This week may end up being the most pivotal moment in the future of the NFL Concussion Settlement Litigation. On Thursday, the Third Circuit will hear oral arguments on why the NFL Concussion Settlement should be reversed or affirmed.
And while oral arguments are often not decisive, they at least provide a glimpse of which way the judges are leaning. They also focus the issues that are potentially determinative, which in turn, allow observers to analyze a likely result.
Some of the best appellate lawyers in the country are slated to argue the respective sides. The NFL has, once again, called on Paul Clement to save the settlement. Also advocating for affirming the settlement, the Class will likely be represented by Professor Samuel Issacharoff.
On the opposite side, seeking reversal of the settlement, there are several lawyers vying for an opportunity to speak. The two most prominent are Deepak Gupta and Steven Molo. Molo’s group has been a tour de force throughout the objection process, providing critical assessment and analysis of the settlement’s inadequacies. Gupta’s group, similarly, has submitted some stellar appellate briefs that effectively identify the deficiencies of the settlement that arguably compel reversal.
Simply put, the parties are well represented, and you can all-but guarantee that this case is headed for the Supreme Court, though the granting of certiorari is less than certain. But first, the Third Circuit must weigh in.
Rather than summarize the arguments on appeal, Gupta’s Opening brief frames the issues so well that it deserves to be excerpted below. Over the next four days, I also intend to republish here what I deem to be the most compelling arguments. (If you can’t wait, you can read the full Opening brief here and the Reply brief here. The rest of the briefing from all sides can be found here.).
Submitted by Gupta Wessler PLLC, et al on behalf of the Armstrong Objectors
By the summer of 2013, the NFL’s executives faced a crisis. Despite the League’s campaign to obscure the effects of concussions in pro football, the autopsy of a beloved former player had led to the discovery several years earlier of chronic traumatic encephalopathy. Characterized by mood and behavioral problems, and even suicide, CTE is a neurodegenerative condition caused only by repeated head trauma. Of 91 former NFL players’ brains examined, CTE has been found in 87.
The discovery of CTE set off a wave of lawsuits by over 5,000 players—a legal and public-relations nightmare for the NFL. But those in the NFL’s boardroom that summer were even more alarmed by what they saw on the horizon, and what the rapidly evolving science foretold: a tsunami of claims by the far larger number of players who would be diagnosed with CTE in the decades to come.
So the NFL wanted an end game: It would pay those with present injuries, including families of players who had already died with CTE. In exchange, the NFL would secure a sweeping global release of all former players’ future CTE claims, without paying any of them. This bargain would result in a stark disparity: The family of a player who dies with CTE before the class-action settlement’s approval gets up to $4 million. But an identically situated player who dies a day after the settlement’s approval releases his claim and gets paid nothing—for the exact same diagnosis.
Why did the NFL believe it could get the plaintiffs’ lawyers to go along with such a lopsided deal? Because, for these lawyers and their injured clients, “the critical goal is generous immediate payments.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 626 (1997). “That goal,” however, “tugs against the interest” of those with future claims, id., who would prefer to reduce payouts now in favor of “sturdy back-end opt-out rights” and a deal that “keep[s] pace with changing science.” Id. at 610-11.
Why did the NFL and the lawyers think they could disregard the thousands of former players who may be diagnosed with CTE in the future? Because none of the lawyers at the negotiating table independently represented their interests. The personal-injury cases had been consolidated before a single judge in Philadelphia, who appointed a Plaintiffs’ Steering Committee and ordered it to mediate with the NFL in July 2013. But the court never appointed independent counsel for the future claimants, whose rights the Committee had every incentive to trade away.
Just a few weeks later, in August 2013, the NFL and the lawyers emerged with a signed term sheet. There had been no formal discovery, and no litigation beyond a motion to dismiss. Yet the plaintiffs’ lawyers secured the right to seek a nine-figure fee award. The NFL got the sweeping release it wanted, and the present claimants got their compensation. Meanwhile, thousands of potential future CTE claimants—including the 34 Armstrong Objectors—were left on the sidelines.
Neither “the terms of the settlement” nor “the structure of the negotiations” can provide this Court with any assurance that the interests of future claimants were truly represented during the negotiation process. Amchem, 521 U.S. at 627. As to substance: The settling parties are unable to defend the disparate treatment at the heart of this deal. They cannot explain why a player who dies with CTE tomorrow loses the millions that would go to that same player if he died last year.
As to procedure: The supposedly independent “futures” subclass counsel was not, in fact, independent. He was picked by, and from within, the Plaintiffs’ Steering Committee. And the subclass representative was recruited only after the deal had already been hashed out by the lawyers. He doesn’t even allege a claim based on CTE—either for himself or for the thousands of players he supposedly represents. A “representative” who abandons the most valuable claims of those he represents, for nothing, is no representative at all—certainly not an adequate one.
This inadequacy is underscored by class counsel’s refusal to file a fee request until after final approval, leaving many critical questions unanswered. That procedure violates the rule in this circuit that “a thorough judicial review of fee applications is required in all class action settlements.” In re GM Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 819-20 (3d Cir. 1995). “There was no excuse for permitting so irregular, indeed unlawful, a procedure,” Redman v. RadioShack Corp., 768 F.3d 622, 638 (7th Cir. 2014)—an independent ground for reversal.
The following is an essay written by Professor Douglas E. Abrams of the University of Missouri School of Law. It was written in anticipation of the upcoming Veterans Clinic Symposium, “Traumatic Brain Injury: Lessons Learned from Our Nation’s Athletes and Military.”
By Professor Abrams
The University of Missouri School of Law, where I teach, operates a Veterans Clinic. Under the supervision of faculty director Angela K. Drake, students help veterans and their families secure disability benefits before the Board of Veterans’ Appeals and the Court of Appeals for Veterans’ Claims.
Each Veterans Day, the clinic’s symposium explores a cutting-edge topic important to veterans’ affairs. This month’s day-long symposium will explore “Traumatic Brain Injury – Lessons Learned From Our Nation’s Athletes and Military.” The symposium begins at 8:00 am and is free and open to the public; advance registration is requested, but not required. The symposium will be live streamed and also available afterwards.
Relevance for Youth Sports
I recommend the symposium to youth sports parents, coaches, and administrators for two reasons. The first reason concerns citizenship, and the second concerns safety.
First, expert panelists will discuss treatment of traumatic brain injury (TBI) in physically- and emotionally-wounded veterans. This discussion concerns all Americans, inside and outside the sports world. Veterans have earned service-related medical care and other promised benefits; providing what they are due is a solemn national obligation. Americans have debated war and peace throughout nearly every conflict the nation has fought, and debate has accompanied the Iraq and Afghanistan wars. But the national obligation to honor commitments made to service members should remain inviolate and beyond debate.
I also commend the symposium to youth sports audiences because continued cross-pollination between athletic and military TBI medical research can help advance the effective treatment of injured athletes at all levels of competition, including youth leagues. Medical researchers report that the effects of TBI in injured athletes can resemble effects suffered by troops injured by bomb blasts and who suffer other head trauma in Iraq and Afghanistan. The upcoming law school symposium recognizes that athletic and military brain injuries are marked by both important differences and important similarities.
Athletes and Troops
The symposium’s title, which recites athletes first and veterans second, initially surprised me, but the order makes good sense because the military can learn much from sports. As a youth hockey coach for more than 40 years, I remain awed by the quality and quantity of recent medical research and commentary concerning traumatic brain injuries in adult and child athletes.
In its new Policy Statement, “Tackling in Youth Football,” the American Academy of Pediatrics synthesizes competent studies whose conclusions frequently diverge. Because the pace of TBI research in football and other youth sports has accelerated in only the last decade or so, however, early lack of consensus will spur further research.
Youth leaguers and veterans alike are fortunate because the sheer magnitude of exposure to physical and emotional harm from TBI has already drawn careful attention from leading health and safety advocates, notably MomsTeam Institute of Youth Sports Safety. The Institute’s Executive Director Brooke de Lench has written widely for years about concussions in football and other sports, which she correctly calls “the predominant youth sports safety issue of the 21st century.”
A word search on www.MomsTeam.com produces a treasure trove of articles with valuable information, insights, and recommendations. The Institute’s Youth Sports Concussions Safety Center now has more than 4,000 pages of information, videos, and other resources, and it is constantly being updated. This summer the National Collegiate Athletic Association (NCAA) and the Department of Defense awarded the Institute a Mind Matters Challenge grant for its application, “Creating a Safe Concussion Reporting Environment: A Multi-Media Approach.”
At the upcoming symposium, I will join Kansas City lawyer Paul Anderson and retired National Football League player Marvin Washington on a panel to discuss traumatic brain injury in athletics. I am not a physician, and I will speak as a citizen. I am concerned about fulfilling our national obligation to veterans, and also about responding effectively to what medical organizations call a public health crisis among the nation’s youth athletes, who number in the millions each year. In the 20 minutes or so allotted to me, I will talk about two challenges shared by athletic and military TBI researchers:
- We must continue learning and adapting. In athletic and military research alike, strategies for treating traumatic brain injury have evolved over the years. This evolution must continue.
Let’s turn back the clock for a few moments because, as historian David McCullough says, “History is who we are and why we are the way we are.” In 1905, football was at a crossroads because 18 collegiate players were killed, and scores more were seriously injured, that year. Most of these casualties would likely be diagnosed today as multiple concussions, skull fractures, or other traumatic brain injury from game action. In 2015, even one on-the-field death among several thousand college football players would attract national attention. Far fewer collegians played football in 1905, so 18 deaths in a single season was an astounding percentage of all players.
With football facing possible extinction from public scorn late in 1905, President Theodore Roosevelt summoned officials from the Big Three teams – Harvard, Yale and Princeton – to the White House to hammer out rules changes and other safety measures that continued to evolve. Death on the college gridiron was serious business because, with a national professional league still more than a decade away, the collegiate game was the most prominent football played in America.
Change came slowly. As the White House conference convened, some intercollegiate football players wore skimpy protective equipment and soft leather helmets without face guards, but game photos show that most players went helmetless. Helmets did not become mandatory in NCAA play until 1939.
The effects of serious head injury have reached football’s radar screen only recently. In 2004, for example, Michael McCambridge wrote America’s Game: The Epic Story of How Pro Football Captured a Nation. It is a well-researched, 552-page history of professional football, but the book never mentions the word “concussions.”
Former Tampa Bay Buccaneers president Gay Culverhouse reports that, as late as 2006, rushing a player back from a concussion was “standard operating procedure in the NFL. Concussions were not taken seriously. . . . This was the culture of the time.” The NFL’s public concern about head injury did not begin until a few years later.
Over the years, the military has similarly learned much about traumatic brain injury, sometimes the hard way. A few years after President Roosevelt’s 1905 football summit, World War I brought unprecedented carnage as the first mechanized total war. The United States and the rest of the world were unprepared for the battlefield horror, and for treating the emotional and physical devastation that it inflicted on so many returning troops. In a world accustomed to warfare that often took a greater toll from disease than from battlefield hostilities, medical science had to play catch up.
Many Americans today have undoubtedly flinched at haunting photographs of muddy World War I troops staring blankly ahead in their trenches. Their condition was called “shellshock” in those days, and that is about all anyone knew. A century later, medical science can better confront what was likely Post Traumatic Stress Syndrome (PTSD) in many of the affected troops.
Fast forward to the Vietnam War, when the nation shortchanged many veterans who returned home in emotional and physical distress. The abdication of responsibility stemmed partly from lack of national will after a long war that was unpopular to many Americans. But the frequently inadequate medical care in those earlier years also stems partly from the fact that the day’s most advanced medical knowledge was not good enough, at least when compared with what medical science understands now.
The point is that in athletics and the military alike, what passed for TBI prevention and treatment even a few decades ago does not pass today. A decade and more from now, medical science will likely know more than it knows today. Even as many medical studies reach divergent conclusions, vigilance defines the essence of medical work in progress.
- Younger troops suffering traumatic brain injury may have special vulnerability and special needs. Some recent medical research suggests that concussions in children can be more serious than concussions in adults because children’s brains are still developing. In various contexts, medical breakthroughs also suggest that children’s brains continue developing past the general age of majority (18) until about the age of 24. These tentative findings may influence approaches to TBI prevention and treatment of thousands of veterans below this age.
Child and adolescent athletes may be more susceptible than adult athletes to concussion’s after-effects, and to repeated sub-concussive blows to the head that occur over the span of one or more seasons. Adolescent athletes may also be prone to “second-impact syndrome,” which Lindsey Barton Straus explains is a rare but usually fatal condition caused by a second blow to head before the brain has healed from an initial concussion. Because concussed children may require longer recovery periods than concussed adults, continued hits during practice sessions or games can produce devastating physical and emotional consequences even if none by itself would cause injury. Military attention seems warranted, pending further studies.
“[T]he concussion problem in football and other contact sports is far more serious than any of us want to believe, and it is time to do something about it,” writes former football player, professional wrestler, and Minnesota Governor Jesse Ventura. He writes in the Introduction to a book on sports concussions, but, as a Navy veteran during the Vietnam era, he could say the same thing about concussions in the military.
Am. Acad. of Pediatrics, Policy Statement, Tackling in Youth Football, http://pediatrics.aappublications.org/content/early/2015/10/20/peds.2015-3282.full.pdf+html?sid=12d9b3d5-b5d8-42f0-85c0-fd0eb9f062ce (Oct. 25, 2015)
Gay Culverhouse, Throwaway Players: The Concussion Crisis From Pee Wee Football to the NFL at p. 74 (2012)
Brooke de Lench, Praise For MomsTEAM Is Nice, But The Fight To Make Youth Sports Safer Isn’t Over, http://www.momsteam.com/blog/brooke-de-lench/praise-momsteam-nice-but-fight-make-youth-sports-safer-not-yet-over#ixzz22VEOtiR9 (May 23, 2012)
Historian Addresses Wesleyan, N.Y. Times, June 4, 1984 (quoting David McCullough)
Lindsey Barton Straus (reviewed by William P. Meehan III), Second Impact Syndrome: A Rare But Usually Fatal Condition, http://momsteam.com/health-safety/concussion-safety/general/second-impact-syndrome-signs-and-symptoms#ixzz3pnUD8tAW
Jesse Ventura, Introduction, in Christopher Nowinski, Head Games: Football’s Concussion Crisis from the NFL to Youth Leagues, p. ix (2007)
Douglas E. Abrams, Confronting the Youth Sports Concussions Crisis: A Central Role for Responsible Local Enforcement of Playing Rules, Mississippi Sports Law Review, vol. 2, p. 75 (2013).
Thank you to Prof. Drake for reviewing this article in draft form.
Originally published on MomsTeam.com: http://www.momsteam.com/health-safety/traumatic-brain-injury-lessons-learned-from-our-nations-athletes-military#ixzz3r1NsyG00
On November 11, 2015, the Veterans Clinic at the University of Missouri School of Law will host a symposium on traumatic brain injuries. I, along with several panelists, will be speaking at the symposium. I hope you can join and honor our heroes.
You can find all the details here, http://law.missouri.edu/faculty/category/veterans-clinic/15-symposium-veterans/ , and below:
On May 19, 2005, the New England Journal of Medicine published Dr. Susan Okie’s article, “Traumatic Brain Injury in the War Zone,” which reported on the case of Sgt. David Emme, who was severely brain-injured by an improvised explosive device (IED) while part of a convoy transporting Iraqi volunteers for military training. Knocked unconscious, temporarily blinded and unable to hear in his left ear, Sgt. Emme regained consciousness 10 days later in the neuroscience unit of Walter Reed National Military Medical Center. He was unable to speak. After five months of extensive therapy, Sgt. Emme regained most of his vision, but was still struggling with verbal communication, reasoning, memory and problem-solving.
Sgt. Emme was one of 450 service members treated at Walter Reed from 2003 to 2005 for traumatic brain injury (TBI). Many of these cases – 56 percent – were considered “severe.” The numbers reflect the reality of today’s modern wars. Unlike the casualties of war suffered long ago, when soldiers with brain trauma died from their injuries, the use of Kevlar body armor and helmets in today’s conflicts increases survival rates. But state-of-the-art helmets cannot completely protect the head or prevent closed brain injury caused by blasts. More than 30,000 service members suffer from TBI, with an estimated economic cost of $76.5 billion.
CTE is caused by head trauma. It is progressive and degenerative, marked by depression, anger, disorientation, memory loss and suicidal ideation. CTE is definitively diagnosed only after death. According to the U.S. Department of Veterans Affairs, “TBI may happen from a blow or jolt to the head or an object penetrating the brain. When the brain is injured, the person can experience a change in consciousness that can range from becoming disoriented and confused to slipping into a coma.” Evidence of CTE has been found in the brains of veterans, just as it has been found in NFL players.
To be sure, there is an overlap between injuries observed in our nation’s athletes and in our nation’s service members returning from recent conflicts. The Department of Veterans Affairs (DVA), in conjunction with Boston University, is carefully studying brain injury. In fact, DVA maintains the brain repository in Bedford, Mass., from which many of the studies discussed above emanate.
The Veterans Clinic at the University of Missouri School of Law is pleased to present its second annual symposium focusing on the legal and practical issues arising from traumatic brain injury, a very real concern for athletes and our military.
About the Veterans Clinic
Students in the University of Missouri School of Law Veterans Clinic help veterans and their families secure disability-related benefits. Student work is done primarily at the Board of Veterans’ Appeals level and before the Court of Appeals for Veterans’ Claims.
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
- Armstrong, et al
- Faneca Objectors Opening Br.
- Miller, et al
- Gilchrist Brief
- Brain Injury Association of America NFL Concussion Litigation Amicus Brief
- Andrew Stewart
- Public Citizen Brief
NFL and Class Counsel Response
Retired Players’ Reply
- Armstrong, et al Reply
- Alexander Reply
- Molo Reply
- Carrington Reply
- Zuckerman Reply
- Miller Reply
- O’Brien Reply
- Andrew Stewart Reply
Third Circuit’s Order
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.”
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 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. 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. 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, 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.” 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.
THE GENESIS OF THE NFL 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
Like Big Tobacco, Big Pharma et al., the NFL knew that it was much easier to debate the science than to debate the logic. 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.
Although the medical science defining the link between repeated blows to the head and neurological diseases has been established for more than eight decades, 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).
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, 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.”
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.”
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.”
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.”
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?
Q. With dementia?
Q. With early-onset of Alzheimer’s?
Q. Is there any evidence as of today that links multiple head injuries with any long-term problem like that?
A. In NFL players?
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. 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. 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.
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. 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.” 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.” 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.”
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.
 In re Nat’l Football League Players’ Concussion Injury Litig., 2015 WL 1822254 (E.D.Pa.)(April 22, 2015)(final order approving settlement)
 NFL Concussion Settlement Press Release, Mediator Judge Layn Phillips
 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)
 See NFL Concussion Liability Forecast, prepared at the direction of Class Counsel, (Feb. 10, 2014) http://nflconcussionlitigation.com/wp-content/uploads/2014/09/6167-Special-Master-Report.pdf
 See David Michaels, Doubt is Their Product: How Industry’s Assault on Science Threatens Your Health (Oxford University Press, 2008)
 See id.
 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)
 See Martland HS: Punch drunk. JAMA 91:1103-1107, 1928
 See Mark Fainaru-Wada and Steve Fainaru, League of Denial (Crown Archetype, 2013)
 Pellman, Elliott, et al. Concussion in professional football. Neurosurg. Focus 21 (4):E12, 2006
 Alan Schwarz, “N.F.L. Head Injury Study Leaders Quit,” The New York Times (Nov. 24, 2009). http://www.nytimes.com/2009/11/25/sports/football/25concussion.html
 The settlement provides a grace period of 270 days to receive a diagnosis if a player dies before the final approval date.
 See Ann McKee, et al., The Spectrum of Disease in Chronic Traumatic Encephalopathy, 136 Brain 43 (2013)
 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)
 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)
 Pat Iverson, “Gary Bettman says ‘no evidence yet’ that playing hockey causes brain damage” SB Nation (May 21, 2015) http://www.sbnation.com/nhl/2015/5/21/8641783/gary-bettman-says-no-evidence-yet-that-playing-hockey-causes-brain
 Ken Belson, “Gary Bettman Denies Brain Disease Link.” The New York Times (June 3, 2015) http://www.nytimes.com/2015/06/04/sports/hockey/gary-bettman-denies-brain-disease-link.html?_r=0
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.
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.
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.