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.