De­lays in NFL con­cus­sion pay­outs frus­trate fam­i­lies

The Washington Post Sunday - - SPORTS - BY RICK MAESE

More than 10 months af­ter the NFL’s high-profile con­cus­sion set­tle­ment with re­tired play­ers, only a small per­cent­age of those who have made claims have re­ceived mon­e­tary awards, with many claim­ing the process has been flawed and oth­ers de­fend­ing it as nec­es­sar­ily de­lib­er­ate.

Be­fore the set­tle­ment went into ef­fect in Jan­uary af­ter more than a year’s worth of ob­jec­tions and de­lays, the NFL had es­ti­mated for the court that it expected 665 set­tle­ment claims to be paid out in the first year of an agree­ment many es­ti­mated even­tu­ally would cost the league more than $1 bil­lion.

Thus far, just 140 no­tices of mon­e­tary awards have been is­sued for a to­tal of $195 mil­lion. Of that, about $100 mil­lion has been dis­trib­uted.

“The current ad­min­is­tra­tive struc­ture of the claims process is flawed, cum­ber­some and moves at a glacial pace,” at­tor­ney Thomas Gi­rardi, who rep­re­sents more than 500 for­mer play­ers, said in one re­cent court fil­ing.

The com­pany charged with ad­min­is­ter­ing the claims process sub­mit­ted a progress re­port to

“This isn’t just hap­pen­ing to us. It’s hap­pen­ing to ev­ery­body I speak to . . . . It’s all a de­lay gim­mick.” — De­bra Fel­lows, wife of for­mer player Ron, on the set­tle­ment ad­min­is­tra­tor re­peat­edly seek­ing in­for­ma­tion that already has been sup­plied

U.S. Dis­trict Judge Anita Brody last week say­ing that more than 17,000 play­ers and their fam­i­lies had reg­is­tered and more than 1,400 had sub­mit­ted mon­e­tary awards claims through Nov. 1. Many of those claims have be­come en­snared in the ad­min­is­tra­tive pipeline, with many for­mer play­ers re­ceiv­ing de­fi­ciency no­tices and oth­ers be­ing de­nied al­to­gether.

Christo­pher Seeger, the New York-based at­tor­ney who serves as co-lead coun­sel for the class of for­mer NFL play­ers and is cred­ited as the prin­ci­ple ar­chi­tect of the set­tle­ment, de­fended the process and said early hic­cups are to be expected in large, com­pli­cated cases such as this one.

“That rate is go­ing to pick up ev­ery sin­gle day. So it’s work­ing well,” he said in an in­ter­view this week. “Is it per­fect? No. Is it work­ing as well as I would like? No. I would like more claims ap­proved and things mov­ing along. But you can’t an­tic­i­pate Day 1 ev­ery sin­gle thing that’s go­ing to come through.”

Seeger is the tar­get of much ire from many for­mer play­ers and their at­tor­neys, par­tic­u­larly af­ter he made a court fil­ing last month

out­lin­ing a pro­posal for at­tor­ney com­pen­sa­tion, which re­quested $70 mil­lion for him­self and his firm and $42.5 mil­lion to be split among two dozen other at­tor­neys. He also re­quested 5 per­cent of ev­ery claimant’s award to com­pen­sate for fu­ture le­gal work in the case. That prompted a flurry of fil­ings from oth­ers who said at­tor­neys in the case should not be com­pen­sated be­fore the play­ers in­volved.

Bruce Hagen, a Ge­or­gia-based at­tor­ney, told the court, “Mr. Seeger’s in­sa­tiable greed seems to know no bounds.”

Steve Yer­rid, a high-profile Tampa at­tor­ney, said he has filed nearly 200 claims on be­half of clients and not a sin­gle one has been granted thus far.

“The pub­lic per­cep­tion is that Class Coun­sel are now ask­ing for mil­lions of dol­lars in com­pen­sa­tion while brain dam­aged play­ers con­tinue to de­te­ri­o­rate and even die while await­ing pay­ment of their claims as the process is be­ing ‘slow played’ and un­nec­es­sar­ily delayed,” Yer­rid wrote to the court.

While some for­mer play­ers have as­signed blame to both the class coun­sel and the league, NFL spokesman Brian McCarthy pointed out that the court ap­pointed a third-party com­pany to ad­min­is­ter the claims process and said the league hasn’t been in­volved in any ef­forts to de­lay that process.

“The NFL is com­mit­ted to promptly pay­ing all le­git­i­mate claims and, to that end, is work­ing with co-lead class coun­sel, the set­tle­ment ad­min­is­tra­tors and the court to en­sure the ef­fec­tive im­ple­men­ta­tion of the set­tle­ment pro­gram and the pay­ment of benefits,” McCarthy said.

A tough process

Some ex-play­ers and their fam­i­lies said the com­pli­cated claims process only has added to the frus­tra­tion and heartache they feel. Mary Brooks is the daugh­ter of Ge­orge An­drie, a for­mer de­fen­sive line­man for the Dal­las Cow­boys who suf­fers from de­men­tia and re­quires a full-time care­giver. With power of at­tor­ney for An­drie, she filed a claim in Au­gust. More than two months passed be­fore she was told the claim was de­fi­cient, and she’s not sure when she might re­ceive a de­fin­i­tive an­swer on her father’s case.

“When I started this jour­ney, I had no idea the lion’s den I would be walk­ing in to,” she wrote to the court last week. “I have lost all faith in jus­tice and have seen the law ma­nip­u­lated in ways I have only seen in movies.”

Brody is­sued an or­der last week say­ing in part that for­mer play­ers “must pro­ceed through the Claims Ad­min­is­tra­tion process” and that an “at­tempt to cir­cum­vent those pro­cesses by di­rectly pe­ti­tion­ing the Court is im­proper.” She has called for a con­fer­ence to take place Mon­day in her cham­bers “to ad­dress any is­sues re­gard­ing the im­ple­men­ta­tion of the Set­tle­ment Agree­ment.” That meet­ing will be closed to the pub­lic and me­dia and will in­clude only Seeger and the NFL.

Her or­der, is­sued Wed­nes­day, fur­ther en­raged many play­ers and their at­tor­neys be­cause they blame both par­ties for the early prob­lems.

The claims process is ad­min­is­tered by a third-party en­tity, BrownGreer, a Rich­mond-based com­pany that is sup­posed to op­er­ate in­de­pen­dent of the NFL and the class of play­ers. Asked Thurs­day about the process, BrownGreer founder Or­ran Brown replied, “I will re­view this with the par­ties and the court be­fore I may re­spond.”

Ac­cord­ing to the sta­tus up­date filed last week with the court, 20 claim de­ter­mi­na­tions have been ap­pealed, in­clud­ing eight by the NFL. (An un­spec­i­fied num­ber of claims also have been placed into au­dit for “po­ten­tial fraud con­cerns and/or the au­dit re­quire­ments.”) Seeger said the re­la­tion­ship with the league can be ad­ver­sar­ial but “there’s no doubt the NFL is oper­at­ing in good faith.”

“Just to be clear: Have they done anything to hold up claims? Have I seen any ev­i­dence of their de­sire to deny claims or their in­ter­fer­ence in claims? Ab­so­lutely not,” he said. “And if I did, I’d go to court.”

Do­ing it all over again

Many of the ex-play­ers fil­ing de­men­tia claims have seen their claim kicked back as de­fi­cient, usu­ally re­quir­ing more in­for­ma­tion, clar­i­fi­ca­tion or med­i­cal ev­i­dence. But some of those play­ers say the claims ad­min­is­tra­tor nit­picks the claims and un­nec­es­sari- ly rules them as de­fi­cient.

De­bra Fel­lows ini­tially filed a claim May 23 on be­half of her hus­band, Ron, a cor­ner­back with the Cow­boys and Los An­ge­les Raiders from 1981 to 1988. He had been di­ag­nosed with Alzheimer’s more than two years ago.

“We just had an­other de­cline a cou­ple days ago,” she said this month. “He woke up and told me he was go­ing to call his mom and see how she’s do­ing. Well, she passed away 17 years ago. Those are the kinds of things that are hap­pen­ing now.”

Fel­lows, 60, already qual­i­fied for the NFL’s 88 Plan, which pro­vides fi­nan­cial as­sis­tance to for­mer play­ers suf­fer­ing from neu­rocog­ni­tive dis­or­ders. He and De­bra sub­mit­ted the same pa­per­work and doc­u­men­ta­tion to the set­tle­ment ad­min­is­tra­tor. Six weeks af­ter fil­ing the claim, they were asked for more pa­per­work. More than three months passed be­fore they re­ceived a no­tice of de­fi­ciency Oct. 20.

“And you know what? This isn’t just hap­pen­ing to us,” De­bra said. “It’s hap­pen­ing to ev­ery­body I speak to. They’re be­ing asked for in­for­ma­tion that they’ve already been given mul­ti­ple times. It’s all a de­lay gim­mick.”

Fel­lows’s claim was fi­nally ap­proved last week, and now the fam­ily must wait 30 days for the NFL to de­cide whether it will ap­peal. Even then, the claim is sub­ject to an au­dit.

One neu­rol­o­gist who is among those ap­proved by the NFL and class coun­sel to of­fer di­ag­noses re­lated to the set­tle­ment said he has an “un­easy feel­ing” be­cause his re­ports are be­ing ques­tioned. He re­quested anonymity out of con­cern for jeop­ar­diz­ing his abil­ity to con­tinue treat­ing the play­ers.

“What we’ve been do­ing is ap­ply­ing the same schol­arly ap­proach that we do in our daily prac­tices, yet what we’re en­coun­ter­ing is a real push­back where our judg­ment, in­tel­li­gence and con­clu­sions are be­ing nit­picked by peo­ple who re­ally do not have a med­i­cal back­ground,” the doc­tor said.

The doc­tor ac­knowl­edged that a screen­ing process is nec­es­sary to weed out false claims and de­fended physi­cians’ in­tegrity.

“I have found many of them not to be hurt, and I’ve re­ported that. Not ev­ery­one is in­jured. That’s a fact,” he said. “The pur­pose of this thing is to screen who’s hurt and who’s not hurt. But I think what’s hap­pen­ing is we’re find­ing out more are hurt than [the NFL] expected.”

Though he couldn’t pro­vide any de­tails, Seeger said the num­ber of de­fi­ciency no­tices isn’t par­tic­u­larly high and they’re “re­ally right on track with ev­ery other set­tle­ment that I’ve ever done.”

“If you ask me what grade would I give us right now, I’d give us a B,” he said ear­lier this week. “But I think if you give us a few more months, we’ll get up to an A.”

Ken­neth Fein­berg, the at­tor­ney who has ad­min­is­tered high-profile com­pen­sa­tion funds such as those for vic­tims of the Sept. 11 at­tacks and the BP Deep­wa­ter Horizon dis­as­ter, said vic­tims and their fam­i­lies are rarely sat­is­fied with the com­pen­sa­tion process, in part be­cause “com­pen­sa­tion is a pretty poor sub­sti­tute for loss.”

Fein­berg said in this NFL case the com­plex­i­ties of de­ter­min­ing which play­ers are el­i­gi­ble for com­pen­sa­tion make the de­lays “un­der­stand­able.”

“It’s not like 9/11, where there is a death,” said Fein­berg, who is not in­volved with the con­cus­sion lit­i­ga­tion. “Here there is a re­quire­ment where there needs to be a care­ful re­view of med­i­cal records, and it’s not all long-term trau­matic in­jury or death. It’s long-term, grad­ual harm. And how you di­ag­nose that brain in­jury can be prob­lem­atic and time-con­sum­ing.”

Mean­while, play­ers such as An­drie wait. He played for the Cow­boys from 1962 to 1972, ap­pear­ing in five Pro Bowls. An­drie, 77, re­mem­bers games he played and team­mates he had, but his short­term mem­ory is shot.

“He won’t re­mem­ber the con­ver­sa­tion you just had,” said Brooks, his daugh­ter. “He won’t re­mem­ber what he’s do­ing. He won’t re­mem­ber to bathe. It’s so sad to see.”

And, Brooks said, there’s no way peo­ple such as her father can nav­i­gate the set­tle­ment process alone.

“The peo­ple in this law­suit, they’re brain-dam­aged,” she said. “If you don’t have an ad­vo­cate, a wife or a daugh­ter, how are you sup­posed to do this? Look, if they can beat you down and ex­haust you — and your loved one is sick and suf­fer­ing — you will even­tu­ally suc­cumb.”

MATT ROURKE/AS­SO­CI­ATED PRESS

Christo­pher Seeger, the play­ers’ co-lead coun­sel, said, “You can’t an­tic­i­pate Day 1 ev­ery sin­gle thing that’s go­ing to come through.”

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