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Frank Gifford, The NFL Concussion Lawsuit, and Justice for Brain-Injured Players – posted 11/29/2015 and published in the Concord Monitor 12/6/2015
This piece appeared in the Concord Monitor on 12/6/2015 under the title “Devastating Hits”.
With the passing of legendary football star Frank Gifford, chronic traumatic encephalopathy or CTE claimed its most famous victim. CTE is a progressive, neurodegenerative disease found in people who have experienced a history of repetitive brain trauma. It is marked by depression, anger, disorientation, memory loss and suicidal ideation. It is being increasingly recognized as the signature brain injury suffered by NFL players.
Gifford, the former New York Giants running back and Monday Night Football broadcaster, died in August. The Gifford family announced that Gifford had “experienced firsthand” symptoms associated with CTE. The family decided to have Gifford’s brain studied in the hopes of contributing to the advancement of medical research concerning the link between football and traumatic brain injury.
The Gifford family did not offer specifics but they said that they suspected he was suffering from the debilitating effects of head trauma. A team of pathologists confirmed the CTE diagnosis. At this point CTE can only be diagnosed after a person’s death.
Being from Philadelphia and being an Eagles fan, I watched on TV and saw the famous, vicious hit Eagles’ player Chuck Bednarik delivered on Gifford in November 1960 at Yankee Stadium. Gifford was knocked unconscious and he lay flat and absolutely still on the field. Sam Huff, a great Giants linebacker, has been quoted saying at first he thought Gifford was dead. The play became an iconic NFL image.
Gifford spent ten days in the hospital after the hit and he missed the entire following season. Gifford did return to football in 1962 and he played two more seasons. He played twelve years in the NFL altogether.
I would note that Bednarik, who also died this year, had a reputation as one of the toughest players to ever play the game. A Hall of Famer, Bednarik, nicknamed Concrete Charlie, was one of the few players to play both ways. He was a center on offense and a middle linebacker on defense and he often played the whole game. Interestingly, after he died the Eagles released a statement saying he died after a “brief illness” but Bednarik’s eldest daughter disputed that. She said he had Alzheimer’s disease and she said he had been suffering from dementia for years.
It is hard to know what the effect of one particularly vicious hit can be but Gifford took that one devastating hit as well as many others in his career and he was known for never wanting to be taken out of a game.
NFL Commissioner Roger Goodell predictably responded to Gifford’s death. Recognizing his many contributions, Goodell praised Gifford for his efforts to improve safety in the game and for helping the medical community understand more about CTE.
The thing that was left out by Goodell was the fact that the NFL, under his leadership, continues to fight to exclude CTE as a compensable injury in the lawsuit filed by former NFL players. While Goodell has been rightly criticized for many other decisions like Ray Rice and Deflategate, I think the NFL’s exclusion of CTE is his most pernicious mistake. It could end up hurting thousands of former players who have or will eventually obtain a CTE diagnosis.
The NFL players’ lawsuit is currently before the Third Circuit Court of Appeals. The federal court approved a settlement agreement between the NFL Player’s Association and the League but 90 players have appealed the agreement. Oral arguments were just held. Whatever the outcome at the Third Circuit, I think it is very likely the case will be appealed to the U.S. Supreme Court.
The problem with the NFL settlement agreement is that the great majority of retired football players experiencing physical, emotional, and behavioral impairments following a history of repetitive concussions would not be compensated. The agreement compensates certain discrete, small groups. Those with ALS, Alzheimer’s, and Parkinson’s will be well-compensated. Those who suffer some of the most disturbing symptoms, mood and behavioral disorders, will not be compensated.
Those players who suffer from CTE face a narrow window. If you die after April 22, 2015, the date of the concussion settlement in federal court, and you obtained a CTE diagnosis, you and your estate get zero. If you died before April 22, 2015, and you had a CTE diagnosis, you and your estate would obtain up to $4 million.
That result is neither fair nor equitable. No one alive now would ever receive future compensation for CTE under the agreement as it stands. The NFL is among the deepest of deep pockets and its litigation strategy is designed to save it maximum dollars at the expense of its brain-injured players.
A wild card in this settlement is the relatively primitive state of brain science around concussions. Much knowledge has been gained in the last 20 years, including an awareness of the existence of CTE, but the science is in its early stages. Scientists predict that within the next five to ten years, CTE will be able to be diagnosed in the living.
The settlement agreement does not include an adequate provision about scientific advances. It only requires the settling parties to “meet at least every ten years and confer in good faith about possible modifications”. The NFL would retain veto power over any prospective changes. You don’t have to be a cynic to know in what a weak position this provision would leave brain-injured, former players.
Earlier this year, a study done by researchers at Boston University and the Department of Veterans Affairs found that out of 91 former NFL players’ brains examined, CTE was found in 87. Dr. Ann McKee, the chief of neuropathology at the VA Boston Healthcare System stated that these latest numbers are “remarkably consistent” with past research.
It would appear that the NFL, which previously tried to manufacture doubt about the existence of CTE, is now ignoring clear findings at least as far as litigation is concerned. The almighty dollar rules. In the tension between making money and player safety, the balance tips toward money even where the cost of safety is a relative pittance compared to the wealth of the league.
I suppose in fairness I should acknowledge some positive steps the NFL has taken regarding player safety. It has adopted important concussion protocols. If it is suspected that a player has suffered a concussion, the player is supposed to be removed from the field for a medical evaluation. Prior to a return to play, the player must have returned to baseline status, including cognitive and balance functions. He also must be cleared by the team physician and an independent neurological consultant.
As the recent situation with Rams quarterback Case Keenum showed, there can be problems with the implementation of the protocol. In a game against the Ravens, Keenum stayed in the game for several plays after he was concussed. Keenum had taken a sack and he appeared woozy after he was slammed into the ground. At first he could not get up. The Rams have failed to provide a good explanation for why he was not pulled from the game.
That situation is hardly different from many others. Possibly readers remember the hit Julian Edelman took in the Super Bowl last year. Kam Chancellor of the Seahawks smashed Edelman in what appeared to be an illegal helmet-to-helmet hit as he was going over the middle. Edelman continued to play. After popping up after the catch, he ran about ten yards and stumbled down, appearing dazed as he tried to regain equilibrium. Although Edelman showed signs listed by the concussion protocol, the Patriots and concussion observers let him stay in the game. When asked about it after the game, Edelman responded, “We’re not allowed to talk about injuries.”
I think there are at least two real factors which work against the concussion protocol. Teams want to keep key players on the field as long as possible to enhance the chance to win. I think that was going on with Edelman in the Super Bowl. Players are also reluctant to acknowledge their concussions. Players desperately desire playing time. They may feel that toughing it out during times when they have headaches or concussion-like symptoms is a necessity as their careers hang in the balance. For so many players, football may be their best ticket out of a life of relatively low wages and obscurity and I expect they feel the risk is worth it.
Last week Reggie Bush, the Lions running back, likened NFL games to being in a car crash. That is not a bad analogy as in both situations the brain sustains a blow where it is moving rapidly inside the skull. In that context, Bush was lamenting Thursday night games because players who have to play in those games do not have enough time to recover from the previous Sunday game. It is well known that players and coaches generally hate Thursday night games because of the lack of recovery time but the TV ratings and money have led the NFL to expand those games. This is another one of those bad, profitable decisions the League makes dictated by the bottom line.
On Christmas Day, the new Will Smith movie, Concussion, will open around the country. The movie is about a forensic pathologist’s efforts to publicize CTE. It dramatizes how the NFL suppressed research on the brain damage suffered by pro football players. It could not be more timely. So many people play football at all levels in the United States that we, as a society, do need to think about the public health implications of so much possible brain injury.
In our era, an almost ghoulish love of money remains a dominating value. Billionaires want more billions and never can get enough. NFL teams share that obsession but they should not do it in a way that treats players like they are simply a disposable commodity. Justice for the brain-injured players is a matter of fundamental fairness.
Shady at the beach and on top of Mount Kearsarge – posted 11/21/2025
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Presidential Candidates and Foreign Policy – posted 11/15/2015 and published in the Concord Monitor on 11/20/2015
This piece appeared on the Concord Monitor on 11/20/2015 under the title “Foreign Disasters”.
As the various presidential candidates make their case for why each would make the best president, I have been struck by how little they have had to say about American foreign policy. This is partly understandable because domestic policy is a primary concern for voters. They want to know what the candidates will do about jobs, the economy, the environment, education and health care.
Still, I find the absence of any original discussion on foreign policy a potentially worrisome sign. Mention of the word “terrorism” provokes knee-jerk, bellicose reaction. Instead of critical analysis, there is macho posturing. Attacks like those that just happened in Paris lead to anger – not thought.
Candidates simply try to look tough. The image they want to project is that, if given the opportunity, they will face down and take down any perceived opponent of American interests, anywhere. American interests are defined to include the whole world.
Looking broadly at the last 50 years of American foreign policy, I think there is a pattern of non-recognition of mistakes made leading to repetition of the same or similar mistakes. I am reminded of the famous Albert Einstein quote: “Insanity: doing the same thing over and over again and expecting different results.”
Wars, as in Iraq and Vietnam, were fought for bad or stupid reasons. Justifications offered were pitiful. At the same time, money gets heaped on the Pentagon and the military-industrial complex hugely expands, including a massive growth of private contractors. Out of these wars, thousands of American lives were ended or ruined. Soldiers return home damaged, disturbed, and traumatized.
There is no accounting for the damage done and no assessment of whether the wars were worth it. We blunder forward into the next war and the next. In her excellent book, They Were Soldiers, Ann Jones looks at the catastrophic damage done to our soldiers by the wars in Iraq and Afghanistan. Politicians who want to put boots on the ground in Iraq or Syria now are glossing over the heavy cost already paid. They are too cavalier about the lives of other peoples’ children.
It is hard not to think that all the talk about honoring our veterans is lip service. After the experience of the last 14 years, the idea of sending more to die in Iraq or Syria is a pointless waste. It was delusional and arrogant to think we were going to turn the Middle East around. So many veterans have returned and are still returning with troubles that will last a lifetime. Their care here and their future prospects are often highly problematic and that is a nice way to put it. So many veterans fall between the cracks of the system and they are simply forgotten.
I don’t think either the war in Iraq or the war in Vietnam were worth it. Both wars were sold on the basis of lies. In the case of Iraq it was lies about the weapons of mass destruction. In Vietnam, it was the phony domino theory. However with the exception of Bernie Sanders, I don’t see candidates in either party drawing these conclusions. Both parties remain wedded to the war machine and have an inadequate critique of our excessive militarism.
The history I have mentioned suggests America needs a more modest foreign policy and an appreciation of limits. It also suggests that diplomacy has been underutilized. One thing that was striking about President Obama’s deal with Iran was how long it has been since we have seen a positive example of diplomacy. War has been a first resort, not a last resort, and the consequences have harmed America.
I would suggest that there are other ways to fight violent jihadi extremists than sending troops to the Middle East. The brutal terrorist acts of the Islamic State and Al Qaeda need to be interdicted and prevented. They need to be ideologically undermined and they need to be pursued criminally. We do need to look closely and better understand why so many young people feel an affinity for such a despicable organization as the Islamic State. We need to win the war of ideas so that young people see the Islamic State for what it is: anti-human, murderous, totalitarian, and anti-modern. Since the Islamic State is an international entity, we need to cooperate with allies to figure the best ways to stop them. The project of preventing sponsors of radical jihadism from extending their influence should bring many nations together.
We should have learned by now that we cannot be the world’s policeman although we act like we are. Having the over 800 military bases we have around the world can lead to a wrong-headed over-reliance on military options. Realistically, America does not have the money or troops for interventions everywhere. Also we need to acknowledge that more often than not over the last 50 years, our interventions have done far more harm than good.
I would mention two historians, Andrew Bacevich and the late Chalmers Johnson, who argued the points I am making. Both have argued for a narrower conception of American interest. Rather than a strategy of open-ended global war where we could be fighting in almost any country, Bacevich and Johnson argued against that type of grandiosity. Bacevich particularly cites the George W. Bush presidency. Bush set out to transform the Islamic world. From the perspective of over a decade later, we can see what a costly misjudgment that war turned out to be.
Part of the pattern is that we destroy and then we destabilize. We take down dictators but then there is no plan for what comes next. Witness Iraq and Libya. Into the vacuum steps the Islamic State. We are the unwitting architects of the Islamic State. It must be emphasized that without our intervention, there would have been no Islamic State.
Even worse, we are also the unwitting provider of arms for the Islamic State. When the Iraqi Army has fled from battles, as it seems to do frequently, it has left behind huge caches of weapons and vehicles which were then expropriated. An example is when the Iraqi Army abandoned its second largest city, Mosul, in June 2014, ISIS acquired 2300 American-made humvees that were left behind. We should not be arming our opponents.
Critics who question these failed policies are tagged as isolationists and they are dismissed. I would suggest that the purveyors of the conventional wisdom which led us to the Iraq quagmire are the ones who should be dismissed. Their track record should be obvious to all.
There are so many questions that need to be asked that are not getting asked. Here are five:
- How do we maintain an alive and vital Fourth Amendment protection against search and seizure in an era of demonstrated mass surveillance overreach?
- Are drone assassinations authorized by the president legal?
- Should we have a secret court, the Foreign Intelligence Surveillance Court, known as the FISA court, making secret law based on secret proceedings with no adversarial process, when we know that court sides with the government 99% of the time?
- Is the practice of torture, black sites, and rendition consistent with American values?
- How much does the rapid growth of the military-industrial-surveillance complex since 9/11, which is invested in war as a profit-making business, drive our foreign policy?
I also think the candidates should be seriously addressing climate change and abolition of nuclear weapons. It is pretty late in the day to be bringing this up, especially with climate change. Precious little has been said about either in the Republican and Democratic debates.
Bacevich writes that there is a long-standing American foreign policy tradition that harkens back to George Washington and John Quincy Adams. In his farewell address Washington warned against foreign entanglements. Adams said, ‘The United States does not go abroad, in search of monsters to destroy”. Bacevich says:
“The proper aim of American statecraft… is not to redeem humankind or to prescribe some specific world order, nor to police the planet by force of arms. Its purpose is to permit Americans to avail themselves of the right to self-determination as they seek to create at home a “more perfect union”.”
We have been led astray by presidents who saw their mission as combating evil and remaking the world. I would suggest that defending the United States and its vital interests should be our goal. We need a less grandiose and more clear-headed assessment of what those vital interests are. In the presidential campaign, I have not heard that debate.
Coming to terms with the Indonesian genocide – posted 11/1/2015 and published in the Concord Monitor on 11/8/2015
This piece appeared in the Concord Monitor on 11/8/2015 under the title “Hidden Genocide”.
If asked where genocide occurred in the 20th century, I expect most politically informed people would answer Europe under the Nazis, Cambodia with the Khmer Rouge, and possibly Rwanda. Some might mention the Armenian genocide or the mass murders in the Soviet Union under Stalin. I doubt people would think of the genocide in Indonesia. It is the hidden genocide.
This year marks the 50th anniversary of the Indonesian genocide. It is estimated that 500,000 to one million people died in Indonesia in 1965-1966 but the story has been buried, especially in the United States. How is it possible that a genocide could be hidden or erased from consciousness at this late date?
I think the main reason is that what happened in Indonesia in 1965 was perceived as great news and a political victory in the United States. The defeat of communists submerged the fact of their mass murder. It was the time of the Cold War and the American media did not look too closely. Genocide against a hated political movement was not seen the same as genocide against an ethnic, religious, or racial group. The murders were minimized and the victims were dehumanized.
The United Nations defines genocide as extermination of people on a large scale because of ethnic, religious, or racial reasons. It also considers the extermination of an entire political group or political movement genocide.
The 1965 story needs to be told. In the aftermath of an uprising called the September 30 Movement, General Suharto, a powerful figure in the Indonesian military, and his allies in the Indonesian Army seized control of the country. A bloodbath ensued. The Indonesian military, youth paramilitaries, and gangster-led death squads butchered massive numbers of people they perceived as opposed to a military dictatorship. The primary target group was the Indonesian Communist Party and its front organizations. However, anyone who could be accused of being an opponent of the military was swept up. That included union members, landless farmers, intellectuals, leftist artists, teachers, women activists, and the ethnic Chinese.
For those who may not know, Indonesia is a huge country. It is an archipelago in southeast Asia, comprising over 17,500 islands. It is the fourth biggest country in the world by population with over 255 million people. Up until the time of the genocide, Indonesia was led by President Sukarno, a charismatic leader who had balanced political rivals on the right and left. Sukarno was Indonesia’s first President. He had led the fight against Dutch colonialism and he was a leader of the non-aligned movement in the Third World.
Sukarno had allied with the Indonesian Communist Party which was a powerful force in the impoverished country. The Indonesian Communist Party was the largest communist party in the world outside the communist bloc countries. It had an estimated 3 million members with as many as 17 million supporters if you count front organizations. The Indonesian communists had gained popularity by leading the fight for land reform and by fighting for better conditions for the working class. At the same time, the Indonesian Army was strongly anti-communist with close ties to the United States.
Facts about the September 30 movement events that preceded the genocide remain disputed. Six of Indonesia’s most senior army generals were kidnapped and killed by a group of junior officers. While it is not clear who was behind the September 30 movement, it is clear that General Suharto used that movement as a pretext to exterminate all his perceived enemies. He then stayed in power as dictatorial leader for over 30 more years.
The genocidal killings were not of the Nazi depersonalized industrial style. There were no gas chambers. Suspects were beaten, tortured, shot, dismembered alive, garroted and beheaded in an up close and personal fashion. In his 2013 documentary, the Act of Killing, the director Joshua Oppenheimer interviews former death squad killers about how they killed. It is a hard but fascinating movie to watch. The killers remain proud of their mass murders. Hatred of the communists was whipped up on the basis that they were evil atheists, amoral and hypersexual. In the documentary, the killers described how the murder methods they saw in gangster movies inspired how they killed.
Many of the murdered victims were taken to rivers and and their bodies were dumped, left to drift out to sea. So many bodies were tossed into rivers that Indonesians stopped eating fish out of fear that the fish were consuming human flesh. Family members were never told what happened to their relatives. This was similar to what happened in Latin America back in the 1970’s when right wing militaries disappeared their opponents.
There are thousands of unopened mass graves scattered across the Indonesian archipelago. Along with the killing, hundreds of thousands were detained in prison for many years with no trial. The property and possessions of those killed were often confiscated by the killers.
In 1966, Bertrand Russell wrote “in four months, five times as many people died in Indonesia as in Vietnam in 12 years.”
A little known aspect of the genocide is the role of the United States. Much still remains unknown. Human Rights Watch has pushed unsuccessfully for years to have related U.S. government documents declassified. The reporter Kathy Kadane has documented that the United States played a significant role in the genocide by supplying the names of thousands of leftist activists, both communist and non-communist, to the Indonesian army. The lists of Indonesian Communist party leaders included over 5000 names from top echelons to village cadre. If true, this alone makes our government defacto accomplice to a mass murder.
In Kadane’s articles which appeared in major newspapers like the Boston Globe and the Washington Post in 1990, she quoted Robert J. Martens, a former member of the U.S. Embassy’s political section who was then a consultant to the State Department. Martens said,
“It really was a big help to the army. They probably killed a lot of people, and I probably have a lot of blood on my hands, but that’s not all bad. There’s a time when you have to strike hard at a decisive moment.”
According to Kadane, prior to the genocide, Martens had headed an embassy group of State Department and CIA officers that spent two years compiling the death lists that were delivered to the Indonesian army.
The United States also provided key logistical support to the Indonesian military to assist the slaughter, including jeeps and state-of-the-art radios which allowed U.S. operatives to listen in on what the Indonesian military was doing. The special radio system allowed for coordinated killing so the leadership in Jakarta could know what was happening on the islands. The radios filled a gap in army communications.
What is unique about the Indonesian genocide is that there has never been any public reckoning. Honest accounting of this history is still taboo in Indonesia. Many of the perpetrators are still in positions of power and under Indonesia law, they are immune from prosecution. Indonesia’s President, Joko Widodo, the first leader after General Suharto to have no ties to military or political elites, has refused to issue an apology to the survivors and victims’ families.
In Oppenheimer’s documentary, one of the death squad leaders says it is the victors who decide what is a war crime. That appears to be the case in Indonesia. The perpetrators are still proud of the mass murders. To date there is no Truth and Reconciliation Commission doing an investigation into what happened in 1965-1966.
The picture Oppenheimer presents of Indonesia is scary. Gangsters and paramilitary thugs operate freely, shaking down legitimate business people, shop owners and others. Corruption and graft appear to be a way of life. The population remains cowed, existing in a state of fear and silence. Those who had been associated with any type of progressive politics remain severely stigmatized. Oppenheimer describes a veritable shadow state where gangsters, paramilitaries, and the army are all beyond the law.
I would mention that Oppenheimer made an important companion documentary, The Look of Silence, released this year, that focuses more on the victims of the genocide. For those who want to learn more about these events, Oppenheimer’s documentaries are a good place to begin. Oppenheimer is no longer welcome in Indonesia.
There are current efforts toward accountability. Last December, Senator Tom Udall, Democrat of New Mexico, introduced a “Sense of the Senate Resolution” condemning the 1965-1966 atrocities in Indonesia and calling for declassification of U.S. government files about the mass killings. The resolution also encourages the Indonesian government to acknowledge the massacres and to establish a truth commission.
On November 10-13, the International People’s Tribunal on 1965 Crimes against Humanity in Indonesia will meet at the Hague. This tribunal of experts in human rights law and Asian history was established to examine the mass killings and other crimes against humanity in Indonesia. The Tribunal is an initiative of the International People’s Tribunal 1965 Foundation which was set up in 2013 by a group of victims in exile and in Indonesia, as well as human rights activists, intellectuals, artists, journalists and academics. The Tribunal follows in the tradition of the Russell Tribunal which investigated war crimes in Vietnam.
The Tribunal has charged Indonesia with the commission of crimes against humanity and with violations of international law. The prosecution case is based on extensive inquiry carried out by a large group of researchers. Material brought forward will include documentary evidence, witness testimonies, victim impact statements, and audio and visual materials. Among the crimes alleged are murder, enslavement, torture, sexual violence, unjust imprisonment, enforced disappearance and persecution though propaganda.
The judges of the Tribunal will examine the evidence presented by the prosecution, develop an accurate historical record and apply principles of international customary law. public international law and Indonesian law to the facts found. They plan to read their verdict in Geneva next year.
The Tribunal is not a criminal court. It has no power of enforcement but it hopes to shatter and puncture the culture of impunity around these events.
The website of the Tribunal is http://www.1965tribunal.org. Since this Tribunal has received virtually no publicity in the United States, I would encourage readers to read the indictment, which is readily accessible on the website. While much of the focus is on Indonesia, the Unites States, the United Kingdom , and Australia are also charged with knowingly aiding and assisting the State of Indonesia with commission of crimes against humanity and serious breaches of international law.
The historian Gabriel Kolko accurately summarized these events. He wrote:
“The “final solution” to the Communist problem in Indonesia was certainly one of the most barbaric acts of inhumanity in a century that has seen a great deal of it; it surely ranks as a war crime of the same type as those the Nazis perpetrated. No single American action in the period after 1945 was as bloodthirsty as its role in Indonesia, for it tried to initiate the massacre, and it did everything in its power to encourage Suharto, including equipping his killers, to see the physical liquidation of the Indonesian Communist Party was carried through to its culmination. Not a single one of its officials in Washington or Jakarta questioned the policy on either ethical or political grounds…”
History is about what we remember from the past. Some events survive in memory and some are gone into a black hole. I do think how we disappeared a genocide in which our nation is implicated deserves further consideration.
Jonathan P. Baird 