Seven retired players who played a total of 66 seasons in the NFL attacked the proposed settlement of concussion litigation on Wednesday, asserting that the deal "comes nowhere near being fair, adequate and reasonable."
In their "objection" to the proposal filed in federal court in Philadelphia, the players stated that their "class counsel," the attorneys who negotiated for the players, produced a "lousy deal" for them and "a great deal for the NFL and class counsel."
The players' 58-page critique of the settlement proposal is the first formal objection filed against the settlement, according to Steve Molo, the attorney who represents the group. "We are asking the judge [Anita Brody of U.S. District Court] to do what she did before -- to refuse to grant a preliminary approval," Molo said.
The players who filed the objection to the proposed settlement include Sean Morey, a special-teams player who played for five teams between 1999 and 2010; Alan Faneca, an offensive lineman who played 13 seasons mostly with the Steelers between 1998 and 2010; Ben Hamilton, an offensive lineman who played for two teams between 2001 and 2010; Robert Royal, a tight end who played for three teams between 2002 and 2010; Rock Cartwright, a fullback and kick returner who played for two teams between 2002 and 2011; Jeff Rohrer, an outside linebacker who played for the Cowboys between 1982 and 1989; and Sean Considine, a strong safety who played for five teams between 2005 and 2012.
Although all seven of the players already are suffering from the effects of concussion-caused brain injury, including episodic depression, sleep disorders, mood and personality changes and attention and concentration deficits, none of the them would qualify for awards of compensation under the terms of the revised settlement that was announced on June 25. Because their conditions have not yet deteriorated into chronic traumatic encephalopathy, they would collect nothing under the proposal, according to Molo.
The players are also critical of the $122.5 million in fees to be awarded to the class counsel who are arguing for the settlement and the complex system that the settlement establishes for players' claims.
The huge amount of the fee indicates, the players said in their court filing, that the lawyers did not engage in "arm's length negotiation" and that "class counsel bargained away class members' [players] interests." Relying on legal precedents that rejected excessive fees for attorneys in similar positions, the players say that the amount of the fee is "far from a subtle sign -- if anything, it is flashing neon."
The players are particularly suspicious of what is known as a "clear sailing provision" in the settlement, an agreement by the NFL lawyers that they will not object to the fees to be awarded to the players' class counsel.
"The very existence of a clear sailing provision increases the likelihood that class counsel will have bargained away something of value," the court papers state.
In addition to the amount of the attorney fees to be awarded under the settlement, Molo and the players criticize the class counsel for their failures to do any "discovery," the process of taking sworn testimony from NFL officials and gathering documents from NFL files on the issue of whether the NFL concealed the dangers of concussions from the players.
"Investigation of the facts through discovery of the NFL's internal files could yield powerful and compelling evidence of the NFL's culpability -- strengthening class counsel's hand at the negotiating table," the players observed in their objection brief. "Yet class counsel settled this case without taking a single deposition and without the NFL producing a single document."
The process for collecting their awards of compensation is "so onerous and confusing that it raises due process as well as fairness concerns," according to the players.
They accuse the lawyers who negotiated the settlement of creating "a procedural labyrinth designed to limit the number and amount of settlement payouts."
"The players face a whole series of obstacles as they make their claims while the lawyers who did very little collect their fees very quickly and easily," Molo said.