{"id":1925,"date":"2016-11-22T17:33:19","date_gmt":"2016-11-22T23:33:19","guid":{"rendered":"http:\/\/nflconcussionlitigation.com\/?p=1925"},"modified":"2016-11-22T17:40:57","modified_gmt":"2016-11-22T23:40:57","slug":"the-harvard-football-players-health-study-a-critique-by-brad-r-sohn","status":"publish","type":"post","link":"http:\/\/nflconcussionlitigation.com\/?p=1925","title":{"rendered":"The Harvard Football Players\u2019 Health Study: A Critique by Brad R. Sohn"},"content":{"rendered":"<p style=\"text-align: left;\"><em>The following is a guest post by Brad R. Sohn<\/em><\/p>\n<p style=\"text-align: center;\"><strong>I. \u00a0Overview<\/strong><\/p>\n<p>Paul Anderson invited me to share the following critique of the <strong>Football Players Health Study at Harvard University <\/strong>(the \u201cReport\u201d).\u00a0 This newly published Report claims to analyze legal and ethical obligations facing Pro Football as an industry.\u00a0 The Report proclaims independence in offering a total of 76 recommendations in areas bearing on Pro Football stakeholder experience, along with a handful of stated abstentions in other areas.\u00a0\u00a0 As with just about everything related to the industry of Pro Football, the devil lies in the details, and those details point to opposite conclusions.\u00a0 A close analysis of this Report reveals its true nature: it is a tour de force of litigation avoidance, and one that seeks to strip retired players of their rights through illusory \u201cenhancements\u201d of the broken collective bargaining system.<\/p>\n<p style=\"text-align: center;\"><strong>II. \u00a0The Report\u2019s Claim of Independence Deserves Scrutiny.<\/strong><\/p>\n<p style=\"text-align: left;\">Numerous examples in recent times\u2014even without looking to the merits of this study\u2014necessitate heavy scrutiny of any claims of \u201cindependence\u201d by Pro Football. \u00a0Consider: Neither the NFL, its labor arm the NFL Management Council (the \u201cNFLMC\u201d), nor the NFLPA have performed a longitudinal study of CTE, yet Pro Football\u2019s industry benefitted from the lack of information such a credible study would have provided; both camps rely on \u201cindependent\u201d experts on player safety that, at varying times, each side has jointly and <em>also<\/em> individually compensated.\u00a0 Independence as generally defined by Pro Football is a very fluid concept.<\/p>\n<p style=\"text-align: left;\">This Report, in particular, raises my eyebrows for the following reasons: it had a closed peer-review process in which it paid seven hand-picked reviewers between $5,000 and $10,000 for opinions on this work; the majority if not all of the hired \u201cpeer-reviewers\u201d support arbitration and medical malpractice tort-reform; its advisory committee contains appointees whose biases raise issues in my mind, including (notably) the wife of NFLPA president Dominique Foxworth; though each lacked editorial control, the NFLPA and NFLPA both had the opportunity to propose revisions to this report; and, at least one of the three authors (hired by the NFLPA) to write this has made attempts to dissuade opt-outs from the NFL Concussion MDL and would gain professionally by the advocated outcomes.<\/p>\n<p style=\"text-align: center;\"><strong>III. \u00a0The Report\u2019s Recommendations Bolster The \u201cPro Football-Industrial Complex.\u201d<\/strong><\/p>\n<p>The Report highlights ten \u201ctop\u201d recommendations, all of which contain a common theme: 1) a CBA-created medical staff for players to be jointly appointed by the NFL and NFLPA; 2) a carefully-crafted recommendation that acknowledges \u201ccollective bargaining is the principal method by which changes are made to NFL health policies,\u201d yet opaquely advocates for removal of player health issues from <strong>ADVERSARIAL<\/strong> collective bargaining (<em>i.e.<\/em>, not a removal of this issue altogether from collective bargaining); 3) an improvement and CBA-enforcement of various codes of ethics; 4) a CBA-prescribed scientific study of Pro Football\u2019s health risks; 5) a CBA-prescribed continuation of and enhancement to the already \u201crobust\u201d injury-related data collection; 6) an enhancement to the already \u201crobust\u201d measures regarding player health in CBA Article 39 (\u201cPlayers\u2019 Right to Medical Care\u201d); 7) joint Club and staff support for second opinion medical evaluations; 8) an obligation on clubs to place concussed individuals on a short-term injured reserve list, which would be created by the CBA; 9) greater Player familiarization with their collectively bargained for rights; and 10) player treatment with individual doctors who are jointly approved (based on a new CBA measure.)\u00a0 Indeed, one struggles to find even <u>one, single<\/u> recommendation that does not involve existing CBA provisions, a call for CBA-driven enhancements, or means through which damaged players would need to assume greater legal responsibilities themselves (as opposed to the league or the union.)\u00a0 These recommendations are disingenuous, self-serving, and dangerous.<\/p>\n<p>These recommendations\u2014each of them\u2014embolden a union that has drawn widespread criticism for its ineffectiveness and all-too-cozy relationship with its theoretical adversary: the NFL.\u00a0 All of the Report\u2019s \u201crecommendations\u201d would erect even stronger barricades to the courthouse doors and make it nearly impossible to ever rectify an injustice.\u00a0 The key here is <u>not<\/u> what the study identifies as the ethical-legal problems in Pro Football.\u00a0 Those problems have been well established for a decade if not longer.\u00a0 One can watch movies all the way back in time to the 1970s like North Dallas Forty and see Pro Football doctors depicted as treating players like NASCARs.<\/p>\n<p>At the heart of the problem lies procedural failings inherent in the \u201cPro Football industrial complex\u201d: the players eat at the behest of owners and have assented, through misaligned union representation, to a labor agreement that is already unfair and overbroad.\u00a0 These recommendations amplify the problem: this Report makes no recommendations redressable outside the boundaries of the CBA. \u00a0Giving up even more rights to sue is a serious decision treated lightly (if treated at all) by this Report.\u00a0 And my opinion is that it has been designed this wa<\/p>\n<p style=\"text-align: center;\"><strong>IV. \u00a0The Report Materially Misconstrues and Misrepresents The CBA.<\/strong><\/p>\n<p style=\"text-align: left;\">This Report leads readers to two false conclusions: that tort-style damages are available under the CBA\u2019s grievance procedures; and, that the CBA \u201cshop law\u201d permits arbitration of state law tort claims.\u00a0 Neither of these assertions are true.\u00a0 Period.\u00a0 Pro Football entities have tried to avoid <em>any liability whatsoever<\/em> when sued by claiming (falsely) that players must arbitrate grievances.\u00a0 In fact, two final, non-appealable orders from CBA arbitrations make unambiguously clear that this is false: Henderson v. Dolphins (Jan. 1988 &#8211; Kasher) and Sampson v. Oilers, (Jul. 1988 &#8211; Kagel) each expressly show that the CBA does not provide remedies <strong><u>at all<\/u><\/strong> for claims such as medical malpractice, gross negligence, and product liability.\u00a0 The only available money damage awards that players can receive under the non-injury grievance provision are where they dispute matters pertaining to their NFL player contract and monies owed under it.\u00a0 Finally, and most damning, is the Reports admission that \u201c[t]here have been no Non-Injury Grievances concerning Article 39 decided on the merits, suggesting either clubs are in compliance with Article 39 or the Article has not been sufficiently enforced.\u201d<\/p>\n<p style=\"text-align: left;\">Indeed, this process of holding teams and the league accountable has been such a smashingly successful endeavor that no individual player has ONCE benefitted from it!\u00a0 Some courts have even held that retired players lack standing to pursue these sorts of (illusory) claims.\u00a0 Regardless, arbitration is a forum that favors those who hire the arbitrators time and again.\u00a0 And while the NFLPA and NFLMC\/NFL are seemingly adversaries, neither has an interest in having arbitrators award damages for breached joint responsibilities &#8211; another focus of this Report.\u00a0 Thus, the only way players can be compensated for tort-damages is through tort litigation.\u00a0 As imperfect a system as that is, it is the only one with \u201cteeth\u201d capable of holding wrongdoers responsible for doing things like concealing (intentionally) the dangers of repetitive head trauma, dispensing drugs in contravention of the law, or committing medical malpractice.<\/p>\n<p style=\"text-align: left;\">Finally, and disturbingly, notwithstanding the recommendation to remove \u201cplayer health\u201d from adversarial bargaining, this Report also advocates for letter-amendments to the CBA.\u00a0 There are significant questions as to whether labor council for the NFLMC and NFLPA can even amend the CBA without a formal, full-scale renegotiation.\u00a0 Notably, this has only occurred in the context of heavily tort-litigated arenas of the CBA, and, in the minds of some, for the purpose of bolstering a CBA\/LMRA-preemption defense to a lawsuit.\u00a0 (For example, counsel will exchange letters to suggest a CBA amendment for the purpose of attempting to defeat a court\u2019s jurisdiction over a conflict).<\/p>\n<p style=\"text-align: left;\">Both the NFLMC\/NFL and the NFLPA would prefer to handle disputes \u201cin house\u201d and \u201cbehind closed doors.\u201d \u00a0There is a reason why the New York Times published a multi-part series on the dangers of arbitration, and further, a reason why Congress and many courts have receded from their previously unqualified deference to the arbitral forum.\u00a0 CBA arbitration\u2014which frequently provides zero remedy for the wrongs identified in this report\u2014is procedurally and substantively unfair, stacking the deck in favor of industry and against the aggrieved.\u00a0 In fact, it is for this purpose that I believe the entire Report may have been created: to be admissible as a \u201clearned treatise\u201d in litigation as a means of bootstrapping Harvard\u2019s name to the CBA defense.<\/p>\n<p style=\"text-align: center;\"><strong>V. \u00a0The Report\u2019s Treatment Of Protective-Equipment Issues Shocks The Conscience.<\/strong><\/p>\n<p style=\"text-align: left;\">This Report presents a number of issues in warped fashion and omits key facts, nowhere more apparent than in its presentation of equipment-related issues.\u00a0 It is remarkable and alarming that the Report praises these manufacturers\u2014one of whom was investigated recently by the Federal Trade Commission for <em>lying<\/em>, and who also participated in the infamous MTBI Committee\u2019s research\u2014for doing a good job, and as such, defers on recommendations to this entire arena.\u00a0 In technical legal terms: huh?<\/p>\n<p style=\"text-align: left;\">Problems with equipment safety are profound as well as circular, and all of the key institutional parties have blood on their hands: the National Operating Committee on Standards for Athletic Equipment (\u201cNOCSAE\u201d); ImPACT Applications, LLC; helmet manufacturers; helmet-testing labs; and <u>both<\/u> labor camps (the NFLMC and NFLPA.)\u00a0 NOCSAE sets the standards for protective equipment (notably helmets.)\u00a0 There is an incestuous relationship between these groups that allows innovation on protection standards to stagnate, and that also makes liability more difficult.<\/p>\n<p style=\"text-align: left;\">Pro Football recognizes it needs helmets and has sought to limit its own liability by remaining at arms-length with companies like Riddell.\u00a0 In addition, Pro Football recognizes that latent brain injury is a virtually certain result from its game.\u00a0 So how can Pro Football avoid responsibility?\u00a0 This is accomplished through requirements that helmet companies rely on \u201cindependent\u201d standard-making and testing.\u00a0 Enter NOCSAE, a self-regulating body (responsible to no one) and comprised\u2014at least in part and at one time by majority\u2014of helmet industry executives.<\/p>\n<p style=\"text-align: left;\">NOCSAE safety standards expressly do not apply to concussion.\u00a0 Essentially, NOCSAE crash-tests helmets and determines if equipment can withstand impacts applicable to skull fracture and brain bleed.\u00a0 ONLY.\u00a0 In a study paid for by Riddell and the NFL, even the NFL\u2019s experts could not avoid the conclusion that \u201cno helmet can prevent concussion.\u00a0 Full stop.\u201d\u00a0 Yet Pro Football uses\u2014and in fact insists\u2014on standards that have materially remained in place for close to a half-century.\u00a0 Moreover, NOCSAE receives large amounts of money from Pro Football, and though it does not test itself, its technological minds have been employed by the helmet industry\u2019s two principal helmet-testing labs such as the Southern Impact Research Center.\u00a0 Lab principals at SIRC have testified numerous times as expert witnesses for the defense in helmet-death lawsuits. Football literally uses people paid to say \u201cit wasn\u2019t the helmet\u2019s fault\u201d to develop its warnings and safety standards.<\/p>\n<p style=\"text-align: left;\">So long as NOCSAE certifies a helmet (based on its outdated standards) the NFL permits use of that helmet.\u00a0 This includes products such as those cited in the Report, like the Riddell Revolution line.\u00a0 As studied haphazardly in the Report, Riddell relied on skewed data and statistics to claim its helmet\u2014designed to reduce concussion\u2014was effective.\u00a0 Riddell\u2019s experiments for this purpose relied on a neurocognitive assessment called \u201cImPACT.\u201d\u00a0 ImPACT was created by Pittsburgh Steelers-affiliated neuropsychologists and neurologists, and has more than a 20% false positive AND negative rate.\u00a0 In other words, the NFL places certification in the hands of a conflicted certification body, which has certified products licensed by the NFL directly, which make claims based on conflicted science.\u00a0 Yet this report says these entities are making progress.\u00a0 Toward what?<\/p>\n<p style=\"text-align: center;\"><strong>VI. \u00a0Conclusion<\/strong><\/p>\n<p>We need the right to sue.\u00a0 It is the easy (but wrong) choice to take the Report at face value.\u00a0 Indeed, on its <em>face<\/em>, this Report seems reasonable.\u00a0 But it is more of the same, and it takes advantage of people\u2019s lack of time to investigate the source of facts.\u00a0 In the tradition of Big Tobacco, Pro Football has\u2014especially in the past decade-plus\u2014advanced its agendas on important issues through the \u201cthird-party technique.\u201d\u00a0 That is what I believe is at work here.\u00a0 Check out information on the Third Party Technique on Wikipedia at: (<a href=\"https:\/\/en.wikipedia.org\/wiki\/Third-party_technique\">https:\/\/en.wikipedia.org\/wiki\/Third-party_technique<\/a>).\u00a0 And in the meantime, don\u2019t fall for the head fake!<em>\u00a0<\/em><\/p>\n<p>&nbsp;<\/p>\n<p><img decoding=\"async\" class=\"aligncenter\" src=\"https:\/\/i0.wp.com\/pbs.twimg.com\/profile_images\/522175571577409536\/mxTmOI0y_400x400.jpeg?ssl=1\" alt=\"Image result for brad sohn\" data-recalc-dims=\"1\" \/><\/p>\n<p>&nbsp;<\/p>\n<p><em>Brad R. Sohn, Esq. of The Brad Sohn Law Firm graduated cum laude from Harvard University and the University of Miami School of Law.\u00a0 He handles cases nationwide on behalf of the severely injured, frequently litigating against NFL entities.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"<p>The following is a guest post by Brad R. Sohn I. \u00a0Overview Paul Anderson invited me to share the following critique of the Football Players Health Study at Harvard University (the \u201cReport\u201d).\u00a0 This newly published Report claims to analyze legal and ethical obligations facing Pro Football as an industry.\u00a0 The Report proclaims independence in offering [&hellip;]<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"ngg_post_thumbnail":0},"categories":[1],"tags":[579,585,80,16,382,577,23,13,583,4,584,21,580,581,578,582],"jetpack_sharing_enabled":true,"jetpack_featured_media_url":"","_links":{"self":[{"href":"http:\/\/nflconcussionlitigation.com\/index.php?rest_route=\/wp\/v2\/posts\/1925"}],"collection":[{"href":"http:\/\/nflconcussionlitigation.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/nflconcussionlitigation.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/nflconcussionlitigation.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/nflconcussionlitigation.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1925"}],"version-history":[{"count":3,"href":"http:\/\/nflconcussionlitigation.com\/index.php?rest_route=\/wp\/v2\/posts\/1925\/revisions"}],"predecessor-version":[{"id":1928,"href":"http:\/\/nflconcussionlitigation.com\/index.php?rest_route=\/wp\/v2\/posts\/1925\/revisions\/1928"}],"wp:attachment":[{"href":"http:\/\/nflconcussionlitigation.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1925"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/nflconcussionlitigation.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1925"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/nflconcussionlitigation.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1925"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}