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Concussion lawsuits put spotlight on NFL policies


This news story was published on February 12, 2012.
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By Jonathan Tamari, The Philadelphia Inquirer –

Before the rules that made kickoffs safer, before NFL guidelines about sitting players who have suffered concussions, before “defenseless receiver became a part of the Sunday conversation, offensive lineman Mike Schad remembers getting knocked unconscious while blocking as part of the wedge for the Los Angeles Rams’ kick-return team.

“Before they made all those changes, I got ear-holed,” said Schad, who would go on to play with the Eagles from 1989 to 1993. “Next thing you know, I’m sitting on the sideline.”

Two days later, Schad was back in practice, using his head to help fend off defensive linemen, a technique his coaches had taught, he said. There was no talk of concussions or long-term consequences.

But as Schad saw two former Eagles teammates die young, he grew concerned. Safety Andre Waters killed himself at age 44; guard Tom McHale, Schad’s backup one season in Philadelphia, died of a drug overdose at 45 after becoming addicted. Each was later found to have chronic traumatic encephalopathy, a degenerative brain disease in athletes with a history of brain trauma. It can lead to memory loss, confusion, aggression, depression, and dementia.

After seeing what happened to his teammates, Schad said recently, “I’m worried about my future. I’m worried about what’s happened. I’m 48.”

Schad is one of an estimated hundreds of former players suing the NFL, saying the league failed to provide them proper information about the risks of concussions, downplayed the potential problems, and didn’t keep up with studies published outside of league circles.

“They relied on the league, trusted the league to know when it was healthy for them to play, and the league failed them miserably,” said Craig Mitnick, a Haddonfield, N.J., attorney who is part of a team representing Schad and other former Eagles, including linebackers Seth Joyner and Jeremiah Trotter, whose suit was filed Friday.

The NFL will strongly contest the claims by these players and many others who have sued in recent months.

“The NFL has long made player safety a priority and continues to do so,” said a statement from the league. “Any allegation that the NFL intentionally sought to mislead players has no merit.”

The lawsuits come as research and public discussion have made brain trauma a prime topic of discussion in professional sports and youth leagues alike, from football and hockey to soccer and lacrosse.

While legal scholars don’t see a significant threat to the NFL in terms of the financial impact of the suits, the filings carry a steep public relations risk for America’s most popular sport. The suits could put a spotlight on some of the former sports heroes left debilitated by the violence that has helped fuel the NFL’s popularity.

“What’s a crisis for the league is just the perception of football and its safety and the sustainability of the game,” said Robert Boland, a sports law professor at New York University. “It is the single biggest sustainability concern for the league.”

It is one that the league is meeting with an aggressive public push and numerous rule changes in recent years.

“There is nothing more important to the NFL than the safety of our players, and there is no issue of greater importance when it comes to player safety than the effective prevention, diagnosis, and treatment of concussions,” NFL commissioner Roger Goodell told a meeting of neurological surgeons in October.

The charge from the former players, though, is that it has taken the NFL far too long to reach this point.

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There has been evidence for years of the long-term problems resulting from brain trauma, and that evidence has been seen acutely in Philadelphia and Pittsburgh.

After Steelers Hall of Fame center Mike Webster died of heart failure at age 50, Dr. Bennet Omalu found that he suffered from chronic traumatic encephalopathy. Webster had battled depression, drug abuse, and violent tendencies. That was in 2002.

Omalu later found CTE in another ex-Steeler, Terry Long, and then Waters. In 1994 the NFL formed the mild traumatic brain injury committee to study the effects of concussions. But, the lawsuits argue, the committee dismissed research that showed long-lasting consequences from concussions. Outside doctors were often critical of the committee’s work.

“The NFL was in position to know more about this and the science than anyone else and to make something happen, and they let the guys down,” said Larry Coben, an attorney who grew up in Philadelphia and filed the first of what he estimates are now 20 lawsuits against the league. “It was only after they realized the writing on the wall that they began to get more serious about it.”

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As recently as 2007, a league pamphlet drew the ire of neurological experts for language that downplayed the risks of suffering multiple concussions, even though contemporary studies argued otherwise.

“Once the league started, they had an obligation to do it right,” said Gene Locks, head of Locks Law Firm, which represents about 150 former players, including Schad, Joyner, and Trotter. In a league where careers are short and contracts are not guaranteed, players are loath to report injuries for fear of being replaced. The ex-players’ lawyers argue that it was up to the NFL to protect the athletes.

The pending lawsuits come from around the country, most citing similar issues and calling on the NFL to provide compensation for former players. Some of the suits ask the league to provide monitoring of former players’ medical conditions as they age. The cases are being consolidated in federal court in Philadelphia under U.S. District Judge Anita Brody to help manage them in their early stages.

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The ex-players, though, face several hurdles in trying to win damages.

For one, the players’ health and disability benefits were covered by collective bargaining agreements negotiated by the players’ union. There is also the challenge of proving that any long-term damage players suffered came as a result of their NFL careers, and not their earlier years playing football.

Most important, according to Boland, the NFL can be expected to argue that players knew they were participating in a dangerous game.

“I don’t fundamentally see how you get around the problem of the assumption of the risk,” Boland said.

In fact, current players have largely scoffed at recent rule changes intended to reduce head injuries.

As to the conflicting messages from outside studies and the NFL’s own concussion committee, the league will likely argue that there is always debate among scientists, and that as it learned more, it shifted its policies.

Perhaps sensing the growing concern about the long-term health problems that come from playing football, the NFL rolled out a slick ad during the Super Bowl highlighting the steps it has taken to improve safety.

Narrated by Ravens linebacker Ray Lewis, one of the most ferocious hitters in the game, it ended with the words, “here’s to making the next century safer and more exciting than ever. Forever football, forever forward.”

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