By Ken Reed
U.S. District Judge Anita Brody has essentially forced the NFL to remove the cap on concussion-related damages in a class-action case involving more than 4,500 former players.
Brody has granted preliminary approval to the new landmark settlement deal that would compensate former players on concussion-related claims. Previously, Brody had questioned whether a $675 million cap on damages would be enough to cover all claims in the future. As such, she had withheld her approval of the original settlement.
Brody’s refusal to approve a deal with a cap on it deserves to be widely applauded. The NFL had fought hard to have a cap on damages as a part of the settlement.
However, the revised settlement still has some critical flaws. The biggest one being how the settlement deals with Chronic Traumatic Encephalopathy (CTE), the degenerative brain disease that’s caused much of the recent concussion-related uproar in sports such as football and hockey. Players diagnosed with Lou Gehrig’s disease, dementia, Alzheimer’s, or similar diseases will be eligible for monetary awards — even though many of these diseases may in actuality be CTE-based. However, players with other neurobehavioral problems regularly linked to CTE are out of luck. The revised settlement leaves players who have yet to be diagnosed with CTE — even though they very likely currently have the disease and are suffering from its effects — with nothing. (Of note, the only way to be officially diagnosed with CTE today is to die and have your brain tissue examined in an autopsy. There are, however, many neurobehavioral medical effects linked to CTE, including, depression, memory loss, chronic headaches, chronic pain, impulsivity, speech impairment, concentration problems, attention deficits and diminished executive function that wouldn’t be covered under the agreement as it now stands. Many former NFL players believe they are suffering from these symptoms as a result of concussions and repetitive subconcussive shots to the brain during their NFL careers, resulting in CTE-based problems. Not only wouldn’t they receive a dime from this preliminary settlement, they’d also be barred from bringing any future legal action against the NFL regarding CTE issues.)
Sports journalist Patrick Hruby did an excellent job describing the practical reality of the preliminarily approved settlement regarding CTE:
“Guess what: according to the specific language of the revised settlement, the qualifying diagnosis of ‘Death with CTE’ requires retirees to have died and been diagnosed with the disease before the date of preliminary settlement approval, i.e., before July 7, 2014. If you die with CTE after that — no matter if you commit suicide like Seau and Duerson or end up crazy and living in your truck and super-gluing your teeth in place like Webster; no matter how ravaged your brain looks to a neuropathologist in the cold light of a laboratory; no matter how much you or your family suffer; no matter how well connected said suffering is to a disease that the doctor who discovered it wanted to name ‘footballer’s dementia’ — you don’t qualify for an award.”
CTE is a huge issue with former players. To date, 33 of 34 former football players, including high profile players like Mike Webster and Junior Seau, who had their brains examined after death were found to have CTE. That means there could be thousands of current and future former players and their families who suffer from the debilitating effects of CTE who never receive a monetary award from this settlement.
Removing the cap on concussion-related damages is a positive step — one largely engineered by Judge Brody, but ignoring the horrendous impact of CTE from this point forward is a major problem with this revised settlement.
Before granting final approval, Brody will hold a November 19 fairness hearing to determine if the settlement as proposed is “fair, reasonable, adequate, and in the best interests” of the former players.
Here’s hoping the former players and Brody push for changes on the CTE-related provisions of this preliminary agreement before it is finalized.
This settlement needs to be revised more expansively before it’s a done deal.
— Ken Reed, Sports Policy Director, League of Fans
Sports Forum Podcast
Episode #10 – League of Fans’ Sports Forum podcast: An Issues Discussion With Paul Dolan – Dolan is the Cleveland Indians Owner and CEO. He discusses the use of Native American names and logos by sports teams and the decisions to drop the Chief Wahoo logo and the upcoming change to the team name. Other baseball topics include health and safety, possible MLB rule changes and youth participation in the sport.
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Episode #9 – League of Fans’ Sports Forum podcast: Talking Sports Issues With Ralph Nader – Nader is a consumer advocate and was named one of the “100 Most Influential Americans of the 20th Century” by Time magazine. He is the founder of League of Fans.
Episode #8 – League of Fans’ Sports Forum podcast: How Can We Save College Sports From Overcommercialization and Professionalization? – The guest is Dr. David Ridpath, a sports business professor and past president of the Drake Group
Episode #7 – League of Fans’ Sports Forum podcast: Brain Trauma and CTE Risk in Sports With Dr. Ann McKee – Dr. McKee works in the field of neuropathology and has demonstrated that “mild” repetitive head trauma can provoke chronic traumatic encephalopathy (CTE), a devastating neurodegenerative disease.
Episode #6 – League of Fans’ Sports Forum podcast: The Need for Quality Physical Education in Our Schools is Greater Than Ever – The guest is Clayton Ellis, one of our nation’s leading advocates for getting our young people to be more physically active.
Episode #5 – League of Fans’ Sports Forum podcast: Youth Sports with Positive Coaching Alliance Founder Jim Thompson – Thompson started Positive Coaching Alliance (PCA) in 1998 to help create a movement to transform the culture of youth sports from “win-at-all-costs” to a positive, character-building experience.
Media"How We Can Save Sports" author Ken Reed appears on Fox & Friends to explain how there's "too much adult in youth sports."
Ken Reed appears on Mornings with Gail from KFKA Radio in Colorado to discuss bad parenting in youth athletics.
“Should College Athletes Be Paid?” Ken Reed on The Morning Show from Wisconsin Public Radio
Ken Reed appears on KGNU Community Radio in Colorado (at 02:30) to discuss equality in sports and Title IX.
Ken Reed appears on the Ralph Nader Radio Hour (at 38:35) to discuss his book The Sports Reformers: Working to Make the World of Sports a Better Place, and to talk about some current sports issues.
Sports & Torts – Ken Reed, Sports Policy Director, League of Fans – at the American Museum of Tort Law
League of Fans is a sports reform project founded by Ralph Nader to fight for the higher principles of justice, fair play, equal opportunity and civil rights in sports; and to encourage safety and civic responsibility in sports industry and culture.
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