The Concussion Lawsuit

[channtheman]

I can understand players from way back in the days when they didnt get shit for $$. These MFers now can save that buillshit because they are getting paid plenty for their suffering.

This. The players of today are compensated very well for any risk to their health. If they don't like the risk, they can always take up kicking.

[pbmax]

I understand that players get concussions and suffer for it, but what is it exactly that the players are claiming the NFL did wrong? Did they try to hide the truth about concussions from the players? Did they act negligently in treating players?

Well, I bet there is a lot they did wrong or poorly, even if they ultimately bear no legal culpability.

For instance, having a rheumatologist as the co-chair of you committee on Mild Brain Traumatic Injury would be a start. Having no neuropathologists on the panel would be another. Ignoring and dismissing the claims of neuropathologists without further study on the specific issue would be a third. The reason a pathologist would be important is because the single largest medical issue facing NFL retirees is an early death.

Commissioning studies that showed that living NFL players suffered no more ill effects from head trauma than other high risk occupations would be another (it tends to omit the most affected former player group, the dead ones). That, plus there are serious questions about the studies in the first place.

Most concerning to me would be the head in the sand effect. It took one single determined Pathologist a year (working partly at home) to determine what had happened to Mike Webster outside of the heart attack that was the proximate cause of his death. This was the discovery of CTE in football players. Had the NFL (or the Players Association for that matter) taken the decreased life expectancy of NFL players seriously, such an investigation might have yielded results much sooner.

But probably of most concern to the players would be the coaches who taught techniques to use the head and the helmet as a weapon in the game. This, despite ample evidence that doing so caused trauma (getting your bell rung). This would also apply to any program the team used to encourage the players to maintain today's incredible weights. Weight gain probably helps explain both an increase in head trauma and worsening numbers in player life span.

Also, don't be fooled by columnists sudden love of the 20 year argument. That NFL players, who by some studies have current lifespans of 55 years, are losing 21 years of their life to football. Life span and life expectancy are two different measures. Both can be calculated with precision (ask your life insurance company about both your life expectancy and life span), but they are different measures. The smaller a subgroup you study, the more likely the span will vary from the expectancy.

[MadtownPacker]

Can they really prove the damage happened in the NFL years? How do we know it wasnt caused by peewee football hits when their brains where still developing?

[pbmax]

One other item about risk and compensation. The NFL and NFLPA jointly administer a disability fund, to pay out benefits to players who suffer from current disability. The more complete the disability and the more its cause can be traced to football, the larger the payment.

Mike Webster had to take the NFL/NFLPA to Federal Court to get a ruling that his head injuries were football related and that he was 100% disabled and therefore entitled to the full disability payment. How many other players are entitled to their disability yet have been denied by the disability board?

Everyone could see Jim Otto suffered from football when they watched him walk or bend over. When Mike Webster could not keep a job, gave away all his money or squirted Super Glue to patch his rotting teeth, the NFL/NFLPA thought he was only partially disabled.

Of course the players assumed the risk, but the NFL and the NFLPA were in no hurry to admit exactly what exactly that risk was. This was out of self interest and self protection of the business that was writing their paychecks.

If you passed a picture of Mike Webster in his final years around to high school football players, would the kids still play? Or would it be like looking at a diseased lung of a smoker?

[pbmax]

Can they really prove the damage happened in the NFL years? How do we know it wasnt caused by peewee football hits when their brains where still developing?

That will be defense strategy #2. First, they won't want to admit the damage is known to be football related. But if that issue gets by them, then issue of early age football will be brought up.

However, I think its a combination of technique and weight gain (both legal and not) that have produced the terrible results seen today, not simply the number of years or age.

[Pugger]

I understand that players get concussions and suffer for it, but what is it exactly that the players are claiming the NFL did wrong? Did they try to hide the truth about concussions from the players? Did they act negligently in treating players?

The only thing I can think of is not that long ago if you got your bell rung they gave you smelling salts and you went back in the game. Now if you get a concussion they take you out, hide your helmet and you can't play again until you past a series of tests. This also tells me they may have suspected the dangers of head trauma but maybe not how much damage it can cause and the league might be found negligent here.

[sharpe1027]

Well, I bet there is a lot they did wrong or poorly, even if they ultimately bear no legal culpability.

For instance, having a rheumatologist as the co-chair of you committee on Mild Brain Traumatic Injury would be a start. Having no neuropathologists on the panel would be another. Ignoring and dismissing the claims of neuropathologists without further study on the specific issue would be a third. The reason a pathologist would be important is because the single largest medical issue facing NFL retirees is an early death.

Commissioning studies that showed that living NFL players suffered no more ill effects from head trauma than other high risk occupations would be another (it tends to omit the most affected former player group, the dead ones). That, plus there are serious questions about the studies in the first place.

Most concerning to me would be the head in the sand effect. It took one single determined Pathologist a year (working partly at home) to determine what had happened to Mike Webster outside of the heart attack that was the proximate cause of his death. This was the discovery of CTE in football players. Had the NFL (or the Players Association for that matter) taken the decreased life expectancy of NFL players seriously, such an investigation might have yielded results much sooner.

But probably of most concern to the players would be the coaches who taught techniques to use the head and the helmet as a weapon in the game. This, despite ample evidence that doing so caused trauma (getting your bell rung). This would also apply to any program the team used to encourage the players to maintain today's incredible weights. Weight gain probably helps explain both an increase in head trauma and worsening numbers in player life span.

Also, don't be fooled by columnists sudden love of the 20 year argument. That NFL players, who by some studies have current lifespans of 55 years, are losing 21 years of their life to football. Life span and life expectancy are two different measures. Both can be calculated with precision (ask your life insurance company about both your life expectancy and life span), but they are different measures. The smaller a subgroup you study, the more likely the span will vary from the expectancy.

The lifespan/expectancy is not a winner in my mind. This is a classic, hey the buzz word of the day is concussions, we see an effect of lower lifespans the cause must be concussions. There could be a hundred different factors more relevant than concussions. I am not saying that concussions are not the cause, but you can't just jump to that conclusion without more. As an example that I made up, NFL football players could be selected from a group of individuals that are predisposed to shorter lifespans. Those individuals would have still had a shorter life span if the NFL did not exist.

Did they really require a neuropathologists to be on the committee? When the committee was formed, how many players were offering their brains for study after they died? Is there a reason that the committee could not review the findings of neuropathologists without one being on the committee?

I'm mostly playing devils advocate here, but what if the single determined Pathologist had found nothing linked to brain injuries? What if his single-patient study was wrong or not representative of players at large? It is one thing to deny the results of a study, which I'm not sure the NFL did. It is entirely another to require the NFL to actively fund medical research.

[pbmax]

The lifespan/expectancy is not a winner in my mind. This is a classic, hey the buzz word of the day is concussions, we see an effect of lower lifespans the cause must be concussions. There could be a hundred different factors more relevant than concussions. I am not saying that concussions are not the cause, but you can't just jump to that conclusion without more. As an example that I made up, NFL football players could be selected from a group of individuals that are predisposed to shorter lifespans. Those individuals would have still had a shorter life span if the NFL did not exist.

Did they really require a neuropathologists to be on the committee? When the committee was formed, how many players were offering their brains for study after they died? Is there a reason that the committee could not review the findings of neuropathologists without one being on the committee?

I'm mostly playing devils advocate here, but what if the single determined Pathologist had found nothing linked to brain injuries? What if his single-patient study was wrong or not representative of players at large? It is one thing to deny the results of a study, which I'm not sure the NFL did. It is entirely another to require the NFL to actively fund medical research.

In reverse order, the NFL was already investing in medical research, but it was medical research predisposed to finding out that concussions weren't a contributor in the medical problems players were having. The disability plan and lifetime benefits meant the NFL and NFLPA had actual hard data on player's health and then spent money to investigate. But the initial investment was to support the denials of the disability board for claims related to closed head trauma. Once it became clear there was going to be a link to playing football, the NFL reversed course to the one you see today. Had they spent the same money to determine what was actually happening to retired players, their argument would be stronger about their concern for player safety. Legally, I would also think they would be in a better position to resist the lawsuits. But the short term focus on disability claims will probably cost them a lot more than the medical funding did.

I could be wrong, but if the numbers on player lifetimes is in any way representative (let's say their life span appears to be 7 years shorter than comparable people in other high risk careers), then knowing how and why they die would seem vital to any viable safety program. There are also trickle down effects. A coach I know pointed out that it was not until the NFL confronted hydration publicly by advocating continuous access to water and other steps for practicing players that the old saw about withholding water during practice finally fell completely out of favor with high school coaches. My high school coach was downright progressive, one water break during each 2 hour two-a-day practice with a 3 oz Dixie cup. And we got to fill it multiple times.

When Webster's pathologist published his findings, the NFL Mild Traumatic Brain Injury committee wrote a letter to the same journal. In it, they requested the article be retracted because they disagreed with it, thought it represented a complete misunderstanding of the issue and had serious flaws. 3 members of the committee signed it, each was being paid by the NFL. The journal not only didn't retract it, but they published the pathologist's next article on another Steelers' brain, belonging to Terry Long. Same findings.

[sharpe1027]

In reverse order, the NFL was already investing in medical research, but it was medical research predisposed to finding out that concussions weren't a contributor in the medical problems players were having. The disability plan and lifetime benefits meant the NFL and NFLPA had actual hard data on player's health and then spent money to investigate. But the initial investment was to support the denials of the disability board for claims related to closed head trauma. Once it became clear there was going to be a link to playing football, the NFL reversed course to the one you see today. Had they spent the same money to determine what was actually happening to retired players, their argument would be stronger about their concern for player safety. Legally, I would also think they would be in a better position to resist the lawsuits. But the short term focus on disability claims will probably cost them a lot more than the medical funding did.

Interesting. Why do you say that their the research was predisposed to a particular outcome? What do you mean be reversed course?

I could be wrong, but if the numbers on player lifetimes is in any way representative (let's say their life span appears to be 7 years shorter than comparable people in other high risk careers), then knowing how and why they die would seem vital to any viable safety program.

No doubt that it would. That's not really what I was getting at. As far as I know, it still has not been shown that the root cause of the different in life span is primarily due to brain injuries.

When Webster's pathologist published his findings, the NFL Mild Traumatic Brain Injury committee wrote a letter to the same journal. In it, they requested the article be retracted because they disagreed with it, thought it represented a complete misunderstanding of the issue and had serious flaws. 3 members of the committee signed it, each was being paid by the NFL. The journal not only didn't retract it, but they published the pathologist's next article on another Steelers' brain, belonging to Terry Long. Same findings.

Publishing an article does not make it correct. Indeed, a main purpose of publishing scientific articles is to allow for peer review.

I'm not saying the NFL is right, but the players need to prove their case first.

[Kiwon]

Publishing an article does not make it correct. Indeed, a main purpose of publishing scientific articles is to allow for peer review.

I'm not saying the NFL is right, but the players need to prove their case first.

I think this is the key point. Instead of over-reacting to the latest emotional tide and changing the game, the facts need to be established.

However, if the reporting on Junior Seau's suicide was any measure, I have my doubts that cooler heads will prevail.

[NewsBruin]

The only thing I can think of is not that long ago if you got your bell rung they gave you smelling salts and you went back in the game. Now if you get a concussion they take you out, hide your helmet and you can't play again until you past a series of tests.

Unless you're Browns QB Colt McCoy or Eagles linebacker Stewart Bradley. BTW, no league discipline on either team (to my knowledge).

I don't think this is a "they always knew the risks" issue. Hell, I thought it was cute when Bert snuck in and threw a touchdown pass on 4th down before anyone had a chance to corrall him. There's been a lot of advancement, and I don't think that someone collecting 6-8 figures makes up for a lifetime of degenerative mental illness.

That said, I'm only adding heat and little light, so I'll pipe down. The lawsuits should focus on "What did the league (and union) know, when did they know it, and what did they do once they knew?"

[pbmax]

Interesting. Why do you say that their the research was predisposed to a particular outcome?

Because the research (the part that I am aware of), by focusing on living players available to complete a questionnaire, avoided a central part of the problem; why are players dying younger? In fact, there is no report I am aware of that the NFL or NFLPA has ever undertaken any effort or study to either confirm or call into question the finding that NFL players has significantly lower life spans than their peers. I recall that the NFLPA made a public show of it participation in a longitudinal study similar to the kinds that are done with nurses about long term health. But it was not designed to specifically look at this issue. And results in these studies take years to develop and this was relatively recent.

What do you mean be reversed course?

The NFL is not simply funding research now. Its altering the game to prevent concussions for safety reasons. I doubt Roger Goodell would admit that the accumulation of Tau proteins is the thing they are trying to avoid (that is the signature damage found in the players brains), but even Roger would agree that they need to do more to protect the brains. Going from an in house group of Doctors and trainers finding that mild trauma is not a problem in football to altering the rules of the game to prevent it is reversing course. If that is not 180 enough, there are now League mandates about the steps to take to return players to the game once a concussion is diagnosed.

No doubt that it would. That's not really what I was getting at. As far as I know, it still has not been shown that the root cause of the different in life span is primarily due to brain injuries.

Part of the League's defense will be that they took all reasonable steps. Legally, that contention might carry weight depending on the standard invoked. But logically, their heads were buried in the sand. Concussions or not, they did not want to know why players lives were shorter.

Publishing an article does not make it correct. Indeed, a main purpose of publishing scientific articles is to allow for peer review.

Of course. But the NFL did not act to review, challenge, duplicate or disprove the results in the article. They wanted it retracted. Peer review cannot happen for a retracted article. A retraction would be an admission that the article did not meet an acceptable standard for research and publication. The journal decided it did and published further, similar work.

At about the same time, the NFL it pulled its cooperation for accelerometer tests of its own to test the results researchers were getting elsewhere for collisions on the practice fields.

I'm not saying the NFL is right, but the players need to prove their case first.

Well, I think this depends on their claim and the standard. But remember that the Tau proteins found in players brains (some as young as 30) is the same as damage found in patients with acute Alzheimers. And they will have decades of data on healthy brains and over 200 brains of athletes playing contact sports.

The connection to early deaths might be too big a jump, but as a claim of disability, I think they are already there. What remains is a question about damages.

Also remember that the NFL has lost two cases about this already. One was Websters' disability claim. The other was Merrill Hoge's lawsuit back in the 90s. In that lawsuit, he maintained that the NFL did not follow good medical practices in allowing him to continue to play after he was diagnosed with concussions. The League fought him and lost. Many of the practices Hoge's lawsuit insisted should be in play are very similar to rules Goodell has put into place in the last two years. That is a (roughly) 15 year gap.

[sharpe1027]

Because the research (the part that I am aware of), by focusing on living players available to complete a questionnaire, avoided a central part of the problem; why are players dying younger? In fact, there is no report I am aware of that the NFL or NFLPA has ever undertaken any effort or study to either confirm or call into question the finding that NFL players has significantly lower life spans than their peers. I recall that the NFLPA made a public show of it participation in a longitudinal study similar to the kinds that are done with nurses about long term health. But it was not designed to specifically look at this issue. And results in these studies take years to develop and this was relatively recent.

This is interesting, because it brings up a pretty important point. What was this particular study aimed toward? Now that there is a lawsuit on issue A, we can argue that in hindsight the NFL's research did not address issue A. That being said, what if the NFL had a specifically tailored study toward issue A and the there was a lawsuit on issue B? Same result. The point I am trying to make is where does this affirmative duty to perform (open-ended?) research begin and end? How many different possible contributing factors might there still be for the lifespan issue? Will there be a follow-on lawsuit for each of them because the NFL hasn't performed enough studies? What if the long term studies end up showing that the concussions are not strongly linked to lifespan, but lifespan is instead more strongly related to training and diet techniques?

Also remember that the NFL has lost two cases about this already. One was Websters' disability claim. The other was Merrill Hoge's lawsuit back in the 90s. In that lawsuit, he maintained that the NFL did not follow good medical practices in allowing him to continue to play after he was diagnosed with concussions. The League fought him and lost. Many of the practices Hoge's lawsuit insisted should be in play are very similar to rules Goodell has put into place in the last two years. That is a (roughly) 15 year gap.

This comes mainly down to an issue of timing. When did the NFL know enough that it should have acted, relative to when it actually acted? I don't know the answer.

But the NFL did not act to review, challenge, duplicate or disprove the results in the article. They wanted it retracted. Peer review cannot happen for a retracted article. A retraction would be an admission that the article did not meet an acceptable standard for research and publication. The journal decided it did and published further, similar work.

The fact that the NFL asked for a retraction would suggest that they identified specific aspects of the article that they thought were wrong. Unless the NFL just sent a generic letter saying "retract please." I would be surprised if the NFL did not challenge the results, but I have no facts to go on so I could easily be wrong.

[pbmax]

I don't think as a rule an employer has to spend money chasing down every loose thread that might unravel and affect employees lives. But they were clearly interested/worried about the issue and spent money and time to examine it and publicize their concern. If they choose to do this, then they should be expected to do so in a competent manner, not narrow it to render it inconsequential. To do so may not entitle someone to an award of damages, but it puts the lie to where your interests rest.

As for issue A, lawsuit basis B, the notes of the task force would give you their rationale for choosing to study what they did, their budget and time constraints. If logical and consistent, there shouldn't be an basis for complaint. But as I recall, the panel was in response to increased disability claims over closed head trauma and public concern over the same. If their charge was head injuries and they did not consider long term effects (which would seem to naturally include cause of death), then they seem to not have studied A and missed B, but they seemed to have missed the point of A entirely, the worst case. In retrospect and without knowing their reasoning, it looks like they picked a time frame to study in their players life that was most amenable to the League's best outcome.

I have a lot of doubt that the League knew much more than players and teams about concussions before Hoge's lawsuit. After that, its hard to argue they shouldn't have known. Prior to that is a tough call. Getting your bell rung even back in my day was clearly more serious than anyone was willing to admit. But without a dramatic symptom, options were limited. Should they have known more earlier? Probably, but there were a lot of holes in the entire system.

One thing I will never understand is why players do not insist on independent medical reviews of their health. the team doctor is a tremendous advantage to the players, but his interests do not always align with the theirs.

Somewhere is the name of the Journal and date, I will find it and maybe we can read the letter.

[sharpe1027]

I think it goes beyond knowing that concussions are bad. Nobody is arguing they are a good thing. I think a more relevant issue is what, if any, reasonable steps were known to help alleviate the problems. It is one thing to have a list of possible solutions brought up by a plaintiff in the context of a lawsuit trying to get money from the NFL. It is another to establish that any of the solutions have been shown to provide a meaningful benefit.

To continue in my role as devil's advocate, but I doubt the player's research and accusations are not also the result of at least some self-serving analysis.

Another concern I have is that you seem to be advocating for a policy that raises the standard for someone that actually takes affirmative action to help. This would mean that the NFL would be better off never doing another study. I can't get behind that type of policy.