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NFL is working the refs to keep ex-players from claiming share of concussion settlement

Monday, April 22nd, 2019

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.

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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.”

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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.

This article was originally published at ThinkProgress on April 22, 2019. Reprinted with permission.

About the Author: Lindsay Gibbs covers sports for ThinkProgress.

NFL Players Association Responds to Attacks on Free Speech

Tuesday, September 26th, 2017

After President Donald Trump and others attacked the free speech rights of athletes, the NFL Players Association (NFLPA) responded to the president’s comments.

NFLPA Executive Director DeMaurice Smith said:

The peaceful demonstrations by some of our players have generated a wide array of responses. Those opinions are protected speech and a freedom that has been paid for by the sacrifice of men and women throughout history. This expression of speech has generated thoughtful discussions in our locker rooms and in board rooms. However, the line that marks the balance between the rights of every citizen in our great country gets crossed when someone is told to just “shut up and play.”

NFL players do incredible things to contribute to their communities. NFL players are a part of a legacy of athletes in all sports who throughout history chose to be informed about the issues that impact them and their communities. They chose—and still choose today—to do something about those issues rather than comfortably living in the bubble of sports. Their decision is no different from the one made by countless others who refused to let “what they do” define or restrict “who they are” as Americans.

No man or woman should ever have to choose a job that forces them to surrender their rights. No worker nor any athlete, professional or not, should be forced to become less than human when it comes to protecting their basic health and safety. We understand that our job as a union is not to win a popularity contest and it comes with a duty to protect the rights of our members. For that we make no apologies and never will.

NFLPA President Eric Winston said:

Our players are men who are great philanthropists, activists and community leaders who stand up for each other and what they believe in.

I am extremely disappointed in the statements made by the President last night. The comments were a slap in the face to the civil rights heroes of the past and present, soldiers who have spilled blood in countless wars to uphold the values of this great nation and American people of all races, ethnicities, genders and sexual orientations who seek civil progress as a means to make this country, and this world, a better place.

The divisiveness we are experiencing in this country has created gridlock in our political system, given voice to extreme, fringe beliefs and paralyzed our progress as a nation. Divisiveness breeds divisiveness, but NFL players have proven to unify people in our country’s toughest moments and we will continue to do so now.

We will not stop challenging others on how we can all come together to continue to make America the greatest country on earth.

This blog was originally published at AFL-CIO on September 26, 2017. Reprinted with permission. 

About the Author: Kenneth Quinnell is a long-time blogger, campaign staffer and political activist. Before joining the AFL-CIO in 2012, he worked as labor reporter for the blog Crooks and Liars.

Community @Work: Beyond the Gridiron

Tuesday, December 31st, 2013

Kenneth-Quinnell_smallThe latest article in our Community section of the AFL-CIO @Work site takes a look at an innovative program from the NFL Players Association (NFLPA) and the Johns Hopkins Center for American Indian Health that provides much-needed services to an often neglected segment of American society.

Sometimes, an unexpected moment can change the lives of thousands of people.

In 1996, NFL Players Association (NFLPA) member Nick Lowery, a Pro Bowl placekicker for the Kansas City Chiefs, New England Patriots and the New York Jets, was wrapping up his career and had an idea to create a football camp for Native American youths. He approached the Johns Hopkins Center for American Indian Health and was told the plan needed a broader purpose that had to go beyond football.

He then bumped into a fellow former NFL player, running back Clark Gaines, on an airplane. Their conversation turned to Lowery’s project and the idea broadened into creating a sports and lifestyle camp for Native American youths. Within a year, the NFLPA, the Nick Lowery Youth Foundation and Johns Hopkins joined forces to create NativeVision, a program enabling professional athletes to mentor economically disadvantaged American Indian youths. Since then, more than 26,000 young people have been served by the program.

“NativeVision is magic,” says Allison Barlow, the associate director of the Johns Hopkins center that co-sponsors the program. “It springs from each person giving all they have of raw talents, passion and life story.”

The centerpiece of the year-round NativeVision program is the annual camp that attracts American Indian youths from around the country. Held in June on tribal lands, the NativeVision camps have involved the efforts of more than 60 professional athletes and coaches to date. The camp goes beyond sports and includes breakout sessions that promote discipline, teamwork, the pursuit of education and healthy lifestyles. Workshops aren’t limited to young people either; offerings include computer training, parenting, cooking, financial literacy, community service projects, arts and life skills for families of the youths and other community members.

This article was originally printed on AFL-CIO on December 21, 2013.  Reprinted with permission.

About the Author: Kenneth Quinnell is a long-time blogger, campaign staffer and political activist whose writings have appeared on AFL-CIO, Daily Kos, Alternet, the Guardian Online, Media Matters for America, Think Progress, Campaign for America’s Future and elsewhere.

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