On Monday morning in Philadelphia, former NFL tight end Sean Berton made his way to Judge Anita Brody’s office at the United States District Court for the Eastern District of Pennsylvania.
Back in 2011, the 38-year-old, who has been suffering from extreme fatigue, emotional volatility, memory loss, and headaches since his retirement in 2006, was part of one of the first lawsuits against the NFL for its failure to take necessary steps to protect players from long-term brain injuries. Berton’s case soon merged with others to form a class-action lawsuit against the NFL.
In 2015, the two sides agreed to a settlement worth approximately $1 billion over the next 65 years. The deal was finalized at the start of 2017. At least in theory.
But 11 months later, Berton and other injured former NFL players who were part of the suit are starting to realize their fight for justice and accountability is far from over. According to a report by Ken Belson of the New York Times, out of 1,400 claims submitted by retired players so far, only 140 have been approved.
Sheila Dingus, founder of the website Advocacy for Fairness in Sports, says that the settlement process has “devolved into a marathon maze laden with hurdles that appear to obscure any semblance of a finish-line,” as player and their families have been bombarded with denials and additional requirements not cited in the original agreement. Just last week, the claims administrators sent an e-mail to plaintiffs stating that players must have their raw scores from a Concussion Assessment Test in order to substantiate their diagnosis, despite the fact that the CAT is a relatively new assessment tool. Players who were diagnosed years ago do not have raw scores in their records.
That’s why Berton showed up at the courthouse on Monday. He knew Judge Brody was meeting with the NFL’s counsel and Chris Seeger, the lead lawyer for the NFL players, about the status of the settlements, and since he lived in Philadelphia, he hoped to be able to share the concerns of the players. Only when he arrived did he learn it was a closed-door meeting.
“I showed up hoping I could get in there and try to speak up for some of these guys who were going to be put in a very bad position by the actions of this attorney,” Berton told ThinkProgress.
The mounting mistrust between the NFL players and their lawyer
Berton wasn’t necessarily surprised that he wasn’t able to be in the meeting on Monday — after all, he and most former players have felt totally in the dark for years now, thanks primarily to the lack of communication by Seeger.
.@Seanberton44 made his way to Judge Brody's Chambers where the hearing is being held. Seeger, NFL Counsel, Special Masters and the Judge are inside. No one else has been admitted to our knowledge. pic.twitter.com/jlqz8D8ziX
— Sheilla Dingus (@SheillaDingus) November 13, 2017
After his very public three-year fight for disability benefits from the NFL, Berton connected with Seeger when the lawyer was first starting talks with the NFL over complaints about their mishandling of concussions. He was one of 13 players included in Seeger’s initial lawsuit against the NFL, but soon Berton and the other 12 players realized they were far from Seeger’s focus. Even though he only represented 13 of the 4,000 players suing the league, Seeger became the case’s lead class-action attorney, meaning he represented all plaintiffs in discussions with the NFL. According to Berton and other plaintiffs ThinkProgress spoke with, Seeger has gone through great lengths to operate in the shadows.
The negotiations process became so secretive that Berton found out about the 2015 settlement not through his lawyer, but on the news like everyone else.
“What’s happening is the same thing as taking out lung disease in a tobacco settlement; it doesn’t make any sense except for the NFL fiscally.”
That secrecy — combined with many concessions favorable to the NFL, such as the constant amendments to the settlement and denying payouts for all future diagnoses of CTE — have given many plaintiffs the impression that Seeger doesn’t have their best interests at heart.
“He is a total scumbag,” Berton said. “What’s happening is the same thing as taking out lung disease in a tobacco settlement; it doesn’t make any sense except for the NFL fiscally.”
Criticism of Seeger only mounted this fall when Seeger requested $70 million of the upcoming $114 million disbursement in attorneys fees in the case, leaving the dozens of other law firms involved in the case to split the rest.
Last week, Seeger told the Washington Post that the settlement is on the right track.
“That rate is going to pick up every single day. So it’s working well,” he said. “Is it perfect? No. Is it working as well as I would like? No. I would like more claims approved and things moving along. But you can’t anticipate Day 1 every single thing that’s going to come through.”
Desperate plaintiffs struggle as they wait for claims approval
During congressional hearings about the NFL’s disability process nearly a decade ago, former NFL player Brent Boyd famously testified that the NFL Retirement Board’s tactics are to “delay, deny, and hope we die.” Berton and other plaintiffs ThinkProgress spoke with say the league is turning to the exact same tactics with the concussion settlement.
“Seeger repeatedly says this has nothing to do with disability, yet they’re using the disability playbook almost verbatim,” Dingus said.
Mary Brooks is the daughter of George Andrie, a five-time Pro Bowl defensive end with the Dallas Cowboys who retired in 1972. In 2014, Andrie, who currently needs a full-time caregiver, was diagnosed with dementia, complex partial seizures, and post concussive disorder. Brooks, who has power of attorney for her father, has been studying the settlement case intensively, and made sure all of her paperwork was submitted on time and properly. Still, her father’s benefits have already been denied twice — she received a deficiency notice this fall because of the way her forms were filled out, and then another one earlier this month when the requirement was added on for raw scores. Even as late as 2014, doctors weren’t using that as a standard diagnosis.
“I can’t take it anymore,” Brooks said. “We feel very strongly that they are absolutely criminal.”
Another plaintiff, a former NFL player in the 1980s who spoke to ThinkProgress under the condition of anonymity due to fear of retribution from the claims administrators or NFL, said he was told in October that his claim was denied because of a tiny clerical error on his paperwork.
This player, who was diagnosed with Alzheimer’s and suffers from extreme fatigue, dizziness, and short-term memory loss, is convinced that this is merely a stalling tactic. Now he has to re-submit his claim and wait another few months to see what happens again.
“I can’t describe how frustrating it’s been, anxiety, stress, waiting, hoping this day is the day,” the former player said. “Since March 23 when you were allowed to file your claims, it’s been miserable.”
Players were told if they had a diagnosis prior to the settlement from a licensed doctor, they would be rushed through the process. He’s been holding onto that hope, because the $2.2 million settlement he’s supposed to receive would change his life — he’s been struggling for the last 25 years, living in campgrounds and hotels as a single dad, driving a 20-year-old beat-up truck that doesn’t allow him to travel far, and constantly worried about eviction. The brain damage he incurred during his seven-year NFL playing career has made it nearly impossible to hold down a steady job, and money from the settlement would allow him to make sure he could finally have a roof over his head and a car that he can travel with.
“I’m furious that they’re assuming we’re lying, and then holding up every claim. There are guys who have died waiting.”
But there’s been nothing speedy about this process; instead, the hurdles have only gotten higher since the settlement was finalized.
“I’m furious that they’re assuming we’re lying, and then holding up every claim,” he said. “There are guys who have died waiting.”
One of those players who died waiting was Jeff Winans, who passed away unexpectedly in 2012, a year after signing on to the class action suit. The day after he died, his wife of 37 years, Brandi Winans, donated his brain to the Concussion Legacy Institute. In 2013, he received an official posthumous diagnosis of CTE.
Winans’ lawyers submitted her settlement claim this spring, and at the end of August this year she found out it had been approved — albeit for less money than expected, because the claims administrator deducted two years of his eligibility because he was on Injured Reserve. Instead of appealing that decision, Winans decided to move forward with the process, and submitted her paperwork to the NFL for a final review.
While that step seemed like a mere formality — after all, why would the NFL be able to overturn a decision by an independent claims administrator? — just last week, Winans was notified that her claim was denied. (She alleges it was denied because the NFL didn’t like Dr. Ann McKee’s wording before she gave her diagnosis of CTE.)
NFL spokesman Brian McCarthy says the NFL is not trying to delay the process, and stresses that the claims arbitrator is an independent party.
“I’ve fought the NFL since 1981 and I will fight them through my dying breath.”
“The NFL is committed to promptly paying all legitimate claims and, to that end, is working with co-lead class counsel, the settlement administrators and the court to ensure the effective implementation of the settlement program and the payment of benefits,” McCarthy said.
As for Winans, she’s infuriated and exhausted, but she will keep fighting.
“I’ve been a rebel my whole life, I’ve fought the NFL since 1981 and I will fight them through my dying breath,” Winans said. “We want to move on, we need closure. Can’t they understand we just need closure? People forget, and they give up. That’s the one thing I will never do — not just for us, but for these other families.”
Where things go from here
Class-action lawsuits are typically messy, and with a settlement this broad and involving 20,000 possible claims, it’s natural that there will be some hurdles along the way.
But the lack of transparency is alarming, and most players feel that the court is much more committed to devoting resources and time to fraud prevention rather than to making sure the players and families who are suffering receive relief in a timely manner.
On Monday, many players wrote an open letter to Judge Brody expressing this sentiment, and there are signs that she is taking their concerns into consideration. She said that going forward, the claims administrator will make public reports on the status of the settlements on a weekly basis, and she noted that all future conferences will be public.
“…[T]his wasn’t set up to help them. It was set up to limit liability.”
That’s good news for Berton, at least. He is only 38, and thanks to early intervention, is able to manage his symptoms for the time being. He has not filed his claim yet, but he is committed to showing up and continuing the fight, both for his own future, and for those who don’t have the ability to fight anymore.
He started this process hoping for justice. Now he considers that naive at best.
“So many of my NFL brothers, in 10, 20, 30 years, they’re going to find out what I know now,” Berton said. “That this wasn’t set up to help them. It was set up to limit liability.”