The proposal faces sharp criticism from lawyers representing some players as well as advocates for survivors of traumatic brain injuries.
BY MICHAEL O’KEEFFE
NEW YORK DAILY NEWS
Wednesday, November 19, 2014, 11:19 PM
Lawyers for the NFL and thousands of former players who claim the league covered up the long-term dangers of head injuries urged a federal judge in Philadelphia to approve a $1 billion settlement during a fairness hearing on Wednesday.
Attorney Christopher Seeger, the players’ lead lawyer, urged Senior U.S. Judge Anita Brody to approve the settlement in order to help financially strapped players with dire medical needs avoid lengthy and expensive legal battles with the league.
Seeger said the league would pursue “scorched-earth litigation” if the settlement isn’t approved and players are forced to pursue individual claims.
“The league could have fought these claims, successfully fought these claims in my view for many, many years,” NFL attorney Brad Karp agreed.
The proposal, however, faces sharp criticism from lawyers representing some players as well as advocates for survivors of traumatic brain injuries.
New York attorney Michael Kaplen, already an outspoken critic of the NFL’s proposed settlement, said Wednesday’s fairness hearing confirmed his fears that the plan is inadequate.
“People who deserve to be compensated will not be compensated,” said Kaplen, a lawyer who specializes in brain injury issues and is a lecturer at George Washington University’s School of Law.
Kaplen, who attended the hearing as an observer and does not represent any of the parties in the case, said he realized the plan is not based on retirees’ medical needs when Brody stopped Karp as he urged the court to approve the settlement and asked what “TBI” — traumatic brain injury — stood for.
“This case is about TBI and she wasn’t familiar with the term?” Kaplen said. “The train has already left the station.”
More than 4,500 former players, including stars such as Tony Dorsett, Jim McMahon and Eric Dickerson, accused the league of covering up the long-term health dangers caused by head injuries in a 2013 lawsuit filed in Philadelphia federal court.
Brody rejected a settlement that would cap the settlement at $765 million in January, expressing concerns that the $675 million portion dedicated to treating and assisting injured retirees would be insufficient to cover every claim. Brody gave preliminary approval to the settlement after the NFL agreed to lift the cap in July. The settlement is expected to cost the league about $1 billion.
“What matters now is time, and many retired players do not have much left,” former Philadelphia Eagle Kevin Turner said in a statement filed with the court.
The league has already argued that its collective-bargaining agreement with the Players Association requires concussion disputes to be handled in mediation, not in federal court, and that many players’ claims are barred by the statute of limitations. Also, experts say traumatic brain injuries can be caused by the thousands of hits to the head players suffer during the course of their careers, making it difficult to pinpoint a specific injury that caused long-term damage.
Karp told the court the “NFL is proud of this settlement.”
But Thomas Demetrio, an attorney who represents players who object to what he calls a lopsided deal, said that is not surprising.
“Yeah, no kidding,” Demetrio said. “I would be, too.”
Demetrio and other lawyers representing objectors also raised concerns about the $112 million the class attorneys stand to earn from the case.
Players diagnosed in the future with chronic traumatic encephalopathy (CTE), a condition linked to repeated blows to the head, will not be covered by the settlement. The estates of players diagnosed posthumously with CTE between 2006 and 2014 can seek up to $4 million. CTE, however, cannot be diagnosed in the living, and future deaths will be excluded from the settlement to avoid “incentivizing” suicide.
But Demetrio, whose clients included the family of former Bears and Giants safety Dave Duerson, ripped the deal because he said it shields the NFL from acknowledging liability for CTE. Duerson, who suffered from severe depression and acted erratically at the end of his life, shot himself in the chest in 2011. His suicide note asked his family to have his brain tested for CTE, and the tests were positive.
“The NFL by this settlement will never have to say what they knew, when they knew it, and CTE? Poof! It’s gone,” Demetrio said.
Kaplen and other critics of the settlement also say the deal is inadequate because players who suffer from depression, dizziness, sensitivity to light and sound and emotional disorders will be denied assistance. So will players who suffer from epilepsy induced by head trauma.
“There is no rhyme or reason to this settlement,” Kaplen said. “It is as if the lawyers came up with a settlement amount and now they are trying to figure out how to divide up the money.”
Still, the deal appears to have the support of the more than 22,000 retired players covered by the class. Only 199 opted out, Seeder said, and another 206 objected.
Seeger acknowledged the deal is not perfect.
“But it is really good,” he said. “And it is fair.”