Monday’s sky-is-blue concession from NFL senior V.P. of player health and safety Jeff Miller regarding the link between Chronic Traumatic Encephelopathy and football could have some less obvious collateral damage for the league.
As explained by Daniel Kaplan of SportsBusiness Journal, former players still opposing the concussion settlement quickly composed and filed a letter with the U.S. Court of Appeals for the Third Circuit pointing out Miller’s comments. His remarks have relevance to the settlement because the formula for receiving payment for CTE applies only to those players who are determined to have it after death. It provides nothing for players who may be living with CTE, unless CTE manifests itself through various specific and severe diseases or conditions.
“The settlement in my mind is tantamount to basically not allowing anybody who’s alive to recover anything,” Hall of Fame linebacker Nick Buoniconti recently said, via the New York Daily News. “When you think about it, clinically you can’t diagnose CTE until you’re dead, until you have an autopsy. This thing about not having any limit on the award -- well, if you can’t collect the award, what good is it? . . . What can be done? What could be done is for the NFL and [Commissioner Roger] Goodell and everybody to stop thinking about themselves and start thinking about the guys who made the league what it is today. And that’s us.”
As we explained a year ago, the settlement as approved by Judge Anita Brody mishandles the CTE issue, giving deceased players who have CTE the right to benefits but creating a once-per-decade duty to meet and confer regarding whether the science has advanced to the point of permitting a CTE diagnosis to be made in a living patient.
Judge Brody reconciled these conflicting positions by on one hand explaining that "[t]he study of CTE is nascent and the symptoms of the disease, if any, are unknown” and by reasoning on the other that CTE at death “serves as a proxy for Qualifying Diagnoses diseased players could have received while living.” It’s a nonsensical balancing act that potentially gives compensation to men who had CTE but never any symptoms with those who had CTE along with cognitive problems but not nearly enough to fall within the narrow band of serious conditions (like ALS) that trigger payment during a player’s lifetime.
The formula creates an all-or-nothing proposition for players while still alive with the promise of possibly getting something after dying. A more fair balance should be reached allowing players with real symptoms that fall below the “Qualifying Diagnoses” to receive compensation while still alive -- and also to slam the door on players who are determined to have CTE at death but who had no symptoms of cognitive problems at any point during their lifetimes.