The prevailing reaction to the news that the NFL has settled the concussion lawsuits for a package that amounts to $3.9 million per team per year for three years and $703,000 per team per year for 17 years thereafter has been, “That’s all?”
The lawyers who brokered the deal have heard the criticism. And, like most lawyers and other humans (yes, contrary to public belief lawyers are human), they don’t like it when their work is publicly criticized.
“I would love to debate any sane person about this settlement,’’ Chris Seeger, one of the lead attorneys in the litigation, tells Peter King of TheMMQB.com. “We plotted how much these players who need the money now and in the future, and who are eligible for it, would need, and we got it. We got it now, not 10 years from now. I’ve heard the criticism. A pittance … chump change. That is stupidity. We got exactly what we needed for the players and the families who need it most.”
Still, in the grand scheme of the NFL’s overall wealth, it is a pittance. And it’s chump change.
The concussion litigation was trumpeted by many (to the sure delight of lawyers like Seeger) as an existential threat to the industry. Instead, 32 billion-dollar businesses will pay what amounts to (including attorneys’ fees) $30 million per team, spread over two decades. That so low in light of the grave danger the league supposedly faced that the owners may want to commemorate the occasion by purchasing personalized ski masks.
Seeger is doing much more than yielding to the temptation to bristle in the face of criticism. He now needs to sell the settlement to his clients. Given that the group of plaintiffs has now morphed into all retired players (even those who never sued), some of the 4,500 clients may feel like they were sold out.
Former players were aggressively lured to the party, for leverage purposes. The bigger the total amount of players suing, the greater the pressure on the NFL, especially in the court of public opinion.
"[M]ost of us are having symptoms associated with having concussions/ head trauma such as short term memory loss, headaches, anxiety, mood swings, change in personality, depression, and sleep problems,” former NFL quarterback and former ESPN analyst Sean Salisbury wrote in an email aimed at getting more players to join the effort. “If you are having ANY of these side effects, like me, then I urge you to join the suit. There is strength in numbers!”
There indeed was strength in numbers. Enough strength to get $765 million. But the only thing any player definitely will receive is a free medical exam -- unless they can “present medical evidence of severe cognitive impairment, dementia, Alzheimer’s, ALS.”
“Severe cognitive impairment” implies something big. Players who have only a handful of the symptoms Salisbury described likely don’t have a “severe cognitive impairment,” and thus won’t be able to participate in the $675 million fund.
Of course, retired players who don’t currently have severe cognitive impairment can try to obtain compensation if they develop one later. They’ll actually receive compensation only if there’s any money left in the $675 million fund, which can be enhanced by a one-time payment from the NFL of up to $37.5 million.
And so players who believe they have concussion-related symptoms but who aren’t sure if they have “severe cognitive impairment” now have to decide whether to roll the dice on getting payment from the $675 million compensation fund, or roll the dice on ongoing litigation. They’ll now be told by the lawyers who obtained the settlement about the weaknesses of the case -- something lawyers rarely talk about when aggressively lining up a “strength in numbers” army of clients.
It’s a problem that arises frequently for lawyers. In some contexts, they must do everything they can to make a case look great. In other contexts, they must do everything they can to make a case look not so great, in order to sell a settlement. In this case, it won’t be quite as easy for the lawyers to harmonize the two.
Lawyers like Seeger will have an easy time selling the settlement to players like Kevin Turner, whose ALS qualifies him for a maximum payout of $4 million. Lawyers like Seeger will have a hard time selling it to players who don’t currently have severe cognitive impairment, who stand to potentially get nothing more than a free cognitive exam under the settlement, who don’t understand why the case suddenly became so weak that it had to be settled for $30 million per team paid out over 20 years, and who will feel that they ultimately were used by the lawyers to help them score a payday for themselves that has been estimated by many at $200 million.