Is There Life After Football? (18 page)

The incidence and prevalence [of CTE], we won't know those until we have a way to detect it in living people. Then we can look at thousands of people who play these sports, and really come up with an incidence and a prevalence. . . . We have over 70 [deceased] football players with this disease, from all levels, and we've done that in five years. I just don't think we could do that with a rare disorder. I just don't think it's possible. Even if we were selecting
for families that thought that the individual had the disease, we have an enormously high hit rate. . . . So I think the incidence and prevalence have to be a lot higher than people realize. And I also think that given the worst of circumstances, if you take a single year, and you look at all the NFL deaths in a single year, and that's your denominator, and on the numerator you put all the cases that we've had with CTE of NFL players, assuming that we got the only cases of CTE of NFL players ever, anywhere, it's about 10 percent. Ten percent of NFL players get CTE. Well, that's a huge percentage, if you ask me. And that's the lowest it can be.
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The conservative estimate that ten percent of former NFL players might have CTE, accompanied with the dramatic autopsy evidence, casts the NFL cover-up in an even more unflattering light. It squarely implicates the league in the documented tragedies of players with CTE who've violently taken their own lives. It raises the possibility that other violent incidents—for example, the case of former Kansas City Chiefs tackle Jim Tyrer, who murdered his wife, then killed himself—may have resulted from football-related brain disease.
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Equally important, the research suggests that the NFL may be liable for damages to thousands of former players who develop CTE and who may someday suffer the debilitating aftershocks of the hits they took in the NFL. This corroborates the league's tacit admission in the lawsuit settlement and its on-the-record acknowledgment that Mike Webster's disability was “the result of head injuries suffered as a football player” in the NFL. A telling pronouncement came late in 2009, in the wake of congressional hearings on the NFL's concussion crisis, when Greg Aiello, the league's communications director, quietly confessed, “It's quite obvious from the medical research that's been done that concussions can lead to long-term problems.” This is the only time anyone from the NFL has publicly acknowledged a connection between football and brain disease.
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In the shadow of this mountain of damning evidence, the concussion lawsuit settlement between players and the NFL has generated considerable conjecture. On one hand, $765 million dollars is a hefty sum. On
the other hand, spread across a possible 4,500 claimants, it amounts to a relatively small average individual payout ($17,000). An expanded number of claimants further dilutes the settlement pool. Why, then, did the two sides settle so quickly?

From the NFL's point of view, the $765 million payout pales in comparison to possible damages that might be awarded should the league lose the case in court. That amount could rise into the billions.
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While $765 million is nothing to scoff at, the NFL is a multibillion-dollar industry that can absorb the financial hit. Perhaps more importantly, by settling the case out of court and signing an agreement that doesn't admit liability for players' head injuries, the NFL dodges the prospect of establishing legal precedent that could be cited in future litigation, which might cost the league even more.

Then why didn't the players press their advantage? Certainty is the key factor. Coupled with the immediate needs of many currently disabled players, a guaranteed payout is appealing. No court case is a sure thing, and even in victory, the amount of an eventual award is uncertain. It could be enormous, but it might also fall short of expectations. Should the players lose, they might not get a cent, and hundreds of players could find themselves in dire straits, with no help whatsoever. The NFL has the resources to effectively oppose the litigation and drag out the process for years, if not decades. For players with pressing medical and financial problems, a huge payoff ten years down the road isn't very promising. They and their families might not last that long.

Most crucially, despite the mounting scientific evidence and swelling public support, establishing the NFL's liability in court is a difficult proposition. The case would shape up much like class action suits against the tobacco industry, where, for years, epidemiological evidence wasn't sufficient to establish legal liability. In order to win a judgment, the players would need to prove that the NFL knowingly placed players in harm's way—that the league knew that playing NFL football caused chronic, debilitating brain damage and that the players were kept ignorant of the imminent danger.

The initial challenge would be to establish that players didn't know that football could cause brain damage. This is a major hurdle, because
everyone
knows that football is a violent game, fraught with danger. The second key issue would be establishing a direct causal link between injuries incurred on an NFL playing field and brain damage. It's virtually certain that playing football leads to widespread concussions. There is also convincing scientific evidence that multiple instances of brain trauma—especially repeated concussions, but also repeated subconcussive events—are associated with chronic brain disease.
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But this evidence is probabilistic, not experimental. That is, it can be established that NFL players as a group are
likely
to suffer concussions. And players suffering concussions are
likely
, as a group, to develop brain disease. But court decisions don't hinge on probabilities. Cases are adjudicated based on clear, if not certain, causal connections between individual circumstances and individual outcomes. Here's where the players' case becomes difficult.

In defending their case, the NFL would argue that a player needed to establish the direct link between an injury incurred
in the NFL
and the subsequent development of brain disease. They would require players to provide documentation of brain injuries while playing in the NFL, and while such documentation is increasingly available, prior to 2000, almost none existed. Data currently at hand is unsystematic and often anecdotal. Team and player medical records are often inconclusive about the number, timing, and extent of player injuries. Players themselves are complicit in this shadowy documentation because they are notorious for not letting team officials know they're hurt. They get their “bells rung,” shake it off, and get back on the field, even if they can't see clearly or remember where they are or what they're doing. Retrospective accounts of unreported concussions are not compelling legal evidence.

Even if a history of NFL-related concussions could be established, the defense would demand that claimants prove those injuries directly resulted in debilitating brain disease. Again, the evidence is largely probabilistic. It doesn't establish the
certainty
of causality, an argument that would surely be front and center in any litigation. For example, all
neuropathologically confirmed cases of CTE have a history of brain trauma, but not all individuals with exposure to brain trauma develop CTE.
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Players may be
likely
to suffer brain disease, but to win a court case, a player must establish that specific injuries directly caused his own
specific
debilitating outcomes.

Players would also be required to rule out other possible causes of brain disease. This, too, is difficult. The NFL would argue that everyone—concussions or not—has some probability of eventually developing brain disease. The onus would be on the player to prove that other factors that might reasonably cause brain diseases—for example, heredity, routine lifestyle choices, normal aging, and myriad other alternate explanations for players' current conditions—were not involved. Even more daunting, from the players' perspective, is the prospect of ruling out other
non-NFL
head injuries as the cause of current medical problems. This is virtually impossible. Nearly every NFL player has participated in four to ten years of organized football
before
reaching the NFL, including hundreds of games and thousands of practices. The NFL would argue that this participation almost certainly contributed to current medical conditions, thus absolving the league from liability for the present state of affairs. What's more, since recent scientific evidence suggests that initial concussions render players more susceptible to subsequent brain trauma, the league could argue that concussions experienced in high school and/or college were the precipitating cause of brain disease—that players already had “pre-existing conditions”
before
they reached the NFL. Players would be required to demonstrate that this was not plausibly the case. Proving that an elite high school and college player never had his bell rung is a tall order.

Given the challenges faced by both parties to the litigation, the settlement represents a compromise based on the perceived risks and rewards for both sides. The NFL limits damage and heads off catastrophic precedents. The players take home a guaranteed payoff without having to prove a problematic case that might involve years of litigation. Those gravely in need will get help almost immediately. The compromise cost
the NFL $765 million. The players forfeit the possibility of a multibillion-dollar payday. Both sides can claim public relations victories. The NFL hasn't admitted responsibility for player injuries. The league can say it is simply doing what's right by taking care of its players and former players. For their part, the players can point to the tacit admission of guilt by the NFL and the quick and substantial payout to players who really need the help.

Reaction to the settlement has been decidedly mixed. The feedback is complicated by players' defiant attitude toward injury itself. For many of them, injury is just a “part of the game” that has to be accepted. Jim Otto obviously deserves considerable help from the NFL for the injuries he's suffered. He's more than willing to talk about the steep price he paid for his career. But he's adamant about accepting responsibility for his fate. He doesn't want the NFL's help or its money.

Nobody is giving me any special help. And over here these guys [the players filing suit] are wanting the world. They're suing everybody for a lot of money, which I don't like because that's going to hurt football in high school, Little League and in [the] pros. . . . They're going to cost so much money that the owners and high schools won't be able to afford the insurance for the game and stuff like that. I'm against all that. Let's play football.

Asked about the evidence that former players are suffering the debilitating effects of concussions and CTE, Otto responds:

Well, I'm trying in my mind not to relate that to my situation, you know. . . . I don't want to believe that that's what's happened. . . . Those are the battle scars of a gladiator. The gladiator goes until he can't go anymore. And that's what I'm doing. . . . I don't want to make excuses . . . I knew about concussions.
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Otto isn't alone in stoically accepting his fate, but others are equally adamant that the players settled for far too little. “$765 million?” asks
former Minnesota Viking Brent Boyd, one of the original plaintiffs in the lawsuit. “The breakdown is $1.2 million over 20 years per team. What is that, a third of the average salary? There is no penalty there. It's pocket change.”
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Boyd has a point. In the broader scheme of things, the NFL stands to make somewhere between $200 billion and $500 billion over the 20 years during which the league will dispense the $765 million settlement award.
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Viewed in this context, it is, indeed, pocket change.

In January 2014, Judge Anita Brody raised precisely this issue when she denied preliminary legal approval of the settlement. Brody's central concern was that not all retired NFL players who ultimately receive a qualifying diagnosis (or their families) will be adequately paid under the current plan. She also objected to a lack of data in support of the settlement's economic assumptions. In July 2014, the NFL agreed to remove a $675 million cap on compensatory claims for players with neurological symptoms, and Brody granted preliminary approval.
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But it's not only about the money. Like many other players, former NFLPA president and Pro Bowl center Kevin Mawae is disappointed that the NFL hasn't admitted culpability. “[Fans] see $765 million and they think it's a windfall for the players. It's great for . . . the guys that would fall in the category of needing immediate help,” he says. “But it's $700 million worth of hush money that they will never have to be accountable for.” Anticipating future litigation, Mawae argues that the NFL hasn't had to disclose damaging information it has withheld for years. He calls the settlement a “pittance,” a relative “drop in the bucket.” “The league won,” he laments.
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Former Packer Dorsey Levins, another plaintiff, also wanted an admission of liability, but acknowledges the need for immediate help: “When a guy [with symptoms of CTE] calls me and says, ‘I've called the NFL five times. I can't get a response. My head hurts all the time. And if I can't get help, I'm going to take care of it [end his life].' I couldn't sleep. What do you say to a guy like that?”
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In the larger health picture, where do former players stand in the wake of all this? Many are suffering the aftereffects of hits to the head. Some are enduring the ravages of CTE. There's some financial relief on the way,
but it's not as much as it appears at first glance. Some players may receive several million dollars, but the average payout is going to be far less. Perhaps the most chilling insight to come out of the concussion crisis is the realization for players that many of them may be looking down a very bleak road to a future of mental decline and disability. They wonder if it's already happening. Upon hearing of Junior Seau's suicide and the speculation that it was CTE induced, Steve Young pleaded with his friend and former teammate Gary Plummer. “Please, bro, tell me there's more to it than just the concussions, tell me that please.”
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Every former player who's had his bell rung is probably asking the same thing.