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NFL Concussion Litigation Oral Arguments Set for Nov. 19

2015 October 9
by Paul D. Anderson Consulting, LLC

On November 19, in Philadelphia, the Third Circuit will hear oral arguments on the former players’ bid to reverse the NFL Concussion Settlement. (CA3 Order). The various briefs are set forth below:

Retired Players’ Opening Briefs

NFL and Class Counsel Response

Retired Players’ Reply

Third Circuit’s Order

Stabler’s Death is a Stark Reminder About the Settlement’s Deficiencies

2015 July 10

On Thursday, news broke—then retracted, then confirmed—that Ken Stabler passed away at the age of 69 following a battle with colon cancer.

Stabler was among the thousands of players who filed a concussion lawsuit against the NFL. In his 2012 lawsuit, Stabler alleged that he “suffered repeated and chronic head impacts during his career…and…has experienced cognitive and other difficulties including, but not limited to, headaches, dizziness, depression, fatigue, sleep problems, irritability, and numbness/tingling in neck/cervical spine.”

In other words, symptoms consistent with CTE.

That is perhaps one reason why his family announced that they intend to donate Stabler’s brain and spinal cord to Boston University’s Center for CTE—to determine definitively whether Stabler suffered from CTE.

The family also hopes to advance the science relating to degenerative brain disease in athletes.

This is a courageous move by Stabler’s family, and hopefully other families will follow Stabler’s lead. Because, unfortunately, the NFL Concussion Settlement does not incentivize families for going through the process of having their loved one’s brain donated to science.

Nope; instead, families who later learn that their loved one was diagnosed with the “industrial disease of football” will be left without recourse since the NFL Concussion Settlement bargained away those rights.

If it is determined that Stabler had CTE, his family will receive nothing under the settlement. Stabler’s death will likely be a sad and constant reminder of the deficiencies of the NFL Concussion Settlement: no future CTE claims will ever be paid.

Unless a former player’s death fell within a discrete window between January 1, 2006 to April 22, 2015 and subsequently received a CTE diagnosis, the settlement forecloses any compensation for future CTE claims.

So, for example, while Dave Duerson’s family will rightfully receive compensation for “Death with CTE” under the settlement, Stabler, who was exposed to similar brain trauma, will receive nothing for suffering years of “repeated and chronic impacts.”

The same unfair result—assuming they receive a post-mortem diagnosis of CTE—will strike the families of Charlie Sanders, Damion Cook, Adrian Robinson, John David Crow, and many more to come.

Although Stabler’s family won’t be compensated, perhaps his brain donation will provide a significant contribution to the ongoing, and essential, study of CTE.

Rest in peace, Mr. Stabler.

The Latest Wave

2015 June 23
by Paul D. Anderson Consulting, LLC

The following is an excerpt of an article I presented at a recent CLE in Kansas City.

On April 22, 2015, the Honorable Judge Anita B. Brody of the Eastern District of Pennsylvania granted final approval to the NFL Concussion Settlement.[1] What has been hailed by some as a “historic settlement” and a “huge victory” for the retired players is, in reality, a tremendous deal for the National Football League (“NFL”) and Class Counsel.[2] But a lousy one for the overwhelming majority of players and their families.

The NFL has all-but eliminated any future threat of concussion litigation,[3] saved itself from potentially damaging discovery and turned a PR nightmare into a salvageable message of philanthropy. Class counsel, too, will get to share in more than $112.5 million in class attorneys’ fees, for essentially promoting a slick advertising campaign in which they convinced 99% of the class members to “accept” the settlement—by not opting out.

On the other hand, the “overwhelming majority,” of class members, according to Class Counsel’s own actuarial data, “are not compensated because they never contract a compensable disease.”[4] Stated differently, the overwhelming majority of class members will receive nothing because the most prominent disease affecting retired players—CTE—is not compensable under the settlement.

While the merits of the NFL Concussion Settlement will be debated—and potentially litigated—for the next sixty-five years (i.e., the life of the settlement), one thing is certain: the NFL Concussion Litigation has triggered a new wave of litigation – concussion litigation.


In 2011, the first concussion-related lawsuit was filed against the NFL. The lawsuit asserted that the NFL knew or should have known since 1928 that football caused brain damage. But instead of warning the players about these dangers and seeking to make the game safer, the NFL engaged in a campaign of denial, deception and brain-rattling glamour, profiting and sensationalizing the big hits through NFL Films.

A. The NFL Takes a Page Out of Industry’s Playbook: Manufacture Doubt

Doubt is our product since it is the best means of competing with the ‘body of fact’ that exists in the minds of the general public. It is also the means of establishing a controversy. Tobacco Executive[5]

Like Big Tobacco, Big Pharma et al., the NFL knew that it was much easier to debate the science than to debate the logic.[6] Of course hitting your head repeatedly is not a good thing. But a finely-orchestrated “scientific” controversy could easily derail that logic. The NFL knew that if the message – FOOTBALL CAUSES BRAIN DAMAGE – was crystallized, its lifeblood – the moms of football-playing adolescents – could be in jeopardy. Enter the manufacture of doubt.[7]

Although the medical science defining the link between repeated blows to the head and neurological diseases has been established for more than eight decades,[8] the dangers of concussions and sub-concussive blows have been, at best, marginalized. Some would argue that this is because the brain is a highly complex organ for which the study of neurological disease is still in its infancy, (true), whereas others will argue that this “last-frontier” discovery is the result of the NFL’s campaign of denial and cover up, (also true).[9]

There can be no doubt that the NFL did in fact create junk science in order to obfuscate the truth. In 1994, then-Commissioner Paul Tagliabue formed the Mild Traumatic Brain Injury Committee with the specific task of “studying” concussions in professional football. The Committee was led by Dr. Elliot Pellman, a rheumatologist; Dr. David Viano, a biomechanical engineer; and Dr. Ira Casson, a neurologist.

Over the next 15 years, the Committee created a series of several controversial studies that refuted the link between concussions and neurodegenerative diseases (e.g. dementia, Alzheimer’s, ALS, CTE). In the Committee’s most controversial summary study,[10] published in Neurosurgery, the authors made four conclusions that would eventually cost the NFL approximately a billion dollars in the NFL Concussion Litigation.

First, “it can be concluded that mild TBIs in professional football are not serious injuries.”[11]

Second, in regard to the often-times deadly second-impact syndrome the Committee found that “[i]t is possible that this syndrome does not truly exist in this population of athletes.”[12]

Third, in dismissing the various grades of concussions and the necessity to hold concussed players out until they are asymptomatic, the authors found that their study “supports the suggestion that such arbitrary return-to-play guidelines may be too conservative for professional football.”[13]

Fourth, “[t]he results of this study indicate that many NFL players can be safely allowed to return to play on the day of the injury after sustaining a mild TBI.”[14]

The final kicker, on an interview which aired in 2007 on HBO Real Sports, Dr. Casson boldly stated the following in response to questioning:

Q. Is there any evidence, as far as you are concerned, that links multiple head injuries among pro football players with depression?

A. No.

Q. With dementia?

A. No.

Q. With early-onset of Alzheimer’s?

A. No.

Q. Is there any evidence as of today that links multiple head injuries with any long-term problem like that?

A. In NFL players?

Q. Yeah.

A. No.

Two years later, the NFL was forced to implicitly acknowledge that the studies were flawed when it “accepted” the resignations of the principal authors of the studies: Drs. Casson and Viano.[15] But the damage was done and the lawsuits were being drafted.

B. The Settlement That Freezes Science.

The study of CTE is nascent, and the symptoms of the disease, if any, are unknown. – Judge Anita B. Brody.

The NFL Concussion Litigation was initially framed as a CTE lawsuit, but as negotiations progressed it was transformed into a cognitive-disorder settlement, all-but eviscerating future awards of CTE. CTE has been described as the “industrial disease of football.” Some objectors analogized the failure to compensate CTE in this case to an asbestos settlement excluding compensation for mesothelioma.

The settlement provides compensation for individuals who have been diagnosed with ALS, Alzheimer’s, early-to-severe dementia, or Parkinson’s. The settlement also carves out a period in which certain CTE claims (“Death with CTE”) will be paid. Retired players who died and were diagnosed with CTE at anytime between January 1, 2006, and the date of final approval (i.e., April 22, 2015) will receive an award.[16] To be fair, the settlement will pay relatively generous awards to some individuals:

However, it forecloses any future awards for CTE. So, for example, if a retired player died today, and he was subsequently diagnosed post-mortem with CTE, his family would receive zilch under the settlement. Moreover, the settlement fails to compensate for the classic, clinical symptoms relating to CTE, including mood and behavioral disorders, depression, irritability, explosivity, suicidality, etc. CTE is described in the medical literature as manifesting in four stages; it is not until the final stages that cognitive disorders/dementia manifest.[17]

While it is true, at present, CTE can only be definitively diagnosed post-mortem, Dr. Robert Stern, among others, believe that an in-vivo CTE diagnosis will be forthcoming within the next five years.[18] Despite this, the settlement states that it will never pay an award for an in-vivo CTE diagnosis without the player manifesting “actual cognitive impairment.”[19] Thus, if a retired, living player is diagnosed with CTE at anytime in the next 65 years, he will not receive compensation under the settlement unless he is cognitively impaired. But that is not CTE. That is CTE + dementia.

This exclusion creates the potential to derail the science relating to CTE and cast further doubt upon the causality of CTE. The latter has already been emphasized by the commissioner of the National Hockey League. Gary Bettman recently stated, “From a medical and science standpoint, there is no evidence yet that one necessarily leads to the other.”[20] His support? The NFL Concussion Settlement. When pressed, Bettman said, his “views echoed those of the federal court judge who approved a settlement between the N.F.L. and thousands of retired players.”[21]

More troubling, the memorandum granting final approval reads like a Daubert analysis. See e.g., Final Approval Memorandum, at *82 (“Because of these [studies’] limitations, researches do not know the symptoms someone with abnormal tau protein in his brain will suffer from during life. No diagnostic or clinical profile for CTE exists.”); Id. at *83 (“No definitive clinical profile yet exists for CTE, however, and the idea that CTE progresses in defined stages—or even that it is associated with symptoms listed—has not been sufficiently tested in living subjects.”). Federal courts faced with future Daubert challenges relating to CTE may rely upon this decision to reject the introduction of expert CTE evidence because it is too “unreliable” or lacks “rigorous testing.”

The former—that the settlement may impede scientific advancements relating to CTE—may occur like this. Before the settlement was reached, families had an incentive—both financially and in a search for answers—to go through the grueling and emotional process of having a loved one’s brain examined for CTE. The financial incentive is no longer present since future CTE claims will not be paid. This in turn could reduce the “brain donations” that clinical researchers rely upon in order to study CTE.

The settlement also mandates that the parties confer at least once every ten years to determine whether adjustments to the qualifying diagnoses need to be made due to the advancements in science. But since CTE is not one which will be modified, the study of CTE may fall by the wayside. Without the NFL’s clout and other interested parties pushing for the advancement of the medical science relating to CTE, it may be difficult to generate funding to complete future studies.

Despite the many shortfalls, the settlement obviously avoids the cost and uncertainty of this complex litigation and ensures that certain individuals are compensated. But in the same stroke, it also delivers a hollow award to the overwhelming majority. The settlement must still survive an arduous appeals process. More than ten separate notice of appeals have been filed. The thrust of the appeals focuses on the exclusion of CTE from the settlement. Time will tell if this exclusion can withstand the Third Circuit’s scrutiny.

[1] In re Nat’l Football League Players’ Concussion Injury Litig., 2015 WL 1822254 (E.D.Pa.)(April 22, 2015)(final order approving settlement)

[2] NFL Concussion Settlement Press Release, Mediator Judge Layn Phillips

[3] But see Green v. Arizona Cardinals Football Club LLC, 21 F. Supp. 3d 1020 (E.D. Mo. 2014)(granting remand; only case in the country to get out of the MDL and proceed to discovery)

[4] See NFL Concussion Liability Forecast, prepared at the direction of Class Counsel, (Feb. 10, 2014)

[5] See David Michaels, Doubt is Their Product: How Industry’s Assault on Science Threatens Your Health (Oxford University Press, 2008)

[6] See id.

[7] See Professor Daniel Goldberg, Mild Traumatic Brain Injury, the National Football League, and the Manufacture of Doubt: An Ethical, Legal, and Historical Analysis, The Journal of Legal Medicine, Vol 34, Issue 2 (June 19, 2013)

[8] See Martland HS: Punch drunk. JAMA 91:1103-1107, 1928

[9] See Mark Fainaru-Wada and Steve Fainaru, League of Denial (Crown Archetype, 2013)

[10] Pellman, Elliott, et al. Concussion in professional football. Neurosurg. Focus 21 (4):E12, 2006

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Alan Schwarz, “N.F.L. Head Injury Study Leaders Quit,” The New York Times (Nov. 24, 2009).

[16] The settlement provides a grace period of 270 days to receive a diagnosis if a player dies before the final approval date.

[17] See Ann McKee, et al., The Spectrum of Disease in Chronic Traumatic Encephalopathy, 136 Brain 43 (2013)

[18] Declaration of Robert A. Stern, PH.D. (Oct. 6, 2014); see also Barrio JR, et al., In vivo characterization of CTE using [F-18]FDDNP PET brain imaging. Proc. Natl. Acad. Sci. USA. (April 21, 2015)

[19] Section 6.6 of the Settlement Agreement provides for modifications to qualifying diseases based on the advancements of science. However it expressly rules out in-vivo CTE diagnoses: “For the avoidance of any doubt, the identification of a condition—for example, through a blood test, genetic test, imaging technique, or otherwise—that has not yet resulted in actual cognitive impairment and/or actual neuromuscular impairment experienced by the Retired NFL Football Player does not qualify as a Qualifying Diagnosis.” Section 6.6(b)

[20] Pat Iverson, “Gary Bettman says ‘no evidence yet’ that playing hockey causes brain damage” SB Nation (May 21, 2015)

[21] Ken Belson, “Gary Bettman Denies Brain Disease Link.” The New York Times (June 3, 2015)

MLS Must Act with Urgency

2015 March 10

Major League Soccer and the Players Union barely missed a work stoppage—agreeing to a five-year CBA that will continue to restrict players’ rights.

The season is now in full swing. But certain issues remain unresolved.

As MLS and the Players Union hammer out the specifics of the new CBA, health and safety should be deemed an urgent priority. MLS has an obligation to maintain a safe work environment. This means that MLS must promulgate rules that are in the best interest of the players.

The Substitution Rule is the antithesis of this obligation. Under this Rule, a team is only allowed three substitutions per game. There is no exception for injured or concussed players. This has the obvious effect of putting “strategy” above the health and safety of the players. Moreover, it creates external pressure on the players, coaches and medical staff to ignore suspected concussions due to the threat of forcing a team to play shorthanded shortfooted.

Concussions are already difficult to diagnosis. It’s unrealistic to rely upon a concussed player to remove himself from play. Compounding the problem is the threat that if a player is forthright with the medical staff, he could be viewed as letting his team down, especially if it forces the team to play with only 10 players. Quite opposite to creating an environment that incentivizes players to report their injuries, the Substitution Rule impedes this, thus creating a dangerous work environment. This also impacts the medical team’s evaluation of the player.

In 2012, an MLS-affiliated doctor admitted the Rule hindered a practitioner’s ability to exercise his or her clinical judgment: “What’s different are the rules as in soccer, we have rules about substitution that make it difficult to do the kinds of evaluations that we would do in the NFL or even in the NFL,” Dr. Ruben Echemendia said.

While the dissenters have argued that allowing a concussion-substitution exception would create an incentive for cheaters, this position consistently rings hollow. Setting aside the fact that soccer (and basketball) players are notorious for their acting skills in order to draw penalties, the reality remains that new rules often create incentives to find grey areas. When balanced against the threat of a fatal brain injury, it is obvious which is more important.

It’s time for MLS and the Players to modify the Substitution Rule. The Rule’s failures have already been noted this season. Major League Baseball chose to buck the status quo when it outlawed collisions at home plate. While seen initially as a drastic change by the dissenters, MLB and the Players realized that safety trumps convenience.

MLS must provide more than mere lip service or face the threat of liability. If it wants to continue to flourish as a league, it must act with urgency to protect its most valuable assets.

Call for Submission of Articles and Essays

2015 March 4

The University of Missouri-Kansas City Law Review journal is seeking submissions for an upcoming symposium.

Submitted articles and essays should address the legal aspects and intersections of traumatic brain injuries (TBI) as they relate to any area of sports law (including return to play, concussion litigation, settlements, class actions, etc.), neuroscience and neurolaw, criminal law, attorney obligations when a client has a TBI, veterans’ rights, compliance with federal law, including the American’s with Disability Act, rules of evidence and expert qualifications, and products liability and consumer protection.  We welcome any submissions dealing with TBI as it relates to these and other related topics.

The symposium will feature approximately 8-10 authors whose scholarly pieces will range from 7,000-10,000 words and include footnotes.  However, longer pieces will also be considered.

Works currently in progress will be considered, so long as they have not been published elsewhere.  If you have a scholarly piece related to the symposium issue, plan to submit a piece, or have a question, please submit it to the UMKC Law Review Articles and Symposium Editors at:   or

The deadline for submission is July 31, 2015.  The anticipated publication date is Fall/Winter, 2015.

Super Bowl Champions Say the NFL Needs to Rethink Marijuana

2015 January 26
by Paul D. Anderson Consulting, LLC

by Marvin Washington, Brendon Ayanbadejo and Scott Fujita

Super Bowl week brings back fond memories for us. We shed a lot of blood, sweat and tears to earn our Super Bowl rings.

For years, we put our bodies in harm’s way in the ultimate team sport, and for many of our NFL colleagues, the physical damage done in pursuit of our dreams is often permanent, and sometimes terribly debilitating.

The NFL is the preeminent sports league in the U.S. but it is woefully behind the curve when it comes to marijuana and players are suffering as a result. Many former and current NFL players use or have used marijuana to treat pain associated with injuries sustained on the field. There is a compelling body of research showing that marijuana can help treat pain and brain injuries.

Roughly a year ago, Commissioner Roger Goodell expressed a willingness to consider the medical use of marijuana for players if medical experts deem it a legitimate option. He said, “We’ll continue to follow the medicine… that’s something we would never take off the table if we could benefit our players at the end of the day.”

It is time for Roger Goodell to make good on that promise. The NFL should lead the way in developing a more rational and science-based approach to marijuana. According to the Drug Policy Alliance, abundant evidence already exists regarding the medical potential and benefits of marijuana. Roughly half of the fifty states (representing nearly half of NFL markets) have legalized the use of marijuana for medical purposes, and over seventy percent of Americans support this reform. It just so happens that this week’s Super Bowl is being played in Arizona, a state that allows the use of marijuana for medical purposes.

First and foremost, the NFL should allocate financial resources to advance medical research on the efficacy of medical marijuana in treating brain injuries. In the case of trauma, a lot of inflammation occurs, which affects cognitive functioning and neural connectivity. A compound in marijuana called cannabidiol (CBD) has shown scientific potential to be an antioxidant and neuroprotectant for the brain. In a sport where closed head injuries are common, the league should be doing everything it can to help keep their players healthy during and after their careers. If the NFL wants to continue to grow its game, it must investigate potential medical solutions for its industrial disease, Chronic Traumatic Encephalopathy (CTE). Even the federal government holds a patent on marijuana for this purpose.

Second, the NFL should abandon its policy of drug testing and punishing players for use of marijuana. The NHL does not include marijuana among its banned substances and, just last week, the NCAA announced that it plans to re-examine its approach to drug testing student-athletes for non-performance enhancing drugs like marijuana because “they do not provide a competitive advantage.” The HBO show “Real Sports with Bryant Gumbel” reported that 50-60 percent of players currently use marijuana regularly, mostly for pain relief. Solid evidence already indicates that such use can reduce reliance on opiate-based pain medications as well as anti-inflammatory drugs, many of which present pernicious side effects.

Finally, the NFL should take a leadership role in addressing racial disparities in marijuana law enforcement as well as other injustices caused by ineffective prohibitionist policies. Many players enjoy the use of marijuana apart from its medical benefits, just as tens of millions of other Americans do. A majority of Americans now favor regulating and taxing marijuana, more or less like alcohol, and four states have approved such policies, with more likely to do so in coming years. According to theACLU, African Americans are far more likely than other Americans to be arrested for marijuana possession even though they are no more likely to use or possess marijuana. This basic injustice should be of particular concern to the NFL given that more than two-thirds of all current players are African American.

As former NFL players, we recognize our role as leaders and role models. We firmly believe that reforming marijuana policies can, indeed must, go hand in hand with discouraging young people from using marijuana and other drugs. There is no place any longer, either in the NFL or the nation at large, for the injustices and hypocrisies of prohibitionist marijuana policies. It’s time for the NFL to be a leader and create a rational and science-based marijuana policy.

Marvin Washington is a retired 11-year NFL veteran, a Super Bowl XXXIII champion and retired players CTE/Concussion advocate. His is current a spokesman and advisory board member for Kanna Life Science, a phyto-medical company. Brendon Ayanbadejo is a Super Bowl XLVII and equal rights champion and he retired from the NFL after 13 years. Ayanbadejo is currently working for Fox Sports as an analyst/writer and sits on the executive board of Athlete Ally.

Scott Fujita is a retired 11-year NFL veteran and Super Bowl XLIV champion. He currently works as a TV/film consultant, NFL broadcaster and sports writer. Scott is also a big supporter of human rights and other causes.

Preemption is the Focus

2014 December 7

It was a busy week in the sports-injury-litigation arena. The NFL Prescription Drug case (Richard Dent et al. v. NFL) continues to heat up as the NFL, NFLPA and retirees duke it out in court filings. And, in a different venue, the NFLPA received a favorable ruling in a concussion lawsuit (Smith et al. v. NFLPA). Both matters focus on the doctrine of preemption.

Ruling Imminent in Prescription Drug Litigation

This case is taking a very unorthodox route to a decision. Judge Alsup has taken a very aggressive and active role in seeking to flesh out the NFL’s position that the retirees’ claims are barred by the collective bargaining agreements (CBAs). This argument hinges on the NFL’s ballistic weapon of choice – preemption.

Judge Alsup posed several questions to the NFLPA – despite the NFLPA not being a party to the lawsuit. In response, the NFLPA contends that the players would be unable to grieve the specific claims alleged in the lawsuit. In other words, there is no provision in the CBAs that would require a court’s interpretation. The NFLPA’s responses triggered reactions from both sides.

The retirees interpret the NFLPA’s position as a resounding victory: the claims are not preempted by any provision of the CBAs.

The NFL, on the other hand, rejects the NFLPA’s position. First, it argues that the NFLPA is wrong, and in fact it has taken the opposite position in a pending concussion lawsuit (see infra) where it is seeking dismissal based on preemption. Second, the NFL argues that this case presents a classic example as to why these claims should be heard, if at all, by an arbitrator – there are interpretative disputes over the meaning of the CBAs, lending itself to the foundational purposes of preemption. Third, and perhaps most convincingly, the NFL cites to several examples where players grieved the “same types of allegations” alleged in the present lawsuit.

As an aside, the NFL attached a treasure trove of exhibits to its briefs. The exhibits (some can be found here and here) involve grievances filed by various players, decision issued by arbitrators and, notably, the Toradol Grievance – NFLPA v. the NFL Clubs. This provides a glimpse of the inner workings of the grievance process.

The retirees must submit their response to the NFL’s brief by Monday, December 8. And Judge Alsup, if satisfied, will issue a decision shortly thereafter.

Although these recent submissions are informative, they arguably distract from the main issue. It matters not whether the claims can be grieved, or even if certain remedies would be foreclosed. At issue is whether the resolution of the claims is dependent upon or requires interpretation of the CBAs. If the answer is no, then the claims are not preempted. If the answer is yes, then the claims are preempted.

At bottom, these are clearly common-law claims that allegedly involve numerous violations of federal and state drug laws. Collective bargaining cannot, in any event, negotiate away fundamental rights. Nor can parties negotiate for things that are illegal. Simply put, this not a labor dispute. The court should reject the NFL’s preemption argument.

Concussion Lawsuit against the NFLPA may be on the Verge of Dismissal

On Tuesday, federal Judge E. Richard Webber of the Eastern District of Missouri may have sounded the death-knell to the concussion litigation against the NFLPA. Judge Webber’s Order can be found here.

At the outset, this is an extremely difficult case. Unions, unlike employers, are granted, in effect, a broad shield of immunity when it comes to lawsuits brought by former and current members.

Preemption, once again, is the go-to weapon of choice for unions when defending these lawsuits. Instead of single-barrel preemption, the union gets a double barrel.

First, a state-law claim against a union can automatically be converted into a duty of fair representation which, then, triggers preemption under the National Labor Relations Act. Generally, a duty of fair representation is the only claim that can be asserted against the union. This claim is difficult to prevail on because of the short statute of limitations (6 months) as well as the burden of proving arbitrary, bad faith or discriminatory conduct, as opposed to mere negligence.

Judge Webber found that the plaintiffs’ state-law claims were subsumed by the duty of fair representation and thus preempted.

Second, Judge Webber also found that at least one of plaintiffs’ claims – negligent misrepresentation – was completely preempted by Section 301 of the Labor Management Relations Act. The court found that the “justifiable reliance” element would require Article 39 of the 2011 CBA to be interpreted, and thus that was sufficient to trigger complete preemption.

Based on these findings, Judge Webber determined federal jurisdiction was present under federal labor law and denied the plaintiffs’ motion to remand.

The case is not over, however. The next process will be for the court to rule on the NFLPA’s motion to dismiss. Although the plaintiffs are on the ropes, they still have another round left. The NFLPA, on the other hand, certainly believes the court just delivered the knockout punch.

To be sure, this decision provides another bullet to a professional-sport organization’s preemption chamber. The only positive to come out of this case is the recognition that Green v. Cardinals is the key to defeating preemption.

Finally, I continue to believe that Section 301 preemption was never intended to expand to the depths it is currently reaching, especially in latent-injury cases involving allegations of concealment. Perhaps it’s time for the Supreme Court to rein in the doctrine’s gigantic reach to ensure that victim’s rights are adequately remedied and defendants aren’t successfully wielding a license to injure with impunity.

Humanizing the Objections

2014 November 16

All too often in litigation, the lawyers, shamefully, forget about the victims that will be impacted by the outcome of a case. That is especially true in class actions where there are often thousands of absent class members that may never appear before the court. Fortunately, there is a system in place that seeks to ensure that all voices may be heard.

That is the process that will play out in Philadelphia on November 19th in the NFL Concussion Litigation. The Fairness Hearing will provide class members and their lawyers an opportunity to appear before the Court and set forth the reasons why the proposed settlement is unfair, unreasonable, inadequate, arbitrary and inequitable. In anticipation of the hearing, class members were able to submit written objections.

What follows, in no particular order, are quotes from some of the heartfelt objections drafted by former players and their loved ones.

My objection is to the way in which the offer uses the player’s age at diagnosis to calculate the Monetary Award for that player according to the proposed Monetary Award Grid. This approach actually rewards the NFL for the very actions it is being sued for…No one outside the League knows who at the NFL knew what information about head injury and subsequent neurological damage or in what year it was know and with the settlement agreement, the public may never know these facts…Ironically, in the preliminarily approved agreement, the NFL will again save millions of dollars due directly to those early deceptive tactics and inside knowledge that perhaps goes back to the 1980s or even 1970s….However, if one estimates that just half of the 150 disabled players were formally diagnosed at an older age, over age 54, but like my husband and many other former players, had been undiagnosed disease for years prior, then the NFL’s deceit has the potential to save it many millions of dollars and deny a reasonable award to many who are in dire need. – Dr. Eleanor Perfecto, widow of Ralph Wenzel (Entire Objection can be found here)


My initial contacts with the NFL Player Care Foundation, were among the stymied efforts. Primary care physicians were often dismissive and indifferent to my husband’s symptoms and needs. – Dr. Mary Hawkins, wife of Ross Hawkins (Entire Objection can be found here)


The proposed settlement fails to honor those on whose shoulder the NFL organization stands, namely deceased NFL football players that have suffered from CTE…Dale retired from the NFL in 1968…But, in 1981 at the age of 48 Dale began experiencing symptoms of CTE and within 6 month was incapable of fulfilling his job duties, nonverbal, suffering from memory loss, aggressive and unable to care for himself…For his family, it was devastating to watch the mental deterioration and frightening to think of what harm he might do to himself or others…Carmerita contacted the NFL and explained Dale’s condition. Carmerita asked if any other retired NFL players were experiencing similar demential and personality issues and she was given a firm “No” by NFL staff. In addition, Carmerita was told by NFL staff that Dale could not receive disability benefits because she couldn’t prove that his dementia was caused by playing football…The proposed settlement is ambiguous and unfair regarding players that died prior to January 1, 2006. Players that died prior to 2006 have never received benefits from the NFL Mackey 88 Plan to compensate for the cost of dementia nor had access to sufficient research regarding CTE to litigate the existence, causation and effect on their personal health. The players in the 1960’s made so little money compared to the unknown risk of becoming mentally incapacitated at an early age by football related dementia…The proposed settlement agreement provides a unique opportunity for the NFL football organization with current annual profits of $10 billion to recognize and reimburse those who innocently risked their quality of life and mental health to benefit the current NFL dynasty of today. – Personal Representative for the Estate of Dale Meinert  (Entire Objection can be found here)


CTE is a direct result of head trauma. I feel it should be ahead of ALS because it has not been proven that ALS is a direct result of head trauma where CTE has been proven to be a direct result from head trauma. My father was in stage 4 of CTE. – Scott Gilchrist, son of “Cookie” Gilchrist (Entire Objection can be found here)


I have carefully read the NFL Concussion Settlement Notice documents several times and still find them extremely convoluted and confusing. Even after reviewing the Notice documents with the substantial help of a savvy and experienced legal advisor, I find the proposed structure illogical and unrealistic…The offer to ‘uncap’ the payout is really nothing more than a red herring – designed for public consumption and to confuse as many retired players as possible. It doesn’t affect the NFL’s ‘exposure’ one iota, as long as the compensation discount factors and class exclusions remain! – Eugene Moore (Entire Objection can be found here)


The settlement does not fairly compensate the older players who cannot take care of themselves…The NFL should compensate these older players who paved the way for the financial success the NFL enjoys today…I grieve for my father because he has been mentally gone for a long, long time. He and other older players should be compensated. – Personal Representative of Joseph P. O’Malley (Entire Objection can be found here)


Football is big business, and we need to recognize that in entering into this settlement, the NFL has made a business decision…The settlement is fundamentally flawed for a number of reasons, and is calculated to ensure that the vast majority of retired football players who suffer from neurodegenerative diseases will receive little if any monetary compensation. At the same time, those players will forever release claims potentially worth millions of dollars. – Darren Carrington (Entire Objection can be found here)


I’m writing to suggest that CTE be addressed in living players because there is technology being developed that will diagnose that condition if not now somewhere in the near future. The settlement only addresses CTE when a player dies [Editor’s note, but only if you died before July 2014] and I think the court should have a clause in the settlement that will allow players to be compensated while they are still alive to take advantage of the benefits. It seems an injustice not to consider CTE in a living player because we cannot enjoy the benefits dead. – Judson Flint (Entire Objection can be found here)


My husband has been incapacitated for five years and has lived in a nursing home. For  several years before he was moved, we had caregivers in our home. And for years before that, we living with the knowledge that something terrible was wrong with him–but during those years, we lived in a state of denial, not wanting to accept what the future would hold.In today’s world, our thought process would be totally different.  – Ruth Daniel, wife of William P. Daniel (Entire Objection can be found here)


Responsibility for a player’s health and physical welfare has been extremely lacking since the beginning, from the equipment used to attitude. The old but true expression of, “They use you, abuse you, and throw you out” was known by all and experienced by most. Doing the ‘right’ thing cost too much, and money was, and is now, the name of the game. Injured player are expendable. – Larry Barnes (Entire Objection can be found here)


While the thought of the suit is great, there are many things about it that are unfair to our future. Not only is it not fair to us as a player, but to our families as well. – Justin Green (Entire Objection can be found here)


I’m sure you can relate to my pain and suffering even to imagine what life would be without your child or spouse and watch them suffer from a brain disease or head trauma due to the negligence of an organization to fail to release information to prevent the suffering and death of many. Had the research been made public many years ago, these tragedies could have been prevented. – Debra Pyka (Entire Objection can be found here)

Finally, the schedule for Wednesday’s Fairness Hearing is proposed as follows:

  • The NFL and Class Counsel will go first;
  • Second, the Sean Morey Objectors will argue for 65 minutes, followed by 70 minutes of arguments from other objecting lawyers;
  • Third, class members (including players and their families) will have an opportunity to speak. The following individuals are scheduled to address the Court: Ben Utecht, Mary Hawkins, Rebecca Carpenter, Gene Moore, Tregg Duerson and Eleanor Perfetto; and
  • Fourth, the NFL and Class Counsel will get a rebuttal.


‘This Settlement is a Sell-Out,’ Claim Objectors

2014 October 6
by Paul D. Anderson Consulting, LLC

In a tour de force, the Sean Morey, et al. Objectors filed a lengthy Objection today. It can be found here. Included in the filing is a declaration from the foremost expert on clinical CTE. Neuropsychologist Dr. Robert Stern rips the proposed NFL Concussion Settlement – and backs it up with cold, hard facts. His recently filed declaration can be found here.

Here are some of the highlights.

I am confident that within the next five to ten years there will be highly accurate, clinically accepted, and FDA-approved methods to diagnose CTE during life.

Meanwhile, the proposed settlement eliminates awards for all future claims for CTE – living or dead.

Several key symptoms of CTE that are identified in the scientific and medical literature and in my clinical and research experience are not compensable.


The Test Battery, set forth in Exhibit 2 of the Settlement, is not appropriate for evaluating whether retired professional football players have neurodegenerative diseases such as CTE or Alzheimer’s disease…The specific tests selected, and the length of the battery would not be consistent with that given by the large majority of neuropyschologists who specialize in neurodegenerative disease and who evaluate patients for Mild Cognitive Impairment and Alzheimer’s disease dementia.


It is my scientific opinion, based on the medical and scientific literature and on my own clinical and research experience, that reliance on effort measures included in the Neuropsychological Test Battery would unfairly deprive at least some otherwise eligible person with measurable cognitive deficits of compensation.


To be eligible for compensation under Neurocognitive Impairment Level 1.5 or 2.0, the Class Member would have to be so severely impaired in several areas of cognitive functioning that they would require assistance in many activities of daily living (in level 1.5) or be almost fully dependent on another person for most activities of daily living, such as bathing and toileting (for level 2.0).

The Objectors summarize,

This complex procedural framework is a transparent attempt to minimize the cost of the settlement to the NFL  – a consideration of tremendous importance now that the Settlement is purportedly uncapped.

An ‘Appalling’ Saturday

2014 September 28

The NCAA has failed. Michigan has failed. Brady Hoke has failed.

Shane Morris was abused. His health and safety was recklessly disregarded. And for what? Michigan was taking a shellacking. Morris’ brain and body took a needless beating.

ESPN’s announcers, Ed Cunningham and Mike Patrick, declared Michigan’s incompetence multiple times:






Concerned spectators took to Twitter and unleashed their fury with Michigan’s gross incompetence:

But this is exactly how the NCAA envisions its concussion policy to work. “When in doubt, get checked out.” In other words, unless a player makes a self-diagnosis of a concussion, he is not coming out.

The entire world expressed doubt. Hoke directed Morris to return to play because, in Hoke’s words, Morris didn’t stay down.

I don’t know if he had a concussion or not, I don’t know that…. Shane’s a pretty competitive, tough kid. And Shane wanted to be the quarterback, and so, believe me, if he didn’t want to be he would’ve come to the sideline or stayed down. – Brady Hoke

Every player wants to play – they have been conditioned their entire lives to “play through pain” and to obey their coaches.

Hoke’s response punctuates why the NCAA’s concussion policy is a failure.

First, the toothless concussion management plan places the responsibility for reporting injuries on the student-athletes. The same student-athlete who is experiencing amnesia, who is not thinking clearly, or more bluntly, who is suffering from a brain injury.

Second, Hoke admits he does not know how to identify obvious signs and symptoms of an apparent concussion – certainly Morris’ injuries were enough to trigger doubt.

Third, member institutions can continue to publicly violate the NCAA’s concussion policy with no accountability. See here, here and here.

Meanwhile, Hoke – who is paid more than $2 million a year – articulated the NCAA’s defense in concussion lawsuits: It’s the player’s fault. We are not responsible.

And, of course, the NCAA won’t take any action. The NCAA won’t investigate. The NCAA won’t inquire with Michigan as to why a player’s life was put in jeopardy. Nope. The NCAA apparently has more important things to do than to live up to its founding purpose of protecting student-athletes.

One last note, Hoke’s actions arguably constitute a fireable offense pursuant to his contract,

“The University has the right to terminate the employment of the Head Coach for cause in the event of only the following…(c) Conduct of Head Coach which offends public decency or morality as shall be determined by the standards prevailing in the community…(g) Fraud or willful malfeasance in the performance of any duties or responsibilities under this Agreement.”

What say you? Were you outraged? Were you offended?

Michigan has the right and power to terminate Brady Hoke – for cause. There is solid legal precedent. Remember Mike Leach?

Let’s see how concerned Michigan is with the health and safety of its student-athletes.

Update – September 30, 7:59 am

Public outrage forces Michigan’s hand. Michigan’s athletic director issued a lengthy statement early Tuesday morning. It essentially admits that Michigan’s policies failed and that Morris did, indeed, suffer a concussion. The full statement from Dave Brandon is below:

Ultimate responsibility for the health and safety of our student-athletes resides with each team’s coach and with me, as the Director of Athletics. We are committed to continuously improving our procedures to better protect the health and welfare of our student-athletes.

I have had numerous meetings since Sunday morning to thoroughly review the situation that occurred at Saturday’s football game regarding student-athlete Shane Morris. I have met with those who were directly involved and who were responsible for managing Shane’s care and determining his medical fitness for participation.

In my judgment, there was a serious lack of communication that led to confusion on the sideline. Unfortunately, this confusion created a circumstance that was not in the best interest of one of our student-athletes. I sincerely apologize for the mistakes that were made. We have to learn from this situation, and moving forward, we will make important changes so we can fully live up to our shared goal of putting student-athlete safety first.

I have worked with Darryl Conway, my Associate Athletic Director for Student-Athlete Health and Welfare, to develop a detailed accounting of the events that occurred. Darryl is the person who oversees all athletic training personnel and serves as the liaison to the physicians we work with through the University of Michigan Health System and University Health Services.

It is important to note that our athletic trainers and physicians working with Michigan Athletics have the unchallengeable authority to remove student-athletes from the field of play. Michigan Athletics has numerous medical professionals at every football competition including certified athletic trainers and several physicians from various relevant specialties.

I, along with Darryl and our administrative and medical teams, have spent much of the last two days carefully reviewing the situation regarding Shane Morris. We now understand that, despite having the right people on the sidelines assessing our student-athletes’ well being, the systems we had in place were inadequate to handle this unique and complex situation properly.

With his permission, I can share that Shane Morris suffered an ankle injury during the third quarter of Saturday’s game. He was evaluated for that injury by an orthopedic surgeon and an athletic trainer several times during the game. With each of these evaluations it was determined that his ankle injury did not prevent him from playing.

In the fourth quarter, Shane took a significant hit and stumbled after getting up. From the field level and without the benefit of replays, medical and coaching staffs did not see the hit. Because they did not see the hit, the athletic training staff believed Shane stumbled because of his ankle injury. The team neurologist, watching from further down the field, also did not see the hit. However, the neurologist, with expertise in detecting signs of concussion, saw Shane stumble and determined he needed to head down the sideline to evaluate Shane.

Shane came off the field after the following play and was reassessed by the head athletic trainer for the ankle injury. Since the athletic trainer had not seen the hit to the chin and was not aware that a neurological evaluation was necessary, he cleared Shane for one additional play.

The neurologist and other team physicians were not aware that Shane was being asked to return to the field, and Shane left the bench when he heard his name called and went back into the game. Under these circumstances, a player should not be allowed to re-enter the game before being cleared by the team physician. This clearly identifies the need for improvements in our sideline and communication processes.

Following the game, a comprehensive concussion evaluation was completed and Shane has been evaluated twice since the game. As of Sunday, Shane was diagnosed with a probable, mild concussion, and a high ankle sprain. That probable concussion diagnosis was not at all clear on the field on Saturday or in the examination that was conducted post-game. Unfortunately, there was inadequate communication between our physicians and medical staff and Coach Hoke was not provided the updated diagnosis before making a public statement on Monday. This is another mistake that cannot occur again.

Going forward, we have identified two changes in our procedures that we will implement immediately:

We will have an athletic medicine professional in the press box or video booth to ensure that someone will have a bird’s eye view of the on-field action, have television replay available and have the ability to communicate with medical personnel on the sidelines.

We are also examining how to reinforce our sideline communication processes and how decisions will be made in order to make sure that information regarding student-athlete availability to participate is communicated effectively amongst the medical team and to our coaches.

We have learned from this experience, and will continue to improve ways to keep our student-athletes’ health and safety our number one priority.