For debilitated and often-broke former football players and their families, the National Football League's agreement to pay more than $1 billion in a settlement for victims of chronic brain trauma appeared to be the end of the battle that had consumed them for years.
The money was supposed to provide a measure of peace and stability for the wives, widows and children of tormented players who had died young or are fading away in nursing homes. Not disclosed, however, is the significant portion of the fund that is being withheld from those it was promised.
As the award notifications begin to trickle out, some of the recipients have been stunned to find they may receive just pennies on the dollar of what they’re owed, likely setting off another spate of frustrating court battles.
Some have even received notices that show pending payments in the negative.
Sarah Goldston, the 90-year-old widow of Ralph Goldston – who was one of the first black players on the Philadelphia Eagles in 1952 before Alzheimer’s set in during his retirement – learned this month that their family had been awarded $160,000 from the settlement. But that preliminary award dwindled to negative $740 after deductions and “holdbacks,” including thousands the court has kept in case the family owes money for Ralph’s medical bills.
“I thought they made a mistake,” Ralph’s daughter, Ursula Goldston, said after seeing the family might receive nothing because of the pending liens, which email correspondences show might have been withheld in error. "I just cannot believe these people did that.”
USA TODAY reviewed documents or interviewed families in a dozen cases of former players whose settlement projections have been similarly reduced. Money that the former players or their family members had counted on will instead, for now, remain in the NFL’s settlement fund or will be redirected to insurance companies, lawyers, credit card companies or others who have placed a lien on the awards in an effort to secure a piece of the payout.
The payout determinations are not final. Court officials and lawyers are sorting through the lienholders’ claims, while players can also appeal their deductions for an additional cost of $1,000. Out of 20,000 players involved in the suit, less than 700 have been approved for payment so far.
Some of the former players, as well as outside observers, blame in part lawyers who have filed liens seeking a large percentage of the awards even though they did minimal work on the case or recruited players with false promises after the settlement was reached.
USA TODAY reviewed letters in which former attorneys, who were fired before the case settled, demanded as much as 25 percent of a player’s award for as little as 15 months of work. The firms indicated in the letters that their work product amounted to “considerable time and effort.” They say they deserve fair compensation for helping qualify players to receive a settlement and that the lien is largely a fight with the new lawyer over fees.
John C. Coffee Jr., a professor at Columbia Law School, reviewed a sample of the settlement payout notices obtained by USA TODAY. He said if attorneys who did little work are demanding large chunks of a player’s award, that amounts to “unjust enrichment.”
“That’s where you should be outraged,” he said.
It’s now on those players to dispute the work their old lawyers put in, and a magistrate judge will ultimately decide if and how much of a cut they will get.
The settlement terms created a formula for each player’s specific case and then a court administrator decides how much of the settlement fund to disperse, while holding back any money contested in a lien.
As of this month, payouts in the settlement total almost $570 million, according to a claims administrator. Though it includes claims the NFL has appealed, the high dollar figure has been touted by both sides as evidence that the settlement is already compensating players.
But until now, the specific dollar amounts withheld from players had not been reported. Those involved will not release what share of the total payouts are actually deductions and disputed liens.
Jim Acho, a Michigan attorney who has represented roughly three dozen retired players, said that his clients have said they are stunned by the holdbacks. He called some of the deductions “patently unfair” and said they “eviscerate a big chunk of the payment,” leaving his clients with a fraction of what they expected.
“When it really hits home for them is when your are sent the breakdown of the payout by the claims administrator,”Acho said. He added that his clients have likened the reduced payouts to being “punched in the gut."
Craig Mitnick, a lawyer whose firm co-represents more than 1,000 players in the class-action, said he now regrets publicly championing the agreement when it was first announced. Clients who fought for years to get a piece of the settlement have seen their potential payouts reduced to the low thousands, or even to nothing, by the holdbacks, he said.
"These players didn’t know what they were getting into,” Mitnick said. “The settlement is not what we thought it was."
Players and their families who spoke with USA TODAY said the withheld payouts are the latest insult in a years-long battle to hold the NFL, the world’s highest-earning sports league, accountable for brain injuries incurred during playing careers. The league long denied connections between the sport and lasting brain injury and, the suit claimed, failed to warn players or do what it could to protect them from head trauma caused by hard hits, leading to a condition now known as chronic traumatic encephalopathy, or CTE.
Plaintiffs have complained in the past that the legal battle against the NFL has been full of trapdoors and fine print that has tested resolve and stretched bank accounts, all while dealing with the devastating long-term impact of careers spent in football. Some had to unearth decades-old proof of their playing days and medical history before fighting through audits, appeals and narrow diagnosis criteria to show the court they deserved part of the settlement.
“A lot of people would have given up by now,” Ursula Goldston said. She and her family corralled decades-old paperwork documenting her father’s illness from past doctors. They got letters from neighbors who witnessed Ralph declining. One saw him standing by himself outside in the Ohio winter, freezing and confused, years ago. He stopped bathing and caring for himself. He lashed out at his wife in fits of rage.
“I’m not giving up,” Goldston said, “because my mother deserves this money.”
Different from other settlements
The terms of the class-action settlement are a result of negotiations between lawyers representing the players as a whole and those for the NFL. In interviews, many of those on the players’ side faulted Chris Seeger, co-lead counsel for the plaintiffs, for negotiating settlement terms that they said opened the door for holdbacks without safeguards to ensure players don’t leave empty-handed.
In a letter sent to USA TODAY, Seeger wrote that the court accepted the terms and payout structure. He pointed to the hundreds of millions in approved payouts as evidence that the settlement was “working effectively.”
"It is required by law” to hold back funds until medical liens are resolved, Seeger wrote. He added that no players whose medical liens had been finalized had received a negative payout.
"All of the criticisms you repeat have been aired previously, considered by the court, and rejected,” he wrote.
In other high-profile class-action cases with large settlements, the parties negotiated the ability to increase award amounts to make sure deserving victims did not see their payouts diminished, said Kenneth Feinberg, an attorney who has administered class-action settlements, including one stemming from the September 11 attacks.
“We had broad discretion to prevent the injustice of an eligible member getting nothing due to the cold calculation of a formula,” Feinberg said.
Similar steps were not taken to ensure NFL players won’t walk away with very low or no awards.
“I’m afraid that wasn’t part of the negotiating,” said Larry Coben, a lawyer for the plaintiffs involved in reaching the terms of the settlement.
The NFL declined to make a league official available for an interview. In a statement, the league did not address the issue of depleted awards but said, “The settlement program is working as intended, and we will continue to work in good faith to pay all approved claims under this settlement, which has been thoughtfully and thoroughly negotiated by the parties and approved by multiple courts.”
Coben defended the broader terms of this deal – which has been criticized by debilitated former players as too full of exclusions and provisions – as “not a one-time shot.”
“Ten to 15 years from now, if their condition worsens, they could apply again and potentially get a benefit,” Coben said.
Echoing an opinion of the federal judge overseeing the settlement, Coben justified the holdbacks as a measure to negotiate down liens and prevent players from later getting sued by medical providers or other entities. It’s not uncommon for large, public settlements like this to open the door for third parties who think they are due a cut. Health care plans with hospitals, insurance providers and Medicare often specify some sort of repayment should a patient ever win a windfall settlement meant to help cover the cost of care.
Some of the payout notices reviewed by USA TODAY show initial awards calculated by the administrator reduced to nothing after all the pending lien holdbacks.
After Gordon Smith – a Minnesota Vikings tight end who played in the 1960s – went through a formula that calculated his age at the time of his Alzheimer's diagnosis, degree of illness, years in the league and medical history, the courts administrator awarded him $183,000 for his brain trauma.
But because private insurance had covered some of the costs related to his care, the courts administrator held back all but $4,600.
Smith’s wife, Maetha, who spoke on Gordon’s behalf, said she was shocked at the amount after seeing the public statements about large payouts from the NFL and lawyers who negotiated the settlement.
“We were hearing hundreds of thousands,” she said. "This settlement is minuscule.”
The administrator awarded Barbara Stark $100,000 in a settlement for her husband, Ed Cooke, a defensive end on five teams in the 1960s who later developed Alzheimer’s. After holdbacks for pending liens, the final figure showed Cooke is slated to receive negative $200.
Andrew Stewart, a 52-year-old former linebacker who has Parkinson’s disease, said that angry phone calls and messages are circulating among retired players and their wives after receiving notices detailing their settlement payouts.
“It’s shocking what the offsets are,” said Stewart, who was on the Cleveland Browns, Cincinnati Bengals and San Francisco 49ers from 1989 through 1993. He saw his own potential award drop from $3 million to $750,000 after the administrator reduced the amount of seasons he was credited for because he missed time with injuries. He has not yet received his claim determination because his case is tied up in appeals, he said.
“I’ve heard of guys receiving a tenth of what they were going to get,” Stewart said. “Nobody’s getting what they thought they were getting.”
Officials working on the claim distribution said many of the liens placed on players’ payouts are from former lawyers, some of whom were fired before the class-action litigation even began.
Sandra Irvin, speaking on behalf of her husband, Darrell, a defensive lineman for the Buffalo Bills and Seattle Seahawks in the early 1980s who was diagnosed with Alzheimer’s, called her fired attorney’s $200,000 lien an affront.
“I think we got a total of three phone calls from them,” Irvin said. “What a joke.”
Contributing: A.J. Perez