The Rejected NFL Concussion Settlement Appeal Leaves Former Players With CTE High And Dry
A federal appellate court upheld the NFL concussion settlement over objections that the deal doesn't do enough to cover CTE. Are former players with the disease out of luck?
Jerome Miron-USA TODAY Sports
The call came last month. I wasn't expecting it. It was a retired NFL player, a 30-something defensive lineman who had been hit in the head more times than he could possibly count, and he was hurting. Screaming, mostly. Crying, too. Then screaming some more.
The lineman couldn't concentrate. Couldn't sleep. Felt like he had demons inside. He took psychiatric medication, but that didn't seem to help. He was a college-educated man, he told me, only now he had trouble reading, struggled to make sense of a one-page letter. He was separated from his family, living in another state—the only workable solution to waking up in the middle of night punching the pillows next to his wife's face, and desperately, irrationally wanting to use those same fists whenever he heard his young children cry.
Football, he said, was like a scab, ripped open every time a fan mentioned the glory days. The lineman wanted to get away. Disappear. Never hear the fucking letters N-F-L again. He felt alone, paranoid, and betrayed. When he signed up for the sport, he agreed to sacrifice his body in order to give his family a better life; he did not agree to lose his goddamn mind in the process. Yet here he was: standing in front of a mirror, wearing his old game jersey, talking about killing himself.
"Bro, I am ready to go out like Junior Seau," he said. "Today I will die with a smile and a middle finger in the air. I promise you, I guarantee you I have [chronic traumatic encephalopathy] CTE. As a team player, I am willing to die for my teammates. I am willing to follow Seau's lead."
I'm not a medical expert. I have no idea if the lineman has CTE, the neurodegenerative disease linked to repetitive brain trauma and at the heart of League of Denial, found by researchers in 90 of the 94 brains of former NFL players that they've studied. More to the point, no one else has any definitive idea, either—and no one will, not until slivers of his brain are someday put under a microscope. It could be that he's right, given that his problems jive with other CTE cases. It could be that he's wrong, and that he's actually dealing with another type of brain damage. It even could be that his issues have nothing to do with football or brain trauma in the first place.
Still, I couldn't help but think of the lineman when a federal appellate court upheld the long-contested NFL class action concussion lawsuit settlement on Monday, dismissing objections that the deal doesn't do enough to compensate former players diagnosed with CTE, or those suffering from symptoms associated with the disease. I couldn't help but think of Seau, Frank Gifford, Ken Stabler, Earl Morrall, and Tyler Sash; I couldn't help but think of all the CTE cases yet to come. Including, perhaps, the lineman.
To a man, I wish them luck. Because in the wake of this appeals court ruling, both they and their families are going to need it.
A quick reminder: for retired NFL players as a whole, the concussion settlement is not a particularly good deal. It's certainly better than nothing, and likely the best agreement that the particular plaintiffs' lawyers in charge of negotiating with the league could muster. In exchange for waiving future class action suits against the NFL and allowing the league to remain silent on the question of what it knew about brain damage and when it knew it, some former players—specifically, those with amyotrophic lateral sclerosis (ALS) and Parkinson's disease, as well as individuals suffering from severe, drooling-in-a-nursing-home dementia symptoms—will receive some much-needed financial help. And that's admirable.
On the other hand, most players with CTE will get nothing, or close to it. How so? Two ways. First, NFL retirees posthumously diagnosed with the disease between January 1, 2006 and April of last year can receive up to $4 million—but all subsequent diagnoses, including those of Stabler and Sash, will not be compensated. Not a penny, no matter what neuropatholgists find in their brain tissue. Second, living retirees suffering from the life-altering mood and behavior disorders associated with the CTE—including depression, explosive anger, and impulsive behavior—will not be compensated, either.
The objectors to the settlement—about 90 retired players in total—asked that the deal be altered to do the following: a) compensate future cases of CTE diagnosed after death; b) test and pay for those mood and behavior disorders; c) accommodate the future development of tests to detect CTE in living brains, something many scientists believe will happen within the next decade. Federal judge Anita Brody, who oversaw the settlement—and famously asked a top plaintiff's lawyer "what's TBI?" about the basic acronym for traumatic brain injury during the deal's 2014 fairness hearing, which is either darkly or squid-ink humorous, depending on your level of cynicism—wasn't persuaded by their arguments. Nor was a three-judge appeals panel. While the arguments for accepting the settlement are complex—basically, they boil down to a mix of rock-ribbed legal procedural precedent and a winning parade of Teach The Controversy scientific witnesses trotted out by the NFL and the plaintiff's lawyers—the long-term ramifications of the deal for former football players are not.
If you're a NFL retiree suffering from CTE, you are pretty much on your own. At least for the foreseeable future.
Given the amount of public attention—and what former NFL commissioner Paul Tagliabue once called "pack journalism" media hype—focused on football-induced brain damage, you might assume that CTE is a matter of front-burner medical concern, the subject of several large, well-funded studies, headed by the best and brightest scientific minds, all racing to better understand and treat the disease. Nope. Boston University researchers are doing what they can with a modest National Institutes of Health grant that the NFL reportedly tried to defund; Harvard University researchers recently observed what appears to be a direct casual link between TBI and misfolded tau protein in mouse brains; doctors at Mount Sinai in New York have made significant, preliminary progress on a technique to image CTE in living brains; and a handful of other scientists are doing excellent work. But there is no Manhattan Project. A cure is not forthcoming. A few years ago, former NFL Players' Association executive committee member Sean Morey proposed spending millions of dollars of already-earmarked collective bargaining agreement money on a large-scale clinical research program that would study and treat former players with brain damage; the union instead spent the money on a 10-year Harvard project that has a very nice-looking website, but hasn't produced any notable results beyond the aforementioned mouse brain paper.
Moreover, getting helpful and appropriate care is a crapshoot. Our Aaron Gordon recently wrote about the After the Impact ranch, a Michigan-based facility that is partially funded by the NFL Players' Association and treats football and military TBI victims in a comprehensive fashion. It's a standout program, and there are very few like it. I know a retired NFL player who suffered multiple concussions during his career, and many, many sub-concussive hits to the head. He suffers from intense migraines, focus and concentration problems, intermittent fits of uncharacteristic anger, and memory lapses. He doesn't know if he has CTE, but he has shown me an experimental scan of his brain, and there are bright red tau tangles in all of the areas consistent with the disease. This player is extremely smart and capable, but his life is extremely difficult, both at home and at work. Over the last few years, he has seen a half-dozen neurological experts, some of them world-class, all in an effort to heal himself. He has more bottles of medication than most hotel minibars have bottles of liquor. The drugs make a difference—not by making him better, but by making his symptoms more bearable.
Still, he was only able to find the right assistance by seeking it out himself, by having the time, knowledge and means to go beyond what his family doctor or a local neurologist could offer. How many suffering former players have the same luxury? How many see a marriage counselor whose well-meaning advice can't fix domestic outbursts that come from damaged frontal lobes? Or take antidepressants that don't work, because they're treating the wrong neurochemical processes? Or just self-medicate with marijuana, alcohol, or harder drugs, because hell, at least they numb the pain? And even if those NFL retirees locate the right doctors, who pays for what is essentially bespoke medical care? The league's retirement benefits can be notoriously difficult to access for relatively simple problems like damaged knees and degenerative hips; trying to get brain damage covered can be a nightmare, and that's in addition to having brain damage.
With the concussion settlement wrapped up, this is what former players with CTE face: a 65-year legal deal that leaves them high and dry. A league that just got around—as in: a few weeks ago—to clumsily admitting that football and the disease are linked, and repeatedly has shown it's not in any particular hurry to explore that connection, especially if doing so costs money or is bad for business. Retirees can't rely on the medical community to quickly solve the problem, either—researchers are few and far between, badly underfunded, largely dependent on a conflicted football industry for cash, and that's when they're not busy claiming CTE isn't really a thing, anyway; more to the point, big pharma and major medical centers aren't about to pour hundreds of millions into developing therapies they can sell to, like, maybe 10,000 former football players over a couple of decades. Adding insult to injury, those same retirees can't even count on their once-adoring fans to be empathetic. Not when there are fantasy football lineups to fill out, and besides, why are those guys complaining? They knew the risks.
No, the only thing former players can count on going forward is the same thing the retired player who called me out of the blue could count on. The men in the mirror. And that, more than anything else, has me worried about what's to come. Where are these players supposed to turn? How will they seek relief and redress, and who will they end up blaming? Near the end of our conversation—after which the retired player connected with some much-needed professional help, much to my relief—he brought up the settlement.
"Will I get any money from this lawsuit?" he asked me. "Are you telling me know one knows?"
I wanted to tell him the truth: that he probably wouldn't get anything. Before I could speak, he kept talking.
"I don't want their fucking money," he said. "I want my family back. I want to remember my kids. I want to be able to hold them and not throw them on the fucking ground when they start crying. Give me that."
And what, I asked, if no one can?
"Then I want a pound of flesh," he said. "The only way to get to the NFL is dead bodies, bro. Stack 'em up to let them see."