first concussion suits were filed against the league by Luckasevic and Los Angeles-based attorney Tom Girardi; 14 months before Seeger filed his own suit on behalf of 10 retirees, which made the novel claim that widespread NFL use of the painkilling drug Toradol put players at greater neurological risk; and nearly two years before Brody tabbed Seeger to lead a consolidated class action.
What was discussed? According to sources, the talks were about how Seeger could "help the NFL with a global liability resolution from head injuries," with a "structure" that included a retiree "compensation grid" and "seemed a lot like the settlement of today." (The current deal features a compensation grid that determines payouts for a limited number of neurological diseases by factoring in a former player's age and the number of years he spent playing in the league: the older a player is when receiving a compensable diagnosis and the fewer NFL seasons under his belt, the less money he will pocket).
"Initially, [the talks] were great," one source said. "The NFL listened." Lawyers with Seeger's firm worked on drafting a proposed compensation plan, and gave the league a chart containing information—but no identifying names—about a group of players who had hired Seeger to investigate a possible concussion lawsuit, including their employment status, concussion histories, and current symptoms. Headaches for days. Depression. Loss of control over impulses. Sharp pains in head. Difficulty sleeping. Anxiety. Vertigo. Feelings of being "shell-shocked." Loss of desire to socialize and go out. Loss of ambition. Loss of confidence. There also was talk of a "Pioneer Fund," which sources say would have rewarded ailing retirees while giving Seeger's initial clients consulting jobs or additional money.
"At one point, the NFL called and asked, 'How much would it take for you to settle with this?'" the same source said.
When NFL owners locked out players in March of 2011, settlement discussions with Seeger were put on the league's back burner. "The league lawyers were half-engaging [Seeger], half-stiff-arming [him]," another source said. "Getting the [collective bargaining agreement] resolved was their first and only priority." Luckasevic and Girardi sued the NFL just as a new CBA was being finalized, leaving Seeger with little choice but to follow suit. Just after Thanksgiving, lawyers at Seeger's firm circulated a draft of a press release announcing their lawsuit, which was published on the firm's website on December 6 of that year. The draft and public versions are virtually identical, except for two paragraphs that didn't make the final cut:
… [Our] players were poised to file their suit in October 2010 — months before any NFL concussion cases were brought—but held off numerous times at the request of the NFL and its lawyers. During that time, the League invited the players to collaborate in the formation of what was described as a "global pioneer fund" that would compensate them for their injuries. However, following the NFL lockout earlier this year, the League struck a new collective bargaining agreement that included concussion-related benefits that were far less favorable than the terms discussed with the retired players. The current group felt it was left with no choice but to proceed with its suit against the League.
"The NFL pulled an end-run around our clients, in a move that added insult to their injuries," said Seeger Weiss partner Christopher Seeger. "These former players had patiently refrained from litigation based on their good faith understanding that their injuries would be fairly redressed by the League. Unfortunately they are now compelled to move forward with the current action" …
"Looking back on it, I feel like [Seeger and the NFL] were probably grooming each other for what was to come," said one source. "It would have to be an incredible coincidence for some of the things that have happened not to be collusion."
"I think there's something there," said another source. "There has to be. There was a negotiation that happened almost two years prior to the settlement. They had multiple meetings with the top guys from both sides. And then they were locked in a room for [the official, court-ordered settlement negotiations]? I don't think they were locked in the room. [The settlement] happened so quickly. And they had every incentive to do it. Huge payday for them.
"I don't think Seeger and the rest are bad guys, out to get everybody and trying to do it just for themselves. But I think they got played by the NFL and their super legal team. It's literally like Alabama playing the New England Patriots. You think one team's very good until they play the other, and then you see the difference."
Seeger did not respond to multiple VICE Sports requests for comment. Neither did Karp or Phillips. Does their silence—or any of the above—prove that the fix was in? Not at all. Early discussions between Karp and Seeger could have been harmless. In fact, those same talks arguably could have benefitted retired players by saving time and creating a good working relationship between the two sides. "Conceptually, it's okay," says a prominent attorney who has worked with Seeger in other class action cases. "Stuff like this happens all the time. There are cases that only become class actions in order to settle. Somebody has litigation that they know is going to apply to tons of people, both sides agree to make class out of it, get the judge to approve the class and then you settle with the whole world.
"But I would want to know the details. What it comes down to is, does the lawyer in charge do what they are supposed to do once they have a fiduciary duty to all of those plaintiffs? If the two sides sat down and had a wink-wink, you-only-talk-to-me, we-have-a-sweetheart-deal, that's a problem."
In September, lawyers for the Morey Objectors asked for discovery into how the settlement was reached, calling negotiations between Seeger and the NFL "a black box." Brody denied their request. She should reconsider. If something fishy happened, then retired players have a right to know; if everything was truly above board, then they deserve peace of mind.
What's going on with the NFL Players Association?
A few weeks after the settlement was announced last year, co-lead player attorney Sol Weiss of the Philadelphia-based law firm Anapol Schwartz gave a public talk on the topic at the University of Villanova School of Law. ESPN legal analyst and former NFL front office executive Andrew Brandt hosted the discussion, which included the following exchange:
Brandt: Speaking of the CBA, the collective bargaining agreement done between the NFL and the NFLPA, the latter group, they've been what I think is strangely silent through all this. They represent the players, they had a one sentence kind of bland statement about the settlement. Where is the union in this, and were they involved at all in your settlement discussions or dealing with the plaintiffs?
Weiss: The NFLPA was not involved in the litigation at all. As I say, they represent the present players, and the agreement is between the union and the teams.
Brandt: The CBA?
Weiss: Yes. There is a tension because any benefit that the collective bargaining agreement gives to a retired player comes out of the pocket of a current player. So the union is not really keen, necessarily, on going one hundred percent behind the retired players, and that's the tension, and we have to represent the retired players.
Money aside, the NFLPA has another, better reason to not be "really keen" on involving itself in any concussion litigation brought by retired players against the league: doing so could be interpreted as a violation of the CBA. A section of the agreement titled "No Suit" states:
… the NFLPA agrees that neither it nor any of its members, nor agents acting on its behalf, nor any member of its bargaining unit, will sue, or support financially or administratively, or voluntarily provide testimony or affidavit in, any suit against the NFL or any Club with respect to any claim relating to any conduct permitted by this Agreement, or any term of this Agreement …
During the Villanova talk, Brandt pressed Weiss:
Brandt: Were they [the NFLPA] involved at all?
Weiss: No. Not at all.
Brandt: Not their attorneys?
Weiss: Not at all.
Here's the thing: that's arguably not true. A letter obtained by VICE Sports and verified by its recipient shows that in 2011, an Anapol Schwartz lawyer named Ned Ehrlich was recruiting retired players for Weiss' lawsuit against the NFL. Which sounds totally kosher, unless you consider that Ehrlich: (a) also was a member of the NFLPA's official panel of national workers' compensation attorneys; (b) worked "for years" as an outside counsel to the union, according to the Sports Business Journal; (c) served as an executive officer of the union's charitable arm; (d) handed out business cards touting his dual roles.
Ehrlich now works full-time for the NFLPA as an associate general counsel. He did not respond to repeated VICE Sports requests for comment. Nor did Weiss or Karp. A NFLPA spokesperson acknowledged receipt of a VICE Sports request for comment but did not answer any submitted questions. Again, silence isn't evidence of wrongdoing. It could be that Ehrlich's ties to the union weren't strong enough to make him an "agent" acting on the organization's behalf. Or that Weiss didn't think concussion lawsuits brought against the NFL by retired players fell under the CBA. (Worth noting: the league argued the opposite to Brody, insisting that concussion claims belonged in private arbitration instead of federal court; the two sides agreed to the proposed settlement before Brody could rule on this point).
That said, Ehrlich's involvement raises questions: was the NFLPA quietly supporting a lawsuit it refuses to publicly endorse or comment upon? Were union officials hoping that by steering former players toward suing the league over concussions, they could dissuade those same retirees from suing the NFLPA over being what union executive director DeMaurice Smith called "complicit in the lack of leadership and accountability" regarding player brain damage? (If so, bad bet). Did the NFL know about Ehrlich? If so, did it use knowledge of a possible ethical lapse by Weiss to weaken his bargaining position in settlement talks?
Retired players deserve clarification here, too.
Why did Weiss and Seeger hire Grant Iverson to provide scientific advice?
Let's try a thought exercise. Suppose that you work in a coal mine. And suppose that for years, mine management has told you that inhaling coal dust doesn't pose any long-term risks. After all, management also has convened a committee of company doctors to examine the issue. And guess what? All of their studies indicate that everything's fine—no worries, nothing to see, move along, and pay no attention to all those outside doctors who think we're idiots. Well, except for this one outside doctor. He spends a lot of time collaborating with company doctors. He also argues that black lung may or may not be real, because nobody has strapped dust inhalers onto experimental subjects for 50 years and compared the results to a control population; and that your nagging cough probably isn't related to your job, because lots of people who don't work in coal mines cough all the time, and how do you explain that, Einstein?
Now suppose you're planning to sue mine management over black lung—because it turns out those same company doctor studies are bogus, and moreover, it feels like someone's dropping an anvil on your chest every time you inhale. Would you hire the outside doctor who doesn't believe in black lung to be one of your expert scientific consultants?
Mine management is the NFL. Coal dust is the act of getting hit in the head. Black lung is CTE. Coughing is the mood and behavioral disorders associated with the disease: suicidal thoughts, impulse control problems, aggression, and poor decision-making. And rounding out our analogy in the starring role of outside doctor?
Harvard University neuropsychologist Grant Iverson.
Weiss says that Iverson is one of his key experts. According to court documents, Iverson played a major role in designing the settlement's Baseline Assessment Program (BAP), which will screen former players for cognitive impairment and help determine if they qualify for cash awards. Iverson has an impressive resume. As Weiss told Brandt, he's "worldwide in his scope of neuropsychology. He is working with the Department of Defense on how to treat soldiers that come back who have brain injuries from IEDs and whatever else."
However, a closer look at Iverson's actual work indicates that he might not be the best scientific advisor if you're trying to obtain the biggest, broadest settlement possible for NFL retirees asserting that football gave them brain damage. A 2013 overview of CTE research—read: a study of studies—co-authored by Iverson and published in the British Journal of Sports Medicine proclaimed that "the strongly presented causal assumption in the literature relating to concussive and sub concussive brain impact exposure derived from the case studies [of CTE] are scientifically premature, especially given the absence of cross-sectional, epidemiological, prospective or longitudinal studies on the topic." Translation? CTE may not have anything to do with getting hit in the head, and we're gonna need a whole bunch of 50-year studies to figure it out. Similarly, a 2012 paper authored by Iverson found "insufficient scientific evidence" to support a causal link between CTE and suicide, largely because too few known victims of the disease have killed themselves to make any solid conclusions.
Iverson isn't wrong to take a cautious, incremental approach to interpreting CTE research. But he is cautious. Unconvinced. And if you're going up against a NFL that already has aggressively attacked said research and nearly driven Bennet Omalu—the first scientist to discover the disease in a deceased football player—out of the field entirely, are cautious and unconvinced the qualities you really want in your expert doctor? There's legitimate scientific debate over CTE: risk factors, how the disease progresses, how its telltale tangles of tau protein in the brain manifest as life-altering symptoms. But there isn't much debate that CTE has been found in people who get hit in the head and/or are exposed to explosive blasts, and hasn't been found in anyone else.
Boston University scientist Robert Stern has spent the last half decade studying CTE. He has met and earned the trust of former NFL players suffering from brain damage, men who might otherwise suffer in silence. He has interviewed the family members of more than 70 athletes who have died and subsequently been diagnosed with the disease, spent countless hours talking with them on the phone and in person, absorbing their pain, confusion and grief. What happened to my husband? My father? My son? The man I knew and loved? He doesn't have all the answers. But he's looking.
When Stern first heard about the proposed settlement, he was happy. "I know so many of these former players and respect them and have so much understanding of what they are going through," he says. "I really want a settlement to go through." Then Stern examined the details of the deal. "I was so appalled that I didn't know what to do," he says. "The settlement as it currently exists would not provide compensation for many many people who deserve to be compensated and who think they would be compensated."
Stern recently filed an affidavit supporting Morey and his group of objectors, directing much of his criticism at the BAP quarterbacked by Iverson. The test battery is too restrictive, Stern argued. Not scientifically valid. Doesn't cover mood and behavior problems, nor many of the symptoms described on the former player client chart submitted by Seeger to the NFL back in 2010-2011. Meanwhile, the league's most recent court filing holds up Iverson's stellar work as a reason Brody should approve the deal.
If you're a league retiree, are you at all concerned that your legal team's top scientific draft pick cooked up a brain damage cash award screening system that the NFL likes?
"I have no idea why they picked [Iverson]," says a lawyer involved in the case. "It certainly wasn't Omalu. It wasn't Julian Bailes [a concussion researcher and Omalu colleague also featured in League of Denial]. I can tell you that much. Funny, they're doing movies about those guys. Yet they're left out of the big issue that they created. That's crazy."
Crazier still? That Seeger and Weiss seem blithely unaware of—or totally unconcerned with—Iverson having a rather obvious conflict of interest. NFL retirees aren't just suing the league over brain damage. They're also suing former official NFL helmet manufacturer Riddell, largely for the same reasons. In 2006, Iverson co-authored a controversial, since-discredited scientific paper with league concussion committee members Joe Maroon and Mark Lovell, a paer that claimed a new Riddell helmet reduced concussion risk by 31 percent compared to older models.
The study was a grease factory dumpster fire of conflicted interests: paid for by Riddell, co-authored by a company executive, focused on a new helmet design that came out of a Quixotic, whiz-bang NFL concussion committee effort to create a concussion-proof helmet. Unsurprisingly, peer reviewers ripped the paper. In the book League of Denial, two of the study's authors—but tellingly, not Iverson—all but disowned their work. ESPN and PBS' Frontline later reported that a biomechanics firm hired first by the NFL and later by Riddell to test helmets and study head injuries previously had sent the company a memo warning that no helmet could prevent concussions. No matter. Riddell peddled the new helmet, dubbed "the Revolution," with claims that players who wore it were 31 percent less likely to suffer a concussion—claims that spurred criticism from members of Congress and a Federal Trade Commission investigation. The Revolution nevertheless became a top seller, popular among youth and NFL players alike. And when former players—some of them recent retirees—filed suit against the league in 2011, they accused co-defendant Riddell of failing to warn them that its helmets would not protect against concussions.
In other words: top player lawyers in the brain damage cases have hired a NFL settlement expert, Iverson, whom they conceivably could have to cross-examine in a possible Riddell trial.
Iverson did not respond to repeated VICE Sports requests for comment. Neither did Seeger or Weiss. Does any of this make sense? Sans explanation, your guess is as good as mine.
Are retirees as satisfied with the settlement as the NFL and Seeger claim?
When the league and the top player attorneys argue in favor of the settlement at Wednesday's fairness hearing, their most effective argument may be the simplest: look at the numbers, and league retirees seem happy with the deal. Or at least happy enough to accept it.
In papers filed with Brody, both sides note that of more than 20,000 retired players and their family members covered by the agreement, only 234 have opted out. (The opt-out list, it should be noted, includes Seau's family.) Similarly, just 205 of the class members who have stayed in the deal have formally objected to its terms. By contrast, 3,100 retirees have signed up to receive more information on the settlement if and when it receives final judicial approval and any subsequent appeals are exhausted.
"With over 99 percent participation, it is clear the retired player community resoundingly supports this settlement," Seeger and Weiss said in a recent statement.
Is that the case? Was NFL retiree and settlement class representative Shawn Wooden right when he recently told the Los Angeles Times that while players didn't get "100 percent of everything" they wanted, they got "the fair end of the stick"?
Better question: do most former players understand the deal well enough to have an informed opinion? It's hard to say. The NFL and top player lawyers didn't release their settlement-supporting math—actuarial reports acknowledging that nearly one-third of retirees are expected to develop serious neurological problems, and that only 3,600 of 5,900 players projected to be eligible will end up collecting a cash payment—until Brody forced them to do so in mid-September. Likewise, the two sides didn't file 1,600-some pages of additional supporting documents until last week, well after the mid-October deadline to opt out of the deal.
"I definitely considered opting out," said the former player who described his fellow retirees as "fucked." "But honestly, I didn't have enough time to pour through and go over it.
"Generally speaking, the NFL is banking on litigation fatigue for the players. A lot of these guys were not superstars. We can't just sit back and spend all day consumed with this. Guys have jobs and families to provide for. They're just busy."
It's also fair to ask if those busy former players received sufficient legal advice. As I've mentioned before, Kansas City-based attorney Ken McClain had the two dozen retirees he represents 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 CTE. Total cost? Roughly $10,000 per retiree. When McClain discovered that none of his clients would qualify for settlement awards—despite suffering what he describes as "significant emotional and impulse control problems that according to [Boston University] are tied to head injury"—he opted his entire group out.
Likewise, Girardi—the Los Angeles-based attorney who filed one of the first suits against the league, and is better known as Erin Brockovich's lawyer—told ESPN.com in January that he expected to do something similar. Claiming that the settlement compensated severely-ill retirees but left many others with barely "a handshake," he said he would "thoroughly examine how many players would not receive anything substantial in this and make a decision with them to opt out of the settlement."
Times change. In late September, Girardi's firm sent its former player clients a mass email that subsequently was shared with VICE Sports. The letter, signed by Girardi, advised every former player—in bold, underlined type—to accept the settlement. No exceptions. No individual evaluations. Nothing like the medical due diligence Girardi previously promised, or that McClain actually delivered. Just a simple take the deal.
After noting the legal risks of opting out, the letter concluded:
… in addition, we understand how difficult it may be for you to accept this NFL settlement because no settlement will make you whole for what you and your family have been through as a result of your injury. To help you through this process and in recognition of the sacrifices that you will be making by participating in the NFL settlement, we have decided to reduce our legal fees to 25 percent of any recovery we obtain for you plus our costs …
"I felt like like a number," said a former player who received one of the letters. "Like I had a McLawyer."
Girardi did not respond to a VICE Sports request for comment. Perhaps he was giving the best advice he could. "If Girardi believed the judge is going to dismiss the cases of any and all opt-outs, he basically could be saying, 'opt in or you are getting zero,'" said a lawyer who has worked on class action settlements. Or perhaps Girardi—and other top attorneys in the case—are subject to unusual, and perhaps conflicting, financial incentives.
A $4.85 billion settlement of a 2007 class action case against pharmaceutical giant Merck involving the since-discontinued pain medication Vioxx required lawyers to recommend the deal to all of their eligible clients in order to participate; moreover, any lawyer whose clients opted-out was required to withdraw from representing those clients.
The lead plaintiff lawyer on the Vioxx settlement? Seeger. Is something similar happening with the NFL concussion deal? I have no idea. A few case insiders have hinted as much—specifically suggesting that attorneys have been promised slivers of the $112.5 million pot for every player they keep in the settlement—but no one has provided hard evidence, let alone proof. It's just a rumor. One that some former players find plausible. It's hard to blame them. The people I talk to—including some attorneys—feel manipulated. Suckered. Purposefully kept in the dark. They feel as though the settlement is a fait accompli, totally out of their hands.
Like the daughter of a NFL retiree who had dinner with a group of player attorneys, and heard them tell the story of a well-known team owner advising a personal injury lawyer friend of his to get in on the concussion litigation by recruiting an equally well-known former team star as a client, because insurance companies were going to pay for the whole settlement anyway, so why not make a few bucks?
Or the former linebacker who has both a lawyer and a diagnosis of early Parkinson's, and still called me for opt-out advice. (I told him he should talk to his attorney, and if I were him I'd stay in the deal, because his condition is actually covered).
Or the retiree who's convinced—from first-hand experience—that the top player lawyers never felt they could win the case, and that the former players they represent had mixed feelings about pursuing it in the fist place. "A lot of us love the game of football," he says. "We don't want to hurt it. We're going to go attack the NFL. But if we're attacking the whole game and bring it down, is that what we want?"
In early October, Morey and his fellow objectors launched a website—nflconcussoinsettlementfacts.com—that pointed out many of the settlement's shortcomings: the CTE provisions, award discounts for players who have suffered strokes, the fact that the deal treats playing in NFL Europe as if it never actually happened. The site drew traffic and attention from former players, and also from law firms on both sides of the case. Interestingly enough, the NFL did nothing. Meanwhile, Seeger filed a motion with Brody arguing that the website was "plainly designed to confuse, mislead and deceive class members into objecting or opting out of the Settlement," contained "incorrect and false representations masquerading as fact" and was somehow part of a plot to tamper with due process.
Unsurprisingly, the same motion offered no actual evidence of wrongdoing. Just indignant rhetoric. All from the lawyer in charge of looking out for former players. Is it any wonder they don't know who to trust?
Not wanting to distract their attorneys before the fairness hearing, the objectors took the site offline. But not before one former player I know—who likes to talk in the late mornings, before his brain injury medications wear off—read every page. "Eye-opening stuff," he said. "It made sense to me. It was logical. Concise. That was the first time I'd ever seen anybody dissect the settlement like that. It got me pissed off at our lawyers. I had never heard their opinion, other than a form letter."
The retiree sent an agitated note to his attorney. He stewed. "[The settlement] feels like a scam," he said. "It feels like the game is rigged. It doesn't matter what we do. It just really doesn't matter." He waited for a reply.
"I finally got a long email back," he said. "The day before the opt-out deadline."
The player opted in. He still has no idea if the settlement will end up helping him, or if the fairness hearing will live up to its name.
"I said, 'Fuck it,'" he said. "What am I going to do now?"