Concussion settlement mishandles the CTE issue

One of the primary objections to the concussion settlement, which was approved Wednesday by Judge Anita Brody, arises from the failure of the compensation fund to pay benefits to retired players who have Chronic Traumatic Encephalopathy.  The best argument in favor of paying living players with CTE comes from the reality that the fund will compensate deceased players as of the final settlement approval date whose brains show evidence of CTE.

In her lengthy ruling approving the settlement, Judge Brody addressed the decision to compensate deceased players whose brain show evidence of CTE, but not to compensate retired players who have CTE.

“Retired Players cannot be compensated for CTE in life because no diagnostic or clinical profile of CTE exists, and the symptoms of the disease, if any, are unknown,” Judge Brody wrote.  “But the Settlement does compensate the cognitive symptoms allegedly associated with CTE. . . .

“The study of CTE is nascent,” Judge Brody explained, “and the symptoms of the disease, if any, are unknown.  Chronic Traumatic Encephalopathy is a neuropathological diagnosis that currently can only be made post mortem. . . .  This means that no one can conclusively say that someone had CTE until a scientist looks at sections of that person’s brain under a microscope to see if abnormally phosphorylated tau protein (‘abnormal tau protein’) is present, and if so whether it is present in a reportedly unique pattern. . . .

“Beyond identifying the existence of abnormal tau protein in a person’s brain, researchers know very little about CTE,” Judge Brody added.  “They have not reliably determined which events make a person more likely to develop CTE. . . .  More importantly, researchers have not determined what symptoms individuals with CTE typically suffer from while they are alive.”

Judge Brody then focused on the studies that have been conducted to date, pointing out factors that make it impossible to currently understand with reasonable certainty what it means to have CTE.

“[R]esearchers do not know the symptoms someone with abnormal tau protein in his brain will suffer from during life,” she wrote.  “No diagnostic or clinical profile for CTE exists.”

Judge Brody justified compensation for previously deceased players who were determined to have CTE because it “serves as a proxy for Qualifying Diagnoses deceased players could have received while living.”  But this conclusion ignores everything she wrote about the “nascent” science of CTE.  How can having CTE at death serve as a proxy for anything when Judge Brody has explained in detail that no one knows what it means to have CTE?

For that reason alone, the settlement doesn’t feel appropriate or adequate.  And no portion of the 132 pages devoted to the laborious task of justifying the settlement can reconcile the discrepancy between paying deceased players with CTE and not paying living players with CTE.

That could change, if/when the research advances and improves.  Under the settlement, the NFL and the retired players are required to confer in good faith every 10 years to possibly revise the definitions that apply to the process of qualifying for benefits.

That sounds good in writing, but how will it actually work?  The lawyers, who are getting paid more than handsomely now and not in 10-year increments, will have no financial incentive to aggressively push for CTE to be included in the list of qualifying diagnoses when they get together once per decade with the NFL.  The NFL, which already agreed to an unlimited pool of benefits in order to secure approval of a settlement of a lawsuit that could have brought the league to its knees, definitely will have no financial incentive to agree to the expansion of the pool of eligible former players to include a condition that, possibly, every former NFL player has.

The settlement needs something much more than a requirement to confer in good faith every 10 years.  It needs a formal process pursuant to which lawyers with an opportunity to receive compensation for their time and efforts will zealously argue on behalf of retired players that the science has developed to the point where CTE can be diagnosed in living players and should be compensated, if the medical evidence can support those claims.  And it needs to be more than a good-faith attempt to “confer” with the oft-intransigent NFL; a clear mechanism should be put in place to allow retired players to return to court in an effort to persuade Judge Brody or someone else that the time has come to acknowledge CTE in living players and to compensate them for it.

The trigger shouldn’t be once per decade.  The window should always be open for retired players to prove that the medical evidence has developed to the point where compensation should be available to players who have CTE.

For now, the medical research is undeveloped and unclear.  That may or may not change.  It’s unfair to the retired players to not include in the settlement a far more meaningful and potentially effective formula for adjusting the settlement to acknowledge and to react to new medical evidence that could shed much more light on the diagnosis of CTE and the determination of its symptoms.

18 responses to “Concussion settlement mishandles the CTE issue

  1. How come Roger Staubach knew in 1980 that concussions could have long term effects (hence his retirement), yet none of these other freeloaders did?

  2. Ridiculous. There shouldn’t be a settlement. Goodell and others lied and continue to lie about the League’s knowledge of concussion-related disabilities and deaths. It goes back decades. It’s an ongoing and growing problem and to settle it now, for ANY reason, is criminal. The League demonstrates each day that it doesn’t give a crap about retired players.

  3. Playing football through college at the Division I level, with teammates who played in the NFL, I have mixed feelings about the way former players talk about being ill-informed.

    On the one hand, I have great sympathy for anyone suffering brain disorders due to football (or any other cause for that matter). A teammate of mine from college has ALS, and we (former teammates) banded together to raise money for him. A team member 5 years ahead of us also has ALS and his teammates did the same thing for him.

    However, even 30 years ago, our team doctor made it very clear that university policy was that anyone who had three concussions would not be cleared to play any sport (not just football). That was the school’s policy. It wasn’t as if no one had a sense that concussions were very dangerous. Our program was different or unique. People might have wanted to ignore the dangers of concussions, just like today one could argue that every guy playing high school, college or pro football is ignoring the dangers of concussions (and sub-concussive blows to the head). Our QB did stay in a game for a couple of plays with a bad concussion, just like many players still do today (even though no one should do it). Our QB collapsed without being hit two plays after the hit that caused the concussion, and he didn’t return to the game after that. When players today say they were uninformed and had no idea about the dangers of football, it is hard to take them seriously After all, 30 years ago, my teammates and I already knew about example such as Jim Otto, who already had great physical problems from his football playing days. We also knew that the school would no longer clear us for football if we had suffered 3 concussions. We were definitely not unique or better informed that every other football team in the US.

    Men, and even women these days, become boxers and mixed martial artists, even knowing how dangerous these sports are. Men still play hockey, football and soccer (which also has high rates of post-career brain disorders), just like people smoke in spite of all the evidence that existed for many decades about how dangerous smoking is.

    I don’t think the NFL owners are acting out of the goodness of their hearts in agreeing to this settlement. In individual cases, some NFL owners show great generosity and compassion, along with financial support, to former players who need help, but in aggregate, the NFL owners are not generous or compassionate to the pool of retired players as a whole. Then again, they aren’t different from other people in that regard. After all, most businesses, large and small, and most people in general, don’t go out of their way to be generous and compassion to other people who they have connections with and who are in trouble.

  4. You made the choice and signed the contract and got paid exceptionally well to play a game.

    This isn’t like getting drafted into the military, you got drafted to play professional football. You had a choice, they did not. These players didn’t put their life on the line for their country, they put there body on the line for personal financial gain.

    Therein lies the difference. You’re just media heroes, you’re not true heroes.

  5. Florio Mr. Goodell does not approve. Expect a call from Mr. Aiello with a substitution.

    Well written.

    It simply comes down to an addled senior service Judge who has no business ruling on complex technical and scientific matters who bought into a line of reasoning offered by a couple of gutter occupying shysters interested in getting paid quickly.

    Her lack of scientific knowledge is so pronounced it borders on the absurd.

    My favorite part is her belief experts should be paid but not have to disclose their fees. Hovda and Giza got $10MM out of Steve Tisch to study concussions a couple of years ago. Good investment.

    The NFL is done. Bodies will be floating up for years. Brody will be pushing up daisies and Sol Weiss and Chris Seeger will be in the Bahamas. The NFL/NCAA will have science to cope with and it will be a bad day.

  6. She’s saying right now, there is no way to know if someone has CTE when they are alive. So I don’t see how this is a mishandling. If you can’t diagnose, you can’t diagnose.

    But the judge goes on to say “the Settlement DOES compensate the cognitive symptoms allegedly associated with CTE. . . .” So they ARE compensating players while alive who have cognitive symptoms.

    I fail to see what the problem is.

  7. “But the Settlement does compensate the cognitive symptoms allegedly associated with CTE. . .

    That should cover it. They may not be able to diagnose CTE in a living person at this time, but if a former player exibits these symptoms, whether it turns out to be CTE or not, he’ll receive compensation under the settlement.

  8. To me this has little to do with whether players knew the risks of concussions, but whether it’s FAIR for the NFL to reap billions of dollars on the backs of the players without some sort of plan to have culpability in the long-term health of those employees, present and former.

    If your employer exposes you to dangerous chemicals in the course of your work, they are responsible for your healthcare. It’s no different just because NFL players are well paid.

  9. Staubach is a true American hero.

    Did 4 years in Vietnam and didn’t start his pro-football career until 27. After that he went to 4 SuperBowls.

    He’s the Dallas equivelent of Ted Williams up here in Boston, who ave up 5 prime years of his career to serve his country.

    Thank you to all the military veterens who make those stories possible.

    Real heroes.

    -Patsfan

  10. Every single player plays with the knowledge that CTE could happen to them. This is a risk that each player takes and should not be overly compensated. They get paid very well and they go into this with their eyes wide open. An ancient saying goes: Do you want a short glorious life or a long one of obscurity? These players choose glory over obscurity.

  11. But those shiny helmets are sooo much more marketable!

    We didn’t know they would actually be worse than wearing no helmet at all because the players would think they are invincible.

    Now if we admit we were wrong do you realize what the repercussions would be?

    NFL.

  12. As a preface, I had a severe concussion at age 5 (1956) when I ran in front of a truck and got hit. The right side of my skull was crushed like an eggshell. I spent 6 weeks in a coma and another 5 months in the hospital; then, another year at home recovering. Since age 12 (1962) I have been in a study group monitoring and analyzing my symptoms, and those that were thought I “should” have had. It has been interesting to see the development of the list of symptoms that I “should” have, but, do not. Fifty plus years of my experience has shown me that the science of brain injuries is very inexact and full of simple speculation.
    The judge’s statement on CTE is very accurate and certainly more “evidence of symptoms” will be developed over time. A ten year window is not unreasonable, based upon my 5 decades of experience in the research side of this field’

    PS: I have lived with no problems since childhood, including playing football(with a special helmet) and basketball in high school, and running my own business for more than 40 years. However, this is not to denigrate those who do have multiple problems from brain trauma.

  13. No, Mike. No, no, no: “It needs a formal process pursuant to which lawyers with an opportunity to receive compensation for their time and efforts will zealously argue on behalf of retired players that the science has developed to the point where CTE can be diagnosed in living players and should be compensated, if the medical evidence can support those claims. ”

    We don’t need any more financially-motivated ambulance chasers, now, or 10 years from now. If CTE gets a good biological test/screen in the net 10 years, there will be plenty of people lining up at 60Minutes to tell headline stories.

    And the other issue is built into the definition of CTE. When did these players sustain their head bangs? It will be a question of fact, and every practice and game will be recorded as people fight over this. But there is a good chance that the greatest damage occurs at younger developmental ages. It is pretty hard to make a solid case against the NFL in this situation. What the NFL should do is increase the major campaign to prevent the many small head hits starting in Pop Warner. At the current stage, CTE is almost impossible to fairly address in the settlement, and Judge Brody noted that.

    The ATLA/class action bar is scummy enough already without adding yet another cause of action.

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