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The NFL Concussion Lawsuit: Unlimited money, continuing tragedy

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The NFL has striven to control every single facet of the game of football, from the color and height of the socks on players' uniforms to any real or perceived infringement on its trademarked “Super Bowl” moniker. Thanks to Judge Brody, however, the NFL is learning the true cost of maintaining its “shield.”

Mitch Stringer-USA TODAY Sports

Originally run July 24 as part of The Renegade 2014, BTSC's season preview issue

On July 7, 2014, Judge Anita Brody formally accepted the revised settlement agreement submitted by the NFL and the class-action attorneys representing over 5,000 players and their family members.

Judge Brody had rejected the initial settlement proposal in January, citing concerns that the agreed cap of $675 million wouldn't be sufficient, given the number of former and current players who ultimately could receive a Qualifying Diagnosis (potentially 20,000 and counting) and the potential magnitude of the awards scaled to such diagnoses.

As it stands now, and barring any further developments, the 32 NFL owners are on the hook for whatever it costs under the parameters of the proposed agreement for the next 65 years, whether it's $675 million or $6.75 billion.  Regardless of whether a player only played either (i) three or more regular season games, or (ii) was on the active roster of one or more regular season or post season games, and then spent at least two regular or post season games on a team's injured reserve list or inactive list due to a concussion or head injury, they qualify for at least one "Eligible Season's" worth of compensation.  Players who only managed to be on a team's practice, developmental or taxi squad roster for at least eight regular season or post season games qualify for at least half of an Eligible Season.

In other words, if you made it to the NFL by June 25, 2014, you've got a seat at the concussion settlement feast.  Players who meet the minimum standards above, whether they played in the NFL, the AFL, the World League of American Football, NFL Europe League, or the NFL Europa League stand to qualify for some sliver of a bottomless bounty, regardless of whether or not the actual neurological damage they ultimately may suffer from was caused by their involvement in football in college, high school or even Pop Warner games.

And the supposed "partners in crime" in concealing the risks of concussions from the players, Riddell, INc., Riddell Sports Group, Inc., All American Sports Corporation, Easton-Bell Sports, Inc., EB Sports Corp., Easton-Bell Sports, LLC and RBG Holdings Corp (collectively the "Riddell Defendants" have yet to brought to task for their involvement, so there's even more deep pockets for the players to pursue.

And further, Judge Brody also rejected the NFL's attempt to shelter the NCAA with this settlement agreement, which presents yet another course yet to be served at the compensation table.

What makes up the menu being served to those who have chosen to play professional football and had to endure years of high school and college collisions to reach the NFL?

Level 1.5 Neurocognitive Impairment...................................................$1.5 million

Level 2 Neurocognitive Impairment......................................................$3 million

Alzheimer's Disease.................................................................................$3.5 million

Parkinson's Disease.................................................................................$3.5 million

Death with CTE.........................................................................................$4 million

ALS (Lou Gehrig's Disease).....................................................................$5 million

These awards may be reduced based on a retired (a loosely defined term meaning no longer actively seeking employment as a player) player's age, the number of seasons played and other offsets.

The settlement does not require the recipients to prove that the player's cognitive injuries were caused by NFL-related concussions or sub-concussive head injuries, merely that they meet the minimum required "Eligible Seasons" thresholds.  In other words NFL, you wanted to be the "definitive organization" in football?  Well, congratulations, and here's the tab.

Yet this whole issue from both the medical and legal side has devolved into a tragicomedy of immense proportion, and the NFL is beginning to come out looking better than any other party involved.

The whole David vs Goliath casting of this melodrama is rife with hypocrisy, greed, hysteria and cynicism on both sides.  The floodgates have opened and countless thousands of players and or their family members are pouring forth to feed at the multi-billion dollar trough that is the NFL, not that the NFL is deserving of any sympathy.  The very culture organized football promulgated, and the players and us fans bought into is what made the NFL what it is today.  But you can't lay blame solely on the NFL, for the "head in the sand" approach they tried in the early 2000s through their MTBI committee (Mild Traumatic Brain Injury ) in order to discredit the findings of Dr. Bennet Omalu whose autopsy of Steelers Hall of Fame Mike Webster started the first trickle of widespread awareness of CTEs is being repeated today.

Media outlets all across the country flock to the latest gadfly to join in class action suits against the NFL.  Again, all it takes is you make a roster for a few games, and you have a seat at the table.  Does this sound cynical?  Not any more than former Chicago Bears QB Jim McMahon touring the country spearheading a media blitz meant to drum up sympathy for the ancillary lawsuit now facing the NFL; McMahon and other players are seeking compensation from the NFL for failing to appropriately prescribe and administer narcotics and other pain killers.  McMahon, the same QB who is party to the concussion lawsuit is also is the QB who insisted on sliding head first despite being coached to protect himself by sliding feet first, and who took "playing hurt" to whole new levels.

Or Tony Dorsett, former Dallas Cowboys and Denver Broncos running back who is quoted by The Dallas Morning News as saying the revised settlement agreement "...doesn't make up for anything".  How many millions would  Dorsett have had to earn as a professional football player before the unlimited liability the NFL now faces be considered "enough?" Dorsett claims he would still play, but be a lot more careful when it comes to head injuries. At what point Tony?  Would you have started "being more careful" playing your four years of high school football on a rock strewn hard packed dirt field at Aliquippa , Pennsylvania, or would you have started during your four years at the University of Pittsburgh playing at Pitt Stadium on an astro-turfed covered asphalt field before playing eleven years in the NFL?

Where does personal responsibility come into play?  Where is the accountability of individuals like McMahon whose reckless manner of play was the image he willingly milked for bigger contracts and endorsement money back in the day, but as a result of such a style of play is now looking to double dip by taking even more money from the NFL?

And what about the medical community (not just team doctors)?  Where have they been since 1928 when the term "punch drunk" was coined by Harrison Martland associating repeated blows to the head to neurodegenerative disease?  Football on the college level was even more popular than boxing at that time, and just as if not even more violent; where was the concern then?  Where is it now?

Just as the NFL has been cast as the evil villain for its attempts at obscuring the findings of Dr. Omalu with its MTBI (Mild Traumatic Brain Injury ) committee in the early 2000s, so should the medical community as a whole be cast with the same dispersions, for it can't get its own act together.  Prominent experts like Stella Karantzoulis, PhD, of New York University School of Medicine and her co-author Loyola University Medical Center clinical

How many millions would Dorsett have had to earn as a professional football player before the unlimited liability the NFL now faces be considered "enough?"

neuropsychologist Christopher Randolph, PhD seem to be more interested in gaining their own "15 minutes of fame" by discounting Dr. Omalu and others' findings and even casting officious sounding doubts whether there is such a thing as CTEs.  They and others mock the idea of the NFL having to pay for something that isn't proven, but they don't advance our understanding of the issue; they only criticize the methodology of what has already been done.

 

"One cannot deny that boxing and other contact sports can potentially result in some type of injury to the brain," Karantzoulis and Randolph wrote:  "There currently are no carefully controlled data, however, to indicate a definitive association between sport-related concussion and increased risk for late-life cognitive and neuropsychiatric impairment of any form." (emphasis added)

The authors of this paper, entitled "Modern Chronic Traumatic Encephalopathy in Retired Athletes: What is the Evidence?" much like the NFL's MTBI in the 2000s, claim yet even more definitive studies are needed and  describe the examples cited by Dr. Omalu and Boston University's CTE center, to which the NFL has donated over a million dollars, as being "case reports and samples of convenience".  If they spent as much time trying to advance our understanding of the issue as they do tearing apart the work of others, how much further along would we be?  How much safer would the players be?

Lost in the rush by the media and the legal community to pile onto the NFL's gravy train seems to be the core issue; do repeated blows to the head cause degeneration in a person's cognitive abilities, and can the cumulative effect of repeated blows to the head result in the many neurological symptoms the NFL is now paying for?  There is no clear cut answer, but there has been little or nothing reported by the media in terms of actual additional research.  There are few if any more facts known today than were known that fateful day in September, 2002 when Mike Webster's body was rolled into the morgue and Dr. Omalu felt compelled to perform the autopsy.

The proven, quantifiable facts behind the whole NFL Concussion issue are simple, and few in number.

Fact 1: Playing football, no matter the level played nor the size of the players, will result in blows to the head.  The longer a player plays, the more blows to the head he will sustain.

Fact 2: College and professional football players today are larger, stronger, and faster than ever before, and as a result can achieve higher rates of acceleration and velocity with their increased body mass than the game of football has ever experienced.

Fact 3: When a large mass traveling at high rate of speed and tipped with a high impact plastic covering strikes another large mass, often itself moving at a high rate of speed, the laws of physics mandates that there will be shockwaves produced that affect both bodies of mass upon collision.

These are the true facts.  These are the only demonstrable facts involved in the NFL concussion lawsuit, regardless of where you come down on the issue.  Assertions made in support of, or counter to, the allegations made by both sides share these core facts; everything else is conjecture or conclusions based on statistical or circumstantial evidence.  The correlation and whether such correlation proves causation is still unknown, and that is such a critical fact to be left undiscovered, but it appears as if it doesn't even matter; the players want money, the media wants drama, and the medical community appears to only want to argue over the quality of research already done as opposed to finding these answers.

What's more troublesome is the fact that once the NFL begins paying out what it has agreed to, attention will turn not to research, but to the lawsuits the helmet manufacturers (the "Riddell Defendants") will face, the  NCAA, then the CFL, then high schools, and on and on and on.

That said, there is one more fact that has so far gone unmentioned, and it is one that is the most tragic of all, and that is, for the families of those players who have taken their lives as a result of their belief that they were suffering from the after-effects of playing football, there is no answer that will bring surcease to the pain they are now all suffering.

It matters not that Judge Brody stood firm in the face of a united front of lawyers for both sides who petitioned her in January 2014 to settle the class action lawsuit between the NFL and a roster of over 5,000 current and former players and their family members;

It matters not whether Judge Brody subsequently approved a deal where the total dollar amount to be paid by the NFL and the 32 entities making up the ownership of that organization would be limitless;

It matters not whether Dr. Bennet Omalu's investigation pulled on the first thread of the curtain hiding the truth behind the deleterious consequences of a lifetime of playing football, or whether  Christopher Randolph and  Stella Karantzoulis, prove that there is no causative proof that playing football is hazardous to person's neurological health;

For ultimately the tragedy plays on for the families of the players who have taken their lives in despair.  Should this issue play out where it is found that the repeated blows to the head suffered by these players did in fact lead to their depression and suicide, then the culture of game they loved to play will have killed them; the culture they themselves promulgated because that is what it took to stay in the game.

Just as tragically, if no causation is fully proven, then these players took their lives in vain; they would be the real life victims of a national media (journalistic and social) firestorm that coveted being first over being accurate and objective.

Either way, every new development; every subsequent news article; every new lawsuit will reopen the wound of a father's, a brother's, a husband's spiral into the depths of depression and the taking of their own lives.