John Hogan Santa Clara Sports Law Symposium Paper

8/4/2019 John Hogan Santa Clara Sports Law Symposium Paper

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CONCUSSIONS, BRAIN INJURY AND NFL DISABILITY

John V. Hogan, Esq. and Ashton E. Vetas (1)

I. Introduction.

The NFL has recently acknowledged the long term damage caused by recurrenttraumatic brain injury and has been forced to adopt rule changes to protect activeplayers. For aging former NFL players the damage has already been done, resulting in agreater focus on the need for disability and health benefits for those whose suicides andmental degeneration brought attention to this dire problem.

This paper will discuss the litigated disability claims of former NFL players Mike Webster and Brent Boyd and attempt to discern why one was granted and the otherdenied. In both cases, fights ensued with the Bert Bell/Pete Rozelle NFL PlayersRetirement Plan over the appropriate category of disability benefits awarded, with bothclaims focusing on disability as the result of concussions.

We will briefly discuss the recent history of tragic deaths of former NFL players whoseautopsies revealed that they suffered from Chronic Traumatic Encephalopathy (“CTE”)(2) as well as some of the basics of the science which the NFL can no longer ignore.

Last, we will look at the medical evidence of several retired NFL players who have beenfound to be disabled by both the Bell/Rozelle Plan and the Social Security Administration.

II. Tragic Deaths.

Organized football originated at the college level. Alarmed by 18 deaths in 1905,President Theodore Roosevelt summoned representatives from Harvard, Yale andPrinceton to the White House to encourage them to adopt rules eliminating the foul play and brutality of the game as it then existed. Many football historians credit Roosevelt with saving the game.

While everyone knows that professional football is a violent and brutal sport, with therisk of injury likely, it would appear that most players considered debilitating injuries– such as those to Darryl Stingley and Mike Utley to be very rare. Stingley fractured hisfourth and fifth cervical vertebrae in a 1978 pre-season game collision with Jack Tatum,and became a quadriplegic. (3) Utley became a paraplegic after fracturing his sixth and

seventh cervical vertebrae in a 1991 game.

In the past several years, the brain autopsies of several relatively young former NFLplayers who had committed suicide, including Andre Waters (2006 – age 44) andShane Dronett (2009 – age 38) revealed CTE and an impossible to ignore link torepeated head trauma during their football careers.



A gathering of NFL veterans was held in the spring of 2010 in Fort Lauderdale by theGay Culverhouse Players’ Outreach Program, a program to help retired players apply formedical and pension benefits. When the discussion that day turned to the 88 Plan– theprogram for retired NFL players with dementia – some veterans’ minds wandered, someappearing as if the topic of mental decline did not apply to them. It was then that a

former player walked to the front of the room and addressed the players, “I am DaveDuerson, pay attention to what this guy’s telling you. Because it’s stuff you are going toneed to know.” (4)

Duerson’s warning proved tragically prophetic when, on February 17, 2011, he shothimself in the chest, leaving instructions that his brain be studied for evidence of CTE.His actions were all the more stunning in light of the fact that he served as one of thethree Bell/Rozelle Retirement Board members appointed by the NFL Players’ Association to decide disability appeals. (5)

III. NFL Total and Permanent Disability under the Bell/Rozelle Plan.

The NFL Player Retirement Plan finds total and permanent disability when an eligibleplayer “has become totally disabled to the extent that he is substantially prevented fromor substantially unable to engage in any occupation or employment for remuneration orprofit, but expressly excluding any disability suffered while in the military service of any country. A player will not be considered to be able to engage in any occupation oremployment for remuneration or profit with the meaningof this section…merely because such person is employed by the League or an Employer, manages personal orfamily investments, is employed by or associated with a charitable organization, or isemployed out of benevolence.” (6)

Effective April 1, 2007, the Plan recognized that a player who was found to be disabled

by the Social Security Administration would be deemed disabled under the NFL Plan,unless four voting members of the Retirement Board determined that such player wasreceiving the benefits fraudulently as was not totally and permanently disabled. (7)

The four categories of total and permanent disability benefits under the NFL RetirementPlan are as follows:

(a) Active Football . Available where the disability results from League footballactivities while the player is an active player and does cause the player to betotally and permanently disabled “shortly after” the disability first arises. (8)This category pays $224,000 per year;

(b) Active non- football. Available where the disability arises while the player isan active player, but does not result from League football activities, andcauses the player to be totally and permanently disabled “shortly after” thedisability first arises. (8) This category of benefit pays $134,000 per year;



(c) Football Degenerative. Available where the disability arises out of Leaguefootball activities and results in total and permanent disability before fifteen(15) years after the end of the player’s last credited season. This category of T&P benefit pays $110,00 per year (9)(10);

(d) Inactive. This category applies if the disability arises from other than Leaguefootball activities; or if out of League football activities, but more than fifteen(15) years after the last credited season. This benefit currently plays theplayer $40,000 per year. (9)(10)

These benefits are payable as long as the player remains disabled and through hislifetime.

The NFL Player Retirement Plan also provides for a partial disability benefit, regardlessof the player’s ability to work, known as Line of Duty. This benefit is awarded to those who have suffered a “substantial disablement” according to certain percentages of disability, as is based upon the number of credited seasons the player has earned in theNFL. The maximum duration of this benefit is ninety (90) months.

The NFLPA and the NFL Management Council also provide a benefit known as the 88Plan (11) which provides reimbursement or payment of certainly medical and custodialexpenses related to eligible player’s dementia. Generally, those players receiving thefirst three categories of total and permanent disability benefits listed above would befinancially ineligible for 88 Plan benefits. (12)

IV. Chronic Traumatic Encephalopathy (CTE)

The reports on head injury trauma began long before the discovery of CTE. Initially

researchers studied the repetitive brain trauma experienced by boxers resulting inneurological and cognitive degeneration that they identified as “dementia pugilistica”.(“DP”) DP was first described in 1928 by a forensic pathologist Dr. Harrison StanfordMartland in a Journal of the American Medical Association article. In this article henoted tremors, slowed movements, confusion, and speech problems typical of thecondition.

CTE is a unique neurodegenerative condition; the markers of CTE in the brain aredifferent from those of Alzheimer’s disease and Dementia. In CTE a certain kind of protein (tau) builds up in individual nerve cells in the brain and prevents them frommaking normal connections with other nerve cells, eventually killing the cells. This

abnormal build-up of tau is believed to be the result of repetitive head trauma. CTE hasmany of the same manifestations as Alzheimer’s including behavioral and personality changes and decrease in cognitive function. A definitive distinction between the twodiseases can only be made during an autopsy; it is only in an autopsy that tau proteincan be seen.

One of the country’s leading brain researchers, Ann C. McKee, M.D., Associate Professorof Neurology and Pathology at the Boston University School of Medicine and Co-



Director of the Center for the Study of Traumatic Encephalopathy provided significantinsight into this condition and its causes in her 2009 testimony before the HouseJudiciary Committee. (13) She described finding CTE in the brain autopsies of several boxers, and in the first retired professional football player – John Grimsley – in 2008.

Grimsley, a former linebacker for the Houston Oilers, had died of an accidental gunshot would while cleaning his gun at the age of 45. According to his wife he was concussed 3times during his college football years, and at least 8 times during his NFL career,however, only one “cerebral concussion” was medically confirmed. There was no history of ever losing consciousness for more than a few seconds and he never required beingcarried off the field or hospitalization.

According to his wife and close friends, he began showing changes in his behavior andcognitive decline at age 40. He developed difficulties in short-term memory, attention,concentration, organization, planning, problem-solving, judgment, and the ability to juggle more than one task at a time. He also developed a “shorter and shorter fuse: and would become angry and verbally abusive over seemingly trivial issues.

When the slides of his brain were examined they showed the exact same pattern of changes that Dr. McKee had found in the brains of boxers with CTE. As a side note, Dr.McKee notes that the boxers whose brains exhibited the signs of CTE were some 30 years older than John Grimsley. While showing the images of the linebacker’s brain tothe Committee, Dr. McKee testified, “In a normal 45 year old, absolutely none of thesechanges would be found. Indeed these changes would not be found in a normal 65 yearold, 85 year old, or 110 year old.”

At the time of her testimony before the Judiciary Committee, Dr. McKee had examinedthe brains of 16 ex-athletes, including two boxers and 14 football players, and they all

showed abnormal tau protein, indicative of CTE. After performing an autopsy of DaveDuerson’s brain in April, 2011, Dr. McKee reported that he had a “moderately advancedcase of the degenerative disease caused by repeated head trauma.” (14)

Another of the leading brain injury researchers is Bennett Omalu, M.D., M.B.A., M.P.H.,a forensic pathologist and epidemiologist who serves as Co-Director of the Brain Injury Research Institute at West Virginia University. He offered testimony on concussionsand CTE before the House Judiciary Committee in 2010 (15)

Dr. Omalu performed the autopsy of Football Hall of Famer Mike Webster in 2002 which was the first time he had seen CTE in a former football player. However, his

remark made it clear that this was not a new phenomenon:“We have known about concussions and the effects of concussions in football for

over a century. Every blow to the head is dangerous. Repeated concussions and sub-concussions both have the capacity to cause permanent brain damage.” (15)

In an article Dr. Omalu co-authored for the American Journal of Forensic Medical Pathology in 2010 (16) he discussed the study conducted on five former athletes – fourfootball players and one wrestler – who were diagnosed as suffering from CTE. It notes



that while CTE may result from a single episode of severe traumatic brain injury, it ismore commonly found in repeated episodes of mild traumatic brain injury. Common toeach of the five men studied, were diagnoses of major depression, neuropsychiatric andcognitive impairment. Perhaps most interesting to former NFL players seekingdisability benefits, the report found a long latent period between draft into the NFL and

manifestation of the symptoms which included: progressive deterioration in social andcognitive functioning, loss of memory, loss of executive functioning; dismal business/investment performance; dismal money management; paranoia; bouts of anger; insomnia; breakdown of intimate family relationships; headaches andgeneralized body aches and pains; and alcohol and drug abuse. (16)

Yet another prominent head injury researcher, Kevin Guskiewicz, Ph.D., Professor andDirector of the Sports Medicine Research Laboratory, University of North Carolina atChapel Hill, has provided significant insight to the effects of repeated head trauma infootball players. For the past five seasons, Guskiewicz and his team have tracked every one of the Tar Heels’ practices and games using sensors place inside the helmets of every player. His research has revealed that it is often a relatively minor appearing hitto the head which might cause a player to suffer a concussion - as a result of the prioraccumulation of repetitive hits and repetitive subconcussive trauma. (17)

V. Damage without a “Lights Out” Concussion. Does a Helmet Protect?

All of the aforementioned researchers are quite clear that significant brain damage is just as likely to result from repeated brain trauma, even without loss of consciousness.Dr. Guskiewicz’s research at Chapel Hill suggests that for an average NFL season, alineman could get struck in the head a thousand times – with hits in practice being every bit as damaging to the brain as those suffered in a game. Multiply that times thenumber of years in the NFL, as well as seven, eight or more from high school and

college.

Many players, and certainly most fans, think that the purpose of the football helmet is toprotect a player from concussions. However, this is not necessarily the case, as theprimary purposes are to protect the skull and parts of the head from fractures, as well assome measure of protection for the eyes, ears, nose and mouth. Certainly helmets may reduce the incidence of concussions, but “There’s no such thing as a concussion-proof helmet” according to neuropsychologist Micky Collins, who conducted a three yearstudy at the University of Pittsburg Medical Center. (18)

It would appear that the reason that there is no “concussion-proof” helmet is that the

brain – which is composed of 70% to 80% water, and is described as having theconsistency of soft tofu, follows the laws of physics when smashing into the interior of askull. Unlike the skull’s smooth exterior, the inside of the skull contains sharp ridges.

As set forth in the 1990 edition of Current Therapy in Neurologic Disease- 3” (19)neurologist Barry Gordon, M.D., Ph.D., explained that postconcussional syndromefrequently occurs after minor closed head injury or other causes of head acceleration-deceleration. In other words, when two football players are running towards each other,



their brains are along for the ride. When they collide – usually a great rate of impact – physics propels the rather fragile brain into the hard and rigid skull.

Concussion activist Chris Nowinski, a former Harvard football player and professional wrestler, is director of the Sports Legacy Institute in Boston, and a colleague of Dr.

McKee’s. He has noted that helmet improvements have helped to better absorb theshock from a hit to the head, but “The better helmets have become-and the moreinvulnerable they have made the player seem- the more athletes have been inclined to play recklessly.”

Hall of Famer Joe DeLamielleure has told me that that the sense of invulnerability of which Nowinski refers is attributed more to the face masks on modern football helmets.He would like to see face masks removed, and replaced with eye goggles and mouthpieces. He feels that this would help players return to proper tackling techniques andavoid leading with the head, which would hopefully reduce the incidence of brain injury.

VI. Litigated NFL disability concussion cases: Webster and Boyd .

There are many reasons that more former NFL players have not been involved inlitigation with the Bert Bell/Pete Rozelle NFL Player Retirement Plan for denial of disability benefits due to concussions. From a legal perspective, under ERISA (21) caselaw (which governs the NFL Plan’s disability adjudication) it is very difficult to overturnthe decision of a Plan Administrator where it is supported by substantial evidence and isnot made in an arbitrary and capricious manner. As I explain to my clients, this meansthat if four doctors examine you, and three say that you are disabled, but the one says you are not, this is usually sufficient to sustain the Plan’s decision. This has also led theNFL Plan to send players for numerous medical examinations, even after their owncarefully chosen “neutral” physicians render an opinion favorable to the player, as will

be seen below.

Also, one generous feature of the Plan is that players may file repeated disability applications, with certain limitations. For the average private industry employeeseeking disability benefits under a group plan, it would be “one and done”.

Other players may have chosen to simply take their pension benefits, rather thanfighting for the more lucrative disability benefits under the Plan. Most retired playershave been able to take an early pension, at a reduced rate, as of 45 years of age. Oncethey have taken their retirement pension, they cannot then file for disability benefits.(22)

Two former players who have chosen to sue the Plan in U.S. District Court are the lateMike Webster, and former Minnesota Viking, Brent Boyd.



(a) Mike Webster. (23)

Hall of Fame center Mike Webster developed brain damage as a result of the multiplehead injuries he suffered as a player. He was awarded Football Degenerative benefits by the NFL Plan’s Retirement Board which acknowledged that injuries sustained during his

football career caused Webster to suffer total and permanent disability in September1995, four years after his retirement. However, Webster’s estate ( he died in 2002) brought suit as the Board denied him the higher level Active Football benefits reservedfor players whose disabilities begin “shortly after “they cease playing NFL football. (8)(The difference in these two payment amounts could be as much as $114,000 per year.)

Webster’s estate claimed that the Board abused its discretion in setting Webster’s totaldisability date at September 1995.

The district court ruled that the Board first abused its discretion by ignoring theunanimous medical evidence that established March 1991 (His retirement date) as theonset date for Webster’s total and permanent disability ; and second, for refusing to toll

the Plan’s limitations period for filing a claim for disability. (24) After the District Court found in favor of Webster on both counts, the Plan appealed tothe Fourth Circuit Court of Appeals. That Court affirmed the lower Court’s holding thatthe Board lacked substantial evidence to justify its denial of Active Football disability benefits; and that Webster’s mental incapacity should have tolled the limitations period,as provided in the Plan document.

The Retirement Board had denied Webster’s claim for Active Football disability for tworeasons, 1) they believed he was working after his retirement and before he was awardedFootball Degenerative benefits beginning in 1995; and 2) he failed to submit his benefitsapplication within the 42 month time frame required from when his disability allegedly began. Both of these reasons were found invalid by the Courts.

Although Webster was employed briefly after his retirement as a strength andconditioning coach for the Kansas City Chiefs, the evidence showed that he wasemployed as a favor because he had fallen on hard times. The Court noted that neitheremployment by the League (or in this case, League team) nor benevolent employmentsituations were disqualifying factors under the Plan. Webster had also made a numberof representations about being employed in 1993 and 1994, yet none of these business ventures generated income; as was verified by tax records, social security records, andthe Board’s own investigator. With regard to the second claim, the Court determined Webster had contacted the Planoffice on five occasions in 1995 and 1996, sometimes only days apart, each time seeking

an application for filing a disability claim. Not one of these applications was evercompleted. The court held that because the unanimous medical opinions, including thatof the Plan’s own doctor, showed that Webster had been incapacitated by brain damagesince 1991 the Plan’s limitations period does not apply to his disability claim.

The Court went on to further affirm the District Court’s decision because there wasnothing in the record on which to uphold the Board’s denial of Webster’s application for Active Football benefits.



(b) Brent Boyd. (First Case – Ninth Circuit, 2005) (25)

In March 1997, Boyd filed his first application for football degenerative disability benefits under the Plan based on orthopedic joint problems. The application claimedonly physical impairments that resulted from NFL injuries and neither noted nor

alleged any brain injuries or head trauma. The claim was denied by the Board based onthe medical opinion that Boyd could work so long as it did not involve certain physicalelements.

In 2000 Boyd again applied for disability benefits, this time alleging organic brainproblems as the result of alleged head trauma. He complained of: “a general constant flu-like feeling, fatigue, headaches, queasiness, forgetfulness, intermittent blurred vision, difficulty reading, lack of concentration, learning difficulty, memory loss, and light-headedness.”

The Retirement Board determined that Boyd was totally and permanently disabled but voted to grant him the lowest paying disability category, Inactive. The Board deferredconsideration of his claim for Football Degenerative benefits, and subsequently sent himfor several medical evaluations: The first, conducted by a neurologist, reported thatBoyd’s symptoms “raise the question of possible organic brain injury” and checked “yes”on their standard disability questionnaire under “whether the injury resulted fromfootball related activities.”

Not satisfied with opinion, the Board sent Boyd to see a psychologist who concluded thatBoyd was disabled as a result of “emotional liability depression due to post traumaticorganic brain disorder.” He too, checked “yes” on the standard disability questionnaireunder “whether the injury resulted from football related activities.”

Deadlocked in a three-to-three vote, the Retirement Board then sent Boyd to a tie- breaking, and binding medical evaluation by Plan Medical Advisory Physician (“MAP”)Barry Gordon, M.D., Ph.D. After two days of examination and neuropsychologicaltesting, Dr. Gordon concluded “The alleged head injury of August, 1980 could not beorganically responsible for all or even a major portion of the neurological and/or neuropsychological problems that Mr. Boyd is experiencing now…” Dr. Gordonsurmised that Boyd’s disability instead was the result of chronic pain, depression,hypertension, or physical deconditioning.

The Retirement Board then denied Boyd’s claim for football degenerative benefits,finding that his disability did not arise out of League football activities.

Boyd’s suit against the Plan in U.S. District Court was dismissed upon Motion forSummary Judgment, and he filed an appeal to the Ninth Circuit Court of Appeals. TheCourt of Appeals noted that the legal standard which Boyd had to overcome was to show that “An ERISA administrator abuses its discretion only if it (1) renders a decision without explanation, (2) construes provisions of the plan in a way that conflicts with theplain language of the plan, or (3) relies on clearly erroneous findings of fact.”



In denying Boyd’s appeal, the Court stated: “What is transparent from the record isthat the cause of Boyd‟s disability is far from clear. That is, the evidence canreasonably be interpreted to conclude that Boyd‟s disability either is or is not linked tohis football career. The Retirement Board reasonably concluded that Boyd‟s disabilitydid not arise from his League football activities.”

“The court is unable to conclude that the Board abused its discretion in making thisdecision. “A merely a tally of experts is insufficient to demonstrate that an ERISA fiduciary has abused its discretion, for even a single persuasive medical opinion mayconstitute substantial evidence upon which a plan administrator may rely inadjudicating a claim.”

The Court went on to note that even those experts, who checked “yes” on the RetirementBoard form, indicating that Boyd’s disability arose from his football career, were lessthan absolute stating that “ Boyd‟s problems may have been the result of a head injury” and that „…Boyd‟s decreased brain activity is consistent with head trauma” but failedto identify a specific cause.

(c) Brent Boyd (Second case – U.S.D.C. Maryland, 2011)(26)

The Bell/Rozelle Plan includes a reclassification provision available where the playercan show “…by evidence found…to be clear and convincing that, because o f changed circumstances, the player satisfies the conditions of eligibility for a benefit under adifferent category of total and permanent disability benefits.” (27) Having obtainednumerous additional supportive medical opinions that his disability was in fact due tofootball related head trauma; and realizing that all of the (aforementioned) research by Drs. Omalu, McKee, Guskiewicz, et al., showed an indisputable link between footballand cognitive impairment, Boyd filed for reclassification to football degenerative

benefits in 2008.

The Disability Initial Claims Committee denied Boyd’s application because they felt thathe had failed to establish changed circumstances: “ The Committee regrets that it was forced to conclude that you have presented absolutely no evidence of any „changed circumstances,‟…(a)ll you have done is reargue the causation of the original circumstances.”

Boyd appealed this determination to the full Retirement Board, which requested heundergo additional evaluations, which he refused. Subsequently the Board also deniedthe reclassification request because he violated the Plan’s provisions regarding

mandatory cooperation with any evaluations they deem necessary; (28) and that they concurred with the determination of the DICC that there had been no changedcircumstances.



Boyd subsequently filed suit against the Plan in U.S. District Court in Maryland (wherethe administrative offices of the Plan are located.) The Court granted Summary Judgment for the Defendant Plan. In the only argument Boyd won before the Court, it was determined that his present action was not barred by the doctrine of res judicata, asBoyd’s cause of action in the present case did not arise until after his previous claim was

resolved.

Regardless, the Court upheld the Plan’s denial as reasonable, as Boyd did not presentany new evidence of a change in his medical condition, but rather, only new evidence onthe causation of his existing disability. Upon deciding the case upon that basis, theCourt did not consider the Board’s other contention that Boyd’s claim must fail becausehe refused to undergo a medical examination while his appeal was pending.

(d) Why did Webster win and Boyd lose?

Without being cute, or sarcastic, and in all seriousness; and having handled a goodnumber of disability claims before the NFL Player Retirement Plan, the answer is that Webster died. Had he lived, I have no doubt that the Retirement Board would haverequested he attend any number of additional medical examinations until they foundone which they were “happy” with. At that point, success in the Federal Courts wouldhave been elusive for Webster (or his estate) as under ERISA law, there would be somesubstantial evidence to support the Board’s denial.

Perhaps if Boyd had filed suit in U.S. District Court prior to the examination by Dr.Gordon, he may have prevailed. While it is crucial that a plaintiff exhaust theadministrative process of an ERISA- based plan’s adjudicative process, federalregulations also require that disability applications and appeals be processed in a rathershort time frame. (29) In my experience, these regulatory time-frames are casually

disregarded by the Plan in the adjudication of disability claims. Not adhering to thesedecisional time-frames gives the player/plaintiff the option of saying that his claim has been deemed denied which can negate the normal administrative finality requirement before filing suit in Federal Court.

Not that Boyd would have been able to do anything about it, but it would appear that theDICC and the Retirement Board violated the fiduciary duty owed to him when they simply disregard apparently favorable medical opinions from one their own doctors without any explanation. It would seem that rather than simply reject an opinion they deem incomplete, inconclusive, or insufficient, that they recontact these physicians toobtain additional information.

I do not know whether it was ever argued (it is not discussed in the decision) but I think that the opinion of MAP Gordon was rather “artful” in that he indicated that a singleconcussion 20 years earlier could not have been the cause of Boyd’s disability. It wouldseem that the more appropriate question which should have been propounded to him was whether all of the hits he took in his NFL career as a lineman might reasonably have been expected to result in his mental and cognitive disability. Moreover, Gordon’s own



published tome on Post Concussion Syndrome would appear to fully corroborate Boyd’sclaims, and call Gordon’s MAP opinion in this case into question.

One of the primary reasons the Board had cited in denying Boyd’s 2000 application forfootball degenerative disability benefits was that in his 1997 application – based upon

physical impairments – he affirmatively stated that he had no mental or cognitiveimpairments. However, as all of the research since that time clearly shows that thecognitive disability which results from thousands of hits to the head (or moreappropriately, the brain) frequently takes years to manifest, it was essentially irrelevantthat Boyd was not manifesting and claiming mental and cognitive impairment at thetime of his very first application. Indeed, the very name and criteria of the benefit Boydsought – football degenerative benefits/ becoming disabled due to football injuries upto 15 years after retirement – surely contemplates that total disability frequently occursin former NFL players years later.

Also, while I cannot find legal fault with the Maryland District Court’s opinion in Boyd’srecent case, it certainly highlights an incredibly harsh, if not vindictive, exercise of thePlan’s discretion in defining “changed circumstances.”

V. Medical Evidence of the Effects of Head Trauma to NFL Players.

Perhaps a dozen or so of the clients I have represented in NFL disability and/or SocialSecurity disability claims have become disabled wholly, or in large part, due to themental and cognitive impairment they have developed as a result of concussions. Whileall of these proud men realized that they played a violent game where they risked seriousinjury, few, if any, envisioned themselves totally disabled at relatively young ages as aresult of the game they loved. I can say unequivocally that none of them anticipated the

mental and cognitive decline they have suffered.

From my own files, I will briefly discuss the medical evidence of several of these formerplayers: (30)

(1) Player graduated from a top-tier college, and played more than 6 years in theNFL. After retirement, he worked as an assistant coach on the college level, but was asked to resign because the head coach felt that his physical andcognitive impairments kept him from being effective.

He admitted to depression, sleep disturbance, impaired attention and

concentration and blurred vision. He is 35 years old.

Upon neuropsychological evaluation revealed him to have a current ScaleIQ of 76 and suffering from a Major Depressive Disorder. The doctor opined:

“Clearly client has sustained some serious cognitive damage fromhis long history of playing football. For a college educated man to have a Full ScaleIQ in the Borderline range is clearly irregular.”



(2) Player also graduated from college after a 5 year NFL career. After leavingthe League he was a very successful businessman for approximately 10 years.He filed for disability based upon both physical (orthopedic) impairments

and major depression with several hospitalizations for suicidal ideation.

Psychological testing in 2009 showed that his IQ had deteriorated to 80- Which is in the Borderline Range. He complained of sleep disorder, severeheadaches, dizziness and problems concentrating. A second psychological examinationconducted two years later revealed further cognitive decline (despite on-going mentalhealth treatment) to a Full Scale IQ score of 65 – which is in the Mildly Mentally Retarded Range.

(3) Player with a 12 year NFL career complained of repeating himself, memory problems and double vision. His wife noted that he was impulsive and hadpoor decision making abilities recently. Player admitted to numerous knownconcussions, but lost very little playing time.Neuropsychological evaluation at age 42 diagnosed Organic Mental Disorder with dementia due to multiple head traumas with executive dysfunction,memory disturbance, and visual motor disturbance. Situational depression was also diagnosed.

Each of these former NFL players told strikingly similar stories, as do my other retiredNFL clients. They had multiple severe hits where they became dizzy and confused, butdid not report any loss of consciousness. None report missing any significant game orpractice time after these events. George Visger, a former San Francisco 49er, who hashad nine emergency brain surgeries, and carries notebooks to document every momentof his days – lest he forget – recently spoke of being given smelling salts over 20 times

during the course of one game. Former Buffalo Bill safety Mark Kelso– who wore anadditional protective shell over his helmet to help protect him from debilitatingheadaches, has told of being asked by a trainer on the sidelines how many fingers he washolding up after a dizzying hit. “Three” was Kelso’s response to the two fingers thetrainer held up before his eyes. “Good” the trainer said. “Now go back in there and aimto tackle the one in the middle.”

Hall of Famer Lem Barney told a similar story about what went on after a playersuffered a “stinger, dinger or bell ringer.” After his retirement, he was diagnosed ashaving suffered at least six or seven concussions during his career, but he was unawareof ever “getting knocked out.” The criteria for being allowed back into the game after

one of these “dingers” consisted of the team physicians asking three questions: 1) What jersey are you wearing? 2) What day is it? 3) What team are you playing? If the playercould answer two out of the three he was back in the game.



VI. Heightened Awareness Forces the NFL to Adopt New Rules.

Perhaps the single person who has done the most to bring the problems resulting fromconcussions to the attention of the public, Congress, and the NFL, is New York Times

reporter Alan Schwarz. He has written over 200 articles on concussions in the past few years. During three hearings on the issue of sports-related brain injuries, the HouseJudiciary Committee repeatedly cited his work. His analytical reporting has beenresponsible for bringing the crucial research and reports of brain researchers like Dr.McKee, Omalu and Guskiewicz to the forefront. His award winning reporting isresponsible, in no small measure for the new rules the NFL adopted in 2009.

In the standard adopted in 2007, the League prohibited a player returning to play only if he lost consciousness. The new rules set forth by NFL Commissioner Roger Goodell inthe middle of the 2009 season provide that a player shall not return to action on thesame day if he shows certain signs or symptoms.

"Once removed for the duration of a practice or game, the player should not beconsidered for return-to-football activities until he is fully asymptomatic, both at rest and after exertion, has a normal neurological examination, normal neuropsychological testing and has been cleared to return by both his team physician(s) and the independent neurological consultant."

Teams were also required to each find an outside neurologist who could be consulted onconcussions. (31)

The League has also adopted rules of play to try to eliminate hits to the head, and inOctober of 2010 distributed videos to the NFL’s 32 teams to demonstrate illegal vs.

clean hits. Despite the rules, warnings and educational videos, a few weeks later, 16NFL players were fined $15,000 each for illegal hits to the head.

Surely the new rules will be of significant benefit to reducing the incidence of severeacute brain trauma; but as the research clearly suggests, the damage from thousands of completely legal hits to the head/helmet/brain may be as culpable, if not more, in thedevelopment of CTE.

VII. End Game.

New rules of the game, and other safety measures including reducing helmet contacts in

practices, may go a long way to protect today’s NFL players from suffering some of themental and cognitive impairments suffered by those who went before them. Indeed, thecurrent state of knowledge of head trauma will hopefully make it safer for youth insports, and particularly high school and college football players. Even the Departmentof Defense and the Veterans’ Administration are conducting billions of dollars of research in the area of head injuries as many recent veterans have also experiencedconcussions and head trauma in service.



For former NFL players, more still needs to be done to assure that they have thedisability and health benefits they deserve for the injuries – particularly to their brains.They need a revised disability system which seeks not to avoid paying them the benefitsthey have earned, but one which assists them in obtaining the benefits they have earnedand deserve.

Critics of retired players seeking additional benefits often have little sympathy for theirmedical problems and disabilities stemming from their NFL careers. Yes, they knew it was a violent game. Yes, they knew they could get hurt. Perhaps most young men whohave the tremendous opportunity to play football in the NFL cannot properly appreciatethe risk. Surely they have healed from the various sprains, strains, torn muscles,fractures; and even concussions, they experienced in high school and college.

To such critics, former Green Bay Packer Greg Koch –now a practicing attorney – replies as follows:

“Broken bones and torn ligaments, I signed up for that, but I did not sign up for early dementia and I did not sign up for Parkinson’s and if the

NFL kept putting me out there when they know they shouldn’t have; that ison them and that is what I am asking they take care of.” (32)

_____________________________

Footnotes:

1. John V. Hogan is a member of the Georgia Bar who has specialized in representing disabled individuals for over 30 years.B.A., St. John Fisher College, 1973; J.D., John Marshall Law School, 1977. Ashton E. Vetas is a 2009 graduate of theUniversity of South Carolina and a 2013 J.D. Candidate at Charleston School of Law.

2. CTE, or Chronic Traumatic Encephalopathy, is a progressive degenerative disease of the brain in people subjected tomultiple brain trauma. It is characterized by a buildup of tau protein which builds up in nerve cells and prevents them

from making normal connections with other never cells, eventually killing the cells.

3. Stingley died in 2007 at the age of 55 as a result of heart disease and pneumonia complicated by quadriplegia.

4. N.F.L. Players Shaken by Duerson‟s Suicide Message by Alan Schwarz; NY Time, Feb. 20, 2011.

5. The six voting members of the Bell/Rozelle NFL Player Retirement Board also include three members appointed by theNFL Management Council. The NFl Commissioner, or his delegate, serves as the non-voting chair.

6. Bert Bell/Pete Rozelle NFL Player Retirement Plan Sec. 5.2(a).

7. Bert Bell/Pete Rozelle NFL Player Retirement Plan Sec. 5.2(b).

8. A player who becomes totally and permanently disabled not later than six months after a disability first arises will beconclusively deemed to have become totally and permanently disabled “shortly after”; …if it is more than 12 months, it isconclusively deemed not to be “shortly after”. For disabilities arising between six and twelve months, the DICC orRetirement Board have the right and duty to determine whether the standard is satisfied. Plan Sec. 5.1(f).

9. A one-time early payment benefit (draw) from the player’s pension prior to receipt of disability benefits will reduce themonthly payment by 25%. Plan Sec. 4.5.

10. To receive this category of disability benefits, the player must be vested.

11. The 88 Plan is named in honor of Hall of Fame tight end John Mackey, who was diagnosed with dementia in his late 50’s.

12. 88 Plan Summary Plan Description, 2007, page 7.

13. Hearing Before House Judiciary Committee, October 28, 2009, Legal Issues Relating to Football Head Injuries.



14. Bostonglobe.com May 3, 2011, Ex-NFL Safety Had Brain Damage.

15. Judiciary Forum, House Judiciary Committee, February 1, 2010, Head and Other Injuries in Youth, High School, Collegeand Professional Football.

16. American Journal of Forensic Medical Pathology, Vol. 31, No. 1, March 2010, Chronic Traumatic Encephalopathy, Suicides and Parasuicides in Professional American Athletes, Omalu, Bales, Hammers and Fitzsimmons.

17.

The New Yorker, Annals of Medicine OFFENSIVE PLAY How different are dogfighting and football?, by MalcomGladwell, October 19, 2009.

18. Neurosurgery, February 2006.

19. Current Therapy in Neurological Disease-3, 1990, Richard T. Johnson, M.D., editor.

20. (same as 17.)

21. Employment Retirement Income Security Act of 1974.

22. Bert Bell/Pete Rozelle NFL Player Retirement Plan Sec. 5.1

23. Sunni Jani, Administrator of the Estate of Michael L. Webster, deceased v. The Bert Bell/Pete Rozelle NFL PlayerRetirement Plan; The NFL Player Supplemental Disability Plan; U.S. Court of Appeals for the Fourth Circuit, No. 05-2386,decided December 13, 2006. (unpublished).

24. Plan Sec. 5.6(c) provides that benefits can be paid retroactively 42 months from the date of application where the player isfound to be physically or mentally incapacitated in a manner that substantially interferes with the filing of such claim.

25. Brent Boyd v. Bert Bell/Pete Rozelle NFL Players Retirement Plan, et al., U.S. Court of Appeals, Ninth Circuit, No.03-56514; 410F.3d 1173.

26. Brent V. Boyd v. Bert Bell/Pete Rozelle NFL Player Retirement Plan, U.S.D.C., Maryland, case 1:10-cv-00360-JFMdecided May 24, 2011.

27. Bert Bell/Pete Rozelle NFL Player Retirement Plan Sec. 5.5 (b).

28. Bert Bell/Pete Rozelle NFL Player Retirement Plan Sec. 5.2 (c).

29. 29 CFR Part 2560 et seq. See particularly the Department of Labor’s comments in this regard when new ERISA claimregulations were promulgated in 2000: Federal Register, Vol. 65, No. 225, Tuesday November 21, 2000.

30. The names and biographical information of these former NFL players is eliminated or changed to protect their privacy.

The medical information is accurate.

31. At the time Goodell issued the new rules, 11 players were listed as having concussions of the League’s weekly injury report, with an additional eight lists as suffering from “head injuries.”

32. NFL Retirees Press Conference, Washington, D.C., June 20, 2011

















Documents

John Hogan Santa Clara Sports Law Symposium Paper