League of Deception
The NFL’s Refusal to Honor the Terms of the Settlement It Made with Former Players
The National Football League is not some publicly owned or operated organization. It is not even controlled by the commissioner. It is owned, operated, and controlled by the thirty-two people who own the teams, the owners. As one observer aptly noted, “Make no mistake; the NFL is the owners’ league. A league that destroys the health of its participants. CTE, lifelong disabilities, you name it.”
Just over seven years ago, in April 2016, a U.S. federal appellate court approved the settlement agreement in the case of In re: National Football League Players Concussion Injury Litigation. Retired professional football players brought this class action seeking compensation from the National Football League for serious medical conditions they alleged were caused by game-related head trauma. One of the allegations in the suit was that the league knew that concussions and repetitive sub-concussive head trauma were not injuries that resolved in a few days; they could actually cause permanent, life-long brain injury. The players alleged that the league — like Big Tobacco — had intentionally covered up these facts and misled players about them.
Eventually, thousands of player lawsuits were consolidated in a Pennsylvania federal district court. A comprehensive settlement agreement resulted, avoiding a court ruling on the claims raised by the players or any defenses raised by the NFL.
The NFL agreed to an uncapped compensation fund that would potentially cover over 20,000 retired players in exchange for a release of all concussion-related claims against the league. At the time, it was predicted that the NFL’s obligation would ultimately exceed $1 billion. A lawyer who helped negotiate the settlement for the retired players, said they will now receive “much-needed care and support for the serious neurocognitive injuries they are facing” under the terms of the settlement.
Unfortunately, this hasn’t happened in the overwhelming majority of cases. It is now established that the league has engaged in a pattern of delays, obfuscation, and slow-down tactics that have denied much-needed medical treatment to players who qualify that could extend their lives. As a result, could it be argued the NFL has hastened and is responsible for their deaths?
The National Football League’s long history of deception and cover-up regarding head trauma and the true nature of concussions is well documented. But it perhaps reached its zenith with the so-called 2013 class action settlement with former players. To call the arrangement a settlement in the classic, legal sense of the word is at best a mischaracterization, at worst, a lie.
What it really is, as former players have learned over the past few years, is a Byzantine claims management process set up by the NFL to make it almost impossible for the former players who are members of the class to recover much-needed medical treatment and long-term care that they already qualify for under the terms of the settlement. Claims are deliberately drawn out, delayed, and belatedly rejected in the hopes that players will die before the league has to pay them.
How do we know this? Well, let’s examine the well-developed data and the evidence. The NFL has long been known for manipulation of science and use of intimidation tactics, but never has this been more evident than in a motion filed in the concussion settlement case. Allegations of bully tactics, doctor manipulation, and cherry-picked science are revealed in the motion filed by attorneys representing the players in an attempt to put the settlement back on the track it was designed for — that of compensating injured retired players and their families who are suffering the devastating effects of brain damage as a result of their football careers.
One doctor who treats several former players told the media, “[The claims] are getting denied because of the symptoms of the disease. They’re basically using our data against us.” The exact symptoms players are suffering from are used to deny claims by saying the player cannot remember or articulate specifically what his problems are or remember when he started suffering from them; and yet, these are classic symptoms of neurological diseases like dementia, Alzheimer’s and CTE. It’s like saying a player is suffering from the disease so badly that claims reviewers cannot tell if the player is really suffering from the disease. It’s classic doublespeak.
Lawyers for one former player filed court documents in which they argued, “The settlement agreement is in danger of failing its execution.” “As advertised, it was supposed to be a method to distribute tangible benefits to diagnosed players, a safety net against brain injury and its destructive effects on Class Members and their families. Sadly, the settlement is failing to provide a fraction of what the NFL promised.”
For example, of almost 1,100 dementia claims, only 6 have been paid when compared to the estimated 430 that should have been paid. Over half of all claims were placed in something called “administrative audit,” which causes an indefinite delay as the claimants suffer and continue to degrade neurologically and physically.
The court filing contends the “NFL is trying to rig the claims system” and engaging in the “scorched earth tactics” that it is well known for. The result to players and their families is catastrophic. The court filing goes on to note,
“The examples of implementation failures set forth below prejudice the class. They show that the NFL is implementing a scheme, claim by claim and player by player, to create a labyrinth of changing standards of review, secret procedures, audits, appeals, and innumerable technical readings of the agreement to delay and defeat claims and payments. The NFL has not settled this case. It seeks now to attack and remove the judgments neuroscience professionals use in diagnosing patients in a clinical setting and substitute its owned biased approach using a ‘lawyer knows better than doctor’ argument, references to medical textbooks, and anecdotal, out of context evidence about the player’s occasional functionality.”
Moreover, the NFL is using its audit right as a second appeal weapon for the purpose of defeating approved claims by an anonymous and secret procedure.
In addition, the filing alleges:
The NFL is engaged in vexatious, frivolous and bad faith appeals in violation of Settlement Section 9.6(b);
The NFL has improperly introduced a causation requirement into the review process. This is expressly prohibited in the settlement, but for some unexplained reason the NFL and certain appeals doctors are being permitted to deny on that premise;
Some appeal panel members apply rigid standards for the review of pre-effective date claims in violation of the settlement;
The claims administrator has been forced to apply rigid criteria to pre-effective date claims in violation of the settlement. This constitutes an unannounced amendment to the agreement;
The third-party affidavit that is supposed to corroborate functional impairment in a player diagnosed with neurocognitive impairment (like dementia) has also been the subject of an unannounced amendment;
Combined, the two surprise amendments have helped create a backlog of dementia cases that are subjected to baseless alleged deficiencies;
The appeals panel is paid below market rates; it must double in size. Keeping it underpaid and small prejudices the Class and benefits the NFL with delay;
The NFL has in bad faith prevented outstanding cognitive and behavioral neurologists from joining the appeals panel to prejudice the Class;
The Baseline Assessment Program (BAP) as implemented is failing the players. On information and belief, a de minimus number of players have received awards through the BAP and most are rejected. Medical professionals have left the BAP or refused to be part of it;
At this juncture, obtaining appointments for players takes three to six months; and
The BAP is inherently biased against African American retired players, which makes it more difficult for approximately 70% of the Class to recover in the settlement’s compensation system.
The court filing goes on to describe a specific case, the progression of which appears to be typical in the so called settlement process. A 41-year-old player had a decade-long history of neurological decline which included numerous neurological tests that revealed amyloid plaques — a marker for Alzheimer’s disease. His medical records also included neuropsychological tests including one by a neuropsychologist employed by the New York Giants; all of these tests indicated neurological impairment. His claim was approved, and on the last day the NFL could appeal, they did. When the player won the appeal, the NFL placed his claim in audit to avoid payment and seek another means of discrediting the claim.
According to the court filing, while the claim was in audit, the NFL scoured the internet and social media to find evidence to discredit the claim and found a 3-minute video of the player speaking to a youth group four years prior. Though President Reagan led the country after having been diagnosed with Alzheimer’s disease in his second term and basketball coaching legend Pat Summit coached for a time after a diagnosis of early-onset dementia, the NFL staunchly refuses to admit that a player is impaired if he shows any functionality at all. Instead, the NFL accused the board-certified physician, multiple neurologists, the scanning service, the radiologist, the player, and his family, of fraud. The claim continues to remain in audit. An excerpt from the player’s attorney’s correspondence with the league established several of the league’s delaying tactics, one of which is to request medical records it has already been provided, sometimes, months or even years after the records were already provided.
Exhibits filed with the motion show correspondence between the player’s attorney and the Claims Administrator that support these allegations. According to the brief, the NFL has gone so far as to demand a differing diagnosis from appeals panel doctors than the one rendered by physicians who physically examined the player. That’s right; appeal panel doctors who have never met the player or examined him are used to override the findings of the actual treating physicians who have treated the player, sometimes, for years.
As the court filing notes: “Even more disturbing, the NFL is now demanding that the claims administrator seek a differing medical opinion as part of the audit process for the purpose of getting the approved diagnosis and claim. If it succeeds, the NFL will have morphed the agreement into an opportunity for the NFL to shop for an anonymous medical opinion via the audit process to defeat a well-supported and approved claim. The implications of this practice are enormous. The NFL is placing the settlement at risk of becoming an NFL-controlled opportunity to defeat a valid diagnosis through the audit process. The league wants this done out of the public view and with anonymous doctors who have never seen or evaluated the player. This is a misuse of the audit procedures, contrary to the purpose of the process, and contrary to the purpose of the settlement agreement. It’s part of the league’s scheme to circumvent the court’s decision to uncap the settlement.”
Exhibits to the motion indicate that manuals have been prepared to instruct Baseline Assessment Program and Monetary Award Fund doctors how to diagnose according to settlement standards and for the Appeals Advisory Panel doctors, instructions to evaluate claims under the narrowest definitions possible. The lawyers who represent the players are not even permitted access to these manuals.
Why the secretive behavior by the league? What are they hiding? Why are they telling doctors how to do their jobs?
In response to media inquiries, the NFL has denied all the allegations set forth in the motion, however this should come as no surprise to anyone familiar with their modus operandi. It has been established time and time again that the NFL has engaged in Big Tobacco-style deceptive research, and one need look no further than their attacks on Dr. Bennet Omalu when he discovered the football/CTE link, to see how far they will go in attempt to discredit and humiliate doctors.
According to one source, one doctor of immaculate credentials from a major teaching university left the Baseline Assessment Program after being pressured to avoid giving 2.0 neurocognitive impairment diagnoses, if any diagnosis at all. He felt he was being pressured to alter test results and being impeded from being able to practice medicine in an ethical manner.
This narrative is very consistent with the information included in the court filing. But this continued slow-down of the claims process is not the only issue plaguing the league’s credibility.
The league was forced to stop using what is called “race norming” when evaluating the claims filed by black former players. What is “race norming?” Well, it literally presumes African-American players start with lower cognitive functioning, making it harder for them to prove neurological decline and qualify for settlement payments.
That’s right; the league was treating the claims of black players with a starting presumption that black players had a lower cognitive ability than players of other races.
Once this practice was uncovered and out in the open, the NFL issued a public pledge to abandon the practice and review the claims of retired players who believe the race-based adjustments deprived them of dementia settlements that average $500,000 or more. News coverage of the NFL’s turnabout drew a degree of outrage online from people angry the league ever sanctioned race-norming in the first place. The bottom line is, the NFL couldn’t care less about its former players.
Owners are fond of empty gestures, like sending flowers to the funerals of dead former players and making sad-sounding posts on Twitter when a former player passes away. But as far as living up to their end of the agreement when it comes to the settlement — specifically, paying out settlement funds a former player is due so that he can get the medical treatment or care he needs to extend his life — well, that’s just a bridge too far.
NFL owners, you have been given horrible legal and public relations advice, in my opinion. It would be a good thing for you to come clean and make the settlement with the former players a real legal settlement as opposed to the charade it has been over the past several years. It’s getting to the point where the familes are embarrassed for you. You all proposed to “settle” the case because you knew if you were pulled into depositions or court — like what happened with Big Tobacco — you would have been quickly and easily dismantled, destroyed, and made to look like fools. The thing is, that’s still a distinct possibility. But you can avoid it, if you do the right thing. You still have time.
Fix it so these former players can get the care that they need, unlike my father. In a nutshell, do not reject righteous and well-supported claims for no valid reason, hoping that, like my father, the men die before you have to pay for the care that they need to extend their lives and that they qualify for under the terms of the agreement.
Their families would like to spend as many birthdays, thanksgivings, and Christmases with them as possible.
Have a nice day. Enjoy your Learjets, your yachts, and your meetings in sunny locales, all paid for by the blood of the men that built the league.
Glen Hines is the author of six books, including the recently published Welcome to the Machine, all available at Amazon.com and Barnes and Noble. This article is an excerpt from that book. His writing has been featured in Sports Illustrated, Task & Purpose, the Human Development Project, and elsewhere.
