NFL-deal opt outs low; hurdle exists

BySteve Fainaru, Mark Fainaru-Wada and Lester Munson ESPN logo
Monday, October 13, 2014

Opposition to the NFL concussion settlement has all but crumbled, with most retired players telling their attorneys that they intend to grudgingly accept the deal despite its flaws, players and attorneys involved in the case told "Outside the Lines."

With the deadline for players to declare their intentions looming Tuesday, attorneys predicted that out of some 18,000 former players eligible for the settlement, as little as a few dozen -- and no more than a few hundred -- will "opt out" and continue fighting the NFL.

The dwindling opposition increases the likelihood that the settlement will be approved after a "fairness hearing" before U.S. District Judge Anita Brody next month in Philadelphia. But it's by no means a certainty, as an objection filed last week by seven players challenges the settlement's basic tenets, and representatives for several prominent former players -- including Junior Seau and Hall of Famers Tony Dorsett and Joe DeLamielleure -- have indicated they still intend to opt out. The settlement allocates cash payments and medical monitoring to former players or their relatives who qualify under a complicated compensation plan.

Players are given three choices: accept the settlement; opt out, which allows them to continue suing the league; or object, which means they want the judge to reject the deal. A large number of opt outs would put additional pressure on Brody, but as of last week, just nine players had filed papers to do so, the lead negotiator for the plaintiffs, Chris Seeger, told the court in a conference call.

The low number of opt outs "signals widespread acceptance," Seeger said in a subsequent interview with "Outside the Lines." "I'm not saying this is a perfect deal, and that guys are thrilled and running toward it, but it does indicate acceptance of the deal."

After the settlement was announced in August 2012, a broad spectrum of former players and attorneys vigorously opposed it. The opponents first complained that there wasn't enough money to cover all injured players. After the NFL agreed in June to lift a $765 million cap, the opponents said too few players would qualify under the terms.

An NFL spokesman could not be reached for comment Monday morning.

Many lawyers and players said they are confronting a hard reality: Despite deep misgivings, they stand to collect nothing if they withdraw and would still face an expensive, uphill legal battle against the NFL. The first step would be a return to the NFL's demand that the concussion lawsuits be dismissed under a rule of law known as preemption. Because the players and the owners are bound by a union agreement, the NFL argues, the disputes must be submitted to arbitration, a process far less promising to players. Some lawyers believe that Brody may dismiss some of the cases on this basis after she approves the settlement.

"It's just a terrible situation," said Jason Luckasevic, a Pittsburgh attorney who began working on the issue in 2007 and filed the first concussion case against the NFL four years later. "This deal is not anywhere near what it should have been."

Luckasevic, who represents about 500 players, predicted that only "about two dozen" of his clients would opt out, including Dorsett and DeLamielleure. Tom Girardi, a Los Angeles attorney who once said the settlement delivered little more than "a handshake," said that because the deal is uncapped he is now satisfied every deserving player will be covered. Girardi, who represents about 1,200 players, predicted that "fewer than 10 percent" of his clients will opt out. Michael Hausfeld, a Washington lawyer who also voiced opposition, said the majority of his 300 clients have signaled their intent to accept the deal.

Dan Girard, a San Francisco attorney who was also previously opposed, predicted that out of more than 200 players he represents, "zero" will reject the deal.

"I haven't heard anyone say, 'This is just a fantastic thing, I'm really happy,'" Girard said. "I think people may be resigned to it as the best alternative. They feel like they are unlikely to get a better outcome in litigation. The problem is they just don't have a case."

Of the few players who say they'll opt out, some are former stars who could present a formidable challenge to the league if their cases are allowed to move forward. In addition to Dorsett, the former Cowboys running back, and DeLamielleure, the former guard, the family of Dave Duerson, the former Bears defensive back who committed suicide by shooting himself in the chest in 2011, intends to opt out or object, according to its attorneys. The family of Seau, the former Chargers linebacker who killed himself in 2012, announced its intention to opt out last month.

"I'm opting out because people in my era, we're gonna get nothing -- zero," said DeLamielleure, 63, who played for the Bills from 1973 to 1985.

Last year, a UCLA pilot study found that DeLamielleure, Dorsett and other former players showed signs of chronic traumatic encephalopathy, or CTE, a crippling disease that has been linked to football-related head trauma. CTE has been discovered in the brains of 76 deceased NFL players since 2005. But the settlement does not compensate players who are diagnosed with the disease after July 7 -- when the settlement received preliminary approval -- or recognize tests on living players like the one administered to DeLamielleuere and Dorsett.

"The things that all the guys have, they don't cover," DeLamielleure said. "They are going to take care of the least amount of guys with the least amount of money."

Seven former NFL players, including concussion activist Sean Morey, filed a 125-page formal objection to the settlement last week. Morey and his attorney, Steven Molo, contend that the settlement is nothing less than a "sell-out of an otherwise strong case" that is "designed to dramatically reduce the number of claims on which the NFL must pay." The filing included a declaration by Robert Stern, a Boston University professor of neurology and one of the leading experts on CTE, who concluded that players "who suffer from many of the most disturbing and disabling symptoms of CTE would not be compensated under the settlement."

Those symptoms include behavioral and mood disorders such as depression, impulsivity and rage "resulting, in part, from ... repetitive head impacts in the NFL," Stern wrote. As seen in former players like Seau, Duerson and Steelers Hall of Fame center Mike Webster, who died in 2002, those disorders can lead to financial instability, substance abuse and suicide.

Tom Demetrio, whose firm Corboy & Demetrio represents Duerson among its 15 clients, said he hoped the Stern affidavit would be "eye-opening" to Brody.

"Stern is critical of the whole procedure, and he lays out why beautifully. And this is a guy who, if there's a Mr. CTE, he's it," Demetrio said. "And that's why, candidly, I believe the NFL and/or its legal team is brilliant. For them to have accomplished obliterating CTE for all time, it's the best piece of lawyering I've ever seen."

Demetrio, who has been highly critical of Seeger throughout the settlement process, said one of his fellow lawyers in the concussion case compared the deal to being "like an asbestos case where any damage for injury to the lungs is excluded."

As Stern explains in his sworn statement evaluating the settlement, to qualify for an award of compensation, the player must be unable to function independently at a job, must be unable to shop or participate in social activities, and must require prompting to complete personal care such as dressing, bathing and using the bathroom.

Seeger acknowledged that behavioral and mood disorders are not covered by the settlement, even though they are sometimes related to CTE. But he said that issues such as anger and depression are also found in the general population and often have nothing to do with football-related head trauma.

He pointed out that the settlement compensates players with neurocognitive problems such as dementia that often stem from CTE, even though players will not be compensated for CTE directly. And because CTE is a progressive disease, Seeger said, players who may not immediately qualify can use the settlement as "insurance" if they develop symptoms that merit compensation.

"I couldn't get the NFL to pay on every single set of injuries," Seeger said.

The exclusion of CTE has turned the settlement into "a sham," said Ken McClain, a partner with Humphrey, Farrington & McClain, a Kansas City law firm. Out of the two dozen former NFL players he represents, according to McClain, all were examined by Stern but did not qualify for compensation.

"It sits out there like there's this big piece of bait for these players to stay in the settlement, when everyone should know that they're not going to receive anything," said McClain, who said he expects almost all of his clients will opt out. "Only a few players will qualify."

At the fairness hearing next month, Brody will consider the Morey group's objections. She has wide latitude about how that process will unfold: She could allow testimony or not; she could overrule the objections nearly immediately, certify the players as a valid class, and approve the settlement; or she could suggest to Seeger and the NFL attorneys that they should reconsider aspects of the deal and report back to the court. Whatever Brody does in regard to the objections will affect the entire set of 18,000 former players, not just the seven in the Morey group.

Should Brody's decision on the objection go against Morey's group, the group could appeal, tying up the entire settlement in court.

The decision faced by Duerson's relatives illustrates the dilemma faced by many plaintiffs in the case. The family stands to receive $2.3 million under the compensation plan. But Demetrio has said repeatedly that it is impossible to assess the settlement because no attempt was made to gather evidence in the case.

The Morey group, in its objection to the settlement, asserts that the gathering of evidence in the process known as discovery (taking sworn testimony from NFL officials and strip-searching NFL records) "could yield powerful and compelling evidence of the NFL's culpability."

Without any discovery, Seeger was "negotiating blindly" and entered into the settlement negotiations with nothing more than an educated guess as to the merits of the case.

The negotiations were also skewed, the Morey group argues, by Seeger's demand for $112.5 million in attorneys' fees. The group is particularly suspicious about the NFL's agreement not to contest the fees, the so-called "clear sailing" provision. It "increases the likelihood that [Seeger] bargained away something of value to the class -- like compensation for all cases of CTE."

Because of their "huge payday," Seeger and the other class counsel have also included "false and misleading material" in the official notice that was sent to retired players and in a "propaganda campaigning" in the media.The notice, the Morey group asserts, "leaves it to the reader to conclude that every [player] with CTE will not be compensated" and that players who die with a diagnosis of CTE after July 7 will not be compensated."

The settlement, these players conclude, is "not a compromise, it is capitulation."

Some attorneys believe that the NFL, to avoid further litigation, will try to settle with the players who opt out once the deal is approved. The families of Duerson and Seau, because of the players' fame, could be well-positioned to negotiate better deals.

But Seeger warned that such maneuvering could backfire if the NFL continues to fight.

"The NFL enjoys a reputation for being a very tough advocate in court, and I think they are likely to show that muscle on the opt outs," he said. "I think they will fight every single one."

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