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ESPN Senior Writer- Winner, 2008 Pulitzer Prize in International Reporting
- Four-time first-place winner in Associated Press Sports Editors competition
- Co-author of New York Times best-selling book, "League of Denial"
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ESPN Staff Writer- Investigative reporter for ESPN's Enterprise and Investigative Unit since 2007
- Co-author of New York Times best-selling books "League of Denial" and "Game of Shadows"
- Co-winner, 2004 George Polk Award
New details from the NFL's $765 million proposed concussion settlement reveal that the first players diagnosed with football-related brain damage would be shut out of the deal. And with the number of confirmed brain damage cases growing, some players and attorneys told "Outside the Lines" they fear there isn't enough money to cover all eligible players diagnosed with such injuries.
Former players report widespread confusion over who will qualify for compensation and how the money will be distributed. Details described to "Outside the Lines" by sources familiar with the settlement -- along with new statistics on the incidence of football-related brain damage -- underscore the concerns voiced by some players and lawyers:
• The proposed settlement disqualifies most players who died before 2006, even if they were diagnosed with football-related brain damage. That would shut out the relatives of players like Hall of Fame Pittsburgh Steelers center Mike Webster, who died in 2002 and was later diagnosed with the first case of football-related brain damage. Webster's protracted battle with the NFL raised public awareness and helped ignite the NFL's concussion crisis.
A source familiar with the negotiations said the NFL sought to include only death claims that fell within the statute of limitations -- two years in most states. That would have cut out many players who died before 2009 and 2010. As part of the negotiations, representatives of the players fought to extend the provision back to 2006 to include more players in the settlement, although some players would still be excluded.
• Although the NFL will pay for a separate fund to compensate attorneys, some lawyers will be paid directly by players receiving compensation for their injuries. That would contradict assurances that little or none of the settlement money would be used to cover legal fees and raises the possibility that some lawyers will receive multiple paydays.
• Based on information from the NFL Players Association and researchers at Boston University, there already are more than 300 cases of former players who would qualify in the highest compensation categories. Payments for those cases alone raise questions about whether $675 million allocated to severely impaired players will be enough.
"It is a very valid concern," said Jason Luckasevic, a Pittsburgh attorney who filed the first concussion-related lawsuit against the NFL in 2011 and represents about 500 former players. "It would appear as though there are not enough funds for those that are injured."
Christopher Seeger, a lead co-counsel and one of the select lawyers privy to the terms of the closely held agreement, said the settlement will cover all eligible players.
"As the approval process moves forward, analysis from economists, actuaries and medical experts will be presented to the court," Seeger said in a statement. "These reports will confirm that the programs established by the settlement will be sufficiently funded to meet their obligations for all eligible retired players."
NFL spokesman Greg Aiello declined comment.
The settlement was announced Aug. 29 to resolve a class-action lawsuit in which 4,500 former players accused the NFL of concealing the link between football and brain damage. The settlement, though, went beyond those who filed suit to cover all 18,000 of the league's retired players -- quadrupling the number eligible to receive compensation.
Additional details about the compensation plan are expected to be filed with the U.S. District Court in Philadelphia within the next several weeks, at which point the terms will be made public, the sources said. A judge must still approve the settlement.
"A lot of people are calling me who want to know what's going on," said Dave Pear, a lineman who played six seasons in the NFL and runs a blog dedicated to retired players. "They say, 'Dave, what's it look like?' My answer is, 'I have no idea.' Nobody knows right now. Nobody knows any details."
After the agreement is filed, players will have the opportunity to "opt out," meaning they would not qualify for compensation but would retain their rights to pursue further legal action. No former player has yet indicated that he intends to opt out, but one lawyer involved in the case said he expected some players to refuse to join the settlement.
Negotiators initially said all retired players or their families were eligible for compensation if they could show "demonstrated cognitive injury." But a provision disqualifying most players who died before Jan. 1, 2006 -- even if they were diagnosed with football-related brain damage -- would shut out the families of players with the earliest documented cases.
In 2005, three years after Webster's death, a Pittsburgh neuropathologist, Dr. Bennet Omalu, diagnosed him as the first case of chronic traumatic encephalopathy, or CTE, in a former NFL player. Before his death, Webster had waged a legal battle against the NFL that would presage the class-action lawsuit.
"There's absolutely no reason for" making such players ineligible, said Bob Fitzsimmons, who won a $1.8 million verdict in a lawsuit brought on behalf of Webster's estate against the NFL disability board. "That's demeaning to all players that have sacrificed their bodies to make football the successful sport that it is."
Other players who would be disqualified under that timetable include former Steelers linemen Justin Strzelczyk, who ended his life by driving head-on into a tanker truck in 2004, and Terry Long, who killed himself by drinking antifreeze in 2005. Both men, like Webster, were later diagnosed with CTE, a neurodegenerative disease associated with dementia, memory loss and depression.
None of the families of those players had joined the lawsuit against the NFL. Webster's relatives asked Luckasevic to file a claim shortly after learning about the settlement.
"If the guys that brought this to light aren't qualifying, then there's something wrong with the terms of this deal," said Luckasevic. "It's because of guys like Webster and Long that guys understand they are not just a crazy bunch of retired football players. They actually have problems. They have a brain disease. They should be calling it the Mike Webster Compensation Fund, honestly."
Number of brain injury cases increasing
Negotiators and commissioner Roger Goodell have said the settlement money is more than enough to meet the needs of all players who qualify. Only players with "severe cognitive impairment" are eligible for compensation. The settlement caps payments at $3 million for dementia, $4 million for CTE and $5 million for ALS (Lou Gehrig's disease), Parkinson's disease, Alzheimer's disease or another severe cognitive impairment.
Although neither the NFL nor negotiators for the players has released the compensation grid, sources said other factors besides injury will be considered. Those factors include age and length of career. Players who played at least five seasons will be eligible for maximum compensation.
Since July 2005, when Webster's case was first reported, the number of confirmed CTE cases has skyrocketed. More and more former players are signing agreements to have their brains studied after their deaths. Out of 54 brains harvested from deceased NFL players, 52 had CTE, according to the Boston University Center for the Study of Traumatic Encephalopathy. Since May 2011, when Dave Duerson, the former Bears defensive back who committed suicide by shooting himself in the chest, was diagnosed with CTE, the number of confirmed cases has more than doubled.
In addition, since February 2007, the NFL has distributed more than $26 million to at least 251 retired players who were diagnosed with dementia, ALS or Parkinson's disease, according to the league. The players' association, which helped set up the benefits program in response to the growing concussion crisis, reports 257. Of those, 240 were diagnosed with dementia, 10 with Parkinson's and seven with ALS, according to the players' association last week.
Based on those figures alone, retired players with dementia-related illnesses and relatives of deceased players with CTE would be eligible to collect nearly $1 billion -- vastly exceeding the settlement amount -- if they receive maximum compensation. Even if those players received an average of $1 million apiece, they would account for $309 million of the $675 million set aside for claims.
In addition, more than 6,000 former players have filed workers' compensation claims in California, most related to brain or head injuries, according to a database compiled by the Los Angeles Times. Forty-three claims were filed by former players now working in the NFL as assistant coaches, front-office personnel and TV analysts, according to the Times.
"I'm trying to figure out how the math works," said Brent Boyd, a former Minnesota Vikings lineman who spent parts of six seasons in the NFL and who has been one of the league's most outspoken critics on the concussion issue.
Another factor that could dramatically increase the number of players eligible to receive compensation is the development of a test to diagnose CTE in living players. Currently, the disease only can be found postmortem, but several research groups are studying the issue and many believe that a reliable test for the disease could be available within the next two years.
According to a source familiar with the negotiations, awards to those players will be "symptom-based," meaning that they will be eligible for compensation when they show signs of severe cognitive impairment related to their diagnosis.
The NFL is required to pay out half the settlement over the first three years and the rest over the next 17. But sources said the agreement includes a provision to accelerate the payments if the compensation fund dips below $50 million. The settlement also states that if the fund becomes depleted, the NFL can be forced to contribute up to an additional $37.5 million.
Some players' lawyers might get paid twice
Questions also are emerging about how much of the settlement fund will be absorbed by legal fees. At the time the agreement was announced, negotiators indicated that the NFL would cover all legal expenses out of a "common benefit" fund separate from the agreement. That meant nearly all of the settlement money would go toward players in need.
But sources familiar with the negotiations now acknowledge that in addition to the common benefit, which could approach $100 million, dozens of other lawyers -- some of whom have been fighting for years -- will collect fees directly from players under previously negotiated contingency agreements.
That means many players could be forced to use part of their settlement money -- in some cases as much as one-third or more -- to cover legal expenses. It also means that some lawyers could be paid multiple times -- once out of the common benefit and also through individual contracts with players.
A federal judge will determine how legal fees will be distributed from the common benefit fund and has the right to review all retainer agreements.
Since the settlement was announced three weeks ago, reaction among former players has been mixed. Some players believe the amount of money isn't nearly enough to inflict damage on the NFL, which brings in nearly $10 billion a year in revenue. Others said they are pleased that the money will provide immediate relief to large numbers of former players who need medical and financial assistance.
Boyd, 56, said he worries less about whether there will be enough money for all eligible players and more about whether the process to collect will be similar to the byzantine rules for qualifying for the NFL's disability program, which has stymied and frustrated numerous former players.
"My concern about the settlement is it seems to return us back to where started, to the same NFL disability-type system, where you're sent to an independent medical examiner and you don't really know who appointed this person," Boyd said. "We've been through this for decades, and I have talked to thousands of retired players who have no faith in how the money is distributed."
Reporter Don Van Natta Jr. of ESPN's Enterprise and Investigative Unit contributed to this report.