Please don’t drink the Kool-Aid / The NFL Concussion Settlement
By: Sheila Dingus
There’s a $500 million pitcher of Kool-Aid making the rounds and numerous people including many in media have been consuming it in unhealthy quantities to the detriment of credibility.
Recently Co-Lead Class Counsel for the NFL Concussion Settlement, Chris Seeger, mixed up an especially sugary batch through a widely distributed press release which links to the following video.
I’m truly astounded by how many outlets who should have known better than to start pouring and passing out glasses of a potentially tainted brew without doing a quality check, did so without hesitation. The Associated Press appears to have been the first to publish with a re-hash that amounts to a paraphrase of the press release. Numerous other outlets, large and small quickly clamored on their heels to be the next to report.
The timing of the press release immediately followed status reports from Seeger and Claims Administrator BrownGreer which also proclaim the success of the settlement. Additional emphasis is placed on over 7,000 baseline assessment (BAP) appointments scheduled and more than 6,000 attended without revealing that some players have waited more than 6 months for their test results and publishing no figures to indicate how many exams have resulted in a qualifying diagnosis. Instead, Seeger emphasized that his firm would continue to push “to get more legitimate claims paid,” and that he would continue to fight until every player deserving compensation was paid.
Words matter, especially when coming from a seasoned attorney with a reputation to defend, and it doesn’t take a rocket scientist to read between the lines of the narrative. For the past few months, the NFL has made allegations of massive fraud in the settlement, moving for a special fraud investigator, and has ferociously attacked more than half of the claims presented thus far. While Judge Brody issued a notice stating that she would not rule on the motion to appoint an investigator at this time, she too appears to have sipped from the Kool-Aid pitcher in stating, “The NFL Parties have provided sufficient evidence of possible fraud to warrant serious concern.”
It’s an unfortunate reality that wherever there is money to be obtained, there will be some who attempt to wrongfully avail themselves of a share, but many of the claims presented as fraudulent, or lacking a qualifying diagnosis seem to be the result of extensive efforts to disqualify players through use of unreliable circumstantial social media evidence and questionable standards of evaluation. I’ll develop this assertion a bit later, but for now, let’s take a look at information readily available to media that requires minimal effort to produce. In the PR release, Mr. Seeger included a link to the concussion settlement website, which updates claims reports weekly.
The report provides a much more comprehensive but less optimistic view of the settlement to date. If a low-level blogger is able to figure this out, why can’t a news organization staffed with professionals? To their credit, several major outlets including the New York Times, Washington Post, and Boston Globe didn’t blink, but with networks like ESPN, CBS, NBC and Fox Sports distributing the Kool-Aid it seems appropriate to ask why so many generally competent organizations, would do such sloppy work. Could it be that football season is getting underway and they don’t want to risk the ire of the NFL? Perhaps they are seeking to keep advertisers happy and plugging into their game broadcasts?
As improbable as this sounds, there are reasons to consider the possibility. A recent Houston Sports Map article reports on how the NFL is using the carrot and stick approach regarding media credentials. The author expresses concern, stating, “If an entity can control what media is allowed to cover said entity, it shapes the public perception of that entity.”
This narrative is further supported by a conversation I had with the wife a retired NFL player who suffers from Parkinson’s disease. When his NFL disability claim was denied, she said she called up some beat writers who had been friendly with them during her husband’s playing career and asked if they’d bring attention to what was taking place. Everyone she called gave her the same line, “I’m really sympathetic to what you’re experiencing, but I can’t help you. If I did, the NFL would yank my credentials.” The press release and subsequent coverage by media, portrays the United States’ most profitable and powerful sports entity as compassionately caring for its players, likely making for good relations to kick off the 2018 season despite ample and easily accessed evidence to the contrary.
How off base was the reporting? Click the link to the press release then Google some of the articles to compare. Then continue reading and decide for yourself.
While Mr. Seeger correctly stated that over $500 million has “already been approved,” he failed to point out the discrepancy between approved and paid claims, the latter amount totaling $281,347,365, or about 55% of the “approvals.” Despite Mr. Seeger’s correct terminology, and the ease of verifying this very basic information numerous outlets erroneously reported the approval amount as having already been paid.
Aside from being a huge PR win for the NFL and Seeger, the spin has created confusion and anger among the class of retired players. A scenario I’d have never imagined occurred as a result.
A frustrated player called his attorney demanding to know why “everyone else was getting paid and he wasn’t.” Unable to convince the player that the $500 million was grossly misleading, in exasperation, he called asking me to “please explain the reality of the settlement” to his client. I pulled up the most recent summary report, dated July 30, reading and explaining the figures, the first of which was the discrepancy between approved and paid claims.
Just because a claim has been approved, it doesn’t mean that the money is guaranteed to move to the “paid” column; only that it has cleared its first significant hurdle. The NFL has thirty days after approval to file an appeal or request an audit. An audit is particularly troubling in that there is no established deadline for removal. Many of the approved claims had already been subjected to an audit prior to approval and another NFL request resets the clock buying time for the NFL to dig for information to discredit the claim.
Of the 541 notices of approval which comprise the $500 million figure, 380 of those approvals have resulted in actual compensation to retired players. There are currently 162 claims in audit, a combination of claims yet to be approved and audits of approved claims. Of the 141 approved claims that have not yet been paid, 38 have been appealed and 50 claims appear to be slated for payment in August.
Seeger’s press release boasted that in under two years, claim approvals had exceeded ten-year projections. The reason for this is simple. Actuaries commissioned by both the NFL and Co-Lead Class Counsel were designed to support a proposed $765 million settlement. The experts who prepared the actuaries were in all likelihood instructed to construct data to support that figure. Attorneys representing players have told me that if everyone who deserved to be approved was, the payouts could exceed $4 billion.
In preparing his July 18 status report, Seeger called on Thomas Vasquez of Ankura Consulting Group, who prepared the original low-ball actuary. Mr. Vasquez now accounts for the discrepancy in stating that participation in the settlement is 21 percentage points higher than he’d anticipated and based on that he raised his projected value of the settlement to $1.4 billion over the 65-year term.
One of his most jarring misses was underestimation of ALS claims. I tweeted about this and Concussion Legacy Foundation co-founder Chris Nowinski picked it up from there:
.@SheillaDingus identified a sobering statistic:
NFL settlement actuaries predicted 36 ALS cases over 65 years. (only 18 in 1st 5 years)
41 ALS claims have been filed in under 2 years.
29 have been paid, 10 under review, only 2 denied.
This is bad news for football players https://t.co/rE0sIJ130q
— Chris Nowinski, Ph.D. (@ChrisNowinski1) August 2, 2018