Dec 302013
 

According to the terms of the NFL concussion settlement, the players involved were assured that “no part of the $765 million deal would go to lawyers.”  That statement may not have been entirely true.

In a recent dispute involving the players’ lead negotiator, some lawyers may be in-line to receive “multiple paydays . . . .”  This development comes to light as the settlement limps into its 16th week, still lacking preliminary approval from the federal judge handling the case.

While most believe the approval will be handed down shortly, there is a legitimate concern that negotiators may “reward themselves at the expense of injured athletes.”

Recently Christopher Seeger, the players’ lead negotiator, attempted to arrange an agreement to receive a “10% cut of any money awarded” to Billy Kinard, a former NFL player.  Seeger has since withdrawn the proposal after it was challenged by Mr. Kinard’s personal attorney.  The attorney claimed that Seeger was “inappropriately using his position to benefit financially.”

Seeger is part of the plaintiffs’ executive committee, a group of lawyers appointed by the judge to negotiate with the NFL.  His firm, Seeger Weiss LLP, is set to receive a large portion of a “common fund” paid for by the league to cover legal fees.  The fund will likely exceed $100 million, and is separate and distinct from the $765 million settlement.

Persons involved in the matter are concerned that some attorneys will engage in “double-dipping” by drawing money from the common pool in addition to separate fee arrangements.  This could result in millions of dollars being diverted from the money allotted to injured players.

Judge Brody, the judge in charge of the settlement, appointed a special master to help evaluate the “financial aspects” of the proposed settlement.  The special master will have the power to perform “financial analysis of any agreements reached by counsel to the parties.”  Both Seeger and lead NFL attorney Brad Karp applauded the appointment by Judge Brody.

Sam Franklin, the attorney that initially discovered the Seeger agreement said he was worried that “Seeger Weiss, as lead counsel, was trying to extract money from Kinard on top of what the firm would receive from the common fund.”  Per the agreement, Seeger was to get paid by the defendant and get paid an additional 10 percent by each client the firm signed up.

Seeger said that his firm agreed to represent Kinard “for the reduced fee of 10 percent,” but ultimately offered to waive the retainer.  Kinard declined Seeger’s representation.

Following this debacle, Seeger wrote a statement saying: “Seeger Weiss is not representing any new plaintiffs, from when the settlement was announced on Aug. 29, on a fee arrangement. A small number of plaintiffs were mistakenly offered a retainer agreement after approaching Seeger Weiss for representation post-announcement.  After learning of this error, we notified these plaintiffs and agreed to continue representing them for no fee.”

As of now, it is difficult to determine how many firms could be involved in the double-dipping scheme.  Most attorneys have separate fee agreements with their clients, some of which “call for the players to pay as much as one-third of any money they recover to their attorneys.”  Several of those attorneys would be slated to collect from the common fund as well.

According to William Hubbard, a civil litigation expert at University of Chicago Law School, the Federal Rules of Civil Procedure (FRCP) do not prohibit double-dipping, but this practice is frowned upon by the courts.  The judge will likely determine how double-recovery will impact the settlement before deciding whether to approve it or not.

This is a complicated issue because several attorneys do not have access to the common fund, and will only be paid through fee arrangements.  Thus the judge will have a difficult time striking a fair balance with all these “mouths to feed,” Hubbard said.

Seeger said, “[T]he court has the right to review retainer agreements signed by individual plaintiffs that include a legal fee contingent on any monetary recovery.”  Thus, it will likely be some time before Judge Brody issues a final determination on the matter.