This week, hundreds of men will see their childhood dream become reality at the 2019 NFL Draft.
But, beneath all the tears and cheers, the pomp and circumstance, the National Football League and its lawyers are battling hard to deny benefits and compensation to the players who sacrificed their bodies and minds to build that NFL dream into what it is today.
At the beginning of 2017, a class-action lawsuit between the NFL and its former players was finalized for a settlement worth approximately $1 billion over the next 65 years. But instead of celebrating the outcome, retiring players and their families found themselves facing a marathon of paperwork and physicians, appeals and audits. By November of 2017, the New York Times reported that out of the 1,400 claims that had been submitted by retired players, only 140 had been approved.
While the approvals have picked up a bit in the intervening 17 months, this month, Senior Judge Anita Brody of the U.S. Eastern District of Pennsylvania unveiled new rules that will make the already-arduous claims process even more excruciating.
“The goal posts are continuously shifting,” attorney Lance Lubel, who represents about 75 players involved in the settlement, told ThinkProgress.
At the heart of this problem is the matter of a qualifying diagnosis of neurocognitive impairment, which is required for players to get money from the settlement.
There are two ways for players to go about obtaining this diagnosis. One is the Baseline Assessment Program (BAP), which is free for the players. However, there are many catches involved. Players are only permitted to get one examination through the BAP, and the claims administrator chooses the doctor and location of the exam. The BAP has an extremely high bar for players to pass. So far, Lubel says, 95 percent of the players who have gone through the BAP exam have failed to obtain a qualifying diagnosis. The overwhelming sentiment is that the BAP is an impenetrable defensive line put in place by the league to guard its money.
“The BAP protocols are not medical standards but rather settlement-engineered testing designed to weed out as many players as possible,” writes Sheila Dingus, who has documented the case extensively on her website, Advocacy for Fairness in Sport.
The other way for players to get a qualifying diagnosis is to go through the Monetary Award Fund (MAF). In this instance, players are responsible for paying for the tests, but they are permitted to pick the doctor and schedule the appointment on their own.
And here is where the latest controversy has emerged. Last summer, the NFL filed an appeal that essentially sought to give league-trained physicians and administrators even more control over the process of determining a qualifying diagnosis. After a series of motions and closed-door hearings, on April 11, Judge Brody released updated MAF guidelines.
“The first [MAF guidelines document] was five pages long and mostly derived from the settlement agreement,” said Dingus. “This one…is a complete re-write.”
The new MAF guidelines are supposedly in place in order to prevent fraud and to bring the MAF standards more in line with the BAP standards. But, in practice, they seem to be geared toward preventing players from getting the relief they’re entitled to under the settlement.
According to the updated guidelines, the NFL-appointed and trained Appeal Advisory Panel (AAP) has much more control over the appeal process; retired players now must receive a diagnosis from a qualified MAF physician located within 150 miles of their primary residence; and neuropsychological exams must be conducted within 50 miles of the MAF physician.
“This rule effectively eliminates any choice of doctors for players,” Dingus said.
Additionally, MAF physicians are now required to obtain their patients’ “employment information and business activities” over the past five years, as well as “any social, community, recreational or other activities by the Retired NFL Football Player outside the home around the time of the MAF Examination, whether these activities have changed over the five years preceding the date of the MAF Examination and, if so, how they have changed.”
The NFL likes to tout the success of the settlement by advertising that it has already paid out $645 million in claims — a significant amount of money that’s nearly what the league planned to spend for the entire 65-year period of the agreement. However, the primary reason that total amount is so large is because individual pay-outs for advanced diseases such as death by CTE, ALS, and Parkinson’s have been higher than expected.
Meanwhile, retired players suffering from dementia — a Level 1.5 of Level 2.0 neurocognitive impairment, according to the settlement — are being systematically excluded from the approval process, despite the fact that they were initially expected to make up a sizable proportion of the settlement’s beneficiaries.
According to the most recent report, only 12.9% of the Level 1.5 and 2.0 claims have been paid out, compared to 59% of the CTE claims, 64.8% of the ALS claims, 50.6% of Alzheimer’s claims, and 63.6% of Parkinson’s claims.
Lubel said that touting the $645 million figure occludes the real problem: The large number of retired players who are currently struggling and unable to get the assistance the settlement promised.
“It doesn’t do anything for the remaining guys that have not qualified yet, they’re left out in the cold,” he said.
Christopher Seeger, the co-lead counsel who represents the settlement class, has been a controversial figure throughout the entire settlement process; many other attorneys in the case have criticized him for carrying water for the NFL, and for being more concerned about making money for himself than he is about earning justice for his clients. Seeger has not made a public statement since the new rules have been released. His most recent statement was issued to Deadspin through a spokesman earlier this month.
“While we believe the settlement is working as intended with more than $645 million in approved claims, we respect the Court’s view that these measures will, as Judge Brody stated, ‘safeguard the integrity of the Settlement Program,’” Seeger said. “The rule regarding ‘generally consistent’ diagnoses is in fact administrative and will streamline the approval and payment of claims. The additional rules provided by the Judge appear to be aimed at addressing her previously expressed concerns regarding possible fraudulent claims. We will ensure these rules are implemented in a way that does not allow legitimate claims to be impeded in any way.”
That sounds reasonable. But lawyers and advocates who work with the suffering players and their families on a day-in-day-out basis have no way of holding Seeger to account. The entire claims process happens behind closed doors.
“The process needs to be more transparent,” Lubel said. “That’s what’s super frustrating about it, decisions are being made in a vacuum, and the stakeholders are not able to weigh in.”
This week, the NFL will spend a lot of airtime talking about how it’s a brotherhood. But its actions in this concussion settlement have spoken much louder than than their ad campaigns.