Column: NFL Concussion Case Shows Lawyers At Their WorstApril 20, 2017
Attorney Jason Luckasevic
Even on their good days attorneys have been known to act, well, not so good. Luckasevic had to be upset to utter such a strong indictment of the legal profession.
Luckasevic was referring to the actions of attorneys who are involved in the NFL concussion case, a class action lawsuit that was settled, sort of, in August of 2013. However, none of the plaintiffs in the suit, which was really a combination of hundreds of lawsuits, have yet to see a dime from the settlement and it may be years before they do.
Initially, Judge Anita Brody who is overseeing the case had a number of concerns with the settlement. Those concerns were finally resolved earlier this year although Brody has retained jurisdiction over the case, which is not unusual in class action lawsuits. Now the plaintiffs and their families are facing additional hurdles raised by attorneys who are seeking a share of a $112.5 million legal fund created by the NFL; lawyers attempting to poach clients from fellow attorneys; and attorneys threatening to sue their own clients to insure they receive their retainer fees - upwards of 40 percent of the amount recovered – in addition to their portion of the legal fund. The first lawsuit against the NFL for brain injuries stemming from playing football was filed by Luckasevic and two other attorneys in 2011, meaning the case has been in the court system for eight years. Hundreds of lawsuits brought by thousands of former players and their families soon followed. After years of public denials by the NFL, motions and cross motions filed by both parties, and the discovery of documents that suggested the NFL may have hidden medical information from the players, the parties agreed to a billion dollar settlement. The money was intended to compensate former players and the families of deceased players for a range of injuries stemming from concussions suffered during their playing days.
Players who suffered the most debilitating injuries – ALS (Lou Gehrig’s disease), Parkinson’s, Alzheimer’s or other severe cognitive impairment – could receive awards up to $5 million each; families of players who were diagnosed with CTE after their deaths are eligible to receive up to $4 million; and payments to players suffering from dementia are capped at $3 million. The settlement also set aside money for medical exams and research.
The settlement was controversial from the day it was announced. Critics were concerned that the amount was insufficient to cover all the damage the game had done to former players. Others were displeased that the NFL was not required to admit complicity in hiding medical information that tied concussions to the players’ neurological issues. Furthermore, multiple significant awards – in the $3-5 million range – would prevent the fund from compensating all the affected players.
In addition to the amounts former players and their families were entitled to the NFL agreed to contribute $112.5 million towards players’ legal fees. The fund has proven to be confusing and the subject of disagreement. Many plaintiffs were under the impression it would cover all their attorney fees. However, a majority of the plaintiffs previously signed contingent fee agreements – typical in such lawsuits - which entitles their attorneys to a 25-40 percent cut of any amount they recover. It doesn’t take a mathematical genius to figure out that 40 percent of any amount leaves only 60 percent for the intended recipient. Couple that with the fact a number of attorneys will be double-dipping as recipients of contingent fees and payments from the legal fund, and it’s safe to say the legal profession has had better days.
The legal system was designed in part to protect the little guys from the big guys – those who are better financed and better lawyered. But in this case Luckasevic is right: The only thing certain about the NFL concussion suit is that it shows lawyers at their worst.