The NFL Dodges on Brain Injuries

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.

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?”

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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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