NFL Concussion Litigation Faces An Early Courtroom Test

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In October 1988, Chicago Bears quarterback Jim McMahon was enjoying a rare streak of good health. For the first time in his career, it appeared McMahon would stay healthy enough to start in each of the team’s first seven games. “While all around him are losing their heads — and their limbs, for that matter,” The Chicago Tribune noted, McMahon was persevering “to serve another week in the National Football League’s perilous combat zone.”

The only possible barrier, it seemed, was a blow to the head that knocked McMahon from the Bears’ Week 6 game against the Detroit Lions. By the middle of the following week, Coach Mike Ditka had put any concern to rest.

“McMahon is fine, he’s going to play, he’s going to practice,” said Ditka.

Team trainer Fred Caito underscored the point, telling The Tribune that while McMahon had indeed suffered a concussion in the second quarter against the Lions, “it cleared by halftime.” Added Caito, “He lost his memory a little bit.”

In all, McMahon suffered four concussions over his NFL career — injuries he says have left him battling early-stage dementia at the age of 53. Now, McMahon has teamed up with roughly 4,200 former NFL players who are suing the league for allegedly concealing the link between football and brain damage. An opening hearing is scheduled for Tuesday in U.S. District Court in Philadelphia.

“We knew what was going on with pretty much every other part of the body,” McMahon told ESPN’s Outside the Lines in September. “We knew there was going to be chance for injury, but we didn’t know about the head trauma, and they did, and that’s the whole reason for this lawsuit.”

Plaintiffs in the case include former stars, like McMahon, who in 1985 led the Bears to their first Super Bowl win, and the family of former San Diego Chargers linebacker Junior Seau, who was found to suffer from chronic brain damage after his suicide last May, as well as lesser-known players, including roughly 400 plaintiffs who never played a single down in the league, but took to the practice field.

In their master complaint, players spanning seven decades of NFL play charge that the league:

… ignored, minimized, disputed, and actively suppressed broader awareness of the link between sub-concussive and concussive injuries in football and the chronic neuro-cognitive damage, illnesses, and decline suffered by former players.

Attorneys for the players are seeking damages that legal experts say could tally into the billions, as well as funds to establish a medical monitoring system for retirees.

The NFL has dismissed the players’ allegations, saying it “has long made player safety a priority and continues to do so,” according to an email statement from the league, which adds: “Any allegation that the NFL intentionally sought to mislead players has no merit. It stands in contrast to the league’s actions to better protect players and advance the science and medical understanding of the management and treatment of concussions.”

Tuesday’s hearing before Judge Anita Brody will focus on the NFL’s motion to dismiss the case. The league argues the suit must be settled through the arbitration process, in accordance with the collective bargaining agreement between the league and its players union. A ruling from Judge Brody is expected to take several months.

If the case does move forward, several thorny legal issues will be at play. For players like McMahon, for example, attorneys will have to determine whether their conditions can be traced to injuries suffered in the NFL or whether they occurred while playing in college, high school or even Pee-Wee football.

Another sticking point is what to do with players in the suit who for now remain asymptomatic.

Above all, the case will center around how much the NFL knew about the link between football and traumatic brain injury. In their complaint, players allege the NFL was aware of the evidence and risks associated with repetitive traumatic brain injuries, “but deliberately ignored and actively concealed the information.”

A growing body of research has suggested at least some connection between football and the degenerative brain condition chronic traumatic encephalopathy. CTE, as the condition is known, can lead to dementia, memory loss and depression and is believed to stem in part from repeated head trauma. In December, researchers at Boston University announced that they had observed CTE in the brains of 50 former football players, including 33 who played in the NFL. The independence of that research has been called into question, however, after it became known that two prominent BU researchers served as paid consultants to law firms that are suing the league.

The case will likely spotlight the work of the NFL’s Mild Traumatic Brain Injury (MTBI) committee, which the league established in 1994 to study football’s affects on the human brain. For years the panel denied any connection between football and brain damage, and in a now infamous pamphlet distributed to players in 2007 the NFL stated that “Current research with professional athletes has not shown that having more than one or two concussions leads to permanent problems if each injury is managed properly. It is important to understand that there is no magic number for how many concussions is too many.”

During the same time period, however, the NFL’s retirement board awarded at least $2 million in disability payments to at least three former players after concluding football caused their crippling brain injuries, a joint investigation between FRONTLINE and Outside the Lines has found.

In 2009, the NFL disbanded the MTBI committee after a series of congressional hearings exposed the league to broad public scrutiny over its stance. In the three years since then, the NFL has adopted a series of rule changes designed to improve player safety. It has cracked down on helmet-to-helmet hits and moved kickoffs up by five yards, reducing the number of concussions on those plays by 50 percent. The league has also donated $30 million to the National Institutes of Health for brain injury research, and entered into a $60 million partnership with General Electric to develop imaging technology for detecting, treating and preventing brain injuries.

In all likelihood, any trial is years away, assuming the NFL opts to let the case go that far. With $9.3 billion in gross income per year, not to mention its position as the nation’s most popular game at stake, it’s hard to see the league not settling, says W. Burlette Carter, a professor who teaches sports law at The George Washington University Law School.

“I cannot imagine the NFL will gain any points by saying, ‘Hey, we’re denying these players anything and we’re refusing to do medical monitoring,’” said Carter. “That doesn’t make any sense from a corporate perspective.”

Bears quarterback Jim McMahon is sacked by Redskins Dexter Manley on January 10, 1988. (AP Photo/Mark Elias)
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