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Will Brain Injury Lawsuits Doom or Save the NFL?


Will Brain Injury Lawsuits Doom or Save the NFL?

Photograph by Ben Solomon/The New York Times/Redux/REA

(Corrects date of Princeton-Columbia game.)

When Gene Locks led Princeton against Columbia on Oct. 5, 1957, it took the Tigers quarterback only a few plays to discover “that the middle of the Columbia line was paper thin,” according to the Daily Princetonian. In the Tigers’ single-wing offense, Locks served as a blocker, leaving “gaping holes” in Columbia’s defense on the way to a 47-6 wipeout.

Fifty-six years later, a grayer, wider Locks sits in his Philadelphia law office behind piles of client files. Black-and-white gridiron photos of his svelte younger self look down from a shelf. In the 1970s he brought some of the first lawsuits on behalf of pipe fitters exposed to asbestos insulation. His firm eventually represented more than 16,000 asbestos clients in 20 states. In the late 1990s he helped lead the Fen-Phen diet drug litigation, which culminated in a $6 billion settlement. Now 75, Locks has earned a fortune in fees. In 2011 he had planned to spend more time with his grandchildren. “Then these concussion cases started coming in,” he says. “I remember what it’s like to get your bell rung.”

Even as an expected 110 million Americans take to their couches for the 47th Super Bowl on Feb. 3, Locks is waging a legal battle that represents the most serious threat to the viability of big-time football since an outbreak of fatal skull fractures back in the leather-helmet days. Locks and a group of allied plaintiffs’ lawyers are suing the National Football League on behalf of more than 4,000 former players and their wives who accuse the $9.5 billion-a-year business of covering up life-altering brain injuries.

Despite—or perhaps because of—its inherent brutality, football remains America’s most popular sport by far. Not only is the NFL the country’s single most lucrative sports enterprise, the league and its 32 teams also provide an atrophying television industry with its most profitable programming and an ideal vehicle for selling cars, beer, and erectile-dysfunction remedies. (The teams evenly share broadcast and licensing revenue. Ticket sales are split in a manner favoring home teams.)

Locks won big for asbestos clients and helped lead the $6 billion Fen-Phen casePhotograph by Lee Towndrow for Bloomberg BusinessweekLocks won big for asbestos clients and helped lead the $6 billion Fen-Phen case

This pecuniary feast is what makes the NFL so attractive to legal predators like Locks, although he and the other plaintiffs’ lawyers say they have no interest in putting the NFL out of business. “I love football,” Locks says. “No attorney ever said, ‘I love asbestos.’ ” So there’s reason to believe the ex-players’ lawsuit could produce a reasonable settlement.

And yet the litigation could still metastasize and become life-threatening to the game if the NFL chooses to draw out the court fight rather than seek a swift resolution. A protracted battle could provide the plaintiffs’ lawyers with an opportunity to reveal sordid details about a period during which they allege the NFL intentionally obfuscated evidence of the long-term brain damage suffered by its willing gladiators.

If this is true, and if the ugly particulars are played out in depositions, internal documents, and court testimony, such a legacy could alienate fans already uneasy about the suicides of former players such as Dave Duerson, Andre Waters, and Junior Seau, all of whom suffered from neurodegenerative brain disease linked to concussions.

“I’m a big football fan,” President Obama told the New Republic in an interview, “but I have to tell you, if I had a son I’d have to think long and hard before I’d let him play football.” Obama, who roots for the Chicago Bears, predicted that “those of us who love the sport are going to have to wrestle with the fact that it will probably change gradually to try to reduce some of the violence.”

Beyond the present litigation, the NFL faces a more ominous longer-term question. New research suggests the peril players face may not be limited to car wreck hits. It may extend to the relentless, day-in-and-day-out collisions that are the essence of the game. If science one day determines that merely playing serious tackle football substantially increases the danger of debilitating brain disease—as smoking cigarettes makes lung cancer much more likely—it’s conceivable that the NFL could go the way of professional boxing.
 
 
In 1903, before the NFL existed, the New York Times compared college football, then the top of the line, to “mayhem and homicide.” The following year, 18 campus players died from head injuries. In 1905, President Theodore Roosevelt summoned college representatives to the White House to demand reform; rules began to change. Introducing the forward pass and the 10-yard first down led to a more fluid, less dangerous contest. Over time, protective equipment improved.

Football remained savage, though, and from time to time honest observers wondered aloud whether the entertainment was worth all the human wreckage. In 1978, Sports Illustrated warned: “As football injuries mount, lawsuits increase, and insurance rates soar, the game is headed toward a crisis.” Sixteen years later, in 1994, SI again sounded the alarm about “disturbing statistical and anecdotal evidence that concussions are the silent epidemic of football.” Head injury has never been a secret to anyone who played, or even closely watched, the game. Dallas Cowboys quarterback Roger Staubach retired after suffering 20 concussions, the SI piece said. Ex-Philadelphia Eagles passer Ron Jaworski counted 30.

The NFL finally responded in 1994 by forming the oddly named Mild Traumatic Brain Injury Committee (MTBI) to study the issue. For years, though, NFL Films continued to glamorize head-banging hits in videos such as Moment of Impact (2007). “Suddenly you’re down, and you’re looking through your helmet’s ear hole,” the DVD’s ad copy reads. “Pain? That’s for tomorrow morning.” (NFL spokesman Brian McCarthy calls the promotional language “a mistake.”)

Former NFL linebacker Seau committed suicide in 2012Photograph by Paul Sancya/AP PhotosFormer NFL linebacker Seau committed suicide in 2012

The MTBI, chaired by a rheumatologist who was not a recognized authority on head injury, published a series of research papers that on the whole minimized the long-term dangers of head injury. The league’s complacency was captured in a pamphlet provided to players in 2007: “Current research with professional athletes has not shown that having more than one or two concussions leads to permanent problems if each injury is managed properly. It is important to understand that there is no magic number for how many concussions is too many.”

Having punted on the brain injury issue, the NFL seemed to hope it would go away, but it didn’t. To a surprising degree, that was because of one college-player-turned-activist.

In late 2003, Chris Nowinski, a former All-Ivy defensive tackle at Harvard, sought help from Dr. Robert Cantu, a neurosurgeon in suburban Boston. After graduating in 2000, Nowinski made the unusual career choice of joining the ranks of World Wrestling Entertainment (WWE). At 6 foot 5 and 250 pounds, he played “Chris Harvard,” who performed with an “H” emblazoned on the backside of his polyester crimson tights. His promising WWE career stalled in 2003, however, when a chin kick by 300-pound Bubba Ray Dudley left him badly dazed and led to persistent headaches and depression. Based on Nowinski’s history, Cantu determined he had suffered at least a half-dozen concussions.

A concussion, Nowinski learned, occurs when the brain slams into the rough inner surface of the skull. It does not require a direct blow to the head. Symptoms may include loss of consciousness, confusion, blurred vision, and nausea. Nowinski was once hit so hard his vision turned orange. Since the early 1900s, medicine had connected head trauma in sports to lasting cognitive trouble only in “punch-drunk” boxers. In an illustration of how science can operate with blinders, physicians saw dementia pugilistica as unique to a sport dominated by up-from-the-street fighters willing to risk mental impairment for a shot at fame. Gridiron concussions were viewed as time-limited events, requiring rest only until a player’s head “cleared” and presenting little risk of long-term harm.

Medicine’s constrained view of football concussions began to change in the 1990s. By 2000 a study presented at the American Academy of Neurology’s annual meeting reported on findings from a survey of 1,094 former NFL players. Fifty-one percent had been knocked unconscious more than once, 73 percent of those injured said they were not required to sit on the sidelines after head trauma, and 31 percent subsequently had difficulty with memory. “The evidence,” Cantu says, “was starting to suggest something much more serious.”

Diagnosed with post-concussive syndrome, Nowinski decided to make brain injury awareness his life’s work. “The big change,” Cantu says, “occurred when Chris came on the scene.” Nowinski says, “I just got injured at the right time.”

In 2005, Nowinski contacted Dr. Bennet Omalu, a Pittsburgh pathologist, who diagnosed the late Steelers Mike Webster and Terry Long as having suffered from an obscure disease called chronic traumatic encephalopathy, or CTE. Webster died of heart disease at 50 in 2002 after suffering dementia. Long killed himself at 45 in 2005 by drinking antifreeze. CTE, which to date has been confirmed only by autopsy, results from repeated jostling of the brain. It involves formation of abnormal protein tangles and may include cell death. CTE interferes with memory and anger control; it can cause dementia and death. Its symptoms can mimic those of Alzheimer’s and Parkinson’s diseases, and it’s now considered the functional equivalent of dementia pugilistica.

After a year of poring over Cantu and Omalu’s research, Nowinski published Head Games: Football’s Concussion Crisis From the NFL to the Youth Leagues in 2006. The book condemned “the NFL’s tobacco-industry-like refusal to acknowledge the depths of the problem.” Later that year, following the suicide at 44 of Waters, a former Philadelphia Eagles defensive back who once said in an interview that he had lost count of his concussions after 15, Nowinski persuaded Waters’s family to allow Omalu to examine the dead man’s brain tissue. CTE, once again. Nowinski connected Omalu with the New York Times, which then ran a series of articles on the issue. In May 2007, HBO (TWX) aired a profile of Nowinski. He and Cantu spent the next year starting the Sports Legacy Institute, a nonprofit devoted to head injury advocacy, and the Boston University Center for the Study of Traumatic Encephalopathy, which maintains an ex-athletes brain bank.

In the face of all this activity, the NFL urged calm. Without conceding a connection between concussions and long-term disorders, the league started a program in 2007 that grants former players with brain ailments $88,000 a year if they require institutionalization. And for an additional 18 months, the league continued to play down even the research it funded, including a study by the University of Michigan, as incomplete.

In October 2009, Nowinski and Cantu testified on CTE before the U.S. House Judiciary Committee. Six weeks later, the NFL abruptly switched its position. For the first time, a league spokesman told the New York Times: “It’s quite obvious from the medical research that’s been done that concussions can lead to long-term problems.” In December 2009, NFL Commissioner Roger Goodell, who had worked for the league since the early 1980s and rose to the top job in 2006, ordered that players with concussion symptoms could no longer return to play or practice until they were cleared by a neurologist not affiliated with their organization. The NFL also pledged $1 million to the Boston University brain center for CTE research. The tide had turned.
 
 
The NFL’s belated willingness to acknowledge long-term brain injury didn’t come soon enough to forestall that other great American sporting event: the lawsuit. Repair to the courts was hastened by the drumbeat of player tragedies. In February 2010, Duerson, the 50-year-old former Chicago Bears safety, killed himself with a gunshot to the chest. After enduring intense headaches and deteriorating memory, he left a note asking that his brain go to the lab at Boston University, where it was determined that he had CTE.

In 2011, Ray and Mary Ann Easterling contacted Larry Coben, a plaintiffs’ lawyer in Scottsdale, Ariz., who specializes in catastrophic head and neck injury. Ray didn’t know how many concussions he’d suffered during the 1970s when he played for eight years with the Atlanta Falcons’ vaunted “Grits Blitz” defense. He retired in 1979, his annual salary having topped out at $77,000, and started a financial-services firm in Richmond, Va. By the 1990s he was suffering from insomnia and depression. He got lost on neighborhood jogs. In the 2000s, while still in his 50s, Ray sank into dark moods and then the early stages of dementia. “It was a total reversal of the loving man I married,” says Mary Ann.

The Easterlings discovered they had all too much company. Coben’s firm, Anapol Schwartz, was already talking to other debilitated former NFL players who had suffered concussions.

Almost simultaneously, Coben’s old friend Gene Locks was contacted by another group of former players. In Washington, D.C., Michael Hausfeld, a class-action attorney known for representing Holocaust victims seeking return of assets from Swiss banks, began talking to ex-players his firm had been representing on benefits issues. By December 2011, more than a dozen suits had been filed around the country, and the plaintiffs kept flocking to an expanding corps of attorneys.

For Locks, the claims struck a chord. As a 170-pound, 5-foot-10 quarterback at Princeton, he says, he once got up so dizzy from a tackle that he walked to the wrong huddle. “You just kept playing. Today the players are twice the size, and the hits are twice as hard.”

Seeking unspecified damages and long-term medical monitoring of former players, the suits, now consolidated in federal court in Philadelphia, make two central accusations. The NFL, according to the plaintiffs, should have known decades ago that repetitive head collisions created a danger of permanent brain injury. “In a superior position of knowledge and authority,” the league negligently failed to fulfill its legal duty to protect its players, the suit says.

The potential weakness with the negligence contention is that until the 1990s, medical science was murky on the long-term risks associated with concussions. Moreover, even under the skilled guidance of an attorney like Locks, many former NFL players would have difficulty proving which collisions contributed to their later problems: the ones from pee-wee play, high school, college, or the pros? “You definitely have questions of causation to sort out,” says Kenneth Feinberg, a Washington lawyer who specializes in negotiating settlements of mass injury cases (and who isn’t involved in the NFL litigation).

The plaintiffs’ potentially more explosive claim is that “the NFL voluntarily undertook the responsibility of studying head impacts in football, yet fraudulently concealed their long-term effects.” Beginning in 1994 the league purported to study concussions by means of the MTBI. What were the panel’s actual marching orders? Did the league conceal what it knew and try to undercut the accumulating scientific evidence? A coverup, if one occurred, could eclipse tricky questions about causation, Feinberg points out. The conspiracy theory could also overshadow the plaintiffs’ problem with what lawyers call “assumption of risk”: professional players’ presumed knowledge that repetitive collisions could not have been good for them.

The league denies both negligence and fraud. “The NFL has long made player safety a priority and continues to do so,” spokesman Brian McCarthy says in a written statement. “Any allegation that the NFL intentionally sought to mislead players has no merit. It stands in contrast to the league’s actions to better protect players and advance the science and medical understanding of the management and treatment of concussions.” The league has hired a squad of prominent corporate defenders, led by Brad Karp of Paul, Weiss, Rifkind, Wharton & Garrison in New York, which lists Karp’s specialty on its website as “bet the company litigations,” and Robert Heim of Philadelphia-based Dechert, who has represented the tobacco industry.

The suit also targets Riddell, the league’s official helmet maker, alleging that the gear fails to provide adequate protection. Riddell has denied the accusation, saying it’s “confident in the integrity” of its products. However, the Ohio-based company, the first to develop a plastic-shelled helmet and now a subsidiary of Easton-Bell Sports, may find itself defending marketing claims that its helmets reduce the risk of concussion.

In its preliminary legal papers, the league has asked U.S. District Judge Anita Brody to dismiss the consolidated civil action on procedural grounds. The litigation, the NFL contends, reflects a labor dispute, which ought to be resolved by an arbitrator under the terms of the collective bargaining agreements the players’ union has signed with the league over the years. Those agreements, the league maintains, “provide that the NFL’s member clubs and their medical staffs have responsibility for treating player injuries, including determining injury recovery times, deciding when players may ‘return to play,’ and advising the players of the risks of continued performance.”

Locks and his colleagues refrained from suing individual teams for the very reason they didn’t want to get enmeshed in thousands of labor grievance cases and the more limited remedies available in arbitration. Here, too, the fraud allegation could be critical. The need to sort out whether there was a coverup provides an intuitively more compelling basis for Judge Brody to keep the concussion litigation in her courtroom. The NFL points out in its papers, though, that in several injury lawsuits filed by individual former players, other federal judges have found that labor law governs. Brody is expected to rule on the threshold issues in the spring.

The legal uncertainties for both sides ought to encourage a negotiated settlement sooner rather than later, according to Feinberg. He has resolved numerous highly charged cases between multinational corporations and individual complainants. They range from litigation against Dow Chemical (DOW) and other manufacturers of Agent Orange, the Vietnam defoliant, to thousands of claims of victims’ families in the Sept. 11 terrorist attacks. If they end up in arbitration, the former players could see their claims bogged down for years in individual grievance procedures. From the NFL’s perspective, all the news from the scientific front reinforces the game’s harrowing nature—and creates an incentive to act proactively. In December, the Boston University center reported its latest grim findings in the journal Brain: 33 cases of CTE in former NFL players, 15 previously unpublicized. On Jan. 10, the National Institutes of Health added Seau, the former star San Diego linebacker who killed himself in May, to the CTE list, and his family joined the litigation.
 
 
As it tries to beat back the former players’ legal challenges and placate growing public concern about the sport’s violence, the NFL has sent conciliatory signals. The league has instituted some rule changes aimed at reducing concussions, but it also wants to place part of the burden for ensuring player safety on the players themselves. “We’re engaged in a cultural transformation that includes rule changes, tighter officiating, and, crucially, an attempt to persuade players to take responsibility for their health and come out of games when they’re hurt,” Jeffrey Miller, senior vice president for public affairs at the NFL, says in an interview at the league’s Park Avenue headquarters in New York. “The culture of the athlete is still too much of a play-through-it rather than player-safety mentality,” Commissioner Goodell said in a generally mollifying speech at the Harvard School of Public Health in November. “Many players,” he added, “have publicly admitted to hiding concussions and other head injuries.” Conversely, some players, such as members of the New Orleans Saints, have from time to time been accused of intentionally injuring foes—an unsavory practice Goodell has sought to punish severely and one the league would almost certainly highlight if the concussion suit went to trial.

Miller says the NFL now stresses player safety above all else. The 2011 collective bargaining agreement committed the league and the players’ union to set aside $100 million over 10 years to support research; that money will go to Harvard Medical School. In September, the NFL and its team owners agreed to make their largest-ever charitable donation: an additional $30 million pledged to the NIH for research on concussions and CTE. The NFL has even retained its occasional past critic, neurosurgeon Cantu, as a senior adviser. Cantu praises the league’s born-again attitude, saying his consulting has not compromised his integrity. He declines to discuss the litigation.

During the playoffs leading up to the Super Bowl, the league has been running an eye-catching TV ad on how the game is “evolving” toward a safer sport. Recent rule adjustments include restricting the number of off-season practices and full-contact regular-season workouts. Kickoffs were moved up five yards, to the 35-yard line, which leads to more touchbacks and fewer monster hits on runbacks. Trying to maximize maneuverability, many players avoid leg padding. Next season the league will require thigh and knee pads to reduce knee-to-head injuries.

Locks calls the NFL’s recent moves “commendable.” He acknowledges that players starting professional careers in the past couple of years have ample notice about concussion risks. In the suit, he says, “we’re talking about a fixed number of older players and former players.” That’s why he sees the case as eminently resolvable.

For the moment, team owners don’t face the threat of individual liability, as they’re operating collectively via the league and its outside lawyers. Even hypothesizing an impressive-sounding $5 billion settlement, the owners could handle the tab. Paid out over 25 years to cover players’ needs as they arise, such a settlement would work out to $200 million a year. Divide that 32 ways, and each team would face a hit of $6.25 million a year. That would be a meaningful tax—the current salary cap per team for active players is $121 million—but one the franchises could absorb without much distraction, particularly since the money could be paid out in installments.

The NFL’s TV network partners at Fox (NWS), CBS (CBS), and ESPN (DIS) likewise don’t face an immediate revenue drop. Indeed, decade-long, multibillion-dollar contracts the league signed with the networks in 2011 are one critical source of cash flow that could lubricate a settlement. “I’m a businessman,” says Locks. “You can make a business model for what this costs the league on an annual basis over the years and negotiate a reasonable payout to the former players who develop problems.”

As is the practice of any sophisticated plaintiffs’ attorney, Locks has begun to research the NFL’s insurance coverage—another potential source of financing for a settlement. Ancillary litigation has already erupted in state courts in New York and California between the NFL and more than two dozen insurance companies. The carriers, predictably, argue that they should not have to pay for suits over head injuries. While the insurance litigation is just getting under way, it provides yet another reason for the NFL to resolve its brain injury issues before potentially damning internal memos, if any exist, have to be disclosed in discovery. Evidence of a fraudulent coverup would provide insurance companies with their strongest basis for avoiding coverage.
 
 
Settling the litigation still might not resolve the conundrum facing football, its players, and, ultimately, its fans. A mainstream financial juggernaut, the NFL could, like boxing before it, drift toward the margins if researchers reveal that gridiron collisions are even more dangerous than we now know. “Thirty years from now, I don’t think [pro football] will be in existence,” Baltimore Ravens safety Bernard Pollard told CBS Sports, implying that new rules to discourage violence may diminish the NFL’s appeal.

Given the deep loyalty football engenders at all levels of play—a far more profound role than boxing ever enjoyed—it’s hard to imagine a comparable decline in popularity, let alone Pollard’s expectation of NFL extinction. Then again, smoking was once an essential rite of passage in America and a celebrated element of culture high and low. Today smokers are shunned, even in professional football stadiums.

On his cell phone heading into a meeting in Bethesda, Md., with NIH officials to discuss the NFL’s $30 million grant, Nowinski, the activist, points out that it’s still early days in CTE research. “We don’t know a lot about the disease,” he says. In the February issue of the American Journal of Geriatric Psychiatry, researchers reported that in a small preliminary study they used a new imaging technique to detect protein abnormalities in the brains of living retired football players; the abnormalities were consistent with those found during autopsies of deceased athletes with CTE. If the new diagnostic method proves reliable, it could point to potential treatments for what at the moment is an incurable disease. “What we do know,” says Nowinski, “is that this is not just a concussion problem.” The Boston University research indicates that CTE “is just as likely to be caused by routine head collisions as it is by one that leaves a player unconscious,” he says.

Nowinski knows the science. A co-author of the Brain article, he’s working toward a Ph.D. in behavioral neuroscience at Boston University. “I was having concussions all those years,” he says, “and I didn’t know it, so who knows how many other blows I took to the head?” He fears that he, and thousands of other former professional and college football players, could develop CTE.

Cantu shares his former patient’s concern. “We don’t yet know the significance of all those subconcussive collisions,” he says. As one precaution, he urges that children younger than 14 not be allowed to play tackle football.

The new awareness, litigation, and research came too late for Ray Easterling. On April 19, his wife of 36 years called police to their brick ranch house in Richmond. Mary Ann had found Ray, 62, dead, a handgun nearby. An autopsy found signs of CTE.

Despite the pain of losing her husband, Mary Ann had “some vindication” in the posthumous diagnosis. “I knew there was something wrong with his mind,” she says. “Ray knew.” Reading about CTE over the past couple of years, she figured that was it.

She’s staying in the lawsuit, she says. “If nothing else, we need to make sure the players and their wives know what they’re getting into,” Mary Ann says, “so they can think whether it’s worth the price.”

Barrett_190
Barrett is an assistant managing editor and senior writer at Bloomberg Businessweek. His new book, Law of the Jungle, tells the story of the Chevron oil pollution case in Ecuador.

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