Risks of Opting Out

Preemption

“Many, if not all, of Plaintiffs’ claims could have been dismissed at this early stage of the litigation if the NFL Parties prevailed on the preemption issue.”

– Judge Anita B. Brody

Causation

• In Court, it is not enough to show that you are injured

• Need to demonstrate that the NFL’s wrongful conduct caused your injuries

• Need to show that the injuries resulted from NFL football (not

college, high school, Pop Warner, family history, etc.)

Risks of Opting Out

Statute of Limitations

• Most states have two or three year Statute of Limitations (SOL)• Not all states have “Discovery Rule”• Proof of fraud or late “Discovery” of claim to overcome SOL is case-

specific and challenging

Risks of Opting Out

Exclusive Remedy (Worker’s Compensation)

• The NFL was prepared to argue that the League was a “co-employer” of the players, with claims belonging exclusively in the worker’s compensation system

• Not only does this settlement avoid the elimination of claims due to this defense, but players may still pursue worker’s compensation claims against the team(s) for which they played

Risks of Opting Out

Other Defenses

• Assumption of risk• Proving reliance on the fraud

Time and Uncertainty

• Those who opt out may face a long and uncertain road ahead• Many retired players and their families cannot afford to wait• “The significant legal challenges facing Plaintiffs support preliminary

approval of the proposed Settlement.” – Judge Anita B. Brody

Risks of Opting Out

• Those who opt out will be permanently ineligible for the settlement benefits

• If you opt out and develop a neurocognitive condition, you will be ineligible for this settlement’s benefits

• If you opt-out, and your legal case is dismissed, you will be ineligible for this settlement’s benefits

The Risks of Opting Out

WHY WOULD THE PLAYERS TAKE THIS SETTLEMENT?

For a number of reasons. As Pro Football Talk noted today, there was about to be a ruling in the case that could have moved it out of the court system and into an arbitration process. Running the case through arbitration in front of a panel of ex-judges and lawyers would likely have removed much of the emotional component of the case — something a sympathetic jury would have been susceptible to — and almost surely produced a smaller compensation figure, even if the league was found to be liable.

There’s also the possibility that the league might not have been found culpable whatsoever. That would have been a disastrous finding for these players, especially those currently at the most medical risk. Getting compensation immediately (well, over the next three years) will help relieve some of the burdens on the players with the most pressing medical concerns.

In addition, if the two sides hadn’t settled, and decided to take the case to trial, the timeline for the collected lawsuits would have been stretched out over a number of years. The Sporting News estimated (admittedly with a “some have speculated” qualifier) that the trial itself wouldn’t even have begun until 2018. And then, regardless of the verdict, a lengthy appeals process might have kept the litigation running for years afterward, running up legal fees, as well as the medical bills of uncompensated players, in the meantime. The players likely wanted the certainty and timeliness of compensation that comes with a settlement, and that’s why their representation will urge them to accept these terms.

I can certainly understand why the players and their lawyers would see this deal as one they wanted to take. But, given the possibilities of what might have been, the NFL will see today’s news as an enormous victory.

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To: Retired NFL Players From: Kevin Turner and Shawn Wooden Date: June 21, 2014 Re: NFL Settlement is a Victory for Retired Players and Our Families

As the two class representatives for the NFL concussion settlement, we write to explain why we believe this agreement is a victory for all retired players. One of us suffers from an advanced neurological condition; the other one is not currently experiencing any symptoms, but worries about a future after nine seasons in the NFL. Despite our vastly different situations, we both stand fully behind this agreement, and urge you, our fellow retired players, to stand behind it as well.

We joined this lawsuit in an effort to provide the security and care to former NFL players who were suffering from neurological diseases like dementia, Alzheimer’s, Parkinson’s and ALS. We also fought to achieve peace-of-mind for those who don’t currently have symptoms but worry about the future. We wanted to make sure suffering former players received the compensation and medical care they deserved, and those not currently experiencing symptoms received the medical testing and preventive care needed to avert or treat potentially serious conditions.

This revised settlement accomplishes exactly those goals and provides an even stronger promise of security and care to the retired player community. Former players who have been diagnosed with devastating neurological illnesses will receive the help they need quickly, without the toll of long and uncertain litigation. The compensation provided in the settlement will lift a heavy burden off of those of us who are suffering and who may not have much time to wait. It will give us and our families the security and care to have the best quality of life we can hope for.

Because the compensation program is now fully guaranteed, retired players can rely on the certainty that if—God forbid—they develop a condition like dementia, Alzheimer’s, Parkinson’s or ALS any time in the future, they will receive substantial compensation to help them manage their illness and care for their family. The compensation program will last for 65 years, ensuring that these benefits will be available for any retired player who needs them.

This settlement’s benefits, however, extend far beyond those with the most serious conditions. Those diagnosed with early dementia will be eligible to receive compensation. Through the baseline assessment program, which will be run by a network of world-class physicians around the country, all retired players will have access to comprehensive neuropsychological and neurological examinations. If they are diagnosed with a neurocognitive impairment, they will receive medical benefits that can be used for treatment and further testing.

All of these programs will be managed by independent administrators, working under the supervision of the Court. The NFL will not control who gets benefits under this agreement, and who doesn’t. And if the NFL does try to prevent retirees from receiving the care and compensation they deserve, the League will have a Federal Judge to answer to.

Additionally, this settlement leaves intact all other benefits we may be receiving through the NFL, including the 88 Plan, the Article 65 neurocognitive benefit, disability or other collectively-bargained benefits. Our attorneys fought hard to maintain these benefits, which provide an important lifeline to many retirees. Indeed, because the baseline assessment program will provide each participant with a comprehensive medical report that can be used with NFL benefit administrators, this settlement will make it easier for retired players to apply for and secure these benefits.

Some have claimed that this settlement falls short or “lets the NFL off easy.” To those critics, we say: we did not join this litigation to destroy the NFL or harm the sport of football, a game we both still love. We joined this litigation to get retired players the help they need and deserve – today and over the long-term. And, thanks to this settlement, help is now on the way.

For those of you who are considering “opting out” of the settlement, we strongly caution you against doing so. Not only will you deprive yourself of valuable neurocognitive care and benefits, but you are also jeopardizing a settlement that many retired players need immediately. We cannot afford to wait for the lawsuit to carry on for years on end and risk a negative outcome, particularly as many of our NFL brothers get sicker and need care immediately.

The Court must now review the settlement before deciding whether to approve it. We’re confident that after the Judge considers this agreement, she will conclude, as we have, that it’s the right deal for all former players. We fully support this deal, and urge you to do the same.

Kevin Turner spent eight seasons in the NFL playing for the New England Patriots and Philadelphia Eagles. Kevin is currently suffering from ALS, also known as Lou Gehrig’s disease. Shawn Wooden spent nine seasons in the NFL playing safety for the Miami Dolphins and Chicago Bears. Both are subclass representatives in the NFL concussion litigation.

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NFL Retired Players United

By: Jeff Nixon July 11, 2014

As you know, I have recommended that players approve the Settlement.

Nonetheless, there are some lawyers that will probably convince a number of players to opt out of the Settlement – in the hopes that they can get even larger payments than those outlined in the Monetary Award Grid – which you can see at this link: NFL concussion payments.

If the attorneys who seek to rally opt outs and objectors succeed in delaying or derailing the settlement, it will come at the expense of those who are suffering the most. This is the crucial point, in my opinion, and it’s one the Judge understands very well, writing that, “Many members of the proposed Settlement Class suffer from severe neurodegenerative conditions that may worsen over time. The proposed class action Settlement should more quickly make resources and compensation available for these retired players.”

Not only does this settlement make resources available for those who need it today, but it protects ALL of us over the long-term. It’s not a perfect deal. But we cannot let the perfect be the enemy of the very, very good. And we cannot let ourselves become so focused on the things this deal doesn’t include that we ignore all of the tremendous benefits it does provide.

I strongly recommend that you take advantages of this settlement and urge you to be extremely careful of opting-out of the settlement without truly understanding the benefits of staying in and the real consequences to you and your family of opting-out.

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New York Times – Former N.F.L. Players Make Difficult Choice in Opposing Concussion Settlement

PORT ST. LUCIE, Fla. — Kevin Turner and Sean Morey played a combined 17 years in the N.F.L. They were never teammates, but they became friends in 2010 when they worked with the Mackey-White Traumatic Brain Injury Committee for disabled retirees. They consulted with doctors studying the effects of concussions on football players. Morey raised money for Turner’s foundation after Turner received a diagnosis of amyotrophic lateral sclerosis, or A.L.S., four years ago.

So in January, before Morey joined six other former N.F.L. players to file an objection to the proposed settlement in a lawsuit that includes a promise by the league to compensate retirees with severe neurological problems, he called Turner to explain why he was taking a step that might delay much-needed money for Turner.

“My heart bleeds for Kevin,” said Morey, who said the settlement was flawed primarily because it covered too few conditions. “We both want what’s fair, adequate and reasonable, but unfortunately his condition is much more urgent.”

Turner, 45, and Morey, 38, represent opposite views on whether players should accept the settlement; opt out and retain their right to sue the N.F.L.; or object and perhaps appeal to a higher court.

The debate is real now that 20,000 retired players and their beneficiaries are being sent an outline of the settlement, which is full of legal and medical jargon, descriptions of an assessment program and tables showing who is eligible for an award. The decision about whether to accept or reject the deal, though, will present a moral quandary: Should the players accept a limited settlement so that people like Turner can get help quickly, or should they fight for something better and perhaps slow the distribution of payments to those in need?

Turner, who could receive as much as $5 million, said that he understood that the deal was not perfect, but that he wanted the retirees to accept it so he and others could get help sooner.

“I can empathize with players” who want a better settlement, Turner said as he sat in his living room in Port St. Lucie, his arms and hands largely inert, his neck stooped and his speech slurred. “But for me and people like me, time is a luxury we don’t have.”

At some level, all class-action settlements require plaintiffs to weigh their personal interests against those of a larger group, along with the odds of getting a better deal by fighting an uncertain court battle.

In cases involving, for example, faulty washing machines or billing errors by a bank, the calculus is often clear. But the N.F.L. concussion settlement involves emotional nuance because the retirees were teammates, friends and union members who are bonded by a sport that in many ways has shaped them as adults.

“This is not like a group of people randomly thrown together in an accident,” said Alan Morrison, who teaches at the George Washington University Law School and has worked on class-action settlements. “Many of them played together, and they’ve seen what’s happening to their friends, but nobody knows if they’ll have the same problems.”

Turner, the lead plaintiff in the suit filed by about 5,000 former players who accused the league of hiding the dangers of concussions from them, has deteriorated to the point where he needs a full-time nurse. He cannot help but see the settlement as a salve for players in dire need.

“It’s about helping people who had their brains affected in a very drastic way, and to make their lives so much more livable, not just them but their families, and to supplement their health care,” said Turner, who added that he wanted to use his award to cover his medical expenses and leave something for his three children. Like many football players trained to follow orders, Turner wrestled with whether to sue the league that had helped him realize his lifelong dream. He began playing at 5 years old, starred for the Alabama Crimson Tide and played fullback for eight seasons for the New England Patriots and the Philadelphia Eagles.

He also sustained more concussions than he can count. In 2009 he started having trouble playing guitar. A few months later, he had vertebrae in his neck fused to repair a football injury, and his ability to control his hands declined to the point where he no longer could write. The next year, doctors said that he had A.L.S.

Turner, who declared bankruptcy in 2009 when his home-building business failed, was living with friends. He began to study his disease. He went to Boston University, where doctors were doing cutting-edge research on the effects of repeated brain trauma, and spoke to the Mackey-White Traumatic Brain Injury Committee, which Morey was part of.

Turner said he believed his A.L.S. had been caused in part by the head hits he absorbed. As he began to see the links between his injuries and his condition, he was convinced that the N.F.L. had played a role, too.

“I remember times when I went back into games when I shouldn’t have,” said Turner, who has stopped his two sons from playing football. “I wasn’t given all the information to make that decision for myself.”

After turning down invitations to join a lawsuit, he sued the league in 2011. Given his diagnosis and the difficulty of winning a case against the league, he did not expect to see its conclusion. At least, he thought, his children might get some money.

Turner receives money from two N.F.L. plans for retirees with disabilities, yet the bills still pile up. He had to remodel his bathroom, buy new furniture and pay for nurses and trips to see doctors. He receives experimental therapies designed to slow the deterioration of his muscles, and he hopes to receive stem-cell treatments that could cost about $75,000.

Turner can still walk, but his upper body does not respond well. He uses an iPhone and can send text messages, but his voice is so garbled that the Siri program no longer understands his voice commands. But Turner, who was the subject of the documentary “American Man,” takes his role as lead plaintiff seriously. Last month, he went to Washington to appear at a Senate hearing on concussions in sports.

“I never imagined myself being part of something of this proportion,” Turner said. “Everyone is focusing on the number and how much am I going to get. But I am looking at it as how it would help me live longer.”

Morey, who experiences chronic headaches and irritability from the concussions he sustained, wants Turner to get what he deserves. But the deal, which may still be altered, has too many flaws to ignore, said Morey, who did not sue but is covered by the settlement, as all retirees are.

Many retirees will receive no awards because so few illnesses are covered in the deal, he said, and those in the worst shape, including some who are mentally impaired, will have to jump through many hoops to get awards. The plaintiffs’ lawyers did not disclose how they had reached the settlement, which makes it hard to know whether they got as much as they could have, and they rushed to settle so they could get paid, Morey said.

“At the end of the day, players just want a fair shake,” said Morey, who played nine seasons with four teams before retiring after the 2009 season. “In my mind, this is everything the N.F.L. wanted.”