One of the most widely-accepted realities of Chronic Traumatic Encephelopathy has been undermined by one of the highest courts in the United States.
The U.S. Court of Appeals for the Fourth Circuit, one of various appellate courts that sit one step below the Supreme Court, has ruled in a case involving former NFL linebacker Jesse Solomon that the joint NFL-NFL Players Association Disability Plan abused its discretion in denying Solomon’s claim for disability benefits. In so doing, the court seemed to accept the notion that Solomon, who was involved in 69,000 high-speed collisions while playing football, has “CTE-related disability” and “CTE injuries.”
While hardly a medical finding that CTE can indeed be diagnosed without examining the brain tissue of a deceased patient, the court’s 13-page ruling seems to accept as a given the notion that CTE can be diagnosed based on a combination of MRIs and an assessment of symptoms.
It’s possible that those observations slipped in to the final written decision because the lawyers representing the Plan didn’t sufficiently focus on that point in written materials or while arguing the case in the courtroom. As to the former, it’s possible the lawyers regarded the inability to firmly diagnose CTE in living patients as a given. As to the latter, and based on a press release issued by Solomon’s lawyers, it’s possible the lawyers were too busy taking flak from judges to quibble with medical and scientific niceties.
“Why is the Plan fighting him so incredibly hard?” Judge Dennis Shedd said. “And when he makes the claim through your own doctor that he’s got a problem? . . . Why in the world would you – I guess current players don’t want money to come out for past players, or something? . . . Why in the world would any player playing professional football . . . look at this and go, ‘This is one heck of a great deal for players.’ We play as hard as we can, give everything we got, get banged up -- I saw something in the record [about] 69,000 tackles, that’s incredible. We do all we can, and then we apply and when doctors say I have a problem based on those hits, and they say, ‘You’re not orthopedically disabled, go away.’ . . .
"[S]omebody ought to scratch their head and say, Does this really look good? We don’t have much of a legal argument, but we’re willing to fight it to the death to deny somebody . . . Does that make sense to you? . . . Do you think that looks good to players, what’s going on in this courtroom today? It’s not necessarily part of the determination, I’m just asking a real-world question.”
The real-world outcome is that Solomon will receive disability benefits, because the panel unanimously concluded that the Plan “relied on no evidence at all” in rejecting Solomon’s claim. It’s a stunning observation given the supposed sensitivity to brain injuries. Perhaps more importantly, the ease with which the judges seemed to agree that Solomon proved that he has CTE while still alive raises renewed questions about whether the massive concussion settlement should have allowed players to secure benefits if they can sufficiently prove that they suffer from CTE.