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The NFL and TBI: Review of the Issues Surrounding the Case

Written by Tom Crosley
Brain Injuries, Catastrophic Personal Injury

A lawsuit filed in July of 2012, now involving over 4,000 former NFL players, alleges that the NFL was both hiding what it knew about the cumulative effects of repeated head trauma and denying the links between the sport and long-term brain damage. In November of that same year, it came to light that the NFL’s retirement board had awarded disability payments to at least three former players after concluding that their brain injuries were a result of their years playing football.

While the NFL had filed a motion to dismiss the lawsuit and publicly stated that “no NFL player” had experienced chronic brain damage from repeated concussions, the evidence contrary to these statements has been mounting.

A study performed at UCLA further demonstrated the link between brain damage and football in former NFL players. This study was able to diagnose chronic traumatic encephalopathy (CTE) in living patients for the first time; before, CTE could only be confirmed by examining the brain after death. This disease is linked to dementia, memory loss, and depression. Thirty-four former NFL players were diagnosed with CTE, which researchers say is caused by repeated head trauma.

In August of 2013, the NFL agreed to a $765 million settlement with the retired players who accused the league of hiding the link between TBIs and professional football. This amount would fund medical exams, compensation for former players, litigation expenses, and the medical research that had begun once these links came to light.

Many family members of former players commented that they were shocked about the lawsuit settling so quickly, and some say that the NFL primarily settled because it didn’t want to go through the discovery phase of a trial, which would have shed further light on what the league did or did not know about the risks and long-term effects of head injuries for their players.

However, this settlement was not the end of the story. In January of 2014, the judge in the case rejected the preliminary motion to approve the settlement over concern that the amount would not cover the costs of medical care and compensation owed to all of the claimants involved. Judge Anita Brody expressed that the proposed settlement, which would cover approximately 20,000 players who may one day be eligible for varying amounts depending on their injuries and other factors, would not last the 65 years that it was supposed to, especially since no documentation was provided to prove that the money would last as long as the NFL claimed. So, an order was made for both sides of the lawsuit to provide information showing that the amount would be large enough to cover all eligible parties.

A revised settlement was submitted in July, which removed a cap on the funds. Rather than paying a maximum of $765 million, the NFL agreed to fund all valid player claims over the life of the deal, which Judge Brody agreed to. Individual awards for the players and their families, however, would remain capped. Some of the maximum amounts included in the settlement include:

• Dementia: $1.5 to 3 million
• Alzheimer’s and/or Parkinson’s: $3.5 million
• ALS: $5 million
• Death with chronic traumatic encephalopathy (CTE): $4 million

All of these maximum award amounts are subject to reductions based on career length, age, and other factors.

Beyond these awards, the NFL will also spend $75 million for a baseline assessment program to give retired players exams, determine the extent of brain injury, and provide necessary counseling or prescription drug reimbursements to former players with cognitive impairments.

The specific language of this revised settlement, however, is not agreeable to many. For example, in order to receive compensation for CTE, a retiree would have had to die and be diagnosed with the disease before the date of preliminary settlement approval (July 7, 2014). If a player died after that, regardless of circumstances, he or his family would not qualify for an award.

In late July of 2014, seven players asked for an appeals court to intervene on the proposed settlement, stating that the current settlement would not adequately cover all retirees and the range of illnesses they could have as a result of playing in the league. This is unusual because the proposed settlement is not final and may still be altered.

A fairness hearing was set for November of 2014 in order to determine whether to grant final approval to the proposed settlement. This hearing provided family members and their representatives the opportunity to appear before the court and state their objections to the proposed settlement. Written objections were taken through December 11. An immediate ruling was not expected and, as of January 2015, a final settlement has not been reached.

One major change the NFL has orchestrated as a result of these proceedings is a concussion management protocol that outlines specific game-day and post-concussion courses of action. While some see this late-stage maneuver as a form of backpedaling and dealing with the public-relations nightmare this lawsuit has caused, the system itself will hold teams, coaches, and the NFL more accountable for what happens on the field. More education about and awareness of the symptoms of TBI can only serve to improve the welfare and health of the NFL’s most valuable asset: their players.

References:

Belson, K. (2014, July 21). 7 retirees ask court to intervene on concussion settlement. The New York Times. Retrieved from http://www.nytimes.com/2014/07/22/sports/football/7-nfl-retirees-ask-court-to-intervene-on-concussion-settlement.html?_r=1

Fainaru, S., & Fainaru-Wada, M. (2012, November 16). NFL board paid $2M to players while league denied football-concussion link. Frontline. Retrieved from http://www.pbs.org/wgbh/pages/frontline/sports/concussion-watch/nfl-board-paid-2m-to-players-while-league-denied-football-concussion-link/ 

Fainaru, S., & Fainaru-Wada, M. (2013, January 22). New study finds brain damage in living ex-NFL players. Frontline. Retrieved from http://www.pbs.org/wgbh/pages/frontline/sports/concussion-watch/new-study-finds-brain-damage-in-living-ex-nfl-players/

Hruby, P. (2014, July 8). The devil is in the details. Sports on Earth. Retrieved from http://www.sportsonearth.com/article/83556224/nfl-settlement-concussions-cte-dementia-anita-brody-goodell?_escaped_fragment_=bOvf5z#!bOvf5z 

Mihoces, G. (2014, November 18). Proposed NFL concussion settlement faces next hurdle. USA Today. Retrieved from http://www.usatoday.com/story/sports/nfl/injuries/2014/11/18/proposed-nfl-concussion-settlement-faces-next-hurdle/19231563/

Pennington, B. (2014, November 29). Concussions, by the new book. The New York Times. Retrieved from http://www.nytimes.com/2014/11/30/sports/football/nfl-teams-now-operate-under-a-concussion-management-protocol.html?_r=0

Smith, S. (2013, August 30). NFL and ex-players reach deal in concussion lawsuit. CNN. Retrieved from http://www.cnn.com/2013/08/29/health/nfl-concussion-settlement/

Turner, H. (2014, January 23). NFL brain injury settlement rejected. Lawyers and Settlements. Retrieved from http://www.lawyersandsettlements.com/articles/brain_injury/brain-injury-lawsuit-traumatic-20-19445.html

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