Ex-Eagle Kevin Turner might be the face of the concussion case

DAVID SWANSON / STAFF PHOTOGRAPHER Ex-Eagle Kevin Turner , an ALS patient, felt he needed to be seen at NFL concussion litigation hearing.
DAVID SWANSON / STAFF PHOTOGRAPHER Ex-Eagle Kevin Turner , an ALS patient, felt he needed to be seen at NFL concussion litigation hearing.
Posted: April 11, 2013

THE FIRST SHOTS in the concussion litigation between the NFL and more than 4,200 former players were fired Tuesday in federal court in Philadelphia.

Depending on how swayed U.S. District Court Judge Anita Brody was by the league's motion-to-dismiss argument, this could be a very, very long court battle, or a very, very short one.

The players are arguing that the league has known for years about the long-term damage caused by repeated head trauma and hid it from the players.

The league contends that player safety is included in the collective bargaining agreement with the players, and the proper forum for this dispute is arbitration, not a courtroom.

Brody heard arguments from both sides Tuesday. She will issue a ruling sometime in the next couple of months.

A few of the 4,200 plaintiffs attended Tuesday's hearing, including former Eagles fullback Kevin Turner.

If this turns out to be a very, very long court battle, Turner won't be there for the final verdict.

He'll be dead.

Turner, 43, has ALS - amytrophic lateral sclerosis, also known as Lou Gehrig's disease. He was diagnosed with it in May 2010. While he still can walk, the disease already has started ravaging his upper body. He has minimal use of his arms and hands, and his speech and breathing started to decline about 6 months ago.

He didn't have to make the difficult trip from his home in Birmingham, Ala., to Philadelphia for the 1-hour court hearing.

But he wanted to.

"A very good friend of mind came with me," said Turner, who spent 8 years in the NFL, including 1995-99 with the Eagles. "He helped me with everything from getting into the hotel to brushing my teeth to putting on my pants.

"I wanted to be here to show the attorneys that [this suit isn't just about] 4,000 guys who played football and might undergo some neurological condition down the road. I wanted to show them who they're working for and what types of things are happening."

There's no way to conclusively prove that the head trauma Turner suffered playing football caused his ALS. But he has no doubt that it did.

"Absolutely," he said. "There's no history of it in my family. A few [doctors] have said they believe [it was caused by concussions]. Nobody can be certain. But from the data that they have and what they've seen in others, they believe it. And so do I."

The life expectancy of someone with ALS is 2 to 5 years from the time of diagnosis. Some have lived longer than that.

"It's still in my upper body only," Turner said. "I haven't had considerable weakness in my lower body yet. It moves more quickly in some people. So I'm thankful for that. I have a little more time for them to find a cure."

Probably not enough time to see the outcome of the lawsuit if it goes the distance, though. If it goes to trial, it could be 5 years before there is a decision. And that doesn't take into account an almost-certain appeal by the losing party.

Turner, drafted by New England in the third round out of Alabama in 1992, doesn't regret playing in the NFL, though he acknowledged that he would do some things differently if he knew now what he didn't know then.

"I would like to have had the [concussion] information," he said. "It might have kept me from . . . I might've played 6 years instead of 8. It might've prevented me from going back into a game or practice when I knew I was still dazed.

"Even in 2007, the NFL was on HBO's 'Real Sports' acting like we were idiots. [They were saying] 'No, no, no, there's no correlation [between concussions and long-term brain damage].'

"Believe me, if there hadn't been a lawsuit or I hadn't come out, and other players hadn't come out, they'd still be saying, 'No, no, no.' I'm sure they're a bunch of very good people. But until they're forced to do something else, why would they change?"

Tuesday's court hearing wasn't about what the NFL knew about the dangers of concussions and when it knew it. We're a long way from that point.

First, the players' lawyers have to convince Brody that this suit belongs in a courtroom. If she rules that it does, then they have to convince her that the case should go forward as a class-action suit rather than as 4,200 separate lawsuits. Then they will finally get around to discovery and a trial.

The NFL's legal hired gun, Paul Clement, who was the solicitor general for George W. Bush, said this litigation clearly belongs in arbitration.

"The collective bargaining process is one where there are lots of advantages for the union and the players and the clubs, frankly," he said. "Everybody benefits from it.

"But as part of the CBA, you get certain extraordinary rights. Players have unprecedented retirement and disability benefits. At the same time, you don't have the same rights to sue an employer that somebody in a non-unionized industry would have."

The players have accused the league of both negligence and fraud, claiming "the NFL spread misinformation about neurological risks." They say there is no language in the CBA about that.

Clement said the players are suing the wrong people. He said the CBA mentions that the 32 individual teams are responsible for player care not the league.

"The natural thing to do in a suit like this would be to sue the clubs," he said. "The clubs are the ones who had the doctors on the sidelines, who had the primary responsibility over whether to send a player back into the game.

"But they haven't sued the clubs. And the reason they haven't is because if they did sue the clubs, it would be obvious that there was a labor preemption problem with suing the clubs, who are the direct party in the collective bargaining agreement. So they're trying to get around that by suing the league."

Said David Frederick, co-lead counsel for the players: "One of the central problems with that defense [by the league] is that the club at the individual player level can make certain medical determinations about that player.

"But our contention is that way above that, the NFL had access to [concussion] information. They could have gotten data from all of the clubs. They could have aggregated it in a way that would've promoted player safety. And they failed to do that.

"So whatever could be said about any one club or any club's doctor is missing the point. The NFL has maintained its stewardship of the game over the years with the access to the best possible information and not done what it said it was going to do, which is promote player safety. That's the essence of our case."

It's a shame that Kevin Turner probably won't be around to see how it turns out.

"Maybe down the road when I'm gone, my kids will benefit from it," he said. "The hard thing for me now is not being able to be out there with them, throwing the baseball and shooting the basketball.

"I can't pick them up. They help me get dressed, help me clean myself. The total opposite of what I dreamed it would be."

Email: pdomo@aol.com

On Twitter: @Pdomo

Blog: eagletarian.com

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