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

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

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.

Prior to that, the plaintiffs argue, the league didn't warn them. Didn't protect them. Failed in its duty to disclose and mitigate risk. As a result, players suffered, unaware, ignorant armies clashing on Monday nights.

Take Ottis Anderson, a former All-Pro halfback celebrated for his battering-ram running style. A plaintiff in the suit, he estimates that "his bell was rung"—an athletic euphemism for concussions—"over 100 times" during his 14-year playing career.

Now 54, Anderson experiences headaches, painful sensitivity to light and sound, memory lapses and random, disorienting mental episodes he calls "drifting off":

What happens is you lose time, you lose place. It's like a time warp or something. You wake up not knowing if it's the same day or the next day. You don't know who the last person was you talked to or when you last talked to someone.

Anderson retired in 1993. As he recalls it, his concussion treatment regimen consisted of smelling salts, aspirin and returning to play in the same games in which his bell was rung—a dangerous, irresponsible practice that does not give the injured brain sufficient time to heal and in some cases can lead to second-impact syndrome, a rare but potentially fatal condition.

Consider the case of former Jets receiver Wayne Chrebet, who according to an ESPN magazine report suffered an in-game concussion that led to the following sideline exchange with a team doctor:

"There's going to be some controversy about you going back to play."

[The team doctor] looks Wayne Chrebet in the eye in the fourth quarter of a tight game, Jets vs. Giants on Nov. 2, 2003, at the Meadowlands. A knee to the back of the head knocked Chrebet stone-cold unconscious a quarter earlier, and now the doctor is putting the wideout through a series of mental tests. [The doctor] knows Chrebet has suffered a concussion, but the player is performing adequately on standard memory exercises.

"This is very important for you," the portly physician tells the local hero, as was later reported in the New York Daily News. "This is very important for your career."

Then he asks, "Are you okay?" When Chrebet replies, "I'm fine," [The doctor] sends him back in.

Chrebet retired in 2005 after suffering multiple concussions over the course of his football career; two years later, he was still suffering from headaches and lethargy.

Does the NFL owe players like Chrebet and Anderson financial recompense? Lawyers will determine that. Did pro football do them and their peers a grave, life-changing disservice? It's hard to argue otherwise. Yet while the story of the league's action and inaction regarding concussions has been reported in drips and drabs, it never has received focused, comprehensive attention. The football-watching, ticket-buying public largely has ignored it.

Indeed, when news of the lawsuit broke, reader reaction was as swift and unmerciful asa frontal lobe-mulching hit from Pittsburgh Steelers linebacker James Harrison—and directed toward the plaintiffs. Some representative comments from ESPN.com and CNN.com:

... these ex-players are make me sick (sic), they knew full well running your head into a large human wall was bad for your health. Now they see the kind of money players of today are making and they want their handouts ...

... duh. Using your head as a battering ram may cause brain damage. You chose to do that, you weren't being forced to do it ...

... FYI to retired NFL players everywhere ... don't put your hand inside a running garbage disposal, it could be hazardous to your health, same goes for running lawnmowers ...

Make pro football and brain trauma the centerpiece of a protracted, high-profile legal figh—complete with broken, sympathetic ex-heroes and a potentially embarrassing discovery process—and who's to say that public opinion won't change? That fans will drop the macho posturing and Darwinian callousness and begin to hold the NFL accountable?

Who's to say that the public won't see the league's historic concussion intransigence as akin to the shameful, smoking-isn't-bad-for-you assertions of Big Tobacco?

People in and around pro football have a saying: Protect the shield. The shield refers to the NFL's logo; the phrase to the league looking out for its image and interests. Once upon a time, that meant obscuring and denying the plain truth that the sport can turn players' brains into mush. No longer. In the here and now, protecting the shield means making this lawsuit go away, quickly and quietly.

Settle. Just settle. Hope that the public moves on, happy with a new NFL collective bargaining agreement, thrilled to witness human dogfighting, paying scant attention to the ruined, dementia-addled men behind the curtain. Hope that on any given Sunday, America continues to tune in, turn on, and drift off.