NFL asks the Court to re-write the Concussion Settlement Agreement

By Jeff Nixon
Dec. 31, 2018

Co-Counsel Chris Seeger working for former players on the Concussion Settlement

The NFL recently objected to a Special Masters ruling on their appeal of six (6) player monetary awards.

In denying the NFL’s objection, the Special Masters concluded that “...based on the definition of “generally consistent” set forth in FAQ 95, …the six appeals at issue fail to establish by clear and convincing evidence that there are more differences than commonalities between the medical support for the Qualifying Diagnosis and the relevant diagnostic criteria.”

The NFL has appealed the decision and if they win their argument, it would effectively require all MAF approved doctors to conform to the strict diagnostic criteria of the BAP (Baseline Assessment Program).

Our Co-Lead Counsel, Chris Seeger has written a powerful rebuttal to the NFL’s attempt to re-write the terms of the Settlement Agreement. You can see his 15-page preliminary statement at this link: Co-Lead Counsel’s Response to the NFL’s Appeal of the Special Master’s Ruling Regarding the “Generally Consistent” Standard

Here is a key excerpt from Mr. Seeger’s statement to the court:

The NFL argues for a “specifically identical” standard that appears nowhere in the Settlement Agreement. Indeed, it is clear that the NFL does not want to live up to the negotiated terms of the Settlement Agreement and is unwilling to accept one of the most fundamental and important agreed-upon provisions of the Settlement Agreement. Specifically, the NFL asks the Court to re-write the Settlement Agreement so that the negotiated and judicially-approved “generally consistent” standard would not apply to those Retired Players who exercised one of the fundamental rights afforded by the Settlement Agreement and obtained their Qualifying Diagnosis from a Qualified MAF Physician.

In his statement, Chris Seeger also makes it very clear that based on the language of the Settlement, the NFL does not even have the right to object to, or appeal the Special Master’s decision:

“Factual determinations of the Master(s) will be final and “binding” and the Special Masters determinations are only reviewable by the Court if the Special Masters identify a conclusion of law. The Special Masers did not identify any conclusion of law in this instance and, therefore, the NFL’s initial objection was improper.”

Impropriety has been the NFL’s modus apprendi from the minute this Settlement was crafted. I guess you could say they have been “generally consistent” with their delay, deny and hope we die attitude with former players.

Big money is on the line and the NFL owners are doing everything they can to limit their liability. The Claims Administrator has already approved 600 million in monetary awards. Over 410 million has actually been paid out to players and/or family members.

The NFL projected that all paid claims would not reach the 400 million mark until the 10th year of the agreement – and we’re not even at the end of the second year!

The NFL is in a state of panic – as we can clearly see in their attempt to concoct a rationale for their frivolous objection and appeal. They want to stop players from getting the monetary awards they have fought for and obtained through the process that was agreed to and established in the Settlement.

Seeger puts the shoe on the other foot when he states “The NFL would clearly cry foul if any player sought Court review of findings of fact or a determination that there were no appealable questions of law in a decision affirming denial of a dementia claim.”

I should note that the NFL has used the "generally consistent” argument effectively in some of their appeals of monetary awards. Here are two awards they successfully reversed because the claims were not considered generally consistent with diagnostic criteria established in the Settlement: Level 1.5 Ruling and Level 2 Ruling

Apparently, that’s not good enough for the NFL. Now they want to change the rules in the middle of the game.

I hope that Judge Brody swats this appeal like a fly on the wall and leaves it there as a reminder of what lengths the NFL will go to in denying monetary awards for deserving players. To men who sacrificed their minds and their bodies at the altar of the NFL. To men who played by the rules and have always been.......generally consistent!