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Patrick Hruby

Amoral Leverage

The NFL is using brain-damaged retirees as concussion settlement hostages

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Think the National Football League can't sink any lower? Think again. After a week from public relations hell—Ray Rice's domestic violence and Adrian Peterson's child abuse; Roger Goodell's Nixonian dissembling and the Minnesota Vikings' stupefying cravenness; reports that the league's own actuaries expect roughly one in three former players to develop neurological problems from football-induced brain damage—you might assume that the NFL has hit rock bottom, its own private Marianas Trench of corporate amorality.

You would be mistaken. Because while America is busy being outraged over Rice, Peterson, and whatever new excuse Goodell is currently test driving for his league-administered, conflict-of-interest-free self-investigation, the NFL is quietly greasing the skids for its money-saving, retiree-screwing proposed class action concussion lawsuit settlement—and as part of said greasing, employing a negotiating tactic typically reserved for terror groups.

Specifically: the NFL is using the sickest, neediest, most brain-damaged former players as emotional hostages. Or maybe just human shields.

Take your pick, really.

As I've written before, the settlement as currently constituted—the agreement has yet to be finalized and approved by a federal judge in Philadelphia—is a great deal for the NFL, and a disaster for the approximately 20,000 former players it covers. In exchange for immunizing itself against future brain damage class action suits and dramatically reducing the odds that anyone will ever use legal discovery to get to the bottom of what the league knew and when it knew it regarding concussions, the NFL has tentatively agreed to fund a 65-year program that will offer former players medical examinations and award them cash payouts of up to $5 million for certain types of neurological damage.

Problem is, the actual expected individual awards are relatively small—averaging $190,000, for example, in cases of Alzheimer's disease. The deal offers awards to the families of players who have already died and were subsequently diagnosed with chronic traumatic encephalopathy (CTE), the industrial disease of football and condition at the heart of League of Denial and yet provides nothing—not a single cent—to players who will be diagnosed with CTE in the future. Indeed, the list of settlement deficiencies is long and varied: it ignores a wide range of other brain damage symptoms; financially penalizes players who suffer strokes; does not count years in NFL Europe toward award-eligible seasons; forecloses on future advances in neurological science; and sports a persnickety application and award process that could be hard for cognitively-challenged retirees to navigate.

Unsurprisingly, relatives of Junior Seau—the former Pro Bowl linebacker who committed suicide in 2012 and was subsequently diagnosed with CTE—have announced that they intend to opt out of the settlement and instead pursue a wrongful death suit filed against the NFL last year. "The family wants to know why this settlement seems designed for expediency for the NFL and to ensure that information doesn't come out," Steven Strauss, a Seau family lawyer, told ESPN. "And the Seau family wants the truth to come out."

Meanwhile, a group of seven retired players led by former special teams standout Sean Morey has been challenging the the proposed deal in court, attempting to fix the agreement's deficiencies. Right now, all retired players have the option to opt out and pursue individual litigation against the league, like Seau's family, or opt in and object to the current terms at a fairness hearing in November. Nothing is set in stone until federal judge Anita Brody gives final approval to the agreement—something she's less likely to do if a significant number of retirees bail or raise serious objections—and all subsequent appeals, like the one expected from Morey's lawyers, are exhausted.

Enter the hostages.

Earlier this week, lead class action lawsuit plaintiffs Kevin Turner and Shawn Wooden co-bylined a USA Today editorial cautioning fellow retirees from opting out, and also calling on them—the Morey group in particular—to not challenge the deal in any way that would delay or derail its approval by Brody. The reason? "The consequences could be disastrous," they write. "Men who suffer from debilitating neurological diseases will not receive the compensation their families desperately need." Turner writes from experience. The 45-year-old former NFL fullback suffers from amyotrophic lateral sclerosis (ALS), a neurodegenerative disease. He is extremely sick. He and his family really do need and deserve compensation, and sooner rather than later. There are other retirees like him, former players laid low, fighting the good fight, but struggling and suffering and wasting away. Their stories are heartbreaking—just heartbreaking enough to be a useful tool for the league, which wants a favorable deal ratified as quickly as possible.

The NFL knows its fan base. More importantly, it knows the collective psychology of the men it employes. Professional football is built on an ethos of uncomplaining self-sacrifice. Take the hit. Get up. Keep going. Do it for the team. Moreover, players really do see each other as brothers, members of an exclusive fraternity. When possible, they want to help each other and they absolutely don't want to hurt each other, even if it's part of the job. This makes them uniquely vulnerable to the following settlement sales pitch, a divide-and-conquer tactic intended to squash opt-out and objections alike: Sure, maybe the settlement could be better, and maybe it doesn't offer much for you. Or anything for you. Still, are you going to let that get in the way of your sickest brothers getting paid? Are you really that selfish? Do you want to stab Turner in the back? Stand down, or else he gets screwed.

Like I said: This is hostage-taking. It is hiding corporate greed behind human shields. Last week—and only under legal gunpoint—the NFL finally released its neurological disease prevalence and cost estimates for the settlement. It acknowledged foreclosing payments for future CTE sufferers in a footnote: The model assumes that no other players will be diagnosed with CTE.

Meanwhile, a similar actuarial report produced for a proposed National Collegiate Athletic Association class action concussion lawsuit settlement predicted that for a period covering college sports careers beginning between 1956 and 2008, approximately 50-300 former athletes per year over the next half-century will be diagnosed with CTE—most of them former football players, many of them players who did not go on to endure additional brain trauma by subsequently playing professionally. Are Morey and other settlement objectors being selfish by wanting to ensure that future CTE sufferers receive fair compensation in the NFL deal? Or is the league being selfish by using emotional pressure to ram through an agreement that leaves those same future victims high and dry in order to keep down the league's costs?

"[The settlement] is a money grab," former NFL lineman Alan Faneca, a member of the Morey group, told me this summer. "A money grab by lawyers trying to get paid and get out. And by the NFL trying to keep this is as small as possible."

If former players Turner and Wooden are the ones telling fellow retirees to fall in line, then how does the league factor in? Follow the steps. The NFL negotiated the deal with a small group of top player lawyers. Those same lawyers—who performed no legal discovery against the league to test the merits of their case and/or the NFL's defenses, and spent a whopping 12 days in mediation with league lawyers before announcing the settlement last September—are set to receive a wholly separate $112.5 million payment within 60 days of the settlement receiving final approval.

Small wonder, then, that the message from both the NFL and top player lawyers has been in lockstep. Get the deal done:

NFL executive Jeff Pash, September 2013: "We thought it was critical to get more help to players and families who deserve it rather than spend many years and millions of dollars on litigation."

Player lead attorney Chris Seeger, September 2013: "This agreement will get help quickly to the men who suffered neurological injuries. It will do so faster and at far less cost, both financially and emotionally, than could have ever been accomplished by continuing to litigate."

NFL executive Anastasia Danias, July 2014:"[The settlement] reaffirms the NFL's commitment to provide help to those retired players and their families who are in need, and to do so without the delay, expense and emotional cost associated with protracted litigation. We are eager to move forward with the process of court approval and implementation of the settlement."

Player attorney Craig Mitnick, August 2014:"[Morey and other objectors are] basically putting their middle finger up to Kevin Turner and to every other former player suffering from dementia or Alzheimer's or Parkinson's. They are delaying medical treatment. They are ignoring the fact that there are people out there that need this now … and they are attempting to hold this thing up for their own selfish purpose."

Lead player plaintiffs Turner and Wooden, September 2014: "Add it up, and this deal represents a tremendous victory for all retired players: compensation, care and medical exams for those who need it today, protection for all of us over the long-term."

Wooden, August 2014: "The guys who died of CTE after that date, then you're not covered at all—I don't agree with that."

Oops. Well, almost lockstep. Thing is, it doesn't have to be this way. Yes, the NFL has perfected municipal hostage-taking as a method of extorting taxpayer dollars to finance new stadiums. Build us a dome, or else we're moving to Los Angeles. And yes, the league's ownership class includes upstanding citizens like convicted real estate deal cheater/civil racketeer Zygi Wilf and truck stop customer fraudster Jimmy Haslam. Still, no one involved in the settlement fight—not the Morey group; not Mitnick and Seeger; not the NFL—objects to men such as Turner being paid, and being paid ASAP. To the contrary, that's the one thing all parties publicly agree on. "First and foremost, we believe that Kevin Turner and all players are entitled to whatever compensation they can get," Morey attorney Steven Molo told me earlier this summer. "Underline that five times with five exclamation points. But that doesn't mean people not yet as sick aren't equally deserving. And the process should be there for other injuries, too."

As such, here's a suggestion: Pay Turner. Right now. Pay everyone like him—the nine living NFL retirees with ALS; the families of deceased players who were diagnosed with CTE; the couple hundred people on the league's 88 Plan, which provides financial assistance to retirees with degenerative neurological diseases. Take the hostages out of the equation, and then haggle over the rest of the settlement. Both sides have something to lose—cash and healthcare on one hand; the prospect of the American public finding out just how deep the NFL's concussion deception and denial went on the other—which means both sides ought to be able to hammer out a satisfactory resolution. Ultimately, a fair deal is in everyone's best interests.

Of course, only one side has the money to do the above. The $9 billion-a-year NFL. And that's okay. After all, the league has already agreed to fork over the money. Why not part with a few hundred million a bit sooner than anticipated? Practically speaking, the NFL expects fans, networks and its insurance companies to pick up the settlement tab, anyway—so if league owners have to reach into their pockets to make sure sick men don't die broke while revised settlement negotiations play out, it will be a temporary expense at worst. In a cash flow pinch, the NFL could even dip into the settlement's aforementioned $112 million lawyer fee fund, money that presumably has already been set aside for delivery by early next year. Given how adamant Mitnick and other lawyers are about award delays for their sick clients, I'm sure they'd be happy to receive their own payments at a later date.

Last month, Goodell took the "ice bucket challenge," making an undisclosed donation to an ALS charity. Coming from a man who was paid $44 million last year, it was a nice gesture. Under the terms of the proposed settlement, Turner and the eight other NFL retirees currently diagnosed with ALS are due about $42 million in awards. Perhaps Goodell could pay them out of his own wallet, and then expense the cost to the nonprofit league office. Not as an admission of league guilt. Nor as an admission of fault. Simply because it's the right thing to do—well, the non-evil thing to do—and because protecting the NFL shield should not involve using sick people to tug at heartstrings for PR purposes. It should involve taking care of them. Besides, after the last week and a half, don't the league and its commissioner need whatever good publicity they can get?

Read the original article at Vice Sports