Photo: Clive Rose (Getty)

PHILADELPHIA — In a ruling that will likely make it even more difficult for players with dementia claims to get paid under the terms of the NFL’s concussion settlement, a federal judge overseeing the settlement has given the NFL even more than it asked for and enforced a stricter diagnostic criteria to be used by doctors to determine who qualifies to receive money.

The NFL on Wednesday withdrew its appeal asking the court to impose the stricter standard, according to the order issued by Senior U.S. District Judge Anita B. Brody. As a result, a hearing for that appeal that had been scheduled for Thursday morning was canceled.

The judge’s ruling is a win for the NFL and a setback for the players. The league sought to have Judge Brody essentially rewrite some of terms agreed upon by the NFL and the settlement class—a move that had the potential to undermine the settlement itself, according to what individual player attorneys told Law360's Ryan Boysen in a comprehensive story published last week. But by forgoing a hearing, and by still getting a court order that some additional clarification of the diagnostic criteria is necessary, the league is actually getting more than it asked for when it was granted a hearing—without having to air any of the many problems with the claims process in open court.

“It’s a dark day for class members,” Patrick Tighe, a Florida attorney who represents several players whose claims stand to be affected by Judge Brody’s ruling, told me.

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The order is the latest in a pattern of what individual plaintiffs’ attorneys believe is as a deference to the NFL shown by Judge Brody. Many of these attorneys are also frustrated that they continue to be frozen out of the process. The judge’s order to schedule the hearing had limited oral arguments to attorneys from the NFL and to Christopher Seeger, the co-lead counsel from Seeger Weiss, the firm representing the settlement class. [Update: In a subsequent interview with Deadspin, Seeger detailed why he thinks the judge’s order will do nothing more than mandate a small administrative change.] This didn’t sit well with individual attorneys like Tighe, who have direct knowledge of the medical and financial hardships being endured by the players and their families that he represents. Multiple attorneys also feel Seeger Weiss isn’t doing enough on behalf of the settlement class. Tighe and two other attorneys filed motions (see here, here, and here) asking to be heard at Thursday’s hearing, and multiple individual player attorneys had flown in from around the country to attend it.

As first reported by Sheilla Dingus on her sports law blog Accuracy and Fairness in Sports, the NFL objected to seven dementia claims approved last year that were upheld on appeal by the special master assigned by the court to have the final say. Despite that, Judge Brody allowed the NFL to bring two appeals before the court anyway. Another one, which asked for an advisory panel that plaintiffs’ attorneys say frequently sides with the NFL to review claims prior to approval, was not subject to Thursday’s hearing or Wednesday’s ruling. This appeal had likewise been previously rejected by the special master. Per Boysen, one attorney described the league’s effort with this particular appeal as “the NFL at its most cynical.”

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Under the terms of the settlement, players have the option of getting a diagnosis from one of two sets of neurologists and neuropsychologists from a list that’s been pre-approved by both the league and the class counsel. One set, the Baseline Assessment Program (BAP), is free for the players, but they only get one examination, and the visit and the doctor are chosen by the claims administrator, BrownGreer of Richmond, Va. The other program, known as the Monetary Award Fund, allows players to pick their doctor and to arrange the time and location of the appointment. Players who choose to go the MAF route must pay for the visit themselves (or via insurance, if applicable).

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Boysen’s Law360 story is paywalled, but here’s a quick summary of the differences between the BAP and MAF programs:

Both sets of doctors use the Clinical Dementia Rating scale, which, following a process enshrined in the settlement, assigns patients an overall score based on six areas of assessment: memory, orientation, judgment and problem solving, community affairs, home and hobbies and personal care.

The BAP doctors are required by the settlement’s language to rely heavily on the last three areas of the CDR scale, meaning much weight is put on factors like whether a player still drives or maintains a job or is able to dress himself properly. In a nutshell, that strict standard ensures that only players exhibiting the most serious symptoms will be diagnosed with dementia through the BAP program, player attorneys said.

The MAF doctors, by contrast, are able to consider all six areas of the CDR as well as their own clinical judgment. If a player holds down a simple job and can drive, for example, but still appears to be clearly deranged in most other respects, a MAF doctor can still provide a qualifying diagnosis if they believe it’s accurate

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Additionally—and this was the crux of the NFL’s appeal—the MAF doctors’ criteria for a dementia diagnosis must be “generally consistent” with the BAP’s stricter standard. According to the actual settlement agreement, that “generally consistent” standard “does not require identical diagnostic criteria, including without limitation, the same testing protocols or documentation.” One of the more than 300 frequently asked questions on the settlement claims website—this process isn’t designed to confuse players and their families at all, huh?— further defines “generally consistent” by noting that “[s]omething is ‘generally consistent with’ something else if the two things have more elements or characteristics in common with each other than they have elements or characteristics that differ from each other. The common elements or characteristics must predominate over the uncommon ones.” Nonetheless, as Boysen reported:

The NFL’s appeal stems from a handful of claims in which the players received a qualifying diagnosis through the MAF program, from doctors who are registered under both programs.

The NFL objected to those awards, because the players were qualified despite receiving relatively ‘good’ scores on the last three CDR boxes that would have likely disqualified them under the stricter BAP protocol.

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This is what has the individual plaintiffs’ attorneys so incensed. The league’s appeal was supposed to be limited to clarifying the diagnostic criteria for doctors who serve as both BAPs and MAFs. But Judge Brody’s ruling instead directs BrownGreer to develop criteria for all MAFs, regardless of whether they’re also BAPs—an outcome that will further tighten the standards for all sorts of approvals.

According to Tighe, the broad scope of the “generally consistent” standard was specifically written into the settlement agreement to get the class members to agree to it. The idea, he said, was that players with claims would receive a qualifying diagnosis and get paid. “Now, they’re closing the roadway to get paid on it,” Tighe said. “It puzzles me how withdrawing a motion gets you more than what you asked for with the motion.”

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To add insult to injury, Judge Brody has refused previous attempts by individual plaintiffs’ attorneys to get clarification on language contained in the settlement. In August 2017, Tighe filed a motion that showed how the claims administrator had created a “de facto amendment” to the settlement agreement by modifying its meaning and “‘read[ing]’ additional language into the Settlement Agreement that does not exist.” The judge rejected this motion three months later. As Dingus noted on her blog, that denial also stated this (emphasis mine):

Movants must proceed through the Claims Administration process, and if the claims if the claims are denied, movants must follow the proper appeals process. Movants’ attempt to circumvent those processes by directly petitioning the Court is improper.

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Yet by first granting Thursday’s hearing, and with this ruling, Judge Brody has allowed the NFL to do exactly that: The league has petitioned the court for relief after it took an L during the “proper appeals process,” and the judge has granted that petition beyond the scope of what was requested.

The league had appealed the seven approvals to Wendell Pritchett, one of the court-appointed special masters, who rejected it. The special masters’ appeal decisions are supposed to be “final and binding,” per the settlement agreement. Yet the league petitioned Judge Brody to complain that Pritchett’s decision was “based solely on interpretation of applicable procedure” and not on “the substance of these claim appeals and the egregiously unfair results they produced.” The NFL also accused the seven players of attempting to “buy” a dementia diagnosis. Pritchett responded in court papers to say that the NFL failed to prove that there were “more differences than commonalities between the medical evidence supporting the Qualifying Diagnosis and the Settlement Agreement’s diagnostic criteria.” This is how the process was designed to work. Yet with Wednesday’s order, Judge Brody gave the league a reprieve.

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“There are no changes needed,” Tighe told me. “It’s a contract.”

As Dingus has detailed, Judge Brody approved the NFL’s request for the appointment of a special fraud investigator in September, albeit after the special masters filed a request of their own, which followed an initial deferment on a decision from Judge Brody. And yet, when Philadelphia attorney Gene Locks, who reps more than 1,000 players, filed a motion in March 2018 asking to be added as administrative class counsel, Judge Brody denied that request. Locks had alleged that Seeger Weiss wasn’t adequately representing the settlement class while also stating that “the Settlement Agreement is in danger of failing its execution.” Additionally, numerous motions relevant to the case have been filed off the docket under the guise of shielding players’ private medical information from public purview. But, several attorneys have told me, this has also served to add a troubling layer of secrecy to the entire process.

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The general feeling among the plaintiffs’ attorneys is that Seeger isn’t being as adversarial with the league as he needs to be. One attorney has shared with Deadspin a copy of a June 2017 email in which an NFL team sent a reminder to former players encouraging them to register for the settlement. That email included the following:

The league recommends that you DO NOT need to hire an attorney to represent you and here’s why:

• As part of the settlement an attorney was already appointed to represent on behalf of the players and he’s assisting at no charge so adding another layer of attorneys and fees is only hurting him at this point.

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“Why is a defendant discouraging players from hiring their own lawyers and to work with the class counsel?” this attorney wondered.

All of this is important because, according to BrownGreer’s latest claims report, of the 2,166 claims filed as of Monday, 1,394 (64.3 percent) have been for dementia. Just 294 of those dementia claims have been approved, and only 168 have been paid.* Claims for ALS, Parkinson’s, Alzheimer’s, and Death with CTE—which are easier to diagnose—have been approved at a much higher rate than dementia claims, largely because dementia sufferers can have those frequent moments of lucidity.

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At the root of much of the trouble is the uncapped nature of the settlement, which encourages the NFL to nickel and dime dementia claims and to drag out the process. Theoretically, the NFL’s exposure is unlimited, but that lack of limitation encourages the league to aggressively fight dementia claims. An actuarial report prepared last summer for Seeger Weiss estimated the claims could total $1.4 billion, more than double the $675 million cap the NFL and Seeger Weiss originally agreed to, before Judge Brody made them go back to the drawing board.

Update: For new developments related to this story, see here and here.

* An earlier version of this story incorrectly noted the number of approved dementia claims as of Monday, Jan. 7, 2019.