What's Going on With This Concussion Settlement Letter from the Players' Attorney with a NFL Firm's Footer?

Why does class counsel's letter objecting to use of Miller CTE admission in CA3 appeal use NFL law firm's footer? pic.twitter.com/736YHSgJ0n
— Daniel Wallach (@WALLACHLEGAL) March 19, 2016

In the wake of NFL senior vice president of health and safety Jeff Miller's recent admission to Congress that there is a link between chronic traumatic encephalopathy (CTE) and playing football, litigators on both sides of the NFL's pending federal class action concussion lawsuit settlement are trying to unpack what it means for the deal, which is currently before a three-judge appellate panel. Unsurprisingly, the lawyers that have agreed to the settlement don't think Miller's admission changes anything; the lawyers objecting to deal think it changes quite a bit.

Following Miller's remarks, Steven F. Molo, an attorney representing a group of players including former Pittsburgh Steelers lineman Alan Faneca who are objecting to the settlement, wrote a letter to court noting the seeming discrepancy between the NFL's position throughout the litigation and Miller's statement before a Congressional roundtable that "certainly yes," there is "a link between football and degenerative brain disorders like CTE[.]" In their view, this admission provides new authority and the comments from Miller "further signify the NFL's acceptance" of CTE research it previously discredited. Molo's letter does not explicitly request re-litigating the CTE issue—which is given very short shrift in the settlement, as only players who died between Jan. 1, 2006 and July 7, 2014 and were subsequently diagnosed with the disease are covered—but the implication is clear. Another firm representing a second group of objecting NFL retirees joined in, adding that at the very least, Miller's comments provide "a reasonable alternative to compensating future CTE victims in the present settlement," namely excluding them from the settlement and letting them bring a class action suit of their own against the league.

In response, attorneys for the NFL and the lead class of players both wrote letters disputing the import of Miller's comments on the settlement. What's strange is that Christopher Seeger, lead counsel for the players, attached a certificate of service to his letter that appears to contain a footer from the firm representing the NFL. This has in turn prompted further speculation that Seeger is working a bit too cozily with the NFL in negotiating a settlement that largely ignores CTE.

We've addressed it before here, but many players feel like the deck has been stacked against them, and that the NFL found an attorney in Seeger that it knew it could work with while also giving the appearance of taking responsibility for lying about the science of player safety for so long. The players objecting to the settlement see it as not doing enough for CTE victims. Seeger appending a certificate of service so that it looks like his letter—which already echoes the NFL's letter—was sent from the offices of his supposed adversary gets the tinfoil hat crew in a frenzy. Was that just a paperwork error? Did Seeger's firm simply re-purpose the NFL's certificate of service—a boilerplate proof of notice—and neglect to remove the footer? Was it a glitch in the electronic filing process? Or did the NFL's law firm actually write Seeger's letter, and he simply signed it?

@candacebc81 @WALLACHLEGAL Does it violate the rules since the response was capped at 350 words? NFL seems have gotten 700 w/ Seeger incl.
— NFLCSFacts (@NFLObjectors) March 19, 2016

$112MM in attorneys' fees, sadly at your service. https://t.co/wccS3Z0b7Q
— Paul D. Anderson (@PaulD_Anderson) March 19, 2016

The reason this is even remotely curious is because the settlement severely limits (or entirely eliminates) compensation for CTE symptoms and posthumous diagnosis of the disease. Many players who develop CTE will be out of luck, and the NFL figures to save a lot of money. That's obviously good for the league and not so good for the players Seeger represents, so it's striking to see the two adversaries agreeing. Add in the footer issue, and a seemingly cozy relationship looks even cozier.

Keep in mind: Even if the relationship between Seeger and the NFL is arm's length, he still has an interest in disputing the relevance of Miller's comments. Because this is how settlements work. Seeger and the league agreed on a deal, the majority of retired NFL players didn't object (or didn't bother to), and a federal judge gave the settlement her stamp of approval. Now, Seeger wants to get paid, a reward that likely will be tens of millions of dollars. Not only does he want to get paid, but he has a duty to get his clients who are covered by the settlement paid, too. And that's understandable: When you reach an agreement in a multimillion-dollar case, the last thing you want to do is re-open the process or let other aggrieved parties screw it up for you.

Attorneys have two basic considerations in these situations: what are we willing to settle for and call it a win? And what gives me the best shot of achieving that? It is infinitely easier to win an argument by saying "my position is correct because of [specific fact]," than it is to say "my position is correct because, while we are still researching it, most of the science tends to show that there is likely a link between [x] and [y]." Maybe Seeger was all too willing to work with the NFL and gave up on CTE too early, in the process selling out a host of players to get what he wanted. Or maybe he just thought it was a loser for his ultimate goal, which is to get at least some of his clients paid. Chances are, it's a little of both.