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Hail Mary Appeal Could Expose Cracks In NFL Settlement

By Ryan Boysen

Law360 (August 7, 2019, 6:35 PM EDT) -- Lawyers in the landmark NFL concussion settlement say retired player Amon Gordon’s Hail Mary appeal to the Third Circuit over his denied claim could be a “keystone opportunity” to shine a light on the NFL’s efforts to twist the terms of the deal to put players on the defensive.

But first, the 37-year-old former defensive end will have to convince the circuit court to take up his case.

Gordon, who played for eight years in the NFL after being drafted by the Cleveland Browns in 2004, filed the appeal last week after the denial of his $1.5 million dementia claim was upheld by U.S. District Judge Anita B. Brody.

The appeal hit an immediate snag on Tuesday, when Third Circuit Clerk Patricia S. Dodszuweit questioned whether the appeals court can even consider the issue, thanks to language in the settlement agreement that states Judge Brody’s rulings will be "final and binding.”

The uncapped settlement entitles a class of roughly 20,000 retired players like Gordon to awards of up to $5 million each, if they can prove they suffer from football-related brain injuries. Gordon’s claim was initially approved and then went through a dizzying array of audits, appeals and objections before finally being denied over alleged problems with a neuropsychological test he’d taken.

The path that led Gordon’s claim to denial amounts to a greatest hits reel of several issues player attorneys have been loudly complaining about for years — namely accusations that the NFL exploits the program’s opaque claims administration process to push for broad changes that make it harder for players to get paid.

While other attorneys have previously filed notices of appeal in response to contested rulings by Judge Brody approving some of those changes, there are numerous procedural hurdles facing those appeals and none of them appear to have been accepted by the Third Circuit.

Gordon’s appeal is the first to be filed in response to the denial of a particular claim. Some player attorneys say the finality of Judge Brody’s ruling on that issue — and the fact that his attorney is Wendy Fleischman of the highly respected plaintiffs firm Lieff Cabraser Heimann & Bernstein LLP — could well mean that his appeal might succeed in making it to the Third Circuit where others have failed.

If it does, attorneys and experts say the appeal could be an opportunity to expose the flaws in a program that many say has veered badly off course since Judge Brody approved it in 2015. Dodszuweit, the Third Circuit Clerk, has given Gordon two weeks to explain why his appeal should be taken up.

“The degree of transparency in this process is sorely lacking,” Gene Locks of Locks Law Firm, which represents several hundred players in the concussion settlement, told Law360. “The NFL has been able to take advantage of that by making changes, little by little, that hurt players’ ability to have their claims approved.”

“When you step back and add it all up though, it’s not just little changes,” he added. “It becomes a big deal. And no one realizes the full impact until it’s too late, not even Judge Brody.”

Locks formerly served alongside five other firms as class counsel in the concussion settlement, but was unceremoniously ousted in May, in a series of events that many player attorneys say sums up the current state of the settlement.

Locks led five of those six firms in urging Judge Brody to rethink a decision to impose new medical rules that prevented players from seeing doctors who lived more than 150 miles away from them. Locks argued players would never have agreed to those terms if they’d been included in the settlement agreement, and that imposing them after the fact amounted to an illegal amendment of the deal.

Judge Brody denied Locks’ motion for reconsideration in May, and a week later she terminated Locks Law and the four firms that joined him from their position as class counsel. That left Seeger Weiss LLP, which was the settlement’s primary architect on the plaintiffs side and partially distanced itself from that motion, as sole class counsel.

“Our argument was that it was an amendment, and her argument was ‘it isn’t an amendment, and by the way you’re fired,’” Locks said. “So now we can’t bring up that or anything else on behalf of the class anymore. That’s why this appeal is interesting.”

Seeger Weiss and the NFL did not respond to requests for comment.

Pat Tighe, a West Palm Beach lawyer who represents several dozen players, has also been a frequent critic of the settlement and has received pushback for airing those those views. Chris Seeger accused him in February of feeding “conspiracy theories and falsehoods” about the deal to embattled political operative Roger Stone, claims Tighe has denied.

Tighe told Law360 he’s all but given up on pushing for broad pro-player changes within the settlement itself, and therefore views Gordon’s appeal as a “keystone opportunity.”

“It touches on every single thing we’ve all been fighting against for years, and I think Wendy [Fleischman] is the perfect person to present that argument,” Tighe said. “I’m glad she’s pissed.”

For her part, Fleischman declined to discuss the appeal, other than to say that she plans to file a statement with the Third Circuit within the next few days explaining the precise basis for it.

Gordon’s claim hinged on a 2015 exam conducted by neurologist Michael Lobatz and supported by a neuropsychological test administered by psychologist Laura Hopper in 2014. Under the settlement, claims like Gordon's are evaluated differently than claims that depend on exams conducted after the so-called effective date of January 2017.

Gordon's claim was approved in the summer of 2017, then placed under audit and reviewed by the Appeals Advisory Panel, a group of physicians created by the settlement to advise claims administrator BrownGreer PLC on certain claims. The AAP is ostensibly neutral, but many player attorneys claim its doctors have effectively adopted the NFL’s extremely tough standards on what constitutes a payable claim.

Following those reviews, Gordon's claim was again approved in late 2017, entitling him to roughly $1.5 million before attorney fees and other reductions.

Shortly thereafter, the NFL challenged that second approval, targeting the 2014 neuropsychological test and arguing that its results were not "generally consistent" with other, stricter guidelines that govern some claims submitted after the January 2017 effective date.

After soliciting input from an AAP member, a special master sided with the league and denied Gordon's claim.

Gordon’s wife Roxanne told Law360 she’s deeply disappointed by what the settlement has become, a sentiment she says is widely shared among other retired players and their families.

“The whole thing is a nightmare,” she said. “A lot of people have given up. We want people to see what’s happened here, and we want to see justice done for all these players who are suffering.”

Gordon has fought back against the decision denying his claim, arguing that the NFL was trying to "nullify" the difference between pre-effective date claims — which Gordon argues don't even require a neuropsychological test in the first place — and post-effective date claims, which do.

Gordon also questioned why the NFL had been allowed to challenge his claim after the second approval, when the settlement agreement only gives the league 30 days after a claim’s initial approval to formally challenge it. Gordon blasted the AAP’s role as well, and argued it was improper for the NFL to use the results of a totally separate test as additional evidence to fight his claim.

That test had been administered by an NFL-approved doctor when Gordon was seeking disability benefits from the league years before, a process many players and their attorneys regard as heavily skewed in favor of the NFL.

Adam Zimmerman, a professor at Loyola Law School who focuses on mass torts and administrative law, said Gordon’s appeal reminded him of “Iron Mike” Webster’s 2006 win in the Fourth Circuit over the NFL’s denial of his request for active disability benefits.

Webster, a former center for the Pittsburgh Steelers, is now widely recognized as the “patient zero” of chronic traumatic encephalopathy, or CTE, the degenerative brain disease discovered in football players that’s been linked to repeated concussions.

Zimmerman said Webster’s appeal essentially put the NFL’s entire disability program on trial, exposing how hard it was to get paid for even the most severe football-related brain injuries and laying the groundwork for the first concussion lawsuits that would be filed against the league a few years later. Those suits eventually led to the concussion settlement.

“The episode highlighted that even a narrow, highly technical appeal can bring to light facts that then unleash a whole new set of issues,” Zimmerman said.