Players, Families Urge Judge to Reject NFL Concussion Settlement

By and | November 19, 2014

Andy Miketa was known as the NFL’s lightest center during his two-year career with the Detroit Lions in the 1950s. At 6-foot-2 and 210 pounds, Miketa used his speed and toughness to stymie defensive linemen who outweighed him by 75 pounds.

Sally Miketa Stern remembers her father’s stories about the 1954 National Football League championship game between the Detroit Lions and the Cleveland Browns. That game and others took their toll, she recalls.

Miketa’s mental deterioration after multiple concussions left him homeless and alone later in life, his daughter said in a letter to the judge who today will consider final approval of the league’s $765 million settlement with former players and their families. Stern’s letter is one of more than 60 urging U.S. District Judge Anita Brody in Philadelphia to reject the settlement in its current form.

The letters describe as the legacy of repetitive hits on the gridiron a multitude of injuries such as gnawing headaches, hearing loss, blurred vision, explosive anger, debilitating paranoia and dementia. The settlement, they conclude, is simply not enough to compensate players and their families.

In the 1954 championship game, Miketa suffered a concussion while protecting Hall of Fame quarterback Bobby Layne. He returned to the Lions’ offensive line, only to have his eye sockets smashed during the next play. Dizzy and nauseated, he returned to the field again and got a broken nose in the 56-10 drubbing by the Otto Graham-led Browns.

Gridiron Legacy

Miketa endured repeated concussions in the 1953 and 1954 seasons, laying the groundwork for future heartache, his daughter said. The Ohio native died in 2010 at the age of 80, after spending the last quarter-century of his life battling homelessness, subsisting on Social Security checks and “wandering around aimlessly, climbing into dumpsters,” Stern wrote in her letter to Brody.

Although he managed to become a dentist after the NFL, the “best of his mind was destroyed by football,” she said.

“He died without any life insurance, without a cent to his name, owning nothing,” Stern wrote. “I had to ask the NFL to pay for his cremation.”

Objectors such as Stern argue the settlement falls especially short for those who have symptoms of chronic traumatic encephalopathy, or CTE, a brain disease diagnosed only after death. CTE was linked to the suicides of Pro Bowl linebacker Junior Seau in 2012 and Chicago Bears safety David Duerson in 2011.

‘Advantageous Deal’

“Maybe in the back of everyone’s mind is the perception that the NFL got off very easily in the proposed settlement, in comparison to the revenue the league and teams earn,” said Mark Conrad, a law professor and director of the sports-business program at Fordham University.

“As of now I do think the NFL owners particularly got a very advantageous deal,” he said.

About 5,000 players have sued the league seeking damages for head injuries. In July, Brody granted preliminary approval to a revised deal in which the league would pay at least $675 million in cash to retirees suffering from a list of qualified injuries including Alzheimer’s disease, Parkinson’s disease and amyotrophic lateral sclerosis, known as ALS or Lou Gehrig’s disease.

Medical monitoring and educational programs bring the total settlement to $765 million. The league estimates it will have to pay out no more than $900 million.

Players Approved

The deal, which was approved by 99 percent of the roughly 21,000 retired players in the class, will “spare thousands of retirees and their families the financial and emotional cost associated with years of litigation,” the NFL said in papers filed ahead of the hearing.

“This settlement will provide the benefits we need to take care of our families and have the best quality of life we are able to have,” Kevin Turner, a former fullback for the Philadelphia Eagles who now suffers from ALS, said in a statement. “The sooner the agreement is approved and its benefits begin to flow, the bigger the difference it will make in the lives of those who are hurting.”

Chris Seeger, the lead plaintiffs’ lawyer who helped negotiate the settlement, urged Brody to approve the deal as fair and reasonable while stressing the uncertainty of a court loss on the league’s argument that the claims are preempted and barred by labor agreements with the players’ union. Brody ordered the parties into mediation before ruling on that issue last year.

‘Death Knell’

“A loss on the preemption issue could have been the death knell to class members’ claims,” Seeger said in court papers.

About 17 percent of the class, or 3,600 players, are expected to have or develop compensable injuries covered by the deal, according to analyses done for lead plaintiffs’ lawyers and the league and made public in September following a request by Bloomberg News. Of that number, the families of about 50 players who were diagnosed with CTE posthumously would be paid for those claims, according to the reports.

Dozens of players and their relatives have objected to the pact, saying it fails to address wrongful-death claims, it unfairly penalizes the league’s oldest players and excludes from consideration seasons played in NFL Europe.

The most contentious objections are focused on the exclusion of ex-players suffering from early effects of CTE. The families of players who died from the brain disease before the settlement’s July 7 preliminary approval date might receive as much as $4 million each under the agreement. Because CTE is now confirmed only by autopsy, players living with symptoms stand to get nothing.

Egregious Exclusion

“If you are a former player existing in a living hell, bereft of memories and facing even more deterioration in the future, you and your family get nothing,” said Erik Gordon, a professor at the University of Michigan’s business and law schools who teaches about class-action settlements. “But if you kill yourself, your family potentially has a claim for millions. It just sounds crazy to the average person.”

The fact that CTE put football brain damage into the national spotlight makes the exclusion of living players with symptoms that much more egregious, Mitchell Toups, a lawyer in Beaumont, Texas, said in court papers filed on behalf of objecting players.

The settlement’s restrictions on CTE claims “are designed to save the NFL a substantial amount of money on the very disease giving rise to the litigation,” Toups said in the filing.

Initially discovered in boxers in the 1920s, CTE results from repeated shaking of the brain. It involves the formation of abnormal protein tangles that hamper communication between cells and lead to cell death. Functions such as memory and anger- control can disappear and dementia and death can follow. CTE symptoms can mimic those of Alzheimer’s, Parkinson’s and ALS.

Brain Disease

Since 2005, CTE has been discovered in the brains of at least 76 deceased NFL players. Duerson, Seau and Andre Waters, a Philadelphia Eagles defensive back, all suffered from the neurodegenerative brain disease.

The late Pittsburgh Steelers players Mike Webster and Terry Long were also diagnosed with CTE. Webster died of heart disease at age 50 in 2002 after suffering from dementia. Long killed himself in 2005 at age 45 by drinking antifreeze.

In September, a study done by the Department of Veterans’ Affairs brain depository in Bedford, Massachusetts, found CTE in 76 of 79 former NFL players, PBS Frontline reported. An earlier study done in 2012 by the Boston University Center for the Study of Traumatic Encephalopathy, which maintains an ex-athletes brain bank, found the disease in 34 of 35 former NFL players examined.

Duerson’s Suicide

Duerson, 50, killed himself in February 2011 with a gunshot to the chest after enduring intense headaches and deteriorating memory. He left a note asking that his brain go to the Boston University lab where it was determined he had CTE.

Researchers at the National Institutes of Health said last year that brain-tissue samples showed Seau had CTE. Seau’s family sent his brain tissue to the NIH in July 2012, two months after he shot himself in the chest outside his home in Oceanside, California. His family has opted out of the litigation and will pursue a wrongful-death claim in state court, according to attorney Steven Strauss.

Two weeks before Seau’s death, former Atlanta Falcons safety Ray Easterling shot himself at his ranch home in Richmond, Virginia, after years of insomnia and depression spiraled into early stages of dementia in the early 2000s while still in his 50s.

Brain Bank

Robert Stern, a co-founder of the Boston brain bank, said in court papers submitted ahead of the hearing that players with early symptoms of CTE, those exhibiting changes in mood and behavior, aren’t likely to be found impaired and eligible for compensation under the settlement’s baseline medical monitoring program.

Had they both died after July 7, Seau and Duerson probably wouldn’t have been found impaired under the settlement, Stern said.

“Their primary symptoms involved mood and behavioral disturbance, neither of which is compensable in the settlement,” he said.

Kristine Yaffe, a University of California professor who led a Veterans Health Administration study on the link between traumatic brain injury, or TBI, and dementia, countered that a causal relationship between football and qualifying conditions under the settlement is tenuous at best. Even more so when it comes to CTE.

CTE Science

“The science regarding CTE is still in its infancy and the causes of CTE are unknown,” Yaffe said in court papers filed on behalf of the league. “There are significant challenges to establishing that, even on a broad population level, single or repetitive or mild TBIs resulting from NFL football are the cause — or even one cause — of an individual’s development of CTE.”

Mood and behavioral symptoms, such as depression, have many risk factors and could be completely unrelated to CTE, Yaffe said.

The CTE issue is a legitimate concern for players, although not as strong as the gamble of opting out of the deal altogether, Conrad said. About 220 players chose to take their chances with individual suits.

Player Gamble

“Time is not on the side of the victims because there are conditions that, if they’re there, will become more acute and more care will be needed,” he said. “There is a certain gamble on the part of a lot of players. If you opt out, you go it alone, and you’re going to have to have proof.”

Stern said in court papers that highly accurate clinically accepted methods to diagnose CTE during life are at the most 10 years away. A study being conducted by the center through a grant from the NIH seeks to develop biomarkers for detection and diagnosis of the disease.

Excluding compensation for CTE symptoms is premature, said Paul Anderson, a lawyer for ex-players who writes a blog on concussion litigation. “They’re attempting to wipe CTE from the lexicon completely and league history itself.”

The case is In re National Football Players’ Concussion Injury Litigation, 12-md-02323, U.S. District Court, Eastern District of Pennsylvania (Philadelphia).

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