Jonathan P. Baird

With football returning, it is a good time to revisit developments in how the NFL is handling its achilles heel – the matter of concussions and repetitive head trauma. Deflategate is a sideshow. The deeper and darker side of the NFL is its handling of the players who have suffered repeated head injuries.

When I heard that Junior Seau’s daughter, Sydney Seau, was going to talk about her father at the Pro Football Hall of Fame ceremony earlier this month, I wondered if she would talk about her father’s brain injury. The NFL just posthumously entered Junior Seau into the Hall of Fame.

Apparently, the NFL also worried about what Sydney Seau might say because she was not allowed to give a speech at the ceremony. The NFL sidelined Sydney, allowing her only a few minutes on the NFL Network. How thin-skinned can you get!

It turned out that Sydney did not plan to use her speech to discuss her father’s brain injuries. Her remarks were a very moving tribute to her father. Considering that the Pro Football Hall of Fame ceremony went on for three and a half hours, it is sad the NFL could not allow the daughter of one of its greatest players her few minutes.

Concern about image trumped all other concerns. If Sydney Seau had gone off script and inveighed against football-related brain injuries, would the sky have fallen? The NFL money machine was taking no chances. They still balk at the simple and direct message: football produces brain injuries. Money always comes first with the NFL. Troubling images must be banished.

Probably the biggest pro football news of this year’s offseason was the settlement of the federal court class action lawsuit between the NFL and thousands of former players. On April 22, 2015, Federal Judge Anita Brody granted final approval to the NFL’s concussion settlement.

However, the lawsuit is certainly not over. Judge Brody must weigh final objections to the settlement and retired players must decide whether to opt out of the class. If individual players opt out, they could pursue individual lawsuits against the NFL. The class action case will definitely go to the Third Circuit Court of Appeals.

It is hard to feel too good about the settlement. While it does provide important, much-needed relief for players who suffer from Alzheimer’s, ALS, Parkinson’s and dementia, there is a big hole in the settlement agreement. The overwhelming majority of class members will receive nothing.

That is because chronic traumatic encephalopathy or CTE, the most prominent disease affecting retired players, is not compensable under the terms of the settlement. CTE claims have an extremely narrow window. Only players who have died and were diagnosed with CTE at anytime between January 1, 2006 and the date of final approval of the settlement, April 22, 2015, can be compensated.

I suppose this is not unlike many settlement agreements. A number will get very fair compensation but the terms of the agreement for those who have or will have CTE are nothing short of disastrous. Tons of players are absolutely left out.

Attorney Paul Anderson, an expert on the NFL and concussions, described the lawsuit settlement this way:

“The NFL Concussion Litigation was initially framed as a CTE lawsuit, but as negotiations progressed it was transformed into a cognitive-disorder settlement, all-but eviscerating future awards of CTE. CTE has been described as “the industrial disease of football”. Some objectors analogized the failure to compensate CTE in this case to an asbestos settlement excluding compensation for mesothelioma.”

Without getting too technical, CTE is a neurodegenerative disease that can lead to dramatic changes in mood, behavior, and cognition. A critical indicator of CTE is the build-up in the brain of an abnormal protein called tau. Making things tricky, these changes in the brain can sometimes start years or decades after an athlete’s career is over. We know that repetitive brain trauma can trigger a flood of events leading to progressive destruction of brain tissue.

Symptoms of CTE can include irritability, depression, memory loss, mood swings and emotional lability. CTE is also connected to violence, explosivity, social isolation, drug overdoses, suicides and loss of behavioral control. The medical world has delineated four stages of CTE with dementia classified as the final stage. At present, CTE can only be diagnosed after death.

CTE causes tremendous pain and suffering for family members who watch their former world class athlete/relatives deteriorate before their eyes. Some CTE sufferers become unable to do the most basic activities of daily living like dressing, feeding, and toileting themselves.

The settlement agreement forecloses any future awards for CTE. So if a retired player dies and he is then subsequently diagnosed with CTE after he dies, he will receive zero compensation unless he can prove he was cognitively impaired. Many classic symptoms of CTE, mood and behavior difficulties, are not compensable under the agreement. The agreement remains in effect for the next 65 years.

Junior Seau is a perfect example of the type of player who would not be compensated under the agreement. The symptoms he exhibited do not fit the terms of the settlement and his family opted out. So far 200 ex-NFL players have indicated they will opt out of the settlement.

Seven retired players including Sean Morey and Alan Faneca have already filed an objection to the settlement arguing the agreement is a lousy deal for the players but a great deal for the NFL and class counsel. The players criticize class counsel for failing to do any discovery. Many wonder whether taking testimony from NFL officials and gathering documents from the league would show whether the NFL concealed the dangers of concussions from the players.

A leading Boston University researcher and neuropsychologist, Dr. Robert Stern, has criticized the agreement because of the way it handles CTE. After the agreement, Dr. Stern told the Associated Press:

“Repetitive hits to the head do not lead to Alzheimer’s disease. They lead to CTE, if anything.”

Dr. Stern has written that many former NFL players have significant changes in mood and behavior, resulting, in part, from repetitive head impacts, that have led to inability to maintain employment, homelessness, domestic abuse, divorce, substance abuse, excessive gambling, poor financial decision-making and death from accidental drug overdoses or suicide.

Dr. Stern believes that in the next five to ten years there will be an accurate, clinically accepted and FDA-approved method to diagnose CTE during life.

As probably is obvious, the science around CTE is in its infancy. With the current state of science it is difficult to prove causation of former players’ behavior and mood problems with CTE even though it is seemingly apparent. There is a provision in the settlement agreement that the parties confer at least once every ten years to determine whether adjustments to the qualifying diagnoses need to be made due to advances in science.

You do not have to be a cynic to know it is highly unlikely the NFL will voluntarily reopen the resolution of CTE cases relative to the settlement agreement. Probably the only way that will happen is if a court forces that.

I remain a football fan but I would acknowledge the nasty underside of the NFL. There is a litany of sins but I think its treatment of retired, injured players is probably the worst. Someone should write a book looking into the health issues of all the journeymen ex-players who were chewed up and spit out. Most players were not stars leading enchanted lives. It would be good to know how they are faring years after leaving the game. I think we have a very limited picture of that. I expect there is a wealth of material there.

It remains to be seen whether Judge Brody or the Third Circuit will allow the exclusion of CTE from the settlement agreement which lasts 65 years.