Mike McGlamry, who played quarterback at Wake Forest, is pleased with the deal because plaintiffs don’t have to prove causation. (John Disney/Daily Report)
The day before the National Football League announced last August that it would pay more than $675 million to thousands of retired players with traumatic brain injuries, Atlanta attorney Michael McGlamry and other members of the players’ legal steering committee were summoned to New York. There, McGlamry—a former college quarterback and team captain representing more than 500 retired ballplayers—learned that the NFL was announcing the following day that the case had been settled.
For nearly two months, negotiations had been conducted under a gag order issued by a federal judge, keeping secret the details from all but two plaintiffs’ lawyers and the attorneys for the NFL.
“It was frustrating,” McGlamry said in a wide-ranging interview with the Daily Report about the case. “One of the most difficult things with clients is for them to think you do not know what’s going on.”
McGlamry acknowledged that the two plaintiffs’ lawyers picked by the federal judge to make the deal for the players carried an extraordinary burden, and he has confidence in the settlement they hammered out with the league.
McGlamry, who has built his reputation as a class action plaintiffs lawyer, said he has been moved by the plight of his clients, especially those whose relatively short service in the league may exclude them from much compensation.
McGlamry was on the plaintiffs’ steering committee, a small team of lawyers selected from attorneys at more than 18 firms to shepherd through the multidistrict litigation, which now involves more than 4,500 retired NFL players. Due to the judge’s gag order, McGlamry said they were kept “in the dark.” What would become a 150-page settlement agreement with more than 400 pages of exhibits also stayed confidential until it was filed on Aug. 29.
It included $675 million in compensation to retired players diagnosed with chronic traumatic encephalopathy or CTE. Often associated with aging boxers, it has been referred to as “punch-drunk syndrome” and can lead to early dementia, Alzheimer’s, ALS (also known as “Lou Gehrig’s disease”), multiple sclerosis and Parkinson’s disease.
The deal also provided $75 million for diagnostic testing to determine if retired players were eligible for compensation; $10 million to fund education programs promoting football safety and injury prevention and to educate retired players about the NFL’s medical and disability programs; $4 million to notify eligible retired ballplayers, and as much as $112.5 million in legal fees and costs.
The class includes retired players of the NFL, the American Football League, the World League of American Football, the NFL Europe League, and NFL Europa League.
McGlamry said the gag order that barred attorneys in the case from getting information about the settlement until a deal had been reached was designed by U.S. District Judge Anita Brody of the Eastern District of Pennsylvania, who presided over the case. She had signaled last April that she wanted the parties to work toward a settlement of the case. In July, she directed the parties to mediate, appointed retired U.S. District Judge Layn Phillips from the Western District of Oklahoma to oversee the process and gave them until Sept. 2 last year to reach a deal.
“As it was explained to me, the NFL went to her [the judge] hoping to mediate,” McGlamry recalled. But the NFL, he continued, “was getting hammered in the press by former players.”
The league didn’t want the terms of any settlement to be negotiated in the glare of the media spotlight and feared that would be the case if every plaintiff player’s lawyer were privy to the negotiations, the lawyer said.
The resulting mediation was conducted largely in secret and largely absent the input of dozens of lawyers representing thousands of players, he said. The two attorneys who negotiated on behalf of the players were Christopher Seeger of Seeger Weiss in New York and Sol Weiss of Anapol Schwartz in Philadelphia.
Brody had specifically requested that Seeger be involved, McGlamry recalled. Weiss had filed the first federal NFL brain trauma case in the Eastern District of Pennsylvania on behalf of former Atlanta Falcon Ray Easterling, who, struggling with depression and dementia, shot himself to death in April 2012.
McGlamry said waiting for the deal to come together “was not an easy couple of months.”
But he acknowledged the difficulties for Weiss and Seeger. “They were asked to negotiate everybody’s case with a very powerful defendant and with very difficult legal issues,” he said.
“I think the difficulty here is that they [Seeger and Weiss] were trying to deal with the parameters the court had set. It meant we just didn’t know everything. … We didn’t know the details of how the process would work.”
But the result, he said, is “a good settlement for the players.”
McGlamry described the case—which he said the NFL originally predicted could remain in litigation until 2020—as “difficult given the nature of the claims, the length of time within which the court would have to address the legal issues over the next three to six years, and the need for players who are truly injured to receive help.”
But, he added, “It’s a lot of money. But the big complaint is that the NFL makes so much money that they need to pay more.”
More work is required to make the settlement a reality.
On Jan. 14, Brody refused to approve the 150-page proposal. But McGlamry emphasized that the judge wasn’t making the parties return to the drawing board; she said she had too little information that would demonstrate that the funds allotted were sufficient to compensate all retired NFL players diagnosed with specific mental ailments linked to concussive brain injuries they sustained on the football field.
In her order, Brody asked for the analyses on which the mediating lawyers and Judge Phillips had relied, adding that she did so “in light of my duty to protect the rights of all potential class members … the insufficiency of the current record … [and] as a first step toward preliminary approval” of the deal.
Brody last year appointed a special master to assist her in analyzing the settlement’s financial aspects.
“I think that the judge doing what she did shows that she’s looking at this independently and wants the benefit of that information early rather than later,” McGlamry said. “I believe the information is there, and we’re hopeful that her special master will review it and see the same thing.”
“But to me, the good thing for players is that the court is paying attention, and even though she’s interested in a resolution, it was one she will have to independently think is fair and reasonable,” he continued. “I think it’s a good thing she is not rubber-stamping it.”
McGlamry, his law partner N. Kirkland Pope and Decatur attorney Bruce Hagen represent one of the larger groups of retired NFL players who have sustained or fear they have suffered permanent brain injuries due to football.
Filed in 2011, the litigation accuses the NFL of breaching its duties to its players by failing to take reasonable actions to protect them from the chronic risks created by the repeated, often ferocious, blows to the head that frequently resulted in concussions.
The suit claims that the NFL and its agents concealed the risks that players assumed in continuing to play after sustaining repeated blows to the head.
McGlamry played football at Wake Forest University from 1974-1977, three of those years as a quarterback. He said he has been particularly moved by an “eye-opening” panoply of symptoms linked to traumatic brain injury that are showing up in men his age who played college football and went on to play for the NFL.
McGlamry said that as a quarterback, he “avoided contact at all times.” But others built their college and professional football careers by charging their opponents and clashing with them head-to-head on every play, he recalled.
One of his clients in the suit, who played football for Vanderbilt University in college, reminded McGlamry that he once had sacked him, McGlamry recalled. Another client was a fellow teammate at Wake Forest.
A self-described “huge fan” of college football, McGlamry said he had watched still other clients play and had looked up to them as heroes on the gridiron long before they retained him.
“This is a real problem,” McGlamry said. “There really are a lot of guys” with traumatic injuries. “It’s real. People who have been involved have really seen it.”
Now that the details of the settlement have been released, McGlamry said he worries that the parameters may exclude some of his clients, either because they did not play long enough in the NFL or because their compensation has been limited by their age.
“Some clients played a long time and have lots of problems,” he said. “Some played a long time and have some problems. I have guys who played a short time who have big problems, and others who played a short time and have relatively few” problems.
“What I started noticing was guys who would come in the office and look like they could play the next day,” he said. “They were big, good looking, strong, but they were having a lot of problems—real emotional issues.”
McGlamry said one client who played college ball and spent part of a season in the pros first began developing problems with his mental acuity 15 years ago. His wife noticed it first, McGlamry said. By then a successful businessman, the client would get in the driver’s seat of his car and then couldn’t remember how to get where he was going. The wife began to fear letting him drive to the grocery alone, McGlamry said.
“He ended up totally disabled. He can’t work, and he’s in his mid-50s,” McGlamry said.
But because the client spent so little time in the NFL, he may not qualify for more than a relative pittance in compensation from the settlement fund, the lawyer said.
To be eligible for compensation, all will have to undergo a baseline assessment by a neuropsychologist and a neurologist to determine whether there is any cognitive impairment. That assessment may also be used to measure any symptoms that may develop.
As a condition of the settlement, retired players will not have to prove that their symptoms were caused by head injuries they sustained playing pro ball, only that they have received a qualifying diagnosis of some form of neurocognitive impairment, according to the settlement terms.
“The best part for the plaintiffs’ side is that we don’t have to prove causation,” McGlamry said.
The trade-off was that the NFL can limit or reduce compensation payments to players who played fewer than five seasons as well as base payment amounts on the age of a retired player when diagnosed, McGlamry said. The more seasons a player put in before retiring, the greater the potential compensation from the settlement, he said.
“I’ve got guys who don’t have a full year [in the NFL] who don’t qualify at all for payments,” he said, “but they are institutionalized.”
“Then there are guys who played 12 years and have maybe a couple of issues, and other guys who played 12 years and somebody has to help them get dressed.”
McGlamry said he has one client, another in his early 50s, whose slide into dementia cost him his job, his family, and ultimately a place to live except the streets. But because he played only three or four preseasons in the pros, he will likely not have played long enough under the terms of the settlement to qualify for compensation.
“Clearly, he was diagnosed with dementia,” McGlamry said. “Under the terms of this settlement, he doesn’t get anything.”
“But for those players who do qualify for compensation,” McGlamry added, “it’s a lot of money.”
This story has been changed to reflect the following correction: The Feb. 3 story, “Lawyer for retired players opens up about NFL settlement,” misstated when Mike McGlamry, a lawyer for ex-NFL players, played college football for Wake Forest. He played from 1974 until 1977.