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The New ‘League of Denial’

2016 July 29

Taking a page from the industry’s playbook, the NHL now appears to be the new “League of Denial.” In a 24-page missive, filed in reply to Senator Blumenthal’s letter, Gary Bettman and the NHL made clear that they believe CTE is bogus. Not only that, Bettman hedged his bets and asserted that warning about CTE is dangerous and can lead to suicide. Seriously:

To be clear, the NHL and NHLPA’s position is that a “warning” about CTE is, at best, premature and also potentially dangerous (as discussed further below). […]

This, sadly, is precisely the type of tragedy that can result when plaintiffs’ lawyers and their media consultants jump ahead of the medical community and assert, without reliable scientific support, that there is a causal link between concussions and CTE.

The medical community was appalled, and so am I. I was recently quoted in The Globe and Mail,

“I think his letter is outrageous,” said Paul D. Anderson, a Kansas City lawyer who has represented many former NFL players in concussion lawsuits and runs NFLconcussionlitigation.com. “Frankly, I’m shocked that it was even published. It does a terrible disservice from a public-health perspective.”

I also joined Naylor & Landsberg to discuss my outrage: http://www.tsn.ca/nfl/video/bettman-denies-link-between-cte-and-concussions~920033

NFL to Enforce Concussion Protocol Violations

2016 July 26
by Paul D. Anderson Consulting, LLC

The NFL and NFLPA announced new rules aimed at enhancing player safety. Starting this season, teams will be fined and/or face draft-pick penalties if it is determined that they have failed to follow basic safety principles, i.e. the “NFL Game Day Concussion Protocol.”

Per the NFL, this is how the policy will be enforced:

According to the policy, the NFL and NFLPA will each designate a representative to monitor the implementation of the protocol and investigate potential violations. The investigation will not reach medical conclusions; it will only determine whether the protocol was followed. Following the investigation, the NFL and NFLPA will review the findings to determine if a violation occurred and, if so, to recommend the proper disciplinary response. If the parties are unable to agree, the matter will be brought to a third party arbitrator. After conducting a thorough review, the arbitrator will issue a report to the Commissioner, NFLPA Executive Director and the involved parties.

As jointly agreed to by the NFL and NFLPA, the Commissioner retains absolute discretion in determining penalties for violations of the concussion protocol. Potential disciplinary action includes:

A first violation will require the club employees or medical team members involved to attend remedial education; and/or result in a maximum fine of $150,000 against the club.

Second and subsequent violations of the concussion protocol will result in a minimum fine of $100,000 against the club.

In the event the parties agree that a violation involved aggravating circumstances, the club shall be subject, in the first instance, to a fine no less than $50,000. The Commissioner shall determine appropriate discipline for subsequent violations involving aggravating circumstances.

In the event that the Commissioner determines that the club’s medical team failed to follow the protocol due to competitive considerations, the Commissioner may require the club to forfeit draft pick(s) and impose additional fines exceeding those amounts set forth above.

Though some—like me—should rightfully question why it took so long, the NFL and NFLPA should be applauded (golf claps) for their implementation of this policy.

Coincidentally, this new policy was not implemented until after the NFL’s discredited “medical administrator” and former head of the NFL’s MTBI Committee, Elliot Pellman, was finally sent packing.

Perhaps Pellman, who reportedly was involved with the NFL’s ATC spotter program, was a dissident to implementing an enforcement mechanism, and hence this gave the NFL yet another reason—out of a million—to force him into retirement.

More likely, though, this policy was implemented to bar players from filing malpractice lawsuits against team personnel. By making return-to-play decisions and any subsequent investigations and violations part of the collective bargaining agreement process (e.g., “Commissioner retains absolute discretion”), this will arguably trigger Section 301 preemption, forcing all such disputes to be resolved in arbitration rather than by a jury in state or federal court. Put another way, by agreeing to this policy, the NFLPA may have forfeited a player’s right to seek redress for his injuries in a court of law.

For example, imagine if Casey Keenum would have suffered second-impact syndrome after the Rams failed to follow the concussion protocol. Now, instead of a team (or its medical personnel) facing the threat of a jury verdict for millions of dollars as a result of its failure to abide by the NFL Game Day Concussion Protocol, a team will be subject to a $100,000.00+ fine levied by the owners’ hand-picked judge, Roger Goodell.

That’s quite a windfall: the NFL gets positive press for implementing this policy and the owners get to avoid costly litigation.

Whatever the motivations, one thing is certain: the recent rule changes made in the NFL can be directly tied to the litigation that exposed the NFL’s wrongful conduct and in turn forced other leagues and stakeholders to implement concussion protocols. Undoubtedly, the players today are in a much better working environment than the pre-2011 players.

While I won’t say the NFL has been a leader in this realm, it is fair to say that the majority of leagues look to the NFL when it comes to the implementation of concussion policies.

As a result, other leagues such as the NCAA, should promptly implement association-wide enforcement measures which mirror the NFL’s.

This will ensure that the oft-touted platitude of making player safety a priority is more than mere words.

NFL Clubs Lose Preemption Argument

2016 July 2
by Paul D. Anderson Consulting, LLC

On July 1, 2016, Judge Alsup issued an Order in the NFL Drug Litigation DENYING the Clubs’ attempt to dismiss the case. Judge Alsup found that the CBAs do not immunize the Clubs from their allegedly illegal activity.

So too here. Plaintiffs allege that the clubs made intentional misrepresentations to plaintiffs regarding medications in violation of the Controlled Substances Act and the Food, Drug, and Cosmetic Act. Because the CBAs could not have validly sanctioned the indiscriminate distribution of medications in violation of these statutes, the terms of the CBA need not be construed. The statutory prohibition against such conduct stood independently from any CBA. Galvez v. Kuhn, 933 F.2d 773, 777 (9th Cir. 1991). Moreover, Section 301 does not preempt claims to “vindicate nonnegotiable state law rights.” Cramer, 255 F.3d at 697. Therefore, plaintiffs’ claims are not preempted under Section 301. The motion to dismiss on the basis of preemption is therefore DENIED.

This is a significant victory for former players. It now opens the door to discovery and puts tremendous pressure on the NFL and Clubs.

The full Order can be found here.

A Nightmare Roller-Coaster for Karageorge’s Family

2016 June 23

The New York Times recently published a gut-wrenching story on the downward spiral and subsequent tragic end to a young athlete’s life. Kosta Karageorge wrestled and played football at Ohio State University. He reportedly suffered numerous concussions, in addition to an immeasurable number of sub-concussions.

Karageorge committed suicide in November 2014. His body was found in a dumpster a few days later with a bullet wound to his head.

Kosta

According to reports, the coroner’s office sent Karageorge’s brain to an Ohio State University pathologist, Dr. Norman Lehman, for further examination. Following an apparent examination, Dr. Norman publicly concluded that Karageorge “did not have CTE.”

When this report was released, I was suspect of the conclusion, especially in light of the fact that Dr. Lehman does not appear to have any expertise in the examination or diagnosis of neurodegenerative diseases, including CTE. Instead, while admirable, his specialty appears to be geared towards “cell cycle” and cancer.

Fortunately, the family—or through the advice of others—sought a second opinion.

The godmother of CTE, Dr. Ann McKee, analyzed Karageorge’s brain and determined that he had a history of traumatic brain injuries (traces of microhemorrhaging in the prefrontal cortex) and Stage 1 CTE.

This was an explanation the Karageorges were desperately searching for: “they interpreted the report as an explanation for their son’s erratic behavior,” according to the New York Times. Unfortunately, the Karageorges were forced to suffer through a roller-coaster of emotions before they received the results—all of which could and should have been avoided had the appropriate person analyzed Karageorge’s brain ab initio.

*          *          *

Based on the reports, Karageorge’s issues were multi-factorial, including a history of mental-health problems and sport-related traumatic brain injuries, which are often a recipe for disaster. But several important lessons can be learned from Karageorge’s death.

First, athlete mental-health and well-being must be a primary focus on all campuses. Although the NCAA recently published its first “Mental Health Best Practices,” it is doubtful that a large percentage of member universities have actually implemented these programs. Of course, as history has shown, this is expected when the NCAA’s laissez-faire approach merely sounds in “recommendations” as opposed to mandates.

Second, to avoid another botched CTE examination by a seemingly unqualified pathologist, the NCAA and member institutions should take affirmative action to implement a system whereby they coordinate with family members of the decedent and provide guidance—or in the words of the NCAA, “recommendations”—on the appropriate individual or institution that should evaluate a loved one’s brain for CTE. This will ensure that another family is not subjected to a ricochet of emotions regarding the results of a CTE analysis, while also helping to advance the science.

And while numerous other lessons can be learned, Karageorge’s death and early-stage diagnosis of CTE is yet another stark reminder that young athletes are being subjected to repetitive brain trauma and therefore stakeholders must take immediate action to reduce this needless trauma. That is why common-sense approaches like limiting contact practices and promoting flag football should be implemented post-haste.

A New CTE Doubter Emerges

2016 June 21

The Buffalo News is currently rolling out an impressive multi-part series on the NHL concussion litigation. (See the series here). In today’s piece titled, “No easy answers in concussion suit” the article quotes a “concussion specialist,” Dr. John Leddy, from the University of Buffalo. Notably, Leddy rattled off the “manufacture-of-doubt” script that has been repeatedly debunked,

[T]here is no scientifically established causal link between playing football in the past or hockey or repetitive head injuries and CTE right now. … the answers as to whether repetitive contact in sports causes CTE is not known right now.

Like an old broken record, this narrative should be thrown in the trash, especially in light of the insurmountable evidence defining precisely the opposite.

In fact, science identified this unequivocal link more than 80 years ago and stated it in forceful fashion,

1933

Surprisingly, this statement appears in the NCAA’s sports medicine handbook, published in July 1933. The preface authored by three medical doctors from Wesleyan, Harvard and Princeton states,

It is hoped that doctors, coaches, and trainers who have charge of athletic squads will find the report helpful in the administration of their responsibility.

Unfortunately, as the history of concussion litigation has shown, this “responsibility” was not administered in a reasonable way. Instead, the stakeholders of sport spent years denying and covering up this link. Leddy’s comments are just more of the same. They are not only irresponsible but they also fly in the face of well-established principles of public health.

As Professor Goldberg noted in his leading article published in the Journal of Legal Medicine, demanding the type of scientific certainty that Leddy apparently requires is often impossible and is precisely the strategy used by industry to create doubt:

industry and its consultants are well aware that their use of uncertainty exploits the very nature of science.

That is why, from a public health perspective, we must,

err[] on the side of caution in the face of epidemiologic uncertainty…[and thus] public health policy and practice with regard to mTBI and long-term brain injury ought not be pinned to the resolution of the causal relation.

That is to say, the responsible policy and practice requires doctors, “concussion specialists” and the stakeholders of sport to stop casting doubt and uncertainty on the link between repetitive brain trauma and CTE, and instead take affirmative action to warn, educate and reduce the risks of CTE.

While Leddy’s comments may be appropriate, at best, for an academic discussion among his colleagues, they certainly are not worthy of publication in the popular press.

***

A reader recently pointed out that Leddy’s clinic in Buffalo was awarded a $100,000 grant from the NFL Charities in 2012. It is no surprise, then, that he would make this kind of statement since it follows the NFL’s script.

Wrongful Death Lawsuit Against NCAA is Getting Settled

2016 June 17
by Paul D. Anderson Consulting, LLC

Courtesy of CBS Sports:

By Jon Solomon

Wrongful death lawsuit vs. NCAA is getting settled

On the eve of trial, a wrongful death lawsuit brought by the family of a Division III football player against the NCAA is getting settled, according to a court filing Thursday in Rockville, Maryland. The Derek Sheely trial against the NCAA, ex-Frostburg State employees and helmet manufacturer Schutt Sports had been scheduled to start Monday and last 24 days.

On Thursday, the court docket showed a joint line saying the case is being stayed for 60 days “to complete the settlement process.” Terms of the settlement were not disclosed. Sheely attorney Paul Anderson said in a statement: “The trial has been postponed to allow the parties to complete the process of settling this matter.” The NCAA declined to comment beyond the court filing.

Sheely was a Frostburg State football player who collapsed during a 2011 practice after suffering a head injury and later died. Two years later, his family sued the NCAA, head coach Tom Rogish, running backs coach Jamie Schumacher, trainer Michael Sweitzer Jr., and Schutt Sports. The Sheely family claimed the Frostburg State employees missed multiple opportunities to treat their son’s head injury, and the NCAA failed to implement concussion rules or investigate his death.

[…]

The NCAA argued in court that it has no legal duty to protect players because it’s a sports organization. But in a sign of how concussions are evolving before the courts, Montgomery County Circuit Judge David Boynton denied the NCAA’s motion for summary judgment in April, setting the stage for a potential trial. Boynton determined that the NCAA has a “special relationship” since its mission statement is to protect college athletes and the type of head injury that allegedly killed Sheely — second-impact syndrome from multiple concussions — is not a known inherent risk of playing football.

For more, see here: http://www.cbssports.com/college-football/news/why-archie-griffins-brother-is-suing-ncaa-big-ten-over-concussions/

 

COURT DENIES NCAA’S ATTEMPT TO AVOID LEGAL LIABILITY FOR THE DEATH OF DEREK SHEELY

2016 May 27

While it should come as no surprise, a Court has ruled that the NCAA owes a legal duty to fulfill the promise for which it was founded: to protect the health and safety of student athletes. While obvious and inherent risks will always remain a part of sports, the NCAA cannot avoid its obligation to protect against the unnecessary and avoidable dangers that arise as a result of the exploitive nature of intercollegiate athletics.

The NCAA Owes a Legal Duty to Warn of the Non-Inherent Risk Associated with Second-Impact Syndrome

After hearing arguments from counsel for the NCAA and the family of Derek Sheely, a 22-year old, two-time Academic, All-Conference Senior football player who died as result of multiple concussive and sub-concussive impacts, the Circuit Court for Montgomery County, Maryland held that while a sports organization “can’t be liable for the … potential injuries that are known and apparent, or reasonably foreseeable,” the risk of second-impact syndrome is not “an obvious risk inherent in the game” of football. Therefore, according to the Court, the NCAA owes “a legal duty to warn” about second-impact syndrome.

Second-impact syndrome is an often fatal condition that occurs when an athlete suffers a concussion and (s)he is subjected to additional brain trauma before the brain has fully healed. During this time the brain is in a highly vulnerable state and any subsequent impact could trigger uncontrollable brain swelling and death. Second-impact syndrome is preventable, however, and thus it is paramount that those who are responsible for protecting athletes take affirmative steps to ensure an athlete is immediately removed from play if a concussion is suspected.

In this case, the Court found that Plaintiffs established sufficient evidence for a jury to find that the NCAA knew about second-impact syndrome yet it failed to ensure its member institutions, coaches, athletic trainers and athletes were adequately warned about the fatal risks.

A Special Relationship Exists Between the NCAA and Student-Athletes

The Court also held that the NCAA owes a duty on account of a “special relationship” that exists between the NCAA and student-athletes. First, the Court observed that the NCAA is “different” than the more common sports club. Unlike other sports organizations, whose primary function is to schedule competition, the NCAA is “designed to protect the student athlete.” In other words, according to the Court, “a special relationship exists between the NCAA and the member institution, and the student athletes.”

In Light of the Special Relationship Between the NCAA and Student-Athletes, the NCAA Owes a Duty to Protect Student-Athletes

Where there is a special relationship, a duty often arises to protect against foreseeable harm. In this case, the Court held that, in accord with public policy and its own publicly expressed mission, the NCAA “should take an initiative in preventing” second-impact syndrome. Indeed, according to the Court, the public would be outraged if it “knew of the information … not disseminated by the NCAA.” As a result, the Court held that the NCAA owes a duty to warn, a duty to train, a duty to educate and a duty to adopt and enforce rules and legislation to ensure that student-athletes, coaches and athletic trainers are aware of and properly avoid and reduce the risk of second-impact syndrome.

A Jury May Determine that the NCAA has Assumed a Duty to Protect Student-Athletes

In addition to those duties imposed as a matter of law, the Court also held that if a jury determined that “the NCAA undertook to protect athletes,” a legal to duty “would be owed by the NCAA” to fulfill its obligation without negligence. As a result, the Court found that it will be for the jury to decide whether the NCAA, through its actions and repeated affirmations, assumed a duty to protect student-athletes.

A Jury May Award Punitive Damages

In light of the evidence offered against the NCAA, the Court also decided that a jury may consider awarding punitive damages if it finds that the NCAA failed to fulfill the duties it owed to Derek Sheely. According to the Court, Plaintiffs offered evidence sufficient to demonstrate the NCAA’s “knowledge and failure to act in light of known serious risks, and, basically, the attitude of reckless disregard for the safety and the rights of the players[.]” If the evidence is proven true, the Court reasoned that “a jury could find that that was the type of conduct that would be subject to punitive damages.”

In summary, the Court denied the NCAA’s attempt to avoid legal liability for the tragic death of Derek Sheely.

*          *          *          *

Andrew Schermerhorn argued the case on behalf of Derek Sheely’s family. The Sheelys are represented by Paul Anderson and Mr. Schermerhorn of The Klamann Law Firm; Kenneth McClain of Humphrey, Farrington and McClain; Wm. Dirk Vandever of The Popham Law Firm; and the Law Offices of Stephen J. Nolan.

The NCAA is represented by Latham and Watkins.

Udall, Klobuchar, Blumenthal Welcome Committee Passage of Bill to Protect Young Athletes from Concussions, Tackle False Safety Claims for Sports Gear

2016 April 27

Congress continues to take aim at manufacturers for making false safety claims about concussions. Today, they moved one step closer to eliminating such claims and ensuring all athletes and parents are not mislead by junk science. Here’s the full press release from the Senators’ offices:

WASHINGTON – Today, U.S. Senators Tom Udall (D-N.M.), Amy Klobuchar (D-Minn.) and Richard Blumenthal (D-Conn.) welcomed passage of their bill in the Senate Commerce Committee aimed at protecting young athletes from the dangers of sports-related traumatic brain injuries. The senators, all members of the committee, introduced the Youth Sports Concussion Act earlier this year to help ensure that safety standards for sports equipment, including football helmets, are based on the latest science and curb false advertising claims made by manufacturers to increase protective sports gear sales.

“Today’s Commerce Committee passage of our Youth Sports Concussion Act marks an important step toward cracking down on misleading claims and ensuring New Mexico kids can have fun and play sports safely,” Udall said. “Sports are an important part of staying active and learning the value of teamwork for many kids. Parents and coaches want to do everything they can to keep their kids safe on the field or the court, and they deserve to have the facts needed to make knowledgable safety decisions. Our bill would help stop companies that take advantage of parents and athletes’ concerns about concussions and falsely market products as ‘safety’ equipment, despite little evidence that the products protect players.”

“One thing’s certain about Minnesotans – we love our sports. But whether it’s football, hockey, or the many other sports we play and love, parents, coaches, and young athletes must be equipped with the facts and informed of the risks when making safety decisions,” Klobuchar said. “Today’s Commerce Committee passage of our bill will protect our athletes and help make sure they can continue to compete on and off the field safely.”

“I am proud that the Senate Commerce Committee voted to advance the Youth Sports Concussions Act,” Blumenthal said. “We know all too well that the dangers of head injuries are real. As the science around prevention develops, this important bill will ensure our federal agencies can crack down on athletic equipment manufacturers that peddle quackery. No company should be able to use deceptive claims to exploit parents’ natural instincts to protect their children. Our youngest athletes — our future sports heroes — deserve accurate information to make informed decisions so that the sports they play today can be sports they play for a lifetime.”

Udall, Klobuchar and Blumenthal introduced the Youth Sports Concussion Act ahead of Super Bowl 50, amid discussion among doctors, players, researchers and others about the need to protect players — especially young athletes — from experiencing debilitating head injuries. Athletes suffer up to 3.8 million concussions every year, and sports are the second-leading cause of traumatic brain injuries among youth ages 15-24.

An extensive National Academy of Sciences report previously found a lack of scientific evidence that helmets and other protective devices designed for young athletes reduce concussion risk — yet some manufacturers continue to use false advertising claims that prevent athletes, parents and coaches from making informed safety decisions.

In 2012, the Federal Trade Commission (FTC) warned nearly 20 sports equipment manufacturers that they might be making deceptive concussion prevention claims,  but the FTC’s actions thus far have not deterred companies from making these claims. The Youth Sports Concussion Act would empower the FTC to seek civil penalties in such cases.

Udall has led efforts in Congress to improve equipment safety standards and curb false advertising claims, focusing on ensuring parents, coaches and players have the information they need to make important decisions about how to prevent head injuries. A previous version of the Youth Sports Concussion Act passed the Senate Commerce Committee in April 2014. Last year, Udall and Sen. Bill Nelson (D-Fla.) called on the FTC to investigate potentially misleading safety claims used to sell soccer headgear. Udall also worked to include several concussion prevention provisions in December’s appropriations bill.

Many sports, medical and consumer organizations have supported the Youth Sports Concussion Act, including:

American Academy of Neurology

American Academy of Pediatrics

Brain Injury Association of America

Brain Trauma Foundation

Cleveland Clinic

Consumer Federation of America

Consumers Union

Major League Baseball

Major League Baseball Players Association

Major League Soccer

Major League Soccer Players Union

National Association of State Head Injury Administrators

National Athletic Trainers’ Association

National Basketball Association

National Collegiate Athletic Association

National Consumers League

National Federation of State High School Associations

National Football League

National Football League Players Association

National Hockey League

National Hockey League Players’ Association

National Interscholastic Athletic Administrators Association

National Operating Committee on Standards for Athletic Equipment

Safe Kids Worldwide

United States Brain Injury Alliance

US Lacrosse

US Soccer Federation

USA Hockey

Xenith

###

Contacts: Jennifer Talhelm (Udall) 202.228.6870 / Colin Milligan (Klobuchar) 202.228.6317 / Kayla Johnson (Blumenthal) 202.224.0335

The Third Circuit Affirms NFL Concussion Settlement

2016 April 18
by Paul D. Anderson Consulting, LLC

The Third Circuit upheld Judge Brody’s Order approving the NFL Concussion Settlement. The Third Circuit’s Opinion can be found here: In re NFL Concussion Litigation Opinion

Perhaps the most notable quote from the Third Circuit’s decision is the following,

Before concluding, we address developments during the pendency of this appeal. In a March 2016 roundtable discussion on concussions organized by the House Energy & Commerce Subcommittee on Oversight & Investigations, the NFL’s Executive Vice President cited the research of Dr. McKee and agreed that there was a link between football and degenerative brain disorders like CTE. The NFL’s statement is an important development because it is the first time, as far as we can tell, that the NFL has publicly acknowledged a connection between football and CTE. On the other hand, the NFL is now conceding something already known. The sheer number of deceased players with a post-mortem diagnosis of CTE supports the unavoidable conclusion that there is a relationship, if not a causal connection, between a life in football and CTE.

The Third Circuit then concluded,

It is the nature of a settlement that some will be dissatisfied with the ultimate result. Our case is no different, and we do not doubt that objectors are well-intentioned in making thoughtful arguments against certification of the class and approval of this settlement. They aim to ensure that the claims of retired players are not given up in exchange for anything less than a generous settlement agreement negotiated by very able representatives. But they risk making the perfect the enemy of the good. This settlement will provide nearly $1 billion in value to the class of retired players. It is a testament to the players, researchers, and advocates who have worked to expose the true human costs of a sport so many love. Though not perfect, it is fair.

In sum, we affirm because we are satisfied that the District Court ably exercised its discretion in certifying the class and approving the settlement.

 

The “Groundbreaking” Admission

2016 March 15
by Paul D. Anderson Consulting, LLC

At a roundtable yesterday on Capitol Hill, the NFL’s top brass on player safety, Jeff Miller, acknowledged that “certainly…there’s a link” between football and CTE. But the admission did not come without equivocation.

Rather, it followed the industry’s playbook of perpetuating doubt: “But there are also a number of questions that come with that,” Miller went on to say.

Ergo you can expect that despite this admission, the NFL will continue to cast doubt upon the unequivocal link between repetitive brain trauma and CTE. Worse still, the NFL will continue to employ and associate itself with adamant CTE deniers–such as Dr. Pellman–and the NFL will also continue to pedal false hope to parents that playing youth tackle football is “safe.”

Indeed, shortly after the hearing concluded, the NFL went on the offensive and sought to reconcile Miller’s admission with the NFL’s playbook of doubt:

He was discussing Dr. Mckee’s findings and made the additional point that a lot more questions need to be answered,” NFL spokesman Brian McCarthy said in a statement.  “He said that the experts should speak to the state of the science…[and he] made the additional point that a lot more questions need to be answered.

Far from being a watershed moment, this “admission” will likely be another chapter in the NFL’s obfuscation of the truth. History can be an important lesson.