Listen, NFL: Settle the Concussions Lawsuit Before It's Too Late

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A group of former players have sued the league for ignoring their brain injuries

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Reuters


"[We] will vigorously contest any claims of this kind."

–National Football League spokesman Greg Aiello.

Seventy-five former players sued the NFL on Tuesday, alleging that the league mistreated their concussions and hid information about the long-term, brain-damaging effects of their injuries.

I am not a lawyer. Nevertheless, here's my foolproof, totally unsolicited legal advice to the NFL.

Settle the case.

Do it quietly, of course. But settle. Pay whatever it takes. The sooner, the better. Just stay out of the news. More importantly, stay out of court. Avoid a trial. Don't risk going before a jury. No matter what your lawyers advise—or how vigorously they advise it—forget about the sweet vindication of a potentially favorable verdict.

The bottom line in this case? Even if the NFL wins, it will lose.

The only question is how badly.

Here's the thing about the plaintiffs, all of them faded gridiron lights, now suffering from headaches and memory loss, depression and dementia: They may not score a victory. Or even the courtroom equivalent of a touchdown. That hardly matters. What matters is that they have a substantial case, an 86-page argument against professional football, supported by evidence.

Lots of evidence.

A story, really.

A story that makes the NFL look, well, awful, regardless of strict legal culpability.

Today, of course, the league touts its proactive stance toward brain trauma. A ballyhooed crackdown on vicious helmet-to-helmet hits. A universal set of return-to-play guidelines, designed to protect players from the harmful effects of concussions. The NFL warns its labor force as well—right there in the locker room, on big, bright, liability-limiting posters —that said collisions and concussions can lead to devastating long-term cognitive damage. The league even donates money to medical researchers dissecting ex-players' brains.

All of this is well and good. And also new. Too new. Because for much of the NFL's history—the last decade in particular—the league hasn't been part of a solution to football's concussion crisis.

It has been a denying, obscuring, head-in-the-sand part of the problem.

Medical research dating back to the 1920s indicates that suffering multiple blows to the head that are not allowed to heal—like those inflicted and endured in boxing and football—can result in degenerative, irreversible cognitive impairment. In layman's terms, punch drunkenness. Yet the NFL didn't formally begin to investigate the problem until 1994, when the league formed its Committee on Mild Traumatic Brain Injury.

Heading the committee was New York Jets team doctor Elliot Pellman. A rheumatologist. Not a neurologist. In 2006, the committee published a summary of its work to date, declaring "mild traumatic brain injuries"—that is, concussions—"in professional football are not serious injuries."

In turn, independent medical scientists found serious fault with the committee's methodology and conclusions. Independent research flat-out contradicted the stance of Pellman's committee, demonstrating that multiple concussions significantly increased players' risk of cognitive disease and impairment.

Did the NFL respond to legitimate criticism with chastened concern? Not exactly. Time and again, committee members denied a link between concussions and cognitive decline. They asked for more time to study the issue. They claimed that independent scientists were drawing premature conclusions. When forensic pathologist Dr. Bennet Omalu dissected the brain tissue of dead NFL players such as Pittsburgh Steelers Hall of Fame center Mike Webster and published an article in the academic journal Neurosurgery concluding that repeated, football-related head trauma caused the players to suffer the mind-destroying disease chronic traumatic encephalopathy (CTE), Pellman and two other committee members wrote a letter to the journal attempting to discredit Omalu's research.

According to a telling—and scathing—2009 GQ magazine article, the NFL repeatedly dismissed Omalu and his work before sending an independent expert to examine it in 2008. The expert, neuropathologist Peter Davies, was initially skeptical about Omalu's findings—that is, until he saw his slides, which contained the brain tissue of once-mad, now-deceased football players:

"The credit must go to Bennet Omalu," Davies told GQ. "Because he first reported this and nobody believed him, nobody in the field, and I'm included in that. I did not think there was anything there. But when I looked at the stuff, he was absolutely right. I was wrong to be skeptical."

So what did the NFL do?

The NFL never released Davies's report, never made it public. And they never talked to Omalu again ...

Such is the crux of the retired players' suit: The NFL was negligent. And dishonest. The league didn't know the extent to which concussions were harmful, but only because it didn't bother to properly investigate. When independent science proved alarming, the NFL pretended otherwise, asserting in a 2007 player pamphlet that the link between concussions and long-term brain damage remained an open question. In 2009, members of Congress likened the league to the tobacco industry; last summer, doctors on a reconstituted NFL concussion committee blasted their predecessors' work as "unacceptable"; also last year, the league finally told players that concussions could result in lasting mental harm.

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Patrick Hruby is a writer based in Washington, D.C. He has contributed to Sports on Earth, ESPN.com, and Washingtonian magazine, and his work has been featured in The Best American Sports Writing. He is a former adjunct professor at Georgetown University.

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