The NFLPA, DeMaurice Smith and the active players have been put on notice!
DeMaurice Smith
In response to questions about the NFL’s recent acknowledgement that there is a link between concussions and CTE, the head of the NFL Players Association, DeMaurice Smith said “The good news is that this admission comes in time for both parties to address its significance to a settlement that apparently does not cover treatment for CTE in living players.”
Does Mr. Smith realize that CTE cannot be diagnosed in living players? Apparently not. But as usual, he want's to come across looking like a strong advocate for former players.
The NFL’s lawyers and the lawyers for the 19,000 former players that agreed to the Settlement knew this important fact - and that’s why we could not get compensation for CTE in living players included in the Settlement.
Ann McKee, the doctor and researcher from Boston University, who testified at the recent congressional hearing, is also well aware of this fact. She works at the Boston University Center for the Study of CTE – the premier organization that has been researching this issue for years.
The Center’s own website, asks and answers two important questions that were at the heart of why former players could not get CTE included in the Settlement:
How is CTE diagnosed? At this time CTE can only be diagnosed after death by postmortem neuropathological analysis.
How do you get CTE? Can I get CTE from one concussion/hit to the head? We believe CTE is caused by repetitive brain trauma. This trauma includes both concussions that cause symptoms and subconcussive hits to the head that cause no symptoms. At this time the number or type of hits to the head needed to trigger degenerative changes of the brain is unknown. In addition, it is likely that other factors, such as genetics, may play a role in the development of CTE, as not everyone with a history of repeated brain trauma develops this disease. However, these other factors are not yet understood.
As you can see, there are some critical unknowns and yet to be understoods in that statement. So, when the most prestigious organization studying CTE makes an admission like that, how in the world were the lawyers for former player’s supposed to negotiate compensation for CTE into the Settlement? They couldn’t - and not just for those reasons, but many others that were cited in Judge Brody’s memorandum of opinion on the Settlement.
Even if tests could eventually show that someone has CTE while living, should former players get a monetary award if they have no major symptoms? Of course not! The same thing should hold true for CTE found in a player’s post-mortem autopsy. But, that’s exactly what some players are hoping for – a test that will show they have the disease and make them automatically eligible for an award under the Settlement.
The main reason the Settlement allowed monetary awards for the players that died with CTE (before the final approval of the Settlement) was because those players never had a chance to get diagnosed for cognitive impairments. There was also concern that it could incentivize suicide for players that might be tempted to try and give their loved ones a going away gift.
The good news - players don’t have to show that they have CTE to get compensated under the Settlement. All they have to do is show that they have cognitive impairments (Qualifying Diagnosis') that are associated with the disease.
Obviously, that’s not good enough for 94 players that are appealing the Settlement. They want some of the other symptoms of CTE – like depression, impulse control, headaches and suicidality included as compensatory injuries. In her opinion, Judge Brody said “Class Members would face more difficulty proving that NFL Football caused these mood and behavioral symptoms than they would proving that it caused other symptoms associated with Qualifying Diagnoses. Mood and behavioral symptoms are commonly found in the general population and have multifactorial causation. Even if head injuries were a risk factor for developing these symptoms, many other risk factors exist.”
The bottom line.......The NFL’s admission doesn’t change anything with respect to the Settlement.
One thing that everyone needs to understand, is that most former players are not suffering from the ravages of CTE and TBI - Traumatic Brain Injury. The recent movie “Concussion” might have given a lot of people, including some former players, the feeling that we are all ticking time-bombs just waiting to explode. That is just a fantasy. Most former players are leading healthy, productive lives. Obviously, there are some former players that are experiencing major difficulties, but not nearly to the degree that the movie would have everyone believe.
The truth is, only 4,566 out of the 19,000 former players filed lawsuits against the NFL - and for purposes of disclosure, I am one of those players. I suffer some minor memory problems, but I know that I will not receive any compensation under the Settlement – at this time in my life. And that’s fine by me. There are a lot of guys that will qualify for an award, and they should get that money as soon as possible.
My main reason for entering the litigation was similar to the one that our class representative, Shawn Wooden, has given. “I’ve seen early onset of dementia, Alzheimer’s, but seeing it in guys you know, guys you relate to, it’s nerve-racking. You wonder if you’re going to be one of those players in the future.” And with respect to the Settlement he said “It is a lifesaver for the guys who need the help now, but it does give that peace of mind for the next 65 years so that heaven forbid something happens to you, it will be there.”
So, getting back to Mr. Smith. At this year’s NFLPA Super Bowl Press conference this is what he had to say about CTE and the Settlement: “The two things I think that are interesting to discuss is the fact that the settlement doesn’t cover people who … The only provision that’s provided for people who have CTE is if it’s found postmortem. One of the things that we recently found out in a paper that was published in Nature Magazine as a result of the players’ partnership with Harvard is a very early technology that has possibly developed a drug that could inhibit or reverse the effects of CTE in live mice. One of the issues that I think that paper raises is, “Could we be in a world where there is a treatment for CTE, and people who sign onto the settlement wouldn’t be covered for that treatment. I don’t know the answer to that and certainly not in a position to advise or give legal advice to people about whether they opted with the settlement or not. (underlined emphasis - mine)
There are a couple of other things about his statement I would like to address.
First of all, when Mr. Smith says “The only provision that’s provided for people who have CTE is if it’s found postmortem” he is giving former players the impression that the Settlement will provide compensation to their families if they die and CTE is found in their autopsy. He doesn’t say – as he should – that it only provides compensation for players that died with a diagnosis of CTE between January 1, 2006 and April 22, 1015. It should be noted that players like Ken Stabler and others who had CTE and died after the cutoff date would still be eligible for compensation, if they were diagnosed with one of the cognitive impairments included in the Settlement while they were still alive. I talk about that in my article entitled Former NFL players need to get neurological exams before it’s too late.
Secondly, you don’t opt with the Settlement – you opt out of a Settlement. I know that may sound like a minor point, but it’s not the first time DeMaurice Smith has done this, and it caused some confusion among former players that thought there was something they had to sign or execute in order to be part of the Settlement – which is not true. You only need to send something to the court if you are objecting, or opting out of a Settlement.
And lastly, I should point out that Mr. Smith is in a position to advise! He does it all the time. So why does he even speculate that we “Could we be in a world where there is a treatment for CTE, and people who sign onto the settlement wouldn’t be covered for that treatment?” All that statement does is create fear in the minds of former players that the Settlement might be lacking and inadequate. If, as he says, he doesn’t know the answer, then he shouldn’t say anything.
For the record, his speculation is dead wrong, because the Settlement provides $75 Million for free testing, evaluation, treatment, medications and prescriptions. I find it hard to believe he wasn’t aware of that - although it did give him an opportunity to tout the Union’s $100 million Harvard Health Study.
Part of the Harvard Study asks former players to complete an on-line questionnaire about their current health. Although I have encouraged former players to complete the questionnaire, I don’t really believe it was the best way to spend the “joint contribution” money set aside in the CBA and I can certainly understand why the NFL was not interested in partnering with them on that project. This type of research, using (questionnaires) and self-reporting, is not the best way to gather information because of the personal bias inherent in that method of data collection.
I could have saved the NFLPA a lot of money by telling them what they will find when the survey is concluded: Former players from my era are having some major physical and mental health issues. Mostly because of the inferior equipment, terrible surgical procedures, lousy astroturf, full contact practices, bad doctors (we couldn’t get a 2nd medical opinion before 1982 and had to use the team doctors.) And you can’t forget that we had playing rules that allowed us to hit with our head, slap another player upside the head, horse-collaring, crack-backing, chop-blocking, clothes-lining, spearing and last but not least - coaches that encouraged all of those "techniques" along with using our helmets as a weapon.
Although it is commendable that the NFLPA and Mr. Smith are now giving the concussion issue serious attention, it wasn’t always like that at the player’s union. For years, Gene Upshaw denied any relationship between concussions and the cognitive problems that former players were experiencing. That's one of the main reasons the NFLPA was also sued over the concussion issue. Lucky for them the case was dismissed because the former player’s claims were preempted by federal law. In other words, former players would have to resolve their claims through arbitration rather than in federal court because the CBA's contain mandatory arbitration provisions.
The NFLPA victory against former players - using the preemption argument- is the same argument the NFL was using against us during the early stages of the litigation. If we had lost that argument, our case against the NFL could have gone down in flames, just like it did against the NFLPA. But, instead of ruling on the preemption issue, Judge Brody asked the parties if they could come to a Settlement – and we did, partly because we didn’t know how she would rule on preemption argument.
The NFL's victory against former players on the Prescription Drug lawsuit on the grounds of preemption also does not bode well for former players.
Now that a "preemption precedent" has been set, just imagine what could happen if the Third Circuit Court of Appeals reversed Judge Brody’s approval of the Concussion Settlement and sent the two parties back to the negotiating table. The NFL could say “NO DEAL” and tell the players we’ll see you back in court. They would have a much stronger hand and could totally blow up the entire Settlement – saving themselves a billion dollars.
The NFL Concussion Settlement is not perfect, but it's the best hope former players have of getting some compensation for the head injuries they have suffered.
So when Mr. Smith says “The good news is that this admission comes in time for both parties to address its significance to a settlement….” it sounds like he’s siding with the 94 players that are appealing the Settlement (and who are holding it up for the 19,000 players that have agreed to the Settlement)
Mr. Smith and his lawyers at the NFLPA have had a pretty good string of court victories and arbitration rulings against the NFL. But is he aware of the true ramifications of the NFL’s statement on CTE and what it means to the current players?
The NFL rarely does anything by accident, and I believe they knew that their recent admission at a Congressional hearing would not change the course of the Settlement. What it does do is this: It puts the active players on notice, just like the tobacco companies did when they started putting warning labels on their cigarette boxes.
In the future, you might see this type of warning label on all helmets: [Helmets cannot prevent concussions and playing NFL Football can cause TBI (Traumatic Brain Injury) and CTE (Chronic Traumatic Encephalopathy]. Use at your own risk.
Current players will no longer have the excuse of saying they did not realize they could develop CTE - and the NFL now has a good argument in any future litigation over this issue. In legal terms it’s called “Assumption of Risk” and that's just one of the arguments the NFL could use.
I’m not saying that the NFL shouldn’t be responsible for helping players that have been injured - via Worker's Comp, the Disability Plan and the Neurocognitive Benefit – I’m just saying that the the current players chances of getting a court to side with them on future concussion litigation has been greatly reduced.
The NFLPA, DeMaurice Smith and the active players have been put on notice.
How's that for burying the lead!
