The NFL Settlement Makes Me Want to Bawl

by Amy Goodwin on August 29, 2013

Corporate Defense
At one point in my career, when I was trying to make it as a screenwriter, I took a job as a legal secretary at a big law firm here in Texas. I worked in corporate defense litigation. My father had been a lawyer. He had connections, so it wasn’t hard getting a job. My duties were pretty straightforward. I typed a lot of motions. I submitted billing. I sent incoming filings to the file room. I made sure outgoing filings got to the courthouse on time with the right return envelopes. I did my job mechanically, with little interest. Then one day I read one of the petitions sitting on my desk.

A man’s family was suing his employer, one of our clients, a huge insurance company. The man had been a maintenance man for the insurance company. He had been exposed to asbestos for an enduring period of time. He’d contracted a pulmonary disease and died an excruciatingly slow and painful death. The family, via the plaintiff attorney, was seeking damages. I thought, this family doesn’t stand a chance.

I looked around me. I was surrounded by litigators, all top graduates from the top law schools in Texas. They were dedicated to representing this big insurance company. They were brilliant lawyers. They worked on cases like this tirelessly. The cases might last for years. There were rooms filled with miles of discovery. There were teams of file clerks working in file rooms meticulously recording and filing every piece of evidence. There were paralegals helping the lawyers. All were paid handsomely. And the bills I was sending out…bills for 100K, 200K a month. They were paid on time and mostly without question. Corporate defense firms, I came to learn, were big, beautifully run, magnificent machines, and they tend to grind up individuals. I had recently lost a close family member to pulmonary disease, so I knew what pulmonary death was like. I immediately began identifying with the plaintiff’s family. Suddenly the unfairness of the situation overwhelmed me; I hate an unfair fight. And the next thing I know I’m in a bathroom stall, sitting on the floor bawling my eyes out. A few days later I resigned.

Assisted Living
Another aging family member of mine recently began showing signs of cognitive decline. Enter another big, magnificent grinding machine called assisted living, where again, the individual doesn’t stand a chance. Rooms are $5K a month, unfurnished. Medication Management is $500 a month. There is one “caregiver” available to 40 residents per floor. That caregiver is a minimum wage worker with little formal training. The resident with cognitive decline, of course, needs a much higher level of care than this one overburdened caregiver can provide, so the assisted care facility requires a “sitter” for waking hours. And sitters are $20.00 an hour, or $200.00 day, or $1400 a week or $5600 a month. Hence your monthly bill for a resident with cognitive decline in Texas at a fine assisted living establishment is $ 11K a month. And inevitably the medication is not “managed”. The sitters do not “sit” like they are supposed to. So on top of 11K a month, and the shell of a loved one, the family must “manage” the assisted living. I spent a fair amount of time in the bathroom bawling over this machine as well.

NFL Settlement
People keep asking, why would the NFL plaintiffs settle for so little? Given the two machines at work here, I have to say I’m proud they lasted as long as they did.

I wish someone would do some research on the corporate defense firm or firms representing the NFL. How many lawyers are working the case? What are the monthly bills? How many floors of discovery are there? How many file rooms are dedicated to the case? I’m sure it would blow everyone’s mind. The NFL has the money and the lawyers to drag this case out for decades. The plaintiffs don’t. First consider the plight of a plaintiff attorney. They work on contingency. Plaintiff attorneys have to make money. They can only go so long on contingency before they deplete their resources. If the payoff is too far in the future, they get nervous. They want out. I read in the NYT article by Ken Belson, “The NFL also agreed to pay legal fees for the plaintiff’s lawyers, a sum that could reach tens of millions of dollars.” I am certain as part of the NFL settlement, the NFL is going to have to pay these legal fees promptly. The plaintiff’s attorneys would never have agreed to have their legal fees be paid out over twenty years.

So again, with all these machines at work, the last place finishers are, of course, the plaintiffs. The system is set up that way. The plaintiffs, those suffering from cognitive decline- ALS, dementia, Alzheimer’s disease- they never had a chance. The suffering these players and their families have endured and are enduring is incomprehensible to most of us living. They don’t have the strength to be deposed. They don’t have the time for testifying. They are too busy fighting off decline, going to doctor’s appointments, grieving, managing their “help.” As they watch their life savings deplete at a staggering rate, a measured amount of money over twenty years is more help than they’re getting now, so they’ll take whatever gesture the NFL makes.

Thankfully now, rather than sitting on the bathroom floor and bawling about it, I can turn to my website.

But I still hate an unfair fight.

{ 5 comments… read them below or add one }

Ed Aldridge August 30, 2013 at 12:28 am

While everything that you wrote may be true, it doesn’t address the crux of this case. Did the NFL have information that it withheld from the players regarding the dangers of head injuries? And I’m pretty sure the answer is no they did not. Most research is performed in the university setting, and most viable research is published. So unless the NFL paid for a bunch of research, and then buried the results, all relevant information regarding head injuries has been in the public domain. That doesn’t even begin to address the fact that these NFL players probably sustained a cumulative effect of many head injuries over the course of their pre-professional careers: pee-wee, high school and college football. So to think it was a slam dunk case against the NFL is a bit naive.

I worked in high school athletics for many years, and I had athletes that did not care what the consequences were, they wanted to get back on the field. They wanted to do it for the fans, for their classmates, for their teammates, and for their own egos. To say that the majority of these plaintiffs would not have done the same, even knowing the possible consequences, is again a bit naive. Kind of like people still smoking even though they know it will probably kill them. I do feel for those that have died or are suffering. But to hold the NFL responsible for their condition is not that simple.

Ralph August 30, 2013 at 6:36 am

This will hurt the fans in the end. These people knew the risks and took them. I have had 5 concussions in my life and I am not suing anybody.

Gregory Aiken September 3, 2013 at 5:48 pm

At the middle of this whole issue is that the increase in size speed and strength associated with steroids or HGH is the root cause.
Without addressing this nothing will change, the car crash type of force that is generated by a 250lb muscle bound athlete while running at 20 mph is staggering.
Every 5 mph the body weight, force doubles, so by 20mph, it is like getting hit by a car.
The NFL looks at the players as disposable commodities that are generated by a not for profit NCAA system that is also extremely flawed but that is a whole other topic.
Ralph says it will hurt the fans, how exactly? One star leaves another is born do you really care about them?? You think prices will go up because they have to pay this pittance per team? This is chump change money for them, divide 765 by 30, they spend that much per team on a private jet for the owner, grow up.

Patrick Fuller September 5, 2013 at 6:06 pm

I’ve spent my career – primarily in the Business of Law – working with both the plaintiff’s bar, as well as the global law firms, where I primarily work. People often write about certainties in life, such as death and taxes. The other is that certain industries are essentially recession-proof, namely medical and legal, and many, including the legal profession, flourish in times of great complexity, or with extremely complex matters – like this. If you’d like to see the KPI’s for “Big Law”, here’s the latest annual analysis of the Am Law 200:

http://diglegal.com/tmiblog/2013/6/18/the-5th-annual-amlaw-200-analysis

With respect to the billing rates of the firms involved in defending the NFL, those firms – based upon the publicly available docket filings – include the midsize litigation boutique Weinberg Wheeler out of Atlanta (which will typically result in lower partner & blended rates), along with the “usual suspects” for NFL-related work: Duane Morris (Philadelphia), Paul Weiss (NYC), Dechert (Philadelphia), and Covington & Burling (D.C. – also Tagliabue’s former firm). I believe Munger Tolles in LA was also part of the Class defense team.

If you’d like, there are a few very good services where you can look at the rates typically charged by these firms (and firms like them) for similar work – broken down by timekeeper level, city, practice area, etc. – through Thomson’s Peer Monitor or Serengeti, TyMetrix, Valeo Partners, and more. I doubt very seriously that any of this work was on an alternative fee arrangement (something other than the billable hour) – but like any type of fee analysis, I’m not as interested in the billed rate of the senior partners, because I’m more interested in the collected (realized) rates…and right now, the realization rate in Big Law is around 85%. What I’m interested in is the associate hours and rates, both. In most cases, a partner charging north of $1000.00 per hour is worth every penny; it’s the 3rd & 4th year associates at $400 per hour that are the issue. So, for this matter, that’s will be interesting.

As for the settlement itself. As you know, there are a lot of factors that go into a settlement, and the decision to settle for any amount, etc. You hit on some of them in this. Most rational people understand why this was settled now; that’s not the issue. However, the amount, to me, is not the bigger issue (it is for those affected, and I fully appreciate and applaud that). The bigger issue is surfacing the NFL’s own research into head trauma, and what they know, and how long they’ve known it. I LOVE football – weekends in the fall are typically planned around family gatherings for Badger, Packer, Oklahoma State games. But the data and evidence related to head trauma we’re all learning now is troubling, especially as a parent. Parents are making decisions about our kids playing certain sports (soccer is another with a high amount of head trauma) and their longterm health based upon the research we’re all now seeing. I would have loved to have seen the NFL’s research – and believe me, they’ve done their own homework on this – to really understand the full impact of a moderate life of football (7th grade to a 5 year NFL career – roughly 15 years). This is the problem with the settlement. The NFL doesn’t care about the money – they care about protecting the perceptive value of their product. Who makes money off the NFL? Television networks, equipment manufacturers, advertising, etc. They all have a stake in whether or not the perception of the product is tarnished. Sadly, nothing will change from this settlement. The NFL will have record revenues and the players…well, according to an SI report from 2009, 78% of former NFL players are bankrupt 3 years after they retire, many with no higher education degree to utilize, nor health coverage to deal with their declining health.

Mike Jung September 5, 2013 at 6:52 pm

A thoughtfully written piece, Amy, thank you. I do agree with the comments that say many (if not most) of the athletes who’ve suffered crippling or even fatal consequences from concussions received during their playing days would make the same choices even if they fully understood the risks beforehand. But some might.

Some parents and families might use real, substantial information on the long-term effect of concussions to teach their children what the true potential consequences of choosing to play football are. Some of those children might then grow into adults who choose to prioritize the chance to live the longest, healthiest life possible. Some might even become leaders in the effort to make football a sport that is truly safer and saner for its participants, leading to fewer crippled lives, ruined finances, premature deaths, and shattered families.

Maybe in the end it would only save the health and lives of a relatively small percentage of all the football players in the world. It would be worth it. It would absolutely be worth it.

Leave a Comment

{ 2 trackbacks }

Previous post:

Next post: