Concussion suits have NFL, ex-players on collision course

The Chicago Bears' Dave Duerson (center) committed suicide last year after having trouble with words and remembering names. ASSOCIATED PRESS
The Chicago Bears' Dave Duerson (center) committed suicide last year after having trouble with words and remembering names. ASSOCIATED PRESS
Posted: May 30, 2012

In the 1970s, during eight years as a safety with the Atlanta Falcons, Charles "Ray" Easterling lived in a world bound only by the rules and dimensions of the football field.

By last August, Easterling's world was limited to the walls of his Richmond rancher by a brain so battered he forgot why he walked into a room by the time he got there.

It was then that Easterling and his wife, Mary Ann, - joined by six other retired players including ex-Eagles quarterback Jim McMahon and offensive lineman Gerry Feehery, and four spouses - sued the NFL seeking lifetime medical monitoring for ex-players. The suit contends that the NFL concealed the cumulative effect of multiple concussions from players.

Now the lawsuit, filed in federal court in Philadelphia, has been joined by more than 70 other suits for more than 2,000 former players in a proposed class-action that could become Easterling's legacy.

Easterling won't be here to see it. On April 19, despondent about his increasing dementia and the looming prospect of institutionalized care, Easterling, 62, killed himself.

His suicide followed the Feb. 17, 2011, suicide of 50-year-old Dave Duerson, a defensive back who was part of the Chicago Bears' 1985 Super Bowl champion team and again, in 2000, with the New York Giants.

"Please, see that my brain is given to the NFL's brain bank," read Duerson's suicide note. Duerson's family said he had been having trouble with words and remembering names. Duerson shot himself in the chest.

Then, on May 2 - two weeks after Easterling's suicide - the football world was rocked again by the suicide of Junior Seau, 43, a former star linebacker for the San Diego Chargers and a likely future Hall of Famer.

Like Easterling, Seau had reportedly exhibited erratic behavior that might be associated with brain damage caused by concussions.

Seau's family is considering donating his brain to the "brain bank" - Boston University's Center for the Study of Traumatic Encephalopathy, which studies the impact of multiple brain concussions. According to the center's website, the brains of 18 of 19 dead ex-NFL players have shown signs of CTE, or chronic traumatic encephalopathy.

Brad S. Karp, the NFL's lead lawyer, said the league will defend itself against the lawsuits but declined to comment on specifics.

In its court filings, the league says the suits should be dismissed because they are preempted under federal labor law by the collective-bargaining agreement with players.

Among areas the labor agreement governs, the NFL contends, are player safety, medical care and "return-to-play" decisions on injured players.

The NFL also says the contract mandates arbitration to resolve player disputes and "forbids players from bringing any suit against the NFL with respect to any claim relating to any aspect of the NFL rules, or the NFL Constitution and Bylaws."

Debilitating effects

Over the last few years, medical researchers have documented the debilitating effects of multiple brain concussions - especially when untreated or when individuals return to work too soon.

High school and college athletics officials have responded with rules mandating treatment and rest for players injured in football, lacrosse, soccer and other sports where head injuries are common.

The ex-players' suits contend that NFL officials knew since the 1970s that a "history of multiple concussions has been associated with players' greater risk of future brain deficits."

Nevertheless, the suit continues, the NFL "turned a blind eye" to players being coached to use their helmeted heads to block, tackle, butt and spear opposing players.

The NFL's motive: to keep the "fan base excited and interested in the violence of this sport," the suit says.

Even when the NFL made hitting with the helmet a "personal foul" in 1996, the suit says, it did so to protect quarterbacks, showing "a complete disregard for the risk of harm and safety of players who have been condoned for using this tackling technique."

The suit also cites a 2009 scientific study the NFL commissioned - and later disputed - that found 6.1 percent of retired NFL players over 50 had been diagnosed with dementia or other serious memory problems, compared to 1.2 percent of all U.S. men in the same age group.

NFL filings maintain there is no evidence the league purposely withheld information about concussions from players or cynically encouraged them to use head-butting tactics to raise violence to a fan-pleasing level.

The first hurdle

No one can say how long it will take to resolve what is now "MDL 2323: National Football League Players' Concussion Injury Litigation."

Or predict the outcome.

"I think you're looking at a long period of time just to decide the legal issues . . . just for the decision whether this case will go forward," said Kenneth A. Jacobsen, a Temple University law professor and Delaware County lawyer who has specialized in class-action litigation for 28 years.

Jacobsen said the plaintiffs' first hurdle will be the preemption issue and the collective-bargaining agreement.

Before the cases were consolidated in January, federal judges in California and Illinois had already ruled for the NFL on preemption.

There is also the case of Korey Stringer, the Minnesota Vikings offensive tackle, who collapsed and died of heat stroke at training camp in 2001 at age 27.

A federal judge in Ohio ruled that Stringer's widow's suit was preempted by the collective-bargaining agreement. The case was settled confidentially in 2009.

If the plaintiffs prevail on preemption, Jacobsen said, the focus will shift to getting the suits certified as a class action. That process has been made more difficult by recent U.S. Supreme Court rulings against class actions that are too broad to cover the diverse issues and injuries of individual plaintiffs.

Jacobsen noted that the ex-players have tried to respond by proposing subclasses of ex-players based on the decade in which they played.

"At the end of the day, you wind up with a balance between what the common issues are and what the individual issues are," Jacobsen said.

Causation - when the player sustained a brain-damaging concussion and whether it can be linked to NFL negligence or malfeasance - is another hurdle.

"At the core of this case is the question of what the NFL knew and when they knew it," Jacobsen added.

Refereeing the burgeoning litigation is U.S. District Judge Anita B. Brody. Brody, 76, has been a federal judge since 1992..

Brody's April 26 scheduling order requires the plaintiffs' lawyers to file a proposed master complaint, covering common elements of all cases, by June 8. Activity for the rest of the year will be on paper - not in open court - with each side filing briefs on preemption and other issues.

For the former players, the case cannot move fast enough, said Sol H. Weiss, a Philadelphia lawyer who, with partner Larry Coben of the Anapol Schwartz firm, filed the Easterling suit.

Weiss said that many players were active in the days before multimillion-dollar contracts and that those with neurological problems are struggling to earn a living: "A lot can't find jobs. A lot of them can't hold jobs."

Weiss said it's difficult to say how many of the ex-players have developed dementia to the extent of Easterling's.

Former Eagle McMahon has publicly discussed his growing memory problems. Wayne Radloff, a former Falcons linebacker from the 1980s who is also a plaintiff in the Easterling suit, is disabled and can no longer operate his real estate business.

Weiss said the experiences of Easterling, McMahon and other retired players is the reason the suit wants the NFL to pay for continuing medical monitoring. Chronic traumatic encephalopathy "doesn't happen overnight," he said, "and that's the problem."


Contact Joseph A. Slobodzian at 215-854-2985, jslobodzian@phillynews.com, or @joeslobo on Twitter.

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