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Jeff Nixon
May 1

MTBI was the centerpiece of NFL Concussion Case – not CTE – and that’s why the current appeal will fail.

In the most recent appeal of the NFL Concussion Settlement, filed by 9 former players, they argue that the “centerpiece” of the litigation was the condition known as Chronic Traumatic Encephalopathy.  They claim that our “Class Counsel used CTE's scientific infancy against the class members by arguing that, because Plaintiffs could not prevail on a litigated CTE claim since the science was too new, it was fair to release the claims for no consideration (while obtaining consideration for other, more well-defined diseases). In conclusion they say that the District Court and the Court of Appeals Panel then adopted this reasoning without considering the more fundamental implication that, if the claims for CTE would fail for lack of scientific and medical development and understanding, then they do not exist for purposes of Article III.”  

If you didn't know what Article III is, join the crowd. It's legal jargon for addressing whether we had standing to invoke the jurisdiction of the federal court in the first place. It requires that plaintiffs demonstrate three things: injury-in-fact, that the injury in question is fairly traceable to the defendant's challenged action, and that the injury is one that could be redressed by a favorable decision.  

Additionally, a rehearing by the entire Third Circuit Court "en banc" is reserved only for situations where a case involves a new issue of law or is one where the court has not properly understood or stated the law. There is nothing in this case that involved a new issue of law, or any indication that the judges misstated the applicable law. At the end of the day the objectors' complaint is that the court did not apply the law in their favor, which is not grounds to petition for rehearing en banc. 

So now that we have all that legal stuff out of the way, let me explain why I believe the nine players are incorrect on several of the arguments in their appeal.

When former NFL players began to sue the NFL, the main focus of ALL the complaints were centered around the fact that former NFL players were injured as a result of both traumatic and “mild” traumatic brain injuries or MTBI (Mild Traumatic Brain Injury). Cases were being filed all over the U.S. and ultimately around 5,000 lawsuits were consolidated into what is known as a Multi-District Litigation Master Administrative Long Form Complaint

In the Master Complaint, there were 24 introductory statements as to why former players were suing the NFL. The acronym MTBI is used 24 times and the acronym for CTE is not used even once! Altogether, MTBI is referred to 127 times in the full complaint.

According to the complaint:

“This action arises from the pathological and debilitating effects of mild traumatic brain injuries (referenced herein as “MTBI”) caused by the concussive and sub-concussive impacts that have afflicted former professional football players in the NFL. For many decades, evidence has linked repetitive MTBI to long-term neurological problems in many sports, including football. The NFL, as the organizer, marketer, and face of the most popular sport in the United States, in which MTBI is a regular occurrence and in which players are at risk for MTBI, was aware of the evidence and the risks associated with repetitive traumatic brain injuries virtually at the inception, but deliberately ignored and actively concealed the information from the Plaintiffs and all others who participated in organized football at all levels.”

As you can see, there is no mention of CTE in the introduction to the complaint. And why is that important?  There are several reasons, but first and foremost, our lawyers had to establish that players were actually “injured”, which is a requirement of Article III.  Our lawyers couldn’t establish that players had CTE as a specific injury because there was no way to detect CTE in living players.  It could only be diagnosed post-mortem.  Players that died with CTE before the Settlement was approved, did not have an opportunity to get a "qualifying diagnosis" for their cognitive impairment, so our attorneys negotiated a special award for any player that died and had a post-mortem diagnosis of CTE between 2006 and the April 22, 2015.      

The most important thing to know is that, even though CTE is mentioned in the complaint, it was not the “centerpiece” of our litigation and it was not the main reason we sued the NFL!  Nonetheless, there was plenty of evidence, going all the way back to 1928, that supported the fact that players were being injured due to concussive and sub-concussive blows to the head, or MTBI.

The NFL knew that they had to do something about the concussion problem, so they established the MTBI Committee in 1994. The establishment of that Committee was also central to our case and it was mentioned numerous times in our complaint. We alleged that the NFL’s MTBI Committee was established and that after they “voluntarily assumed the duty to investigate, study, and truthfully report the medical risks associated with MTBI in football, the NFL produced industry-funded, biased, and falsified research that claimed that concussive and sub-concussive head impacts in football do not present serious, life-altering risks.”

As with most lawsuits, there are a number of allegations made against defendants (like the ones above). But, proving all of those allegations in a court of law is not an easy thing to do and that’s why Settlements are negotiated and approved by the Courts. Both sides realize it could take years to resolve a case. That, along with the uncertainty of winning or losing, is why you usually keep the bird in hand instead of going for the two in the bush. The issue of Preemption was also looming large, so Judge Brody asked the parties to see if they could come to an agreement before she made her ruling on that key issue. 

In Settlement negotiations, we had to make a compromise over the issue of CTE, due to the fact that scientific evidence was in its infancy.  After months of negotiations, our lawyers realized we would have a very difficult time getting that specific disease covered as a compensable injury for living players. Although, I should note that the Settlement does compensate players for the memory and executive functioning problems that are associated with CTE and will provide awards to players that have level 1.5 or level 2 cognitive impairments – the precursors to Alzheimer’s Disease.

The nine players that have appealed the Settlement said “There are no ripe Article III claims for CTE among living NFL retirees.” They’re correct! No former player has tried to sue the NFL using CTE as the centerpiece of their case. And why is that? Because, if they had used the current scientific evidence on CTE, they would have lost their case so badly they would look like pee wee football players going up against NFL players.

According to the nine players that have appealed the Settlement, we should have waited until the CTE issue was “mature” and had already been litigated in the lower courts. They refer to one case where the District Court said "Fairness may demand that mass torts with few prior verdicts or judgments be litigated first in smaller units even single-plaintiff, single-defendant trials until general causation, typical injuries, and levels of damages become established.”  

If the nine former players have their way, our Class Action Settlement could be thrown out of court and not heard for another five or ten years – when CTE is potentially "ripe" and "mature" for being included in the Settlement. But that’s only if the lower courts were to rule that CTE is a legitimate “injury-in-fact” and that according to Article III, the injury is fairly traceable to the defendant's challenged action.  In other words, we would have to prove that the NFL caused CTE, due to their fraud and negligence. The problem is, the NFL - and no one else for that matter - had even heard of CTE before Dr. Omalu found it in Mike Webster's brain in 2002.  The NFL can't be found negligent for the thousands of players that had brain injuries before that date and that's another reason why MTBI and not CTE was the centerpiece of our complaint.   

Thankfully, we already had research and prior court cases that established that MTBI and concussions lead to serious injuries. Mike Webster’s case is a perfect precedent. He was diagnosed with MTBI way before CTE was found in his autopsy and became a household word.  The good news is, we don't have show the court that we have CTE – only that we suffered from the cognitive impairments associated with ramming our heads into other players.   

Our lawyers could have taken CTE out of our complaint – as the nine players suggest in their filing - and we still would have had a strong case, because MTBI was the “centerpiece” of our litigation. Of course, taking CTE out of our complaint would have weakened our overall case and it would have taken away a key part of our leverage during the negotiation process.

The nine former players go on to say that "Class members who have yet to be diagnosed with a concussion related disease have suffered no injury caused by the NFL, and therefore cannot allege a claim for damages at this time. They lack Article III standing to sue the NFL, and therefore may not be included in a settlement class"

Wow, it sounds like that part of their argument was written directly by the NFL lawyers!  But it's not true. All of the initial lawsuits filed by former players included language that explained how we were currently suffering from the effects of mild traumatic brain injuries and concussions. Some players had more serious injuries than others, but all of us claimed some type of impairment. It could be argued that all former NFL players have some degree of brain damage and  the research shows that our impairments are likely to get worse. Level 1.5 and level 2 dementia, which is included in the monetary awards, is not a specific disease.  It's an overall term that describes a wide range of symptoms associated with a decline in memory, or other thinking skills severe enough to reduce a person's ability to perform everyday activities. 

For the nine former players to suggest that any class member that doesn't already have a "concussion related disease" should not be included in this Settlement is a downright disgrace and I hope the Third Court of Appeals punts that assertion right out of the stadium.     

The nine former players that have appealed to the entire Third Circuit Court are holding up the Settlement, just like the 94 other former players did when they appealed the Settlement. Former players have been delayed and denied - and some have died - while waiting to get compensated under a good Settlement. It's not a perfect one, but it is one that 20,000 other former players have already agreed to. If former players didn't like the Settlement, all they had to do was opt out and continue their lawsuits against the NFL, just like 200 of our alumni brothers did - at great risk to themselves. If the nine players had opted out, they could have filed all the lawsuits they wanted, using CTE as the centerpiece of their litigation. They could have fought to get all the symptoms associated with CTE included in their award for damages.   

I wish it were different. I wish we had conclusive evidence about CTE right now. I wish the science was more advanced. I wish I had a genie from a magic lantern so I could wish for a thousand wishes - and each one would be for former players to get compensated for the injuries allegedly associated with CTE.  But that’s a fantasy……… and so is the Naughty 9's appeal to the entire Third Circuit Court.

It's time to stop all the appeals, put this baby to bed, and let the provisions of the Settlement go into effect. Let's get money into the pockets of former players and in some cases, the families they have left behind. We also need to get the medical monitoring and the education fund implemented as soon as possible. None of that will happen until the appeals have been exhausted. 

To tell you the truth, I'm exhausted from writing about this issue - and I know there are a lot of former players that are exhausted from reading about the concussion litigation and settlement. I can't wait for the day when I can just sit back and look at this in my review mirror. I'm still going to advocate for all the things that former players need - the most important being the bearer of good information that can help former players - help themselves.   

Let me leave you with some good information I found at a blog called the Foggy Shore. The most recent article posted there is entitled: 10 Things I Wish My Doctor Had Told Me About Mild Traumatic Brain Injury (mTBI). There's some really good advice that many of us can use to help us navigate through the Fog.

Your alumni brother,

Jeff Nixon

      

14 comments
April 26

Poll: Do you think Cannabis should be prescribed for "after game" pain in the NFL?

“The soul of the NFL may have an unlikely savior – cannabis. A growing number of former and current NFL players are turning to a hemp extract that experts say stimulates brain function, enhances physical recovery, reduces anxiety and depression, and may counteract the effects of concussions.” - Excerpt from the press release on “When the Bright Lights Fade” campaign


I can still remember the days when Darvocet and Percocet were freely handed out after football games to help us manage our pain. We never got a prescription for those painkillers and we never had to go to a pharmacy to get those drugs. They were handed out by our very own drug cartel. I know that sounds harsh, and things have changed quite a lot since the time I played in the NFL, but the fact is, many players were hooked on these painkillers not only when they played, but in some cases long after the cheering stopped - and the bright lights faded.    

Darvocet was eventually banned by the FDA because it was giving people heart attacks. But Percocet is still on the market. The warning label on that drug says: MISUSE OF NARCOTIC MEDICATION CAN CAUSE ADDICTION, OVERDOSE, OR DEATH!   

Former NFL players sued the NFL over this issue which alleged that "The NFL directly and indirectly supplied players with and encouraged players to use opioids to manage pain before, during and after games in a manner the NFL knew or should have known constituted a misuse of the medications and violated Federal drug laws." The lawsuit was dismissed when the Judge overseeing the case ruled that preemption – using the provisions outlined in the Collective Bargaining Agreement - was the proper venue for resolving disputes. That ruling effectively killed the prescription drug lawsuit and it was one of the main reasons why we settled with the NFL in the Concussion litigation. Preemption would have killed our case too!

So what does all this have to do with the wacky tabbacky! 

Well, first of all, when was the last time you heard about someone dying from an overdose of marijuana? It's never happened.....and it never will. On the other hand, opioid painkillers, like Vicodin and Percocet, accounted for 68% of Emergency Room overdose patients. 

The NFL still bans the use of marijuana by its players, but there is a growing body of evidence that the “evil weed”  isn't so bad after all.  Twenty-four states and Washington DC have already legalized the use of marijuana for medical purposes and voters in 20 more states could potentially legalize some form of cannabis use in the November 2016 elections. The war on weed is over - and the pot heads have won!

I don't condone the use of Marijuana for recreational purposes, although it is a much better drug of choice when compared to alcohol, which accounts for about 2.5 million annual deaths worldwide and painkiller overdoses that kill more than one american every hour.  Isn't it time to explore all the possibilities of this plant, and stop demonizing, fining, suspending and banning NFL players for using it it to relieve pain? 

Yes, some players will use the herb recreationally, but that's true of alcohol too. Obviously, you don't want players running around on the football field while they're stoned, because that could lead to more injuries, but I think most players are smart enough to know that you can't play the game when your high. Using it after a game to relieve pain is a different story. It might be a banned substance but it's still coveted by NFL players as an invaluable painkiller.     

Shouldn't the NFL, at the very least, look at the idea of allowing players to get medical prescriptions of cannabis for pain relief? Isn't that preferable to the Percocets and Pills that can cause permanent damage, addiction, overdoses and death?                 

This gets me to the second point of my article. The Realm of Caring Foundation is launching “When the Bright Lights Fade”, a campaign to raise funds for a series of studies exploring the use of one of the non-euphoric ingredients in Marijuana - cannabidiol (known as CBD). There is promosing research showing that it can help treat and prevent the onset of symptoms associated with CTE and traumatic brain injury.

The Realm of Caring Foundation makes the following statement regarding their campaign and the studies they will be conducting: “This campaign is not about advocating for professional athletes to use cannabinoids recreationally, but rather to encourage the exploration of new options that could lead to solving the epidemic in the NFL that currently exists. This campaign will NOT be an attack on the NFL or its current cannabinoid policy, but rather a platform to identify this as a real problem that must be addressed NOW and an opportunity to explore a potential solution to the problem.”

You can read the Press release on this initiative here: When the Bright Lights Fade 

Here’s a video of the initiative “When The Bright Lights Fade” – narrated by Academy and Grammy award winning Melissa Etheridge and featuring former NFL players Plummer, Nate Jackson, Charlie Adams, Tatum Bell, and Reuben Droughns:

It's hard to believe that a simple weed might be the best answer to pain relief and for helping players that have CTE and traumatic brain injury. 

                                  "Herb is the healing of a nation, alcohol is the destruction" - Bob Marley






2 comments
April 22

T.G.I.B. (Thank Goodness it’s Brody)

When the Third Circuit Court of Appeals handed down their decision on the NFL Concussion Settlement, I’m sure there was a sigh of relief from the woman who presided over the case for over 3 years - Judge Anita Brody. 

Of course, no Judge likes to see their decisions overturned on appeal, so one of the best ways to make sure that doesn’t happen is to use the “Fairness Hearing” to allow all the objectors and their lawyers the opportunity to present their complaints and recommendations for making the Settlement better. 

Judge Anita Brody had our backs throughout this whole process and in my opinion, she did a masterful job presiding over the NFL Concussion Litigation. On several occasions she asked the lawyers to go back to the drawing table and put additional provisions in the Settlement to benefit former players. Back on January 14, 2014 she denied the preliminary approval of the Settlement because she wanted "evidence" that the amount of money - $675 million - was sufficient to pay all claims throughout the 65 year term of the Settlement. The NFL subsequently agreed to pay all claims by uncapping the monetary award fund. 

After the Fairness Hearing, Judge Brody asked for 5 additional revisions – all of which were agreed to by the NFL. 

Now that the Appeals Court has affirmed Judge Brody’s approval of the Settlementthe one thing that should be encouraging to former players is the fact that she will continue to preside over the entire Settlement. The Settlement states that "the Court (Judge Brody) retains continuing and exclusive jurisdiction over the Action, Parties and their counsel, all Settlement Class Members, the Special Master, BAP Administrator, Claims Administrator, Lien Resolution Administrator, Appeals Advisory Panel, Appeals Advisory Panel Consultants, Trustee and Settlement Agreement, including its enforcement and interpretation, and all other matters relating to it. This Court also retains continuing jurisdiction over the “qualified settlement funds,”

Many people are concerned that very few former players will qualify for an award. But, before I talk about that, I should point out that in almost all Settlements there are members of the class that never even bother to participate. On page 4 of the Special Master’s report entitled NFL Concussion Liability Forecast it is expected that 2,300 players will not even register for benefits. That number was calculated using information gleaned from previous class action Settlements.    

I hope that every player that is eligible to register for the Settlement does so. Settlement Class Members must register on, or before, 180 days from the date that the Settlement Class Supplemental Notice is posted on the Settlement Website. If a Settlement Class Member does not register by that deadline, they will be deemed ineligible for the BAP and BAP Supplemental Benefits, Monetary Awards and Derivative Claimant Awards.

I will do everything in my power to make sure that former players know when, where and how to register, but in the meantime, if you haven’t already done so, please join the 8,000 guys that have gone to the NFL Concussion Settlement website at this link: NFL Concussion Settlement Website and sign up to get additional information as it becomes available. This website will eventually be transitioned for claims administration purposes. The Claims Administrator will post all necessary information about the Class Action Settlement on the website, including, as it becomes available, information about registration deadlines and methods to participate in the BAP (Baseline Assessment Program), the Claim Package requirements and Monetary Awards, and the Derivative Claim Package requirements and Derivative Claimant Awards.

Keep in mind, the Settlement still hasn’t received final approval. Former players that appealed the Settlement have 30 days to ask the entire Third Circuit Court to hear their appeal and 90 days to file an appeal with the Supreme Court, so we’re still in limbo. I hope the guys that appealed the Settlement will finally come to the realization that it's time to move forward and allow the process to begin. It's been almost 5 years since the first lawsuits were filed.        

Once the Settlement receives final approval, we will all be keeping a close eye on how many players are registering, filing claims and getting the monetary awards and other benefits of the Settlement. 

So, how will we know what's happening?

Judge Brody and the lead counsel for former players will receive monthly reports from the Special Master. The reports will provide details on the number of players registering for benefits, the number of claims filed, the number of claims approved for monetary awards, the number of claims that have been denied, the number of claims that have been appealed, the identification of physicians that have rendered a diagnosis and the expenses and costs for administering the Settlement.

The Special Master will be Judge Brody’s enforcer when it comes to settling disputes and making sure everyone is held accountable. For example, if the Claims Administrator approves a monetary award, the NFL has the right to appeal that award, but if the Special Master thinks that the NFL is abusing the appeals process,  they can inform the Judge and she has the power to sanction them and/or fine them.

There is also a provision in the agreement that requires the two parties to review new medical evidence and discoveries every ten years. Some people think there is no enforcement power in this provision and that the NFL would never agree to compensate players for some of the other symptoms that have been associated with CTE. But what happens if researchers and scientists eventually prove that these other symptoms are directly attributed to concussions and sub-concussive blows to the head? I think Judge Brody and our lawyers would have some major influence in getting the NFL to do something to compensate players – especially if former players start beating the drums of injustice. 

Former players did a damn good job of getting the NFL to agree to a settlement. It all started with public pressure created by former players complaining to the media and our congressional representatives. Trust me, they will be in our corner again if we can show that the science is on our side and our squeaky wheels aren’t getting the oil.

Thank goodness it’s Friday………and thank goodness Judge Brody will still be in charge of this Settlement when it receives final, final, final approval. 

12 comments
April 18

Appeals Court upholds Concussion Settlement

Today, the United States Court of Appeals for the Third Circuit issued their opinion on the NFL Concussion Settlement that was appealed by 94 players. You can see the entire opinion at this link: Third Circuit Court Opinion on NFL Concussion Settlement Appeals 

In the conclusion section of their opinion, the Judges stated: “It is the nature of a settlement that some will be dissatisfied with the ultimate result. Our case is no different, and we do not doubt that objectors are well-intentioned in making thoughtful arguments against certification of the class and approval of this settlement. They aim to ensure that the claims of retired players are not given up in exchange for anything less than a generous settlement agreement negotiated by very able representatives. But they risk making the perfect the enemy of the good. This settlement will provide nearly $1 billion in value to the class of retired players. It is a testament to the players, researchers, and advocates who have worked to expose the true human costs of a sport so many love. Though not perfect, it is fair. In sum, we affirm because we are satisfied that the District Court ably exercised its discretion in certifying the class and approving the settlement.”

With that statement, the Court has concluded that Judge Anita Brody handled the case properly.

The only recourse left for the former players that appealed the Settlement is for them to appeal the case to the entire Third Circuit Court.  Sometimes the Appeals Court will grant rehearing (en banc) to reconsider a decision of a panel of the court (generally consisting of only three judges) in which the case concerns a matter of exceptional public importance or the panel's decision appears to conflict with a prior decision of the court. The players could also appeal the case to the Supreme Court of the United States. I hope that none of them are willing to hold it up again for another year, by taking such a drastic action.

Writing the opinion on behalf of the court, Judge Thomas L. Ambro said "This settlement will provide significant and immediate relief to retired players living with the lasting scars of a NFL career, including those suffering from some of the symptoms associated with CTE."

Former players have waited long enough to receive monetary awards for the serious impairments they have been dealing with for years. For some, like our lead plaintiff, Kevin Turner, this day arrived just a little too late.

I am proud of the 4,566 former players that began this journey by filing suit against the NFL. We made this happen, but now it’s time to implement the provisions of the Settlement and get the money to the men that need it most - the guys with serious cognitive impairments. 

I don’t care if the NFL doesn’t have to admit any liability for the brain injuries former players have incurred. Everyone already knows the truth. By agreeing to the Settlement, the NFL is paying a high price for their role in trying to keep the concussion problem from surfacing. We may never know what they knew - and when they knew it, but that doesn’t matter to me anymore, because in exchange for their silence, we don’t have to prove that our dementia, Alzheimer’s, Parkinson’s or ALS were caused by playing NFL football. It also helps to know that over the course of the Settlement (65 years) a lot of former players will be getting a lot of money.

For me, it’s an insurance policy.  A policy for which I hope I’ll never need to file a claim!      

0 comments
April 18

Survey finds that 90 percent of dads who suffered football-related concussions want their children to play tackle football

A survey of 300 dads who played tackle football at the high school level or higher, was commissioned by the non-profit arm of i9 Sports, the nation’s first and fastest growing youth sports franchise.

The i9 Sports Association was established in 2006 as a non-profit organization. They have several local chapters nationally and their mission is to promote youth athletic participation, provide financial assistance to boys and girls who cannot otherwise afford to participate in athletic activities and educate the public on the health and wellness benefits of athletic participation.

They play flag football because they don’t want their children playing tackle football at a young age. Brad Culpepper, Eddie Mason, Morten Andersen and other former and current players have their children playing in the i9 Sports Leagues.

Here’s what the survey found:

• 53 percent of football dads say children who play tackle sometimes think getting a concussion “is cool”, or “a status symbol” that means you are “tough and play hard.” 

• More than one in three football dads (36 percent) say their son’s competitive youth sports coach (any sport) is more interested in a win over safe play.

• Almost one in five football dads (19 percent) say despite concussion awareness, there have been no noticeable changes to the policies and procedures of youth sports.

• 43 percent of football dads believe there is too much hype over concussions.

• 90 percent of men who played tackle football at the high school level or higher who suffered or suspected they suffered a concussion want their sons to play tackle football.

Obviously, some dads – including NFL fathers – need to do a little more research on the issue of concussions.

Brian Sanders, president of i9 Sports, which has more than 550,000 members at 275 locations across the country said “It’s scary to us that dads who suffered concussions encourage their young sons to play tackle football at a young age. Studies show a concussion can be more dangerous for young athletes because their brains are still developing. Still, these young athletes perceive concussions as a ‘cool status symbol.’ Concussion safety is a top priority at i9 Sports which is why we recommend flag football until high school.”

The young kids that play in the i9 League were also surveyed.  Here's a link to the actual survey they gave them: “Play it Safe” Survey    

The results of the survey should shock the NFL and all other sports leagues - both amateur and professional - because forty-two percent of children surveyed said they would rather play video games than play sports! 

And why is that?  According to the survey:

• Seventy-four percent of those who chose video games said gaming is more fun than playing sports.

• Twenty-eight percent said sports can be too competitive.

• Twenty percent said their coach didn't let them play as much as they want to so they’d rather play a video game.

• Seventeen percent said they felt too much pressure to win.

• One in five children witnessed a physical fight between players, 59 percent have seen a verbal fight between players and 36 percent have seen a verbal fight between parents.

• Sixty-one percent said they or their teammates have been called a “not so nice” name while playing sports.

It would be interesting to find out how many NFL players started playing tackle football before high school. I played two years in pee wee football and two years in middle school. 

Altogether, I played 12 years of football before I set one foot on an NFL field and I wouldn't be surprised if the vast majority of guys that made it into the NFL had the same experience. That doesn’t even take into consideration the other sports we played - like soccer, basketball, baseball and wrestling that also jostled our brains. Using the term “jostled” is putting it nicely.

Even if we had been successful in getting our concussion litigation cases to trial, the whole issue of when we began to sustain concussive and sub-concussive blows to our heads would have been raised by the NFL lawyers. They would have pointed out that researchers have found that a person's brain is even more susceptible to injury at younger ages.

A study of 40 former NFL players between the ages of 40 and 65 found that those who began playing tackle football before the age of 12 faced a higher risk of altered brain development than those who waited until they were older.  

How would all this information have played to a jury? Even if they agreed that the NFL was negligent, it’s highly likely that the jurors would have found the NFL only partially liable for damages. 

This is just one more reason why 19,000 former players agreed to the Settlement and only 200 opted out and 94 appealed.

The Third Circuit Court has upheld the the Concussion Settlement  and I hope the players that appealed the Settlement decide that it’s time to move on and allow the guys that have serious impairments the opportunity to collect their awards. It’s a tragedy that some players – like Kevin Turner – never got a chance to collect the money that may have helped his medical condition. His legacy will live on through his Foundation. Someday, in the not too distant future, many of us may be in the same boat. It would be comforting to know that a life preserver is handy if we start to sink.

If any of the 94 players that have appealed the Settlement decide to take it to the next level – the entire Third Circuit Court, and then the Supreme Court, no one will collect anything for another year.

This needs to end soon!

The same thing can be said about tackle football for very young kids. 

3 comments
April 15

Legends Landing: A residence for former NFL players to be built in Canton

In a recent article, I discussed the idea of a facility being built exclusively for former NFL players when they get to that “senior citizen” stage of their lives. I’m not exactly sure what that stage, or age is for some players. Personally, I’d like to live to the ripe old age of 100, but I’ll probably need some kind of living assistance when I hit the 80 or 90 year mark – if I’m lucky enough to get there.

The facility I envisioned would be for any former player – not just the guys with dementia, Alzheimer’s, Parkinson’s or ALS, or other neurocognitive impairments. There are plenty of facilities that specialize in providing care for our less fortunate brethren. The nationwide network of Senior Care facilities are well aware of the fact that former NFL players with those impairments and diseases qualify for the 88 plan - and can afford the cost of staying at their facilities. They’re also licking their chops knowing that some of these players could also qualify for millions of dollars under the NFL Concussion Settlement and will have some discretionary funds available to spend on products and services available at their facilities. Some, like Validus  are taking full advantage of this opportunity.

Something similar to what Validus is doing is beginning to take shape in Canton, at the proposed Pro Football Hall of Fame Village. Five to 10 companies are looking to invest in a 150-unit assisted living facility for football greats called “Legends Landing.”

Stuart Lichter, president and chairman of the Industrial Realty Group will be the HOF Village’s primary developer. The 66-year-old real estate tycoon is using his company to get financing for the proposed Hall of Fame Village. As the master developer on the $476 million project, IRG will be responsible for securing the private capital to make the entire project a reality. The funding will be used for numerous Hall of Fame facility and stadium upgrades.

The Tom Benson Hall of Fame Stdium in Canton, Ohio

While Lichter is optimistic about the project, but he’s also being realistic.

“This isn’t a business where things happen overnight,” Lichter said. “You can’t do D in my business until you finish A, B and C. I’ve been asked about getting financing lined up for this (HOF Village) project. If you understand this business, you can’t start on getting financing until you have (building plans), some tenants and costs figured out. We’re not at a step where we can start on D yet.”

There are two other meanings for the letter D: You can’t do dick, until you get your ducks lined up. The good news is, he’s got some big ducks with some big bucks! 

The idea of a facility for former players impressed New Orleans Saints owner Tom Benson so much, he donated $1 million toward its completion. Benson also donated $10 million toward renovations at the former Fawcett Stadium, which has now being renamed the Tom Benson Hall of Fame Stadium.

Tom Benson and his wife at the Hall of Fame grounf breaking ceremony

The total construction cost for Legends Landing has been estimated at $25 million and they are projecting a grand opening in May of 2018.

The Hall of Fame Executive Director, David Baker knows something about this type of project because he, himself, has owned and developed senior care facilities. In an article posted at CantonRep.com, he said he wants to avoid the warehouses some places become for people without a support system and that aging people often want to return to a trusted institution, so religious organizations and universities have developed assisted housing, as the Hall and NFL hope to do.

Dave Baker presents Tom Benson with a Hall of fame helmet autographed by numerous Hall of Fame players.

In addition to the NFL, I’m also glad to know that the NFLPA is supporting Legends Landing. They've even set up a fundraiser in conjunction with the NFL draft on April 28, 2016.

It's important to know that the company selected to design and build the Legends Landing facility, Haskell Senior Living, has created similar senior housing for Naval and Air Force personnel, such as Fleet’s Landing in Florida  and Falcon’s Landing in Virginia. Take a look at those websites and you will see that the military has some pretty nice digs for its veterans! 

John Brendel, the Senior Living Division Leader for Haskell also worked with Dave Baker on the Union Village health care complex in Henderson, Nevada. He said that “In each situation, they have been very, very well received from inception,” and that “They fill up pretty quickly and typically do not have many empty units. It is marketed to those folks as a place to retire where other like-minded individuals and people with the same life experiences have chosen to retire.”

In my article, “Field of Dreams” I said that if they build it, we will come. But, it's got to be a really nice place with all the amenities I talked about......and then some.

I love Buffalo. It's been my home ever since I retired from the Bills, but the six months of cold and snow and freezing rain are starting to wear me down. I like Canton too, but I sure hope we can find a way to build a nice facility in a warm weather state like Florida or Southern California, or I probably won’t be coming. I’m sure there are a lot of other “like-minded” former players that feel the same way. 

It's time to get that shovel in the dirt! 


10 comments
April 11

Getting outraged over the NFL Pension Plan? Do something about it!

“Getting outraged about the same sins of the past over and over again does no one any good. I'm saving my outrage for the next thing that the NFL does wrong, the thing we may be able to do something about. It's time to move on. The NFL actually sounds more or less ready to make some progress. Maybe the conversation should join it.”  Quote from Mike Tanier, a writer for Bleacher Report from his article “The NFL was Wrong, But it’s Time to Move On.”  

I have been a vocal critic of the NFL, but I have to agree with most of what Mike Tanier said in his article. He responded to the NFL concussion news from the NY Times article not with anger, scorn or moral righteousness, but with a simple three-word question: So what now?

He also asked five other important questions: "What do we do about this problem? How do we move forward and make things right? Can we use this information to make football safer? Save lives? Improve the quality of life for former players?"

That last question is the one that I would like the NFL and NFLPA to address. I have offered my advice on some of the ways to improve our quality of life and it always comes back to the number one thing that former players say: Increase our Pensions! 

Lifetime medical benefits comes in a close second, but not even the current players have that benefit - although they do have some nice perks.  Vested players, receive (5) free years of medical benefits after they retire, a Health Reimbursement account that can help them pay future premiums. Players can't amass more $350,000 in their HR account. They also negotiated the right to stay on the NFL’s Group Health Insurance plan after retirement.

I’m not saying the NFL and NFLPA haven’t done some good things for former players. They’ve provided some modest increases to our pension plan and they've established the 88 Plan, Long Term Care Insurance, the TRUST, and the Player Care Foundation and P.A.T. (Player Assistance Trust) fund to help players in dire need. They also have a host of other services under the Former Player Life Improvement Plan and the NFL Legends Program.

The problem is, a lot of players don’t need these services and don’t qualify for them because they're not in dire need, or don't have any major medical issues. So the the best way the NFL and NFLPA can help most former players is through the pension plan. The monthly checks that players receive can be spent on the things that we think will enhance our quality of life. Programs, services, surveys, health screenings, seminars, hotlines, transition programs and counseling are all very nice, but they don’t really help us pay the bills, or pay for other necessities. Let's face it, Cash is King.   

Unfortunately, there is also a problem with the way current benefits are provided.

The money that the NFL and the NFLPA distribute via the Collective Bargaining Agreement go toward current player salaries and benefits. Those two parties also decide how much will be set aside for former player benefits. There is a clearly defined amount of money in the pot and therefore any money that comes out of it for former player benefits will, in turn, reduce the amount of money available to the current players.

See the conundrum? The way benefits are funded creates a naturally antagonist relationship between active and retired players. As much as the NFLPA wants to say we are One Team, it's obvious to most former players that we are the waterboys to the wealthy.  In order for former players to get what they want (and need) there has to be a redistribution of wealth.  But, before you call me a socialist, or communist, don’t forget that the scales have been dramatically tipped in favor of active player salaries and benefits for the past 23 years. It all started with the 1993 CBA, which finally gave players free agency and opened the floodgates on player salaries, bonuses, incentives and benefits. But remember, none of that would have happened without the blood, sweat and tears of the older generation of players that formed the union, went on strike, got blackballed, and eventually sued the NFL and won the legal battles necessary to get better wages and benefits. 

The revenues generated by the NFL and the NFLPA have continued to grow exponentially and other than the 2010 owner lockout, it has led to relatively peaceful labor negotiations. The NFLPA and the League have extended the 1993 CBA six times. It’s been 29 years since the last player strike!

I’m not sure if the active players really understand how good they have it…….or more importantly, why they have it so good.

Right now, there is an ongoing national debate about the growing income gap between the 1 percenters and the 99 percenters. It takes an average annual income of approximately $425,000 to make the 1% club. In 2016 the minimum wage for a first year player will be $450,000. Therefore, almost all current players are in the 1% of the highest wage earners in the U.S. You can see how much you have to earn to be in the 1 percent in each state, here. 

It keeps on getting better for current players. Next season a mere 1,700 players will earn 5 BILLION in salaries and bonuses. If that amount were divided equally (socialism at its finest) each player would make about 3 million annually. Thankfully, it doesn’t work that way. It’s still a system of rewarding players based on performance. Nonetheless, the players at the bottom of the NFL wage ladder are still doing better than 99% of the population – and that includes a vast majority of the players that played before 1993 during a time when salaries and benefits were lower than a snake's ankles.    

Last year, the average player salary was $2,100,000 and the median salary was $860,000. That does not include what players can make through personal endorsements, NFL Players Inc. (the marketing arm of the NFLPA), or the NFLPA Group Licensing Program. Many players will also have guaranteed money coming into their bank accounts even after they retire.

Besides the Pension Plan, the post 1993 players also have two other very generous "retirement type" benefits: The Second Career Savings Plan and the Annuity Plan.

Former players are concerned that, instead of putting the money from those retirement type plans into the NFL Pension plan to benefit ALL players, the CBA’s carved out these special retirement funds that only benefit the post-1993 players. The Second Career savings plan has an average player balance of $210,000 and the Annuity has an average player balance of $250,000. You can read about these other retirement type benefits here.  The Annuity plan has over 1 billion in assets and the Second Career Savings plan has over 1.6 billion in assets for a total of 2.6 billion. That’s almost one billion more than the NFL Pension Plan, which currently has 1.8 billion in assets. 

So what can we do to create a more equitable distribution of benefits to former players?

First and foremeost - more high profile players need to speak out and let the NFL and the NFLPA know how they feel. If you would like to post an article here at NFL Retired Players United, just send me an email and show me a draft of your comments. I have already posted comments from several prominent former players who have been involved with the NFLPA’s Former Player National Steering Committee. You can read Butch Byrd and and Jim McFarland's comments here and here. 

During the run-up to the 2011 CBA, 80 Hall of Famers signed a letter asking the current players to institute a Rookie Salary Scale and use the money saved to increase pre-1993 player pensions. Low and behold, the first Rookie wage scale was finally implemented with savings going to the Legacy benefit. Roger Goodell said the Legacy benefit was an important step He's was right. It was one small step for some men...... and now we need one giant leap for all former players that played in the NFL up until 2011.  You heard me right!

In the past, I have lobbied exclusively for pre-1993 player pension increases, but now that the NFL is projecting 25 billion in revenues by 2027, I would recommend that the NFL and NFLPA increase all pre-2012 former player pensions and establish a benchmark of at least $500 per credited season. That would require a massive increase in the amount of funding needed to satisfy the liabilities of the plan, but as we have seen, the NFL and NFLPA have had no problems increasing the other retirement type benefits (Annuity and Second Career Savings plan) to amounts that are almost one billion more than the NFL Pension Plan!  Both sides have shown that it can be done, so now it’s just a matter of finding the will to do it. As with all increases to former player benefits - the squeeky wheel will get the oil and unless there is a concerted effort among former players, this won't happen. 

The big question is:  Would the active players support this type of increase? I hope so, because they will continue to do very well under the current CBA - and all future CBA's for that matter. Under the current agreement, pensions have already increased to $560 per credited season, and in 2015 they increased to $660. In 2018 they will increase again to $760 per credited season. In the meantime, most former players are still stuck between $250 and $470 per credited season - and they need 4 seasons to get vested, whereas current players only need three seasons. I should note that the $250 per credited season goes up to approximately $363 when the Legacy Benefit is factored in for all players vested before 1993. The NFLPA also used $35 million from the "Joint Contribution" fund to increase the pensions of players that had credited seasons during the period 1993-1996 to bring them more in line with the former players that received the Legacy benefit.      

I should also point out that in addition to the pension increases, all of the other benefits for active players will continue to increase every few years during the course of the current CBA. That includes Severance pay, the Annuity Plan, Second Career Savings Plan, Tuition Assistance, Minimum salaries, Health Reimbursement Account etc., etc. etc. 

Most importantly, player salaries will continue to grow, because the salary cap will continue to grow. When the Salary Cap was first instituted in 1994, teams had $34.6 million to spend on players. 

Over the past 13 years, the Salary Cap has more than doubled – along with player salaries:  2016: $155.27 million;  2015: $143.28 million;  2014: $133 million;  2013: $123 million;  2012: $120.6 million; 2011: $120 million;  2010: Uncapped;  2009: $123 million;  2008: $116 million; 2007: $109 million2006: $102 million;  2005: $85.5 million;  2004: $80.58 million2003: $75 million.

In addition to Hall of Fame players continuing their call for increases to the pension plan, their wives have also joined the battle for better benefits. They wrote a letter to the NFL Commissioner and subsequently met with NFL representatives on December 8, 2015. They are scheduled to meet with them again very soon.

As Mike Tanier said in his article "The NFL actually sounds more or less ready to make some progress. Maybe the conversation should join it.”  

Like Mike, I think the NFL is ready to make progress and help improve the quality of life for former players. It's time for all former players (and their wives) to join in this conversation.

Mike also said "I'm saving my outrage for the next thing that the NFL does wrong, the thing we may be able to do something about."

This is an issue that we can do something about!

 

14 comments
March 30

Here’s why 19,000 former players agreed to the NFL Concussion Settlement and only 94 appealed

C.T.E. (Chronic Traumatic Encephalopothy) Three big words and one small acronym for what has been labeled the “industrial disease” of NFL football players. 

Ever since Dr. Bennet Omalu performed an autopsy of Mike Webster’s brain, and saw the build-up of an abnormal protein called tau, there has been a concerted effort by scientists and researchers to see if they can detect the disease in living persons and discover how much risk an athlete has of developing C.T.E. But there is also the big question of why some players seem far more susceptible to it than others. No one knows the answer to that question, yet.  Dr. Bennet Omalu has gone on the record in the publication Frontiers in Neurology saying “diagnosis of CTE remains autopsy based,” there is a “lack of specific diagnostic criteria required for pre-mortem clinical diagnosis,” and there is “currently no accepted method of diagnosing CTE until post-mortem pathological analysis has been conducted.”

Despite those statements and the relatively small body of science on C.T.E., 94 players have appealed the NFL Concussion Settlement because, for the most part, they want all of the symptoms that are associated with the disease to be covered - and therefore entitling players to monetary awards. 

According to the Boston University Center for the Study of C.T.E., “the symptoms include memory loss, confusion, impaired judgment, impulse control problems, aggression, depression, anxiety, suicidality, parkinsonism, and, eventually, progressive dementia. These symptoms often begin years or even decades after the last brain trauma or end of active athletic involvement.”

After Judge Brody conducted a Fairness Hearing on November 19, 2014 she approved the Concussion Settlement on April 22, 2015. In her Memorandum of Opinion she explains in detail why she made some changes to the agreement, but shot down the C.T.E. arguments for players wanting to be compensated for many of the "behavioral type" symptoms  . She said "the Settlement only provides compensation for serious, objectively verifiable neurocognitive and neuromuscular impairment with an established link to repetitive head injury." She goes on to say that "Mood and behavioral symptoms are commonly found in the general population and have multifactorial causation."  And this comment will definitely come out in the courtroom (if they get that far) for players that opted out and continue their litigation against the NFL: "Retired Players tend to have many other risk factors for mood and behavioral symptoms. For example, a typical Retired Player is more likely than an average person to have experienced sleep apnea, a history of drug and alcohol abuse, a high BMI, chronic pain, or major lifestyle changes. An individual Retired Player would have a difficult time showing that head impacts, as opposed to any one of these other factors, explain his symptoms."               

Our lawyers knew all the information in the last sentence of the previous paragraph and they conveyed it to numerous players in meetings and webinars across the country. During Settlement negotiations they threw as much at the NFL's wall as they could - but not all of it could stick. It's one thing to put C.T.E. in a complaint, but when it comes to proving it in a court of law, that's a whole different ballgame. As much as all of us would have liked to have seen the other symptoms typically associated with C.T.E. included in the Settlement, the science was not on our side. I believe that most of the 19,000 former players that stayed in the Settlement understood this. Nonetheless, the media continued to stoke the flames of this issue and got "punked" by a UCLA study that claimed they had a test that could diagnose C.T.E. in living players. It got everyones hopes up. I feel bad for guys like Tony Dorsett, Leonard Marshall and Joe DeLamielleure that were caught in the middle of that firestorm, but the good news is, they could still get compensated under the terms of the Settlement, if they have the memory problems and cognitive impairments that have been established in the Settlement. You don't have to be a slobbering, mindless idot to get an award. They may not have symptoms that rise to the level of a "Qualifying Diagnosis" and thus a monetary award right now, but if they are already starting to show signs of the disease, it may not be long before they do. Even if they don't get an award, they may qualify for free treatment and prescription drugs to help them with their current symptoms. 

The New York Times, Alan Schwartz and ESPN writers Mark and Steve Fainaru have been at the forefront of the reporting that has centered around C.T.E. They have been relentless in their search for the truth – including what the NFL knew; when they knew it; and if they’ve tried to cover up what they knew. They are now questioning whether the NFL has tried to suppress information and silence those that are leading the efforts to increase our understanding of C.T.E.  It has become their “Watergate” so to speak, and the documentary League of Denial: The NFL’s Concussion Crisis was just the beginning of the crusade against the NFL.

The NFL has had enough - and now they're starting to fight back. They want the New York Times to retract their statements – especially the ones that compare them to the tobacco industry. They have issued a veiled threat to sue the Times for defamation and have actually turned the tables on them saying that the Times was in bed with big tobacco. Wow, sometimes the best defense is a good offense.

The Fainaru brothers have stuck to their guns. They’re a lot like Woodward and Bernstein, but they haven’t found their “deepthroat” who can lead them to information that could topple the President (NFL Commissioner Roger Goodell).  They are trying to “follow the money” but in all directions, it only highlights the League’s $100 million commitment to the whole issue of brain injury education, prevention, treatment and making the game safer. The League is even working with some of the players that have sued them. They've been hiring Ambassadors for the NFL who are working with young people involved in the USA Football "Heads up Program." 

I applaud Alan Schwartz and the Fainaru brothers for all they have done to bring awareness to the problem of concussions - at all levels of football - and how they exposed the NFL's denial of the science. The NPR documentary League of Denial and the Fainaru's book should be called the NFL’s “sub-concussive” crisis, because most researchers now believe that it is the cumulative effects of sub-concussive blows that are doing the most damage to the brains of athletes involved in contact sports.

When the lawsuits from former players began to mount against the NFL, like an offense trying to push it into the endzone from the one yard line, the League had a pretty good defense. Their legal arguments included causation, statute of limitations and assumption of risk. They might have been able to stop us on those three downs, but before we could score and get our case in front of a jury, the referee, Judge Brody called a time out and asked both teams if they could come to a Settlement - the equivalent of having the game end in a tie. No losers – just a compromise that would put an end to the war.

As a result of the Settlement, former players don’t have to prove that the NFL caused our injuries and we get monetary awards, free testing, treatment and an education fund. In exchange for that, the NFL doesn’t have to accept any liability (responsibility) and they don’t have to worry about future lawsuits being filed by approximately 19,000 player that are part of the Settlement.

Before Judge Brody called the timeout, there was another huge defensive strategy in the NFL’s playbook that they were using. It’s known as “preemption” - which basically means that former players should be required to resolve their disputes with the NFL under the terms of the CBA (Collective Bargaining Agreement) which has remedies that include applying for workers compensation and disability. If players aren’t happy with the outcome, there is a grievance process that can lead to binding arbitration. Unfortunately, the deadlines for filing claims via the CBA process are not favorable to former players. You can see a copy of the NFL's motion to dismiss on the grounds of preemption here.

Neither the NFL, or our lawyers knew how Judge Brodie would rule on the preemption issue, but court precedents have now been established and if she ruled in favor of the NFL, our offense would have looked as miserable as Russell Wilson and the Seattle Seahawks did when Superbowl XLIX ended on an interception at the goal line. Game over. Case closed. Don't let the door hit your ass on the way out!

The Preemption issue was one of the main reasons I recommended Settling out of court with the NFL. The New York Times quoted me in this July 22, 2014 article: "For Retirees, Decision on Concussion Settlement Will Not Be a Simple. They wrote “The lawyers fought as hard as they could and got as much as they could from the settlement,” said Nixon, who writes a blog about the settlement. “To continue litigation was pretty risky.” The settlement, he said, will get money into the hands of the former players who are in the worst shape, such as those with Parkinson’s disease or Alzheimer’s disease, and will act as an insurance policy for players whose health might deteriorate. “We didn’t get everything we wanted, but we got the N.F.L. to say, "We’ll give you guys money if you have symptoms," he said. “The bottom line is if you’ve got impairments and symptoms, you’ll get paid.”  

The Settlement is not perfect, but I continue to believe that it is our best chance of getting something for the guys that are the most severely affected by cognitive impairments.   

Even if we had continued our litigation and won all the arguments and finally had an opportunity to plead our case in front of a jury of our peers, we would still have to convince them that C.T.E. was the reason we were having all the problems we were experiencing. We would have to prove – beyond a shadow of doubt – that we were injured solely by our play at the NFL level (not pee wee, Pop Warner, High School or College) and that those injuries were the result of both a conspiracy and negligence on the part of the teams and the League. That would have been a steep hill for any lawyer to climb, and in my opinion we were fortunate to get the NFL to settle. In fact, I think the NFL knew they could win in court, but how would that look? Beating up on a bunch of old brain damaged men. That's not the kind of PR the NFL wanted - so they settled.  I can assure you, they won't be as kind to the players that opted out of the Settlement and want to continue their litigation.  

I’ve said this before, but it bears repeating. The vast majority of the fans of the NFL - “our potential jurors” - are not even remotely sympathetic to our cause. If you look at the majority of comments they have posted on articles written by the New York Times and other media websites, you will see them saying the same thing over and over: Football is a dangerous game and the players knew that before they ever stepped one foot on the field. That’s the legal argument for “assumption of risk” in a nutshell.

I personally do not want to entrust our case to a jury that already thinks we should just shut up and stop complaining. To a certain degree, I can understand why they might feel that way. I knew that I could be injured badly and even paralyzed for life if I got hit the wrong way. In 1978, the year before I played for the Buffalo Bills, Darryl Stingley was involved in a bad collision with Raiders defensive back Jack Tatum. That collision left him paralyzed and in a wheel chair for the rest of his life. All players knew that we could be just one bad collision away from an injury that could haunt us the rest of our lives. Did that stop us? No. Has it stopped any player from trying to make a roster in the NFL? No. If we knew then, what we know now about concussions, would it have stopped anyone from playing football? For 99% of us I think the answer would still be no. You can't be an effective player and also be thinking about the possibility of getting injured. You have to believe you are invincible and that it could never happen to you. With the amount of money that can be made in today’s NFL, it’s even harder for a current or prospective NFL player to just say no

A lot of news organizations and researchers have written articles that have given former players the false hope that C.T.E. should have been included in the Settlement. But then something amazing happened on Easter morning. The New York Times rose from the dead and wrote an article that laid out some of the main reasons our lawyers could not get former players compensated for C.T.E. during their lives - or after their deaths (with the exception of players that died with C.T.E. between 2006 and the approval of the Settlement.) 

It’s interesting to see that the same researcher that would like C.T.E. included in the Settlement - Robert Stern - is the same researcher that the NFL was using to exclude C.T.E. from the Settlement.  Dr. Stern has been a harsh critic of the Settlement, but his own statements and Dr. McKee's statements hurt our case. Here is a link to the Times article: On C.T.E. and Athletes, Science Remains in Its Infancy. 

Here are a few excerpts from the article:

Some researchers worry that the rising drumbeat of C.T.E. diagnoses is far outpacing scientific progress in pinpointing the symptoms, risks and prevalence of the disease. The American Academy of Clinical Neuropsychology, an organization of brain injury specialists, is preparing a public statement to point out that much of the science of C.T.E. is still unsettled and to contend that the evidence to date should not be interpreted to mean that parents must keep their children off sports teams, officials of the group say.

“The problem is that these findings are being put out there too fast, and stated too strongly, by one group, before we understand who gets C.T.E., how it evolves over time, what’s the risk — any of that,” said Dr. Lili-Naz Hazrati, a brain pathologist at the University of Toronto who said she had received no financial support from either the N.F.L. or the Players Association.

Members of the Boston lab say they have raised the alarm for a good reason - the risk is real - but agree that the C.T.E. story is far from complete. “This research is in its infancy,” said Robert Stern, a professor of neurology and neurosurgery at the Boston University School of Medicine, who works with Dr. McKee. “There are many outstanding questions, but we’re now working to answer them and making some progress.”

Many players had their hopes rise again when they heard that the Brain Bank, that Dr. McKee works at, found that a majority of the 93 brains they examined had some level of C.T.E.  But, the Times article pointed out that  "... the Boston group’s collection of brains is not representative of the pro-football population, as the researchers there acknowledge. The brains were given to the center by families of athletes who were showing severe symptoms of the injury, and not from former players who were not. “We can’t say from this sample whether the rate of C.T.E. in pro players is 1 percent or what; we have no idea,” Dr. McKee said. 

I have written about the problems our lawyers faced in trying to get C.T.E. included in the Settlement on several occasions and I have cited law professionals on why the appeals to the Settlement are unlikely to succeed, but a small number of former players are still not convinced by the evidence (or lack thereof) and insist that C.T.E. should be included in the Settlement. Some of these players opted out of the Settlement and some of them have appealed the Settlement.

I have gone on record as saying I don't think players should have opted out of the Settlement.  At the same time I have argued that it was better to opt out than it was to appeal the Settlement.  Appealing the Settlement delays the monetary awards for the players that currently suffer from dementia, Alzheimer's, ALS and Parkinson's disease. It also prevents players from getting free baseline assessments, treatments and prescription drugs for the early onset of cognitive impairments. About 220 players opted out, but 94 stayed in the Settlement and chose to appeal Judge Body’s ruling. It’s been almost one year since the first appeal was filed.  Several lawyers have have asked for an end to the appeals. How much longer should former players have to wait?

The Third Circuit Court of Appeals should be making a decision on the appeals any day now. I don’t know how they will rule, but if they dismiss the appeals, Judge Brody could begin the process of implementing the Settlement immediately. But that will only happen if there are no more appeals. If there are, then we might be looking at another six months to a year before anything happens.

Former NFL players like to say “Delay, Deny and Hope we Die” when referring to the NFL and the way they have used “studies” and the courts to kick the can down the road as far as possible on different issues that pertain to current and former players. But this time we would only have ourselves to blame. If this case continues to be appealed, more and more players will die and miss out on the opportunity to personally benefit from the money that will be awarded.

Steve Marks, Kevin’s Turner's attorney for the NFL concussion settlement said "Despite the difficulties he [Kevin Turner] faced, he was always concerned about his NFL brothers and ensuring they had the care and support if faced with similar circumstances.”

Christopher Seeger, the lead attorney for the players in the Settlement said "Kevin selflessly fought for compensation and benefits for retired players who suffered from concussion-related illnesses by pushing to finalize the settlement. He was always concerned about the interests of the broader retired NFL player community -- never himself -- and worked tirelessly on their behalf so they could receive the care and support they needed.''

Before his son’s death, Ray Turner said "There's a lot of players in really bad shape that are probably not going to see (the money) because of the delays."  In the back of his mind I'm sure Ray knew that Kevin might become one of the casualties in this ongoing court battle. 

Kevin himself argued against appealing the settlement because he knew it would delay getting help to other players who deperately needed financial assistance with medical bills and day-to-day expenses related to their inability to work and provide for their families. He said "I can empathize with players who want a better settlement, but for me and people like me, time is a luxury we don’t have.”

Time ran out for Kevin and several other players since the appeals process began.

I urge my alumni brothers that have appealed the Settlement to drop any further appeals if the Third Circuit Court does not rule in their favor.

I can’t think of a better way to honor the memory and the wishes of our lead plaintiff -  the man who carried the torch for all of us. 

Our hats go off to Kevin Turner and our heads are bowed in memory of what he did as our Class Representative in the NFL Concussion litigation

     

25 comments
March 27

NFL Alumni Association partners with Validus to provide care for former players with dementia

Sylvia Mackey speaking at the ground-breaking ceremony for the first of 33 centers to be built in cities where there are high concentrations of former NFL players.

The NFL Alumni Association has partnered with Validus, a builder and manager of senior citizen facilities, to provide special care to former players with dementia. You can read an article about this new collaboration by New York Times reporter Ken Belson at this link: Dementia Care, Tailored to N.F.L. Retirees

In the NFL Alumni Press Release on this partnership, the Executive Director Joe Pisarcek  said "The strategic alliance focuses on providing a better lifestyle for retired NFL players who need assisted living and memory care services. With an aging population and more and more Americans needing memory care services, including some former NFL players, we want to give our members an option that we can stand behind. We were impressed by Validus Senior Living and its Inspired Living brand of communities and know they will exceed our retired players’ needs.”

Although I personally believe this is a good development, there is some concern that retired players are being exploited by Validus.

In the NY Times article, Gay Culverhouse, former president of the Tampa Bay Buccaneers, said “You can’t use players as bait to help Validus. Don’t put these guys on show. N.F.L. players who are demented are being exploited. They are marketing with no advantage to the players.”

The truth is, there are some advantages and perks for former players that use their facilities and it's not likely that anyone is being exploited. Joe Pisacik said “I can’t even tell my board of directors who’s in there.”  

If the players in the facility have no problem endorsing Vadius and everyone abides by HIPA laws, I just don’t see this as a problem.

In the article, Culverhouse said she would have no qualm if the alumni association recommended several assisted living facilities to its members. But she has opposed the Validus partnership because it endorsed one company over another.

The NFL endorses one company over another all the time. Whoever is willing to pay the highest price for a product or service, usually gets the NFL’s endorsement. That's free enterprise at its best and you can’t fault the NFL Alumni Association for wanting to try and help its members - and at the same time make a few bucks to help cover the costs of administering the Association. If some former players want to take advantage of the “white-glove” treatment and they're ok with being used to market the facility, then who am I to complain. From what I can see, the guys (and gals) that have endorsed Validus are quite happy and comfortable with the accommodations and that's why they're giving testimonials and don't mind being photographed.

Some might say that a guy with dementia or Alzheimer’s doesn’t have the ability to make the right choice, but I have to believe that they have loved ones that are helping them with their decisions and I don't think anyone is being coerced. Believe it or not, some guys like the attention they're finally getting. They are the casualties of the game, but not many fans want to be reminded of that.

Sylvia Mackey, the widow of former NFL player John Mackey, was instrumental in bringing attention to the fact that former players were developing dementia and other cognitive impairments.  Her efforts led to the establishment of the 88 Plan. Now we need to make sure former players know that it is available and can reimburse them for the cost of staying in a facility like Validus. Sylvia has endorsed the company and that’s good enough for me. She will also be the head of an Advisory Board for Validus Senior Living, so I think former players will be in good hands.

Now that Validus has broken the ice, we may see more facilities that are willing to ante-up and provide even more perks to the guys that gave their blood, sweat and tears to the NFL. Competition is good, and maybe the next time around (assuming they didn't do it this time) they can hold an open-bidding process and make several companies duke it out over who can provide the best care for former NFL players.   

14 comments
March 24

Our Class Rep in NFL concussion lawsuit, Kevin Turner, has died

"There's a lot of players in really bad shape that are probably not going to see (the money) because of the delays." - Ray Turner, father of Kevin Turner – lead plaintiff in the NFL Concussion lawsuit.

I just received word that Kevin Turner has passed away. He was only 46 years old. As most of you know, Kevin was one of our class representatives in the NFL Concussion Litigation and Settlement. 

He was battling ALS for the past 14 years, but now he is at peace. I hope that all NFL Alumni will remember Kevin for being the face of our lawsuit and the voice of reason in coming to a final Settlement with the NFL.

As I mentioned in a previous posting, some players will never live to see the awards – and unfortunately, Kevin has now been added to that list.

This is how I want to remember Kevin Turner

There are already a few news stories about Kevin's life and death: Kevin Turner, former Crimson Tide, NFL star, dead after ALS battle  and  Former Eagles FB Kevin Turner dies at 46 following ALS battle

Say a prayer for his family and friends! 

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