NFL concussion suit: Belcher's daughter opted in

Former NFL players have until Tuesday to decide whether to opt out or take part in a tentative settlement of concussion suits against the league. Few have opted out so far. An attorney says different choices will be made in the cases of late Kansas City Chiefs linebacker Jovan Belcher and more than 20 other ex-players he represents.

Dirk Vandever, a Kansas City, Mo., attorney, said Monday he will take part in the settlement on behalf of Belcher's toddler daughter but that his other clients will opt out because the settlement isn't sufficient for them.

"We have a responsibility to make sure that we're making the right decisions for each individual player," said Vandever.

Belcher was a 25-year-old Chiefs linebacker on Dec. 1, 2012, when he shot and killed his girlfriend, Kasandra Perkins, and himself. Vandever initially filed suit against the Chiefs on behalf of their daughter, Zoey, who was two months old at the time of the deaths.

The suit was consolidated in federal court in Philadelphia with suits against the NFL by more than 5,000 former NFL players or their estates, alleging the league knowingly failed for decades to protect them from long-term effects of concussions.

Vandever could opt out and continue the lawsuit. But the tentative settlement, which will provide awards for hundreds of millions of dollars, includes up to $4 million for a former player diagnosed after death with the brain disease chronic traumatic encephalopathy (CTE).

Belcher's body was exhumed a year after his death. Vandever said a neuropathologist who examined Belcher's brain issued a report early this year that he found signs of CTE, which some researchers have linked to repetitive head trauma. The maximum CTE award of $4 million would be for a player diagnosed after death at age 45 or under with five years of NFL experience.

With Belcher's four-year career, the potential award in his case would have a 20% deduction from the maximum.

The settlement does not require proof that NFL football contributed to any brain injuries, nor does the NFL acknowledge any cause and effect. But the diagnosis has to have been made prior to the July 7 date that U.S. District Judge Anita Brody gave preliminary approval to in the settlement.

"We are not going to opt out Jovan Belcher," said Vandever.

" … We have a neuropathologist that says he (Belcher) did have CTE, and it's happenstance that we had that evaluation done before the cutoff. … Now people who have pathologic diagnosis of CTE (going forward) will not qualify."

The requirement that CTE had to have been diagnosis before the preliminary approval is just one element of the argument against acceptance of the settlement.

Vandever said upwards of 20 other players he represents will opt out because their conditions will not show up in the battery of tests in the proposed settlement. He said he had the players take the settlement tests with no qualifying result for awards. He said they took other tests which showed they have other impairments that should warrant compensation.

"Some tests that were not contained within the NFL battery shows that they did have impulsivity, which is a hallmark of chronic traumatic encephalopathy. They did have depression, anxiety, which is a hallmark of CTE. None of that is reflected in the NFL battery tests," said Vandever.

"Those players we represent have indicated that they intend to opt out.''

Vandever and other attorneys wanted an extension of today's deadline. "I don't think that's going to happen," he said. "That's tomorrow, and I haven't heard anything to the contrary. So I believe we're going to go ahead and file either today or tomorrow for our people opt out.''

Players have had the opportunity to opt out by notifying a claims administrator in writing.

Chris Seeger, co-lead counsel for the players in the consolidated suits, said during an October 7 teleconference with Judge Doty that few had.

In audio posted online as part of the court record, Seeger challenged arguments that he said described the settlement as "shrouded in secrecy" and misunderstood by the players.

"It almost stretches the imagination to believe that you can make that argument," Seeger told the judge. " …. I have never been involved in a settlement where the notice has been as successful as it has been in this case."

He said there are about 18,000 retired players and that there have been over 60,000 visits to the settlement website. He said about 5,000 former players and their families provided information so they are not in the claim administrative system.

Seeger said in the teleconference that there were few opt outs.

"One week to go before the opt-out deadline, there are nine people that have indicated they want to opt out. One of those nine has indicated they want to revoke their opt-out and come back in, which they're welcome to do," said Seeger.

"That settlement agreement we filed is pretty comprehensive. It tells everybody what they really need to know about this settlement."

Michael Kaplen, a New York attorney who practices brain injury law, opposes the settlement.

"To some extent, it surprises me (so few opt outs), but to a larger extent it saddens me because of the reasons you don't see many people opting out," he said. "No. 1, the players don't understand the import of what it means to opt out or not to opt out. They have been given some very confusing information and they haven't really been given enough information to make an informed decision.

"Most players don't understand what if anything they'll get in terms of compensation from the settlement, when in fact most will get nothing. They have nothing to lose at all by opting out. … It might be worth taking for a very small minority of players who fall within what they call the grid."

The settlement would provide awards of up to $5 million for a diagnosis of Lou Gehrig's Disease, $3.5 million for Parkinson's and Alzheimer's and up to $3 million for such conditions as dementia.

"Most players are never going to get anything," said Kaplen.

He said there would be no compensation for players with seizure disorder and traumatically induced epilepsy and players who have a stroke following a brain injury. "Traumatic brain injury is a known risk factor for stroke," he said..

Kaplen objects to reduction in compensation based on length of a players' NFL career. He said he also objects to no compensation for players moving forward who are diagnosed with CTE: "If they die after the provisional settlement date in July, they're not eligible for anything under this settlement."

On Nov. 18, the judge will hold a hearing on whether to grant final approval to the settlement.

"It's my hope that when the court looks at the entire picture, looks at what is wrong with the settlement … the court will send the parties back to the drawing board and just reject the entire settlement,'' said Kaplen.

On Oct. 6, seven former players, including Alan Faneca and Sean Morey, filed a court objection to the settlement.

"A fair settlement is a compromise with each side giving and getting," their objection said. "But here, the real benefits run to the NFL, which gets a near-absolute release without providing adequate and reasonable compensation in return. … A settlement under these terms is no compromise. It is capitulation."