NFL Parties’ Opposition to Appeal of
Claim Determination Filed by Representative Claimant Kendra Moyes
On September 25, 2018, Representative Claimant Kendra Moyes submitted a Claim Form
on behalf of her deceased father, Ken Stabler, for a July 8, 2015 Qualifying Diagnosis of
Alzheimer’s Disease (“Alzheimer’s”) provided by neuropsychologist Todd Solomon, Ph.D. and
neuropathologist Dr. Ann C. McKee. (See Claim Form at 3, Doc. No. 186345.) Unfortunately,
because Mr. Stabler was never diagnosed with Alzheimer’s while living, the Settlement
Agreement does not entitle him to a Monetary Award, and his claim was therefore properly denied.
Initially, Ms. Moyes submitted a Diagnosing Physician Certification Form signed by Dr.
McKee for a diagnosis of Death with CTE on November 10, 2015. (See Diagnosing Physician
Certification at 6, Doc. No. 184905.) Ms. Moyes then wrote to the Claims Administrator to clarify
that she was not seeking a Monetary Award for Death with CTE, but instead was seeking
compensation for an Alzheimer’s diagnosis based on a post-mortem pathological examination of
Mr. Stabler’s brain and statements by family members about his impairment when living. (See
Notice of Filing at 1, 6, Doc. No. 186527.) Regrettably, Ms. Moyes acknowledged that she lacked
any records or documentation of a physician evaluating Mr. Stabler for Alzheimer’s while living,
as no such examination occurred. (See id. at 2, 6.)
On September 28, 2018, the Claims Administrator denied Ms. Moyes’ claim based on a
determination that: (1) Mr. Stabler was ineligible to receive a Qualifying Diagnosis of Death with
CTE because he died after April 22, 2015; and (2) Ms. Moyes did not submit a Diagnosing
Physician Certification Form for any other Qualifying Diagnosis, such as Alzheimer’s, that was
made while Mr. Stabler was living. Ms. Moyes appealed that denial by arguing that her claim
should be approved for Alzheimer’s because Dr. McKee determined that Mr. Stabler’s brain
showed pathological evidence of Alzheimer’s and Mr. Stabler’s life partner, Kim Bush, submitted
an affidavit stating that Mr. Stabler developed memory deficits in 2014-2015. (See Statement of
Appeal (“Appeal”), Doc. No. 188958.)
The NFL Parties respectfully oppose Ms. Moyes’ appeal because the claim fails to comply
with the Settlement Agreement’s Injury Definition for a Qualifying Diagnosis of Alzheimer’s
because Mr. Stabler was never diagnosed with Alzheimer’s by an appropriately credentialed
physician while living. On appeal, Ms. Moyes argues that her claim should be exempted from the
Settlement Agreement’s requirements, but the Settlement Agreement does not permit such an
exemption. For these reasons, and those set forth herein, Ms. Moyes’ appeal should be denied.
I.

Ms. Moyes’ Claim Package Did Not Support a Qualifying Diagnosis
of Alzheimer’s

The Settlement Agreement’s Injury Definition for a Qualifying Diagnosis of Alzheimer’s
for players deceased prior to the Effective Date of the Settlement Agreement, such as Mr. Stabler,
requires “a diagnosis of Major Neurocognitive Disorder due to probable Alzheimer’s Disease . . .
or a diagnosis of Alzheimer’s Disease, made while the Retired NFL Football Player was living”
by a qualified physician. (Settlement Agreement, Ex. A-1 at 4 (emphasis added).) Settlement
Program FAQ 89 confirms this requirement, stating that, for a Qualifying Diagnosis of
Alzheimer’s, “the Player had to have been diagnosed while he was living by a physician with the
appropriate qualifications.” Here, Ms. Moyes acknowledges Mr. Stabler was not diagnosed with
Alzheimer’s while living.

 Instead, Ms. Moyes petitions for Mr. Stabler to be excused from that Settlement Agreement
requirement because Dr. McKee’s autopsy of Mr. Stabler’s brain found “Changes of Alzheimer’s
disease,” and because Mr. Stabler’s life partner, Ms. Bush, described memory problems that Mr.
Stabler developed in the last few years of his life. (See Appeal at 2-4; see also McKee Report at
2, Doc. No. 186531; Bush Affidavit at 2, Doc. No. 186530.) Ms. Moyes also argues that Mr.
Stabler was too focused on fighting cancer to see a neurologist prior to his death—notwithstanding
the fact that he underwent extensive dental work in 2015 and was planning to have knee
replacement surgery. (Appeal at 5.) Unfortunately, there is nothing in the Settlement Agreement
that provides an exemption to the fundamental requirement of a diagnosis while the player was
living. None of the provisions on which Ms. Moyes seeks to rely—namely, Sections 6.4(b) and
6.6(b) of the Settlement Agreement, and Settlement Program FAQ 116—provide for such relief.
Specifically, Section 6.4(b) of the Settlement Agreement states that “review of whether a
Qualifying Diagnosis is based on principles generally consistent with the diagnostic criteria set
forth in Exhibit 1 (Injury Definitions) does not require identical diagnostic criteria, including
without limitation, the same testing protocols or documentation requirements.” That provision,
however, concerns how a diagnosis is rendered while the player is living. It does not alter the
fundamental principle of the Settlement Agreement’s Injury Definition that a diagnosis of
Alzheimer’s must be made while the player is living. For this reason, the Claims Administrator
properly did not apply Section 6.4(b) to this claim.
Next, Section 6.6(b) of the Settlement Agreement states that “Monetary Awards . . . shall
compensate Settlement Class Members only in circumstances where a Retired NFL Football
Player manifests actual cognitive impairment.” Ms. Moyes argues that this section supports her
appeal because Dr. McKee’s report and Ms. Bush’s affidavit both describe cognitive impairment
that Mr. Stabler manifested while alive. (See Appeal at 2.) However, Ms. Moyes omits the rest
of Section 6.6(b), which states that “[f]or the avoidance of any doubt, the identification of a
condition—for example, through a blood test, genetic test, imaging technique, or otherwise—that
has not yet resulted in actual cognitive impairment . . . experienced by the Retired NFL Football
Player does not qualify as a Qualifying Diagnosis.” In other words, this provision merely confirms
that a valid diagnosis requires not only that the player be living at the time—as set forth in the
Injury Definition—but also that impairment must actually manifest at the time of the diagnosis.
Nothing in Section 6.6(b) supports that a backwards looking, post-mortem analysis based on
interviews with family members is sufficient to meet the Injury Definition for Alzheimer’s. Nor
would such interpretation be proper because it would read a clear term out of the Settlement
Agreement without any proper basis.
Finally, Settlement Program FAQ 116 provides, in part, that “[t]he Claims Administrator
has discretion to review and decide Settlement Class Members’ requests to excuse the Diagnosing
Physician Certification Form and/or medical records reflecting Qualifying Diagnosis requirements
and to determine the appropriate date of diagnosis in such circumstances, based on evidence the
Claims Administrator deems necessary to evaluate each request . . . .” (Settlement Program FAQ
116; see Appeal at 3.) Here, the Claims Administrator did not exercise any such purported
discretion, and denied Ms. Moyes’ claim. 1 Moreover, FAQ 116 is intended to apply to scenarios

1

Moreover, to the extent that the FAQ purports to expand the circumstances in which the Claims Administrator
may excuse the lack of medical records or a Diagnosing Physician Certification Form beyond those set forth in
the Settlement Agreement without the Parties’ consent, the NFL Parties respectfully submit that it would

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 where documentation may be lacking but there was a diagnosis of the retired player while he was
living. (See id. (“The Claims Administrator has discretion to review and decide Settlement Class
Members’ requests to excuse the Diagnosing Physician Certification Form and/or medical records
reflecting Qualifying Diagnosis requirements and to determine the appropriate date of diagnosis
in such circumstances . . . .”) (emphasis added).) Here, as stated above, Mr. Stabler never received
such a diagnosis, and therefore FAQ 116 is inapplicable.
Conclusion
For the reasons set forth herein, Ms. Moyes’ appeal should be denied. 2

Dated: November 28, 2018

Respectfully submitted,
PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP
/s/ Brad S. Karp____________________
Brad S. Karp
Bruce Birenboim
Lynn B. Bayard
Richard C. Tarlowe
Douglas M. Burns
1285 Avenue of the Americas
New York, New York 10019-6064
Telephone: (212) 373-3000
Facsimile: (212) 757-3990
Email: bkarp@paulweiss.com
ATTORNEYS FOR THE
NATIONAL FOOTBALL LEAGUE
AND NFL PROPERTIES LLC

constitute a material change to the heavily negotiated and judicially approved terms of the Settlement Agreement
and, thus, would be improper.
2

As noted above, the Claims Administrator also correctly determined that Mr. Stabler was not eligible for a
Qualifying Diagnosis of Death with CTE based on his date of death. Ms. Moyes has not argued otherwise on
appeal, and confirmed that she “does not seek a Monetary Award for a Qualifying Diagnosis of CTE.” (Appeal
at 1 n.1.) For this reason, the NFL Parties do not further address this basis for the claim denial.

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