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.

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.

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?