(Editor’s Note: What follows is a “Letter to the NFL Players” written by other players, who are unhappy with the settlement between the league and the class-action plaintiffs)
To our fellow NFL and NFL Europe veterans and their families, loved ones, and caretakers,
All of you have an important and personal decision to make regarding the proposed NFL class action concussion lawsuit settlement. Those of us objecting to the current deal want to share a summary of our position and the reasons we are standing up for a more fair, reasonable, and adequate settlement.
We believe that achieving a settlement is the best possible outcome for both past and present players and the league. However, we do not believe that a settlement should be achieved at any cost, particularly if the cost means sacrificing current rights, appropriate medical care, and future security for retired players and their families.
Moreover, we strongly believe that widows, families of deceased players, and terminally ill players should be paid TODAY. Immediately. Those players and their families should NOT be used as emotional bargaining chips to encourage the acceptance of a defective settlement. As Commissioner Goodell has said repeatedly, the NFL holds itself to the highest moral standards. Taking hostages is repellant. Despite our many differences, everyone actively involved in the settlement – and within the larger football community — agrees that brain damaged and brain diseased players and families with the most immediate need should be compensated without additional delay.
As such, we call on the commissioner and the league to pay the families of those who are deceased and in the 88 Plan posthaste, so that a fair, reasonable, and adequate settlement can be concluded.
We understand if you have not been paying close attention to the ongoing settlement proceedings or to our legal efforts to produce a better deal. Coping with brain degeneration and dysfunction, or contemplating future occurrence of these issues, is difficult; discussing this with loved ones and employers can be harder still. Alan Faneca, one of the objectors, said it best in a recent article:
We have filed a very detailed legal brief in federal court, describing and responding to many of the identified deficiencies in the proposed settlement. Since the plaintiffs’ lawyers have been busy promoting their view of why you should accept the settlement, we would like to take the opportunity to finally offer highlights of an opposing view.
Here are critical points we believe every player and their family must consider before deciding what to do with regard to the settlement:
According to the NFL’s own settlement actuarial data filed in federal court, 3 out of 10 NFL Players will suffer from Dementia, ALS, or Parkinson’s disease. This does not include players who are suffering from other types of neurological afflictions and diseases including brain damage, CTE, stroke, or seizure disorders.
According to the same NFL data, 3,600 players are expected to receive compensation; 5,900 are projected to have a neurodegenerative disease; and 15,000 are expected to receive nothing from the Monetary Award Fund.
According to figures offered by the plaintiffs’ actuaries, the estimated average age when a player will receive a Monetary Award Fund payment is 77.
- Problems With The Settlement
- A) Chronic Traumatic Encephalopathy (CTE) Coverage
CTE is the neurodegenerative disease at the center of the “League of Denial.” It was found in the brains of Mike Webster, Dave Duerson and Junior Seau, as well as in many other former players. Under the current terms of the settlement, only players who died between January 1, 2006, and July 7, 2014, and were subsequently diagnosed with the CTE via autopsy will receive compensation for the disease.
If you die after July 7, 2014, and are subsequently diagnosed with CTE, your family will receive nothing.
In addition, the families of former players Mike Webster, Terry Long, and Justin Strelczyk – all of whom died and were diagnosed with CTE before January 1, 2006 — will have to fight in court to receive compensation, even though these lawsuits were precipitated by their tragic and untimely passing.
The plaintiffs’ lawyers encouraging players to accept the current settlement claim that all players with symptoms of CTE will be compensated, regardless of medical diagnosis. This is not true.
The current settlement only screens for and rewards cognitive symptoms, which are things like memory loss. However, scientists who study CTE have found that many people afflicted with the disease, especially younger football retirees, first suffer from psychiatric, behavioral, motor-neuro, and movement symptoms – symptoms that can make life for you and your family extremely difficult, diminish your ability to earn a living, and make it difficult to afford adequate medical treatment, even in the absence of cognitive symptoms.
Moreover, in this group of CTE-afflicted patients, cognitive symptoms tend to appear later in life.
Why does the above distinction matter? Because the settlement award payout structure is based on age. The older you are when diagnosed with symptoms, the less money you and your family will receive.
In other words: a CTE-afflicted former player who begins to suffer mood and behavior symptoms at age 38 but does not suffer cognitive decline until his late 50s or early 60s will receive substantially less money – simply because some of his legitimate and disease symptoms are neither counted nor considered by the current settlement.
Indeed, all players with symptoms of brain damage that are not cognitive – for example, irrational rage, depression, irritability, attention deficits, or chronic and debilitating headaches – will not receive compensation for their illnesses.
- B) Financial Terms
The justification for the individual payout amounts for specific types of brain damage remains undisclosed. We have no idea how the settling parties decided the amount of compensation each injury deserves and whether it is fair when it comes to compensating former players and their families for health care costs, lost income, and pain and suffering.
We do not believe in the notion that anyone is going to strike it rich from a settlement payout. We know that no former player or his family wants to be in a position to collect a single dime as compensation. Brain damage or disease is not a lottery ticket.
That said, ask any of the senior veterans’ families about the costs of taking care of someone suffering from a neurodegenerative disease. They are very, very high. The figures listed in the settlement do not appear to be fair, reasonable, or adequate to address the task at hand.
In fact, our examination of the settlement financial data submitted in federal court by the plaintiffs’ lawyers suggests that only 52 out of 21,070 retirees will obtain the highest advertised payout based on the estimated number of players suffering from each qualifying diagnosis. So only 1/4 of 1% of all players will receive the highest payout by disease.
We previously mentioned that the payout reductions as you age are extreme. Here’s an example: the difference in payout between a player who is diagnosed at age 44 and a player who is diagnosed at 59 is approximately 66% for every qualifying illness except ALS, which still carries a 30% reduction.
If you suffered or suffer a non-football traumatic brain injury your settlement payment is reduced by 75%.
If you suffer a stroke or show evidence of having suffered a stroke, you receive a 75% payment reduction. The actuarial estimate is that 9% of the general population suffers a stroke. However, Dr. Ira Casson (yes, the NFLs own Dr. NO) recently published a study of 45 NFL players that showed 9% had evidence of microhemorrhaging of the brain (most players with microhemorrhaging don’t know it). Many doctors would suggest this would also be classified as a stroke. It is unclear the how these two estimates would overlap, but it would suggest that more than 10% of the class would be affected. Dr. Casson suggests this rate is far higher than one would expect in the general population.
If you suffer a stroke and a traumatic brain injury, the total reduction is 93.75%. So if a 55-year-old, 10-year NFL veteran is diagnosed with full blown Alzheimer’s disease and is determined to have suffered a stroke and a traumatic brain injury, he would receive just 6.25% of his expected $1,150,000 payout, approximately $71,875.
The final payment would be further reduced by not only a lawyer’s fee, if you have representation, but also by insurance companies and government agencies that will seek to recapture medical costs they paid as a result of your injuries.
If you played exclusively in NFL Europe (approximately 3,500 players or 17% of the Class), YOU SHOULD OPT OUT. Your years do not count. You get nothing and give up everything.
The NFL and the plaintiffs’ lawyers have called the settlement “uncapped.” As recently-retired players are aware, everyone should be cautious when hearing the league use that term. The total amount of theoretical compensation to all retirees is uncapped – but the specific payments to each player and/or their families are VERY MUCH CAPPED.
More importantly, the baseline brain damage screening and treatment program for players who have not reached the level of the limited number of severe neurodegenerative diseases covered by the settlement is capped at $75MM.
As a result, any player who expects to receive care with a diagnosis of non-severe cognitive impairment will find very little money available to help him. Financial data submitted by the plaintiffs’ lawyers suggests that they expect only 750 players to receive this kind of diagnosis and care – about 3.5% of all retirees over a 65-year period.
We fear that estimate may be low.
- C) Settlement access and execution
To qualify for a cash award for cases of Alzheimer’s, Parkinson’s, ALS, or dementia, you must pay additional doctors selected by settlement administrators to diagnose you with a qualifying disease. Your baseline assessment results or 88 Plan records will not be sufficient. (The NFL receives a 10% discount if you do not participate in the BAP screening.)
If your compensation claim is rejected, it will cost you $1,000 to appeal the decision (the fee is refunded if you win) – by contrast, the NFL can appeal all claims at no charge as often as it wants.
Some players with brain damage are homeless, wards of the state (mental hospitals), or in the prison system and will have difficulty meeting settlement enrollment and baseline assessment deadlines, as well as obtaining and understanding necessary documents throughout the course of attempting to receive due compensation.
Approximately 78% of the class does not currently have legal representation, and yet they are expected to interpret these very complicated documents without help.
III. Our Conclusions
If you don’t do anything, you have opted in to the settlement. Even if you have not filed a lawsuit against the NFL.
If you don’t register for the settlement within 180 days of it receiving final approval in federal court, you will not be able to make a claim. Ever. No matter how sick you may become in the future.
Please understand: we are not offering legal advice. You should discuss the settlement with your attorney if you have representation. He or she is obliged to advise you on your personal case. Make sure all communications with your lawyer are detailed and in writing.
Further, you should ask your lawyer if he or she is receiving any funds or has been promised any funds for having players opt in. If so, how much? Again, make sure it is writing.
If you do not have a lawyer and don’t want one, read the documents with care. Your personal circumstances should determine your actions. Nonetheless, please act and make your voice heard. October 14, 2014, is the deadline to declare your status in the settlement.
Finally, we offer a few thoughtful news articles that describe our position and two statements from former players who are not affiliated with the objectors:
Hamza Abdullah – Opting out – https://twitter.com/HamzaAbdullah21/status/511662559947022336
Emmitt Smith: The concussion settlement with NFL players is “nothing” http://sports.yahoo.com/video/emmitt-smith-20k-concussion-settlement-110000539.html Emmitt Smith admits his fear of brain injury, and says the NFL settlement with former players isn’t enough.
The NFL Is Using Sick Retirees as Hostages https://sports.vice.com/article/the-nfl-is-using-sick-retirees-as-hostages
Upon Further Review: Why former NFL players already are appealing the proposed concussion settlement http://www.patrickhruby.net/2014/07/upon-further-review.html
Cutting Them Short: How the NFL concussion settlement cheats former players http://www.patrickhruby.net/2014/07/cutting-them-short.html
Thank you for your consideration. Please contact us firstname.lastname@example.org with any questions or concerns. For more information, please visit www.nflconcussionsettlementfacts.com
Roderick “Rock” Cartwright
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