Lawyers fight over settlement details

Updated: January 24, 2014, 8:18 PM ET
By Steve Fainaru and Mark Fainaru-Wada | ESPN.com

One week after a federal judge refused to grant preliminary approval of the NFL concussion settlement, the lead negotiator for the players is engaged in an increasingly bitter campaign to beat back opposition to the $765 million deal.

In conversations and private meetings, Chris Seeger, one of the settlement's main architects, has clashed with his own clients and with attorneys for other players, lobbying for the agreement while lashing out at critics and the media, according to details provided to "Outside the Lines."

[+] EnlargeChris Seeger
AP Photo/Mary Godleski/PoolAttorney Chris Seeger, from a 2005 case, is front and center in NFL concussion settlement discussions.

Legal experts said the growing fissures among former players and lawyers could undermine the settlement after Judge Anita B. Brody's surprise ruling, which requested more information amid concerns there is not enough money to cover all qualifying players.

To get the settlement approved, proponents will have to convince Brody not only that it provides enough money but also that thousands of former players have enough in common to be legally considered a "class." Several attorneys involved in the case have argued that they don't.

"That's an argument the judge will have to take very seriously," said William Hubbard, a civil litigation expert at the University of Chicago Law School. "Some very famous cases have gone up in flames because of exactly that issue."

In private conversations, several former players have expressed their dissatisfaction to Seeger, their attorney, about the deal; one said he believed that the concussion suit has been "hijacked" by lawyers and that he's expecting a "high number of opt-outs and objections" among Seeger's clients as the settlement moves forward.

On Tuesday, during a meeting of about 60 lawyers at a Manhattan hotel, Seeger was challenged for several minutes by Tom Demetrio, who represents the family of former Chicago Bears defensive back Dave Duerson. One lawyer present described the tense scene as "almost a cross-examination." Seeger angered other lawyers in the informational meeting when he repeatedly deflected questions by citing a "gag order" that he said prevented him from sharing information. The lawyers said they were unaware of any such order.

On Thursday, two days after confronting Seeger, Demetrio filed a motion requesting that Brody direct Seeger and co-lead counsel Sol Weiss to "supply all Plaintiffs' attorneys of record with all of the data utilized by them in reaching the proposed settlement agreement."

Lawyers for former San Diego Chargers great Junior Seau launched their own attack less than 24 hours later, objecting to other aspects of the settlement and citing "serious deficiencies." In a motion filed Friday morning, the lawyers zeroed in on a provision that prevents a player who rejects the deal from pursuing a lawsuit against the NFL until the settlement is fully resolved -- possibly delaying cases for years. Seau's lawyers argued that the settlement limits wrongful death claims, suggesting that Seau's children could not collect for the "wrong the NFL did to them."

The challenges are potentially ominous for Seeger and other proponents of the deal, signaling that the families of two prominent players -- Duerson and Seau, both of whom committed suicide by shooting themselves in the chest and were later diagnosed with brain damage -- are considering opting out of the deal.

"This extraordinary settlement could not have been achieved without the contributions of our fellow attorneys, who have been skillful and steadfast advocates for the retired NFL players they represent," Seeger and Weiss said in a statement Friday. "We organized Tuesday's meeting to provide an open forum to discuss the details of the settlement and for lawyers to learn more about how this agreement benefits their clients. There were many productive exchanges, and we are confident that attendees left better equipped to help retired players take advantage of this settlement once it is approved. The retired player community has provided overwhelming support for this agreement, and we look forward to finalizing it soon so they can begin taking advantage of its benefits."

When Brody denied preliminary approval Jan. 14, she ordered negotiators to turn over all data used to come up with a dollar amount for the settlement. The NFL and the players conducted separate analyses, sources familiar with the negotiations said, potentially resulting in different projections on the key question of how many NFL players are likely to get different forms of brain damage.

At the New York meeting, Seeger assured the attorneys in the room that the data existed and that it would reflect that the settlement is sufficient. However, when pressed for details, Seeger referenced the gag order and said his "hands were tied" by Brody. He also surprised many in attendance by announcing that it would be another 30 to 60 days before negotiators are able to refile their motion for preliminary approval -- further delaying a settlement that was announced on the eve of the NFL season.

"New York was a complete and utter waste of time," said one lawyer who attended the meeting. "Nothing, nothing at this informational meeting resembled information. It was a dog and pony show without any dog and without any pony."

Seeger did not respond to an interview request. This week, in an interview with Sports Illustrated writer Peter King, he said he was unconcerned about Brody's ruling and suggested that one reason he pushed the settlement was because he did not think the players had a good case against the NFL.

"I've already settled cases, much bigger than this one," said Seeger, who was co-lead counsel in the class action lawsuit over the pain medication Vioxx, which resulted in a $4.85 billion settlement. "I've had a good career. My legacy case wasn't going to be a case that didn't work. It wasn't going to be a case that I wasn't totally proud of. Because I know that most of the people involved in this, including the judge, are going to be thought of more for the NFL case than anything else that they will do in their career. That's silly if you ask me, but it's reality."

The players' executive committee -- a select group of lawyers that oversees the negotiations -- already had begun to splinter even before Brody rejected the motion for preliminary approval. Of the six attorneys originally named to the committee, two -- Tom Girardi and Michael Hausfeld -- were kept out of the discussions, according to sources close to the negotiations.

Seeger said he removed Girardi, a Los Angeles-based attorney who has become one of the settlement's main critics, from the negotiating committee because he believed he was leaking information to the media, according to people familiar with the conversations.

Girardi, who says he represents 1,200 former players, complained to "Outside the Lines" last week that he had no input despite his role on the negotiating committee. Seeger has confirmed that in private conversations, the sources said.

Hausfeld was kept out of the negotiations because of his controversial role in a separate case involving proceeds from the NFL's licensing agreements, according to sources close to the case. He remains unpopular among some players but also played a leading role in the concussion suit before he was marginalized.

Like Girardi, Hausfeld has expressed strong reservations about the terms of the settlement.

Seeger and Weiss have clashed with other lawyers on the case. John Giddens, a Jackson, Miss., attorney who represents 240 former players, said he tried to raise questions about the settlement -- including an apparent disparity that awards players without legal representation more money -- on a conference call this month but was shouted down by Weiss.

"In Mississippi, you say your dog's name over and over and they were talking to me like a dog: 'John, John, John, what did we tell you, John?'" Giddens said. "Maybe it's just that these guys are from Philadelphia. I'm so glad we had him on speakerphone, because I was with [attorney] Philip Thomas and another lawyer and we were just looking at each other in disbelief. Here we are on the same side and he's just going off on us."

Shortly after the call, Giddens and Thomas filed a motion on behalf of 177 former players opposing preliminary approval -- the first formal objection to the deal.

When he arrived at the meeting in New York, "I thought there'd be plastic on the floor and walls, like in 'Goodfellas,'" Giddens said. "These guys, you don't want to piss them off. They're pretty scary dudes. They're used to getting their way. We decided to go against the grain. To hell with pissing them off. We weren't going out like that. We just did what was best for our clients, let the chips fall where they may."

How much the acrimony will affect the suit is unclear. Several lawyers involved in the case said they're waiting for additional information before deciding whether to recommend to their clients to take the deal or opt out.

Asked whether he supported the settlement, one attorney, underscoring his skepticism, said: "I think the settlement is a terrific thing as long as they keep the opt-out provision. This is gonna have a longer shelf life than people think."

Comments

Use a Facebook account to add a comment, subject to Facebook's Terms of Service and Privacy Policy. Your Facebook name, photo & other personal information you make public on Facebook will appear with your comment, and may be used on ESPN's media platforms. Learn more.


ALSO SEE