The NFL Dodges on Brain Injuries

Loopholes in a proposed settlement with former players shift costs away from the $9 billion-a-year industry that profited as athletes suffered head trauma, and toward the public.
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As the National Football League season kicks off, the sport’s most significant contest isn’t happening on the field. Rather, it’s taking place in federal court, where a group of former players has challenged the proposed settlement of a class-action brain damage lawsuit filed against the league. Whether you’re a diehard fan or utterly indifferent to football’s charms, a practicing neuropathologist or someone who can’t distinguish a concussion from a toothache, you might want to pay attention. Because the outcome of the legal battle won’t just affect NFL owners and retirees. 

To the contrary, the concussion settlement is a matter of public health—and potentially, significant public cost.

A quick review of the basics: More than 4,500 retirees have sued the league, alleging that the NFL downplayed, dismissed, and covered up the long-term neurological harm associated with football-induced concussions and hits to the head—allegations detailed in “League of Denial” and elsewhere—thereby placing players at increased and unnecessary risk. While denying any wrongdoing, the league nevertheless has moved to settle the case, tentatively agreeing to fund an award program that would diagnose and compensate brain-damaged ex-players for the next 65 years, in exchange for virtual immunity from future litigation and Big Tobacco-style discovery of what the NFL knew and when it knew it.

So far, so good, right? America’s favorite league, it seems, takes care of its own. Are you ready for some football? Not quite. While federal judge Anita Brody has given the deal a preliminary go-ahead, a group of seven former players including Super Bowl winners Alan Faneca and Sean Morey is attempting to appeal the settlement before it can receive final approval from Brody later this year. Essentially, they’re arguing that many retirees were inadequately represented during settlement negotiations.

A closer look at their objections and at the proposed settlement reveals the league trying to shirk full responsibility for the public health crisis it caused, maintaining a murky status quo of public equivocation and half-denial.

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It sounds like a lot of money: Under the terms of the deal, former players will receive up to $3 million for a dementia diagnosis; $3.5 million for Alzheimer's and Parkinson's disease; $4 million for death with chronic traumatic encephalopathy (CTE); and $5 million for amyotrophic lateral sclerosis (ALS).

But those amounts are maximums. The actual awards are subject to a series of reductions and offsets. Former players with fewer than five credited years of NFL experience will see their awards reduced, some by more than half. The same holds true for retirees over age 45—the older players are when diagnosed with one of the above diseases, the less money they'll receive. And all of that comes before legal fees. Earlier this year, ESPN’s Lester Munson calculated that a player who faced dementia after age 60 might end up collecting around $375,000 after costs.

Other loopholes and reductions verge on absurd. While the settlement forbids former NFL Europe players from suing the league, it does not credit their overseas seasons toward award calculations—never mind that getting hit in the head wearing a London Monarchs helmet is biologically the same as getting hit in the head while playing for the Jacksonville Jaguars. Similarly, retirees who have suffered a single non-football-related traumatic brain injury or stroke will have their awards reduced by 75 percent, even though there’s no scientific reason to assume that a concussion sustained in a post-career car crash would account for three-quarters of a former player’s cognitive or neurobehavioral impairment, and even though NFL team doctors may have increased many former players’ risk of stroke by administering the painkilling drug Toradol in a manner contrary to Food and Drug Administration warning label guidelines for roughly two decades.

Also note: Current and future NFL players are not eligible for cash awards, regardless of their neurological afflictions. The same holds true for players who have retired since the settlement received preliminary approval on July 7—including 27-year-old Seattle Seahawks receiver Syndey Rice, who walked away from football on July 23 due to concussions.

As for sick retirees who are covered, actually receiving money won’t be easy. Not when the proposed deal’s diagnosis and claims system features a number of hurdles that could trip up brain-damaged applicants, some of them already struggling mightily with everyday life, others in assisted care or indigent. Consider:

  • Retirees unable to register within 180 days of a supplemental settlement notice being distributed are ineligible for awards. So are former players over age 43 who fail to get a required neurocognitive exam within two years. These deadlines might seem reasonable—but could prove problematic for cognitively challenged retirees who have a hard time with paperwork and punctuality.
  • The required exams—which are paid for by the settlement fund—are not sufficient to diagnose Alzheimer's, Parkinson's, or ALS. Former players who worry they may have those conditions will have to pay for additional testing themselves.
  • While the NFL can make unlimited appeals of award claims free of charge, retirees must pay a $1,000 fee to contest those appeals.

Perhaps the best illustration of the settlement’s limitations involves CTE, the neurodegenerative disease at the heart of League of Denial, long associated with boxing, first linked to football through an autopsy of Hall of Famer Mike Webster’s brain and since implicated in the suicide deaths of Junior Seau, Dave Duerson, Ray Easterling, and others. A 2013 National Institute for Occupational Safety and Health study of nearly 3,500 NFL retirees who played at least five seasons between 1959 and 1988 recorded 17 combined cases of ALS, Alzheimer’s, or Parkinson’s. Meanwhile, 33 of the 34 deceased league players in a 2010 study were diagnosed with CTE, a finding that left neuropathologist Ann McKee to wonder whether “every single football player doesn't have” the condition.

Given CTE’s public prominence and potential prevalence, you might expect the settlement to generously compensate players who develop it. But only the families of NFL retirees who died between January 1, 2006, and June 7, 2014, and were subsequently diagnosed with the disease are eligible for “Death with CTE” payouts. Died on June 8? Still alive to read this? Tough break. Your family gets nothing, no matter how riddled with destructive tau protein slices of your brain appear to be during posthumous examination.

Chris Seeger, the top lawyer for the retired players during settlement negotiations, argues that the CTE cutoff date was necessary for two reasons: (a) the disease currently can only be diagnosed after death; (b) the settlement is designed to help former players while they’re still alive. If retirees suffer CTE symptoms, he insists, they will be covered by the agreement’s dementia awards.

This is half-true at best. Some former players with CTE likely will be covered, albeit with reduced awards. Others will be shut out entirely. How so? According to a study of 36 adult males—29 of them retired football players—diagnosed with CTE, the disease presents in two distinct ways, both consistent with case reports of former boxers. Some victims suffer first from the same sort of cognitive impairment that characterizes dementia. These men tend to live longer, and their symptoms tend to show up later in life, typically in their late 50s.

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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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