The NFL Dodges on Brain Injuries

Other victims die younger. Their symptoms appear earlier and are neurobehavioral: emotional explosiveness, impulse control problems, violent outbursts, and depression. In the study, this second group of CTE sufferers was twice as large as the first group—yet the proposed settlement’s diagnostic program only screens for the cognitive impairment that characterizes the smaller group. In addition, the agreement ignores a series of symptoms associated with both CTE and general brain damage, including visual impairment, chronic pain, chronic headaches, numbness, burning, tingling, incessant ringing in the ears, sensitivity to noise, attention disorders, trouble sleeping, aggression, agitation, impulsivity, suicidal thoughts, and difficulty regulating, expressing, and controlling complex emotions.

Many researchers studying CTE believe doctors will be able to diagnose the disease in living people via biomarkers or brain scans within the next five years. However, the proposed settlement only allows for changes to its diagnostic criteria in light of scientific advances once every 10 years, and does not allow for any changes to the types of brain damage that qualify for cash awards. There never will be a “Life with CTE” award, no matter how many living, suffering players are eventually diagnosed with the disease.

“The vast majority of players who have what has been traditionally been referred to as post concussion syndrome are not going to receive anything from this settlement—any player who has behavioral problems or emotional issues as a result of concussions is omitted,” says Michael Kaplen, a New York-based personal injury lawyer who teaches a brain injury course at George Washington University. “They’re cherry picking what they choose to pay for or not pay for, kicking their responsibility over to someone else.”

All of the above figures to significantly reduce the NFL’s ultimate total payout to retirees. Neither the league nor Seeger argues otherwise. In court documents filed in support of the settlement, both parties express confidence that an initially proposed and since scrapped $675 million fund amount would be more than enough to cover all player awards for the next 65 years. During an interview with CBS Sports radio, Seeger also said that he expects between 3,000 and 5,000 retirees to receive cash compensation. Do the math, and that means the average expected award is between $135,000 and $225,000—far less than the deal’s highly publicized $1 million-plus maximum amounts.

Why is this significant? Because brain damage isn’t cheap. Retirees who can’t hold down jobs or keep their families together cost money. Retirees who need feeding tubes and ventilators cost even more money. Frank Neuhauser, the executive director of the Center for the Study of Social Insurance at the University of California, Berkeley, told the Los Angeles Times that dementia and Alzheimer's patients can cost "millions of dollars and can involve 10, 20, 30 years of medical care and income support." University of Toronto neurosurgeon Charles Tator told Medscape Medical News that the total costs related to repetitive traumatic brain injury—including lost productivity and medical and custodial care—are in the ballpark of $10 million per case. If the $9 billion-a-year professional football industry lowballs former players, society will be forced to make up the difference—through Medicare, higher private insurance premiums, and charitable contributions.

When I asked investigative reporter David Cay Johnston about a potentially insufficient settlement last year, he was downright apoplectic.

"You, the NFL, caused this problem," Johnson, a Pulitzer winner and the author of Free Lunch: How the Wealthiest Americans Enrich Themselves at Government Expense and Stick You With The Bill, said. “You profited from this problem. You should pay 100 percent of the costs. Imagine somebody was running a company that was knowingly dumping pollution. We would say, 'You have to pay to clean that up.' I think it's unconscionable that taxpayers should be looking at picking up any of this.”

In a New York Times editorial published last fall, former NFL linebacker Scott Fujita raised another major problem with the deal. “Is this not an issue of public safety,” he wrote, “especially when it comes to children? Did the plaintiffs not deserve to discover exactly what was known by the NFL about head injuries, and when? What about the public?”

Fujita was right. Football-induced brain damage is a public health and safety issue. And the public deserves to know as much possible in order to quantify the medical risks of a sport primarily played not by a small number of well-compensated adult men represented in collective bargaining by a full-fledged union, but by millions of uncompensated children and college students representing public institutions.

To come up with the settlement’s original $675 million fund cap, both the NFL and the top players’ lawyers said in court documents that they consulted with medical experts, actuaries, and economists to produce "thorough analyses" estimating both the prevalence and extent of brain damage in retired players. However, neither party has shown those figures to Brody, shared them with other player lawyers or filed them in open court. Earlier this week, the league agreed to release its actuarial report contingent on Brody's approval; for now, however, the math remains a mystery.

By contrast, a proposed NCAA class-action concussion lawsuit settlement features a detailed report that estimates that of 1.8 million former college athletes who played contact sports—700,000 of them ex-football players—approximately 60 to 350 per year over the next half-century will be diagnosed with either CTE or post-concussion syndrome. Parents trying to decide whether to allow their child to play football deserve to see the NFL’s numbers as well. So do players.

Ever since Representative Linda Sanchez, a California Democrat, challenged NFL commissioner Roger Goodell while likening his organization to Big Tobacco at  2009 Congressional hearings, the league has attempted to take a leadership role in addressing football-induced brain damage. That's possibly out of sincere concern, probably out of public-relations panic, and likely due to a bit of both. The NFL has donated $30 million to the National Institutes of Health to study brain damage and other health ailments. It has partnered with General Electric on a $60 million program to improve brain injury diagnosis and treatment. It has held safety summits for both mommy bloggers and international sports leagues alike. Through its youth arm, USA Football, the league is even pushing a “Heads Up” program that purports to teach children safer tackling techniques. Yet by buying silence through the settlement, the league also is undercutting its own credibility. Learning exactly what the NFL knew and when it knew it, Kaplen says, is essential for evaluating whether the league can be trusted as an honest broker of concussion information going forward.

Earlier this week, relatives of Seau announced that they intend to opt out of the settlement and instead pursue a wrongful death suit filed against the NFL last year. "The family want to know why this settlement seems designed for expediency for the NFL and to ensure that information doesn't come out," Steven Strauss, a Seau family lawyer, told ESPN. "And the Seau family wants the truth to come out. Since this litigation started, there hasn't been one document produced, there hasn't been one deposition taken. It seems very clearly designed to nip this in the bud and not have the truth come out, and that's not acceptable to the Seau family, and it's not acceptable to Junior's legacy." Should it be acceptable to anyone else?

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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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