Will New CTE Findings Doom the NFL Concussion Settlement?

Tuesday August 15th, 2017

A study recently published in the Journal of American Medicine details disturbing results from neurological analyses of 202 deceased football players’ brains. In their lifetimes, these players had reached different levels of football—high school (two players), college (53), semi-pro (14), the Canadian Football League (8) and the NFL (111). The study—titled “Clinicopathological Evaluation of Chronic Traumatic Encephalopathy in Players of American Football” and led by three Boston University medical doctors—evaluated the presence of chronic traumatic encephalopathy (CTE), a degenerative neurological disease caused by repeat head trauma and only diagnosable with certainty in post-mortem examinations. While the scientific community’s understanding of CTE is evolving, common symptoms include aggression, depression, memory loss and an increased risk of suicide. These conditions tend to worsen over a person’s lifetime.

The study detected CTE at distressingly prevalent levels. Of the 202 brains analyzed, 177 (88%) showed CTE. Of particular concern, 48 of the 53 college players’ brains (91%) and 110 of the 111 (99%) NFL players’ brains exhibited CTE.

Such numbers add to the mounting evidence of the long-term danger of playing football, intensifying the questions surrounding the game and its future: Is football in danger? Can it ever be made sufficiently safe? Will young people begin turning away?

A more immediate question is: What might this study mean for the durability of the NFL concussion settlement, the 2015 agreement between the league and former players intended to cover the costs of treating football-related ailments? The answer to that is not so clear, especially given recent remarks by NFL commissioner Roger Goodell.

An important limitation of the study doesn’t warrant ignoring the study

The study’s results should be viewed with caution. The research was limited by a significant but legally essential restriction: The brains were donated, and thus not randomly selected.

This dynamic may have skewed the results: A person who believes he might suffer from CTE could be more likely than the average person, or average football player, to pledge his brain to science. The results are thus influenced by what’s known as “selection bias,” a methodology bias that refers to a studied sample (here, brains of 202 deceased football players) that might not adequately represent the relevant population pool (i.e., brains of all football players). It’s thus possible that a random sampling of former football players’ brains would yield different and perhaps less troubling results.

The NFL Is a Booming Business Despite Growing Concerns Over Brain Trauma

A random sample, however, is not realistic. Researchers’ legal capacity to conduct a post-mortem study of a football player’s brain is contingent on the consent of either the donor while he was alive or his family. To require a random sample for a CTE study would be to impose an impossible demand.

But even with selection bias, the study’s results are hard to dismiss. The fact is, 111 former NFL players’ brains amounts to a sizable sample, even if it may be skewed and not random. For 110 of those brains to show CTE is the latest evidence of the serious risks of neurological injury from playing in the NFL.

CTE’s absence from the NFL concussion settlement

The results are particularly worrisome because CTE is not a recognized condition under the concussion class action settlement reached between the NFL and more than 20,000 retired NFL players. Last year the U.S. Supreme Court denied petitions that sought to challenge the settlement. The denials left in a place an agreement that requires the NFL, which annually generates about $14 billion in revenue, to pay out approximately $1 billion total over the next 65 years. The settlement will pay each retired NFL player, on average, about $190,000. A retired player can receive up to $5 million depending on his affliction, years of NFL service and other factors.

A few hundred retired players opted out of the settlement, meaning they can continue to pursue legal claims against the NFL. For other retired players, however, they are bound by the terms of the agreement. Retired players who didn’t opt out had until Aug. 7 to register (late registrations can be submitted but have no guarantee of being accepted).

If CTE is as prevalent as the JAMA study suggests, its omission as a recognized condition from the settlement could undermine a core purpose of the settlement: to adequately fund treatment for health problems suffered by retired players.

Kuechly is carted off the field in the fourth quarter of the Panthers’ 23-20 win over the Saints last Thursday.
Luke Kuechly and the Gruesome Part of Football

The absence of CTE as a recognized condition is not without logic. As mentioned above, science has not advanced to the point where CTE—which is detectable by observing degeneration of the brain tissue—can be verified with certainty before someone dies. Also, those who suffer from CTE usually exhibit other neurological conditions that are covered by the settlement.

Further, CTE coverage could be added to the settlement at a later date, perhaps as soon as the mid 2020s. The settlement calls for retired players and the NFL to meet every 10 years. In those meetings, the two sides are expected to evaluate whether the settlement has been effective and whether changes are warranted. The science of CTE diagnosis could advance over the next several years. If a credible method of testing for CTE in living subjects were created, the players would have a compelling argument that CTE should be added to the settlement as a recognized condition.

Then again, the NFL is not obligated to add CTE as a recognizable condition at a later date. The inclusion of CTE testing and benefits would have to be negotiated with the NFL. The possibility for CTE to later be included as a recognizable condition is not a legal guarantee.

Goodell’s recent comments about NFL player health: true but misleading?

Retired players might also be worried about the NFL’s commitment to studying CTE given comments by league officials.

Goodell downplayed the JAMA study in remarks he delivered as part of a recent fan forum. While sitting alongside New York Jets safety Jamal Adams, Goodell stressed that “the average NFL player lives five years longer than you.” He also insisted, “[NFL players’] lifespan is actually longer and healthier. And I think because of all the advancements, including the medical care, that number is going to even increase for them.”

It’s not immediately clear where Goodell got his data. However, in 2012, the American Journal of Cardiology published a National Institute for Occupational Safety and Health study which found that, among players who played in the NFL between 1959 and 1988, NFL players do in fact tend to live longer than the average American male. According to the NFL this data shows that the average life expectancy of NFL players is 77.5 years, whereas the average life expectancy of men in the general American population is 74.7 years.

While Goodell appears to have facts on his side, it’s worth noting that “facts” are not always static. Indeed, it’s not clear if results from a study of NFL players who played at some point between 1959 and 1988 would be replicated in a study of more recent players. Every season, NFL players tend to be taller, heavier and faster than those who played before them. In fact, according to researchers at Grand Valley State, the average professional football player is between one-quarter and three-quarter pounds heavier every year. More recent NFL players are thus at an elevated risk for more damaging collisions to the brain and to other parts of the body.

Gibbsboro residents sue Sherwin-Williams over cancer-causing toxic waste

GIBBSBORO – A group of Gibbsboro residents filed federal legal action Tuesday claiming disposal of toxic waste from a former paint factory has caused a cancer cluster.

Nine families or individuals who live throughout Gibbsboro filed the lawsuit in U.S. District Court in Camden as a personal injury class action against Sherwin-Williams.

The lawsuit alleges Sherwin-Williams, a Fortune 500 company, contaminated the town’s soil and groundwater with unsafe levels of lead, arsenic and other carcinogens that have caused a cancer cluster in the borough.

The plant, a paint burn site, a separate dump, Kirkwood Lake, lakeside properties, and multiple connected streams and their banks are part of a Superfund cleanup site that stretches for 1.5 miles through Gibbsboro and into Voorhees. The Environmental Protection Agency (EPA) is overseeing the project.

Some members of the nine plaintiff families have been diagnosed with cancer or other serious health conditions, including children and one child as young as 3 months old, the suit contends. The contamination has migrated to surrounding residences and businesses within Gibbsboro, causing a cancer cluster within the town, according to the lawsuit.

Most of the plaintiffs live outside the boundaries of the designated Superfund sites.

“It is my firm belief that there has been contaminant migration beyond some of the Superfund sites and that this has caused cancer among some of the plaintiff adults and their children, including a 3-month-old baby,” said Haddonfield lawyer Craig Mitnick, who represents the residents.

“You have a company who claims to be an environmentally responsible corporation yet what steps they have taken have been superficial to residents thus far.”

The lawsuit seeks an order requiring Sherwin-Williams to promptly and completely remediate hazardous chemical levels to or below state Department of Environmental Protection and EPA background levels from class members’ properties.

It also seeks testing, medical examination of all plaintiffs and compensation, including for loss of a plaintiff’s property value.

“The company just received the complaint and has no comment at this time,” Sherwin-Williams Communications director Mike Conway said Wednesday.

The residents are: Brad and Christen Lafferty and their daughter; Corrine and Lauren Procajlo; Sandra Keating; Spencer Pope; Michael and Lisa DiGiovanni; Gina and Anthony Tartaglia; Scott and Kirsten Littlefield and their daughter; Dawn D’Orazaio and Gina Hyndham.

In 1999, the New Jersey Department of Health and Senior Services and the Agency for Toxic Substances and Disease Registry concluded an urgent health hazard existed to children and adults who lived, worked and visited the Sherwin-Williams Site areas.

But despite assessment, the lawsuit says, continued development on
contaminated land took place, including constructing public walking trails and commercial establishments, opening new restaurants and renovating existing residential properties.

The Sherwin-Williams facility was permanently closed Sept.1, 1978. Developer Robert Scarborough bought the property in1981 and rebuilt the former paint manufacturing plant into a robust business complex known as the Paint Works Corporate Center, which later was sold to Brandywine Realty trust.

Mitnick is one of the lawyers still involved in another personal injury class action by thousands of professional football players and which gained national attention.

The players sued and then tentatively settled with the National Football League for $675 million to compensate them for brain injuries they believed were caused by suffering blows to the head during games. The settlement awarded them financial and medical benefits.

Carol Comegno; (856) 486-2473; ccomegno@gannettnj.com 

Mitnick Law Office Files Federal Class Action Lawsuit Against Sherwin-Williams For Cancer Cluster

PHILADELPHIA, Aug. 22, 2017 /PRNewswire/ — Today, a class action lawsuit was filed in New Jersey Federal Court against the Fortune 500 company, Sherwin-Williams. A filing in the District Court of New Jersey alleges that Sherwin-Williams, who owned a paint manufacturing facility in the quaint New Jersey town of Gibbsboro from 1930 until 1978, contaminated the town’s soil and groundwater with unsafe levels of lead, arsenic and other carcinogens. That contamination has now migrated to surrounding residences and businesses within Gibbsboro, causing a cancer cluster within the town.

Residents of the Gibbsboro community are asking the federal court to hold Sherwin-Williams accountable for the contamination that is causing residents, including children, to develop cancer and other serious medical conditions. Contaminated areas of Gibbsboro have been listed on the Environmental Protection Agency’s National Priority List since 1999 and designated as Superfund sites.

The Borough of Gibbsboro is located within central Camden County, New Jersey. The Borough is approximately 2.2 miles in size and is home to approximately 2,274 residents according to the 2010 United States Census. The Borough is located about 15 miles southeast of Philadelphia Pennsylvania. Land-use in this small community is comprised of a combination of commercial, industrial, open spaces, and residential zones.

The Lawsuit alleges that as part of its operations, Sherwin-Williams utilized and generated hazardous substances, including lead, arsenic, pentachlorophenol, benzene, cadmium, and numerous other known carcinogens.

“The process by which Sherwin-Williams manufactured, stored and disposed of paint and paint by-products had the effect of releasing and omitting toxic chemicals and hazardous substances, including lead, arsenic, benzene, barium and pentachlorophenol into the grounds, air and surrounding environment. Over time these hazardous substances have migrated into surrounding corporate, business and residential properties. This contamination has existed far too long and a company of Sherwin-Williams size should have had the corporate responsibility to protect the residents and visitors of Gibbsboro,” Craig Mitnick, Esq.

“Air, land and groundwater contaminated by the Defendant’s activities at the Sherwin-Williams Site have migrated for years, and continue to spread to further surrounding areas, with hazardous chemical levels exceeding acceptable NJDEP and USEPA regulatory background guidelines.”

The Environmental Protection Agency published the following in a 1999 Administrative Consent Order issued between Sherwin-Williams and the EPA:

“Exposure to the various hazardous substances present at the Site by direct contact, inhalation, or ingestion may cause a variety of adverse human health effects… and the conditions present at the Site constitute an imminent and substantial endangerment to public health, welfare, or the environment.” (United States Environmental Protection Agency, Region II, Administrative Order on Consent for Removal Action, 1999)

Also in 1999, the New Jersey Department of Health and Senior Services (NJDHSS) and the Agency for Toxic Substances and Disease Registry (ATSDR) concluded that an urgent health hazard existed to children and adults who lived, worked and visited the Sherwin-Williams Site areas. Even with this fact, continued development on contaminated land took place, including constructing public walking trails, constructing commercial establishments, opening new restaurants and renovating existing residential properties.

Defendant Sherwin-Williams has contaminated both public and private property, inadequately addressed the contamination they caused, and failed to warn residents and the public of the contamination it knew existed. Sherwin-Williams ignored the health hazards, concealed those hazards from residents by not engaging the community and by not actively addressing the contamination that it caused. Sherwin-Williams failed to warn Plaintiffs and the public of the contamination it knew existed and the dangers of exposure, including cancer.

Read the full federal complaint here: cmitnick.net/gibbsboro.pdf

An Attempt for One More Appeal in the N.F.L. Concussion Case

Lawyers for the former running back Cookie Gilchrist have asked the Supreme Court to hear their appeal of a concussion-related settlement between the N.F.L. and all retired players that is worth hundreds of millions of dollars.

The move is a last-ditch attempt to alter an agreement that has been amended several times and survived other challenges. There is only a slim chance that the justices will hear the case, particularly because an appeals court twice approved the existing deal.

But a small number of former players still object to the settlement. They say the agreement does not adequately cover medical improvements that make it easier to diagnose cognitive disorders related to repeated head hits.

Specifically, lawyers for the estate of Gilchrist, a hard-charging running back in the old American Football League who died in 2011 at age 75, say that the categories of retired players in this settlement — those with diagnosed injuries and those without — are insufficient.

They also contend that some players were not properly represented in the settlement as a result of inadequate discovery on the “disputed ‘scientific’ propositions regarding head trauma that were the basis for vastly disparate relief to the class members.”

Lawyers representing the plaintiffs said the Supreme Court should deny the petition to hear the case because “these objections have now been exhaustively examined and overruled” by both the district court and the Court of Appeals for the Third Circuit.

No benefits, which can reach $5 million for players with severe neurological conditions, will be distributed until all appeals are exhausted. About 9,000 retired players have tried to enroll for benefits in advance.

Although Tuesday was the deadline for asking the Supreme Court to take up the case, lawyers for at least two other sets of players received extensions to file separate appeals of the settlement. They were given until Sept. 19 to submit their petitions. Lawyers for the plaintiffs typically have 30 days to respond to those petitions, although extensions are not unusual.

Once that process is complete, the court typically decides whether to take the case within several weeks. A minimum of four justices is needed for the court to agree to hear a case. But the justices agree to hear about one in 100 petitions seeking review, which means the chances of this case getting one last hearing are remote.

The Supreme Court has heard cases involving the N.F.L. before, as in 2010, when the league sought immunity from antitrust regulations. That case involved a cap manufacturer, American Needle, which claimed the league had conspired to stifle competition when it granted Reebok exclusive rights to produce licensed apparel.

The N.F.L. said it deserved to be exempt because it was a single entity, not a collection of 32 teams. The court, however, unanimously rejected the league’s request that it should receive broad antitrust immunity. The N.F.L. and American Needle settled their differences in 2015. The terms of their deal were not disclosed.

Late appeal moves NFL concussion case to Supreme Court

PHILADELPHIA (AP) — A last-minute appeal in the NFL concussion case, filed by the son of an NFL All-Star and civil rights activist, has sent the proposed settlement to the U.S. Supreme Court and delays payouts for at least several months.

The family of the late Buffalo Bills fullback Carlton “Cookie” Gilchrist asked the high court Tuesday to review whether the judge should have approved the potential $1 billion settlement without a full challenge to the scientific evidence presented jointly by both sides.

“This enormous settlement was settled without a shred of evidence (presented) by the NFL. It’s just astounding … because there’s so much at stake here,” lawyer Jared Beck said Wednesday.

The appeal, for instance, questions why more money is awarded for amyotrophic lateral sclerosis, or ALS, than for chronic traumatic encephalopathy, or CTE, which some researchers link more closely with football concussions. At least two sets of other plaintiffs were granted extensions of the Tuesday deadline and can appeal through next month.

Players’ lawyers who support the 2013 settlement negotiated with the league on behalf of 21,000 NFL retirees insist their clients need financial and medical help now. Lawyer Jim Acho of Detroit, who sent a letter to clients Tuesday that said no further appeals had been filed and the payouts were imminent, called the Gilchrist appeal “unbelievable.”

N.F.L. Introduces New Rules to Back Its Concussion Protocol

N.F.L. teams will be subjected to fines of hundreds of thousands of dollars and possibly the loss of draft picks if they fail to take players out of games after sustaining a concussion, according to new rules announced on Monday by the league and the N.F.L. Players Association.

The N.F.L. has come under repeated criticism, from doctors and players, for acting slowly to address injuries from hits to the head. Some of those who have accused the league have claimed it has hid the dangers of head trauma and not done enough to protect the well-being of the players. The N.F.L. has agreed to spend hundreds of millions of dollars to settle a class-action lawsuit, and has donated tens of millions of dollars to companies aiming to develop safer equipment.

Still, the league remains under an intense microscope, which is why it felt compelled to act after several players last season were hit in the head but not removed from the game, only to later have concussions diagnosed. After being lambasted for not doing enough to enforce its own rules, the league said in February that it would review its concussion protoco

The most egregious case came in November when St. Louis Rams quarterback Case Keenum was slammed to the ground after throwing the ball late in a game against the Baltimore Ravens. After his head hit the turf, Keenum could be seen putting both hands on his helmet. He then tried to get up but fell back down.

The Rams’ trainer ran onto the field to look at Keenum but returned to the sideline without removing him from the game. Only after the game did the Rams test Keenum to see if he had sustained a concussion, and it was confirmed that he had.

Teams previously were not fined for violating the league’s concussion protocol. Under the revised rules, the league and the union will each appoint a person to monitor games to ensure that players are tested for concussions when warranted.

Teams that are found to have skirted the rules can be fined up to $150,000 for a first violation, and a minimum of $100,000 for subsequent violations. If the commissioner determines that a team’s medical staff did not follow the concussion protocol for competitive reasons — for example, by keeping a concussed player in the game — the team could be forced to forfeit one or more draft picks.

Separately, the league and the union said that data on injuries would be reviewed annually to see if game rules needed to be changed to improve player safety. The two sides also established a committee to review the surface of playing fields to help prevent injuries. Players have consistently said they prefer playing on natural grass and have complained that fields made of synthetic material can be too hard.

Correction: July 25, 2016
An earlier version of this article misstated the amount an N.F.L. team can be fined for violating the concussion protocol. Teams will be fined a minimum of $100,000 for any violation after the first, not up to $100,000.

Need-To-Know Information on NFL Concussion Status

The following was released by Seeger Weiss LLP about the lawsuit In re: National Football League Players’ Concussion Injury Litigation    July 20, 2016

Updates were sent to Class Members in the Settlement with The National Football League and NFL Properties, LLC, known as the NFL Concussion Settlement.  Retired NFL Football Players who might be suffering from one of the degenerative conditions for which a monetary award is available were urged to seek immediate consultation with a qualified medical professional.  All parties included in the Settlement were warned to be cautious of predatory loan lenders and others who may try to benefit from their claims.

In April 2015, Judge Anita Brody entered a Final Order approving the Settlement; however, objectors appealed that ruling.  In April 2016, the Third Circuit affirmed Judge Brody’s Final Order and approved the Settlement (see the order at www.NFLConcussionSettlement.com).  Objectors asked the Third Circuit to reconsider its decision, but this motion was denied.  Those objectors have 90 days from the denial of that motion to petition the United States Supreme Court to review the Third Circuit’s decision.  The Settlement will not become effective until after all possible appeals are resolved in favor of the Settlement or the time to seek further review has run out.

If a Retired NFL Football Player might be suffering from one of the degenerative conditions for which a monetary award is available, the player should consult with a qualified medical professional immediately.  Medical professionals who are qualified under the Settlement to make such a diagnosis at this time (and until the Settlement becomes effective) are board-certified neurologists, board-certified neurosurgeons, and other board-certified neuro-specialist physicians.  The qualifying diagnoses from these medical specialists for which monetary claims can be made are: ALS, Parkinson’s Disease, Alzheimer’s Disease, Level 2 Neurocognitive Impairment (i.e., moderate Dementia), Level 1.5 Neurocognitive Impairment (i.e., early Dementia).

Retired NFL Football Players and their family members are encouraged to “sign up” to receive more information about when registration for the Settlement will open.  They can provide their contact information at the official Settlement website, www.NFLConcussionSettlement.com, by emailing ClaimsAdministrator@NFLConcussionSettlement.com, or by calling 1-855-887-3485.

Also, Retired NFL Football Players and their family members were warned to take precaution against predatory lenders who are offering loans against future Settlement benefits and to use care in choosing or changing legal counsel.

Co-Lead Class Counsel hopes that the Settlement will be open for registration before the end of the year so that claims for monetary awards for qualifying diagnoses can begin and Retired NFL Football Players can begin participation in the Baseline Assessment Program.

Former NFL player sues insurer for denying concussion claim

Screen Shot 2016-07-25 at 11.43.57 PMAssociated Press   July 21, 2016

A former NFL player who suffered what the league deemed a career-ending concussion has sued insurer Lloyd’s of London for denying a $1 million insurance policy for professional athletes.

The lawsuit, filed this week in North Carolina, could become a test case for insurers dealing with the emerging fallout from sports concussions and head trauma claims.

The NFL declared former Carolina Panthers defensive back Haruki Nakamura fully and permanently disabled after the August 2013 concussion he received in a preseason game, awarding him monthly benefits.

Lloyd’s medical expert ruled in 2015 that Nakamura could return to play. Its doctor thought that he was exaggerating his symptoms and that earlier concussions in college contributed to his condition. Still, the doctor cautioned him to consider the “probable long-term effects of repetitive concussions” before returning to the NFL, according to the lawsuit, filed Monday in Mecklenburg County.

Nakamura, 30, said he already suffers from headaches, vision problems, fatigue, depression and suicidal thoughts.

A U.S. Lloyd’s spokeswoman, Lizzie Lowe, said the insurance consortium doesn’t comment on pending litigation. A woman who worked on the case for Lloyd’s underwriter, Empirical Loss Management, declined to comment.

Nakamura took a hit to the head making a tackle in a game against the Pittsburgh Steelers, and he was diagnosed with a concussion at a hospital. Citing a concussion, the Panthers released him five days later, the lawsuit said. He was later diagnosed with post-concussion syndrome by a sports concussion expert at the University of Pittsburgh.

Nakamura had paid $17,000 a year for the Lloyd’s policy in 2012 and 2013, according to his lawyers, John W. Schryber and Julie L. Hammerman, who specialize in insurance policies for athletes. The lawyers said they have never had an insurer reject a policy after a doctor or the NFL judged a client to have a career-ending injury. But this is the first concussion claim they have filed under coverage for bodily injuries.

“And now they’re denying coverage altogether,” Schryber said Wednesday. “The point of going out and buying private insurance is to have a hedge against all of these other things that are outside of your control.”

Nakamura could seek an award under the NFL’s planned $1 billion court settlement of concussion claims, though it’s unclear how he might fare. The settlement, which could roll out within the next year, is designed to cover more than 20,000 NFL retirees for the next 65 years.

The league estimates that 6,000 former players, or nearly 3 in 10, could develop Alzheimer’s disease or moderate dementia that some experts link to concussions.

Nakamura, an Ohio native, played for the Baltimore Ravens from 2008 to 2011 before joining the Panthers. He lives with his wife and two children in Mooresville, North Carolina.

Where the Game is Headed

Will football fade away, or adapt and grow? We take a realistic look at the NFL a decade down the road and find a safer game thanks to technological advances, refinement of the rules and a focus on playing smarter.
(John Bazemore/AP)

LONDON — The date is October 26, 2025, and we’re six minutes into the second quarter of an NFL game at Wembley Stadium. This isn’t just another contest in an international series, either. The league has finally put a team across the pond, the Monarchs. And running the ball, if you’re wondering, is still part of the game.

The Washington Red-White-and-Blueskins have a 1st-and-10 at the Monarchs’ 40-yard line. Both sides are set before the snap, but football looks different than it used to. Offensive linemen are squatting at the line of scrimmage, the three-point stance having been outlawed; the constant clashing of the helmets in the trenches is no longer part of the game, to reduce the number of subconcussive hits. Washington’s running back takes the handoff, plowing forward with his head down as the Monarchs’ All-Pro outside linebacker, No. 97, comes on a blitz.

The ensuing helmet-to-helmet hit is now illegal, even though it occurred inside the tackle box and behind the line of scrimmage. Back stateside a few days later, the tailback will receive the dreaded electronic notification from the NFL that he’s been fined for leading with the crown of his helmet. Like all helmet-to-helmet fines, the money will go directly to studying brain injuries through the Sports and Health Research Program at the National Institutes of Health.

Here at Wembley, No. 97 heads to the sideline. The paper-thin accelerometers embedded in his helmet have just recorded an impact of 130G on the upper left side of his head, and the data is sent to a pager-like device on the hip of the team’s athletic trainer. Was No. 97 concussed? Rather than trying to gauge his cognitive awareness through a series of memory tests as in the past, the trainers will prick No. 97’s finger with a small needle—like a diabetic checking his blood sugar—and in less than a minute they’ll know whether he has an elevated level of a protein that gets released into the blood after a brain injury.

Can football change? Will the sport become safer? How are concussions impacting the game’s future? Introducing an in-depth series where we tackle those questions, starting at high schools and continuing into college and the NFL.

In this instance, No. 97 was concussed.In the locker room, he slips on a black virtual reality mask and, for the next 15 minutes his neurocognitive function is measured as he navigates a simulated playing environment. His test results are uploaded into an expanded form of the electronic medical records the NFL began using in 2013, and are easily accessible on a tablet by the team’s physician. Just as he carries his U.S. passport in Britain, so too does No. 97 carry his “neurological passport.”

The passport’s stamps are his baseline test results; his concussion history; a tally of the magnitude, location and frequency of impacts he’s sustained in practice and games, as measured by helmet sensors; the results of blood tests like the one he took on the sideline; images produced from brain scans like the one he’ll have the next morning; and his genotype (ApoE e3,e3) of a gene linked to how well a person recovers from brain injury.

An algorithm processes all this information and provides a result that will answer a question at the center of football’s present-day concussion crisis: What is the risk of No. 97 continuing to play the game?

Is any of this hypothetical scenario possible? The answer is yes, and it may happen sooner than you think.

For a week, The MMQB has explored football’s identity crisis as it tries to reconcile its inherently violent nature with the need for a safer game. While the past decade brought the issue of head injuries in football to the forefront—dozens of cases of chronic traumatic encephalopathy found in the brains of deceased gridiron stars; a concussion lawsuit that the NFL settled with former players; and President Barack Obama saying he’s unsure he’d let a son play football—the sport is now at a crossroads.

Will it fizzle and fade away? Or will it adapt and continue to grow?

 In the future, team medical personnel will have a range of diagnostic tools on the sideline and in the locker to evaluate the extent of a player’s head injury after a hit. (Bob Levey/Getty Images)

The next decade will bring more answers. Each of the measures described in our look-ahead to 2025—the rules changes, the diagnostic tests, the neurological passport—have been either proposed, considered, brainstormed or researched (except for Washington’s name change, or so we think). But there is still a gap to be bridged by science and research, which takes place on a very different timetable (years) than that on which the game of football is played (days).

Concussions are distinct from other injury players sustain, and the immediate goal of team medical personnel is to diagnose and manage them based on objective data. The NFL currently uses a sideline concussion assessment that includes a symptom checklist, verbal tests of word recall and concentration, and a balance test (consistent with the 2013 Consensus Statement on Concussion in Sport). The team physician is responsible for the player’s diagnosis but has help from an athletic trainer in the press box (the “eye in the sky”), an unaffiliated neurotrauma consultant and video replays accessible on the sideline to only the medical team. There is a standardized return-to-play progression in the NFL, and discussions have started to include a more specific return-to-exercise portion, too, with details such as the heart rate that should not be exceeded in certain stages.

A simple pin-prick on the sideline may be able to reveal the presence of proteins released into the bloodstream when the brain suffers a traumatic hit. (Monique Heydenrych/Getty Images)

How will this process improve? One way is the search for a biomarker—a particular substance that could be detected in blood, saliva or urine, and that would signal that head trauma had occurred. For example, last spring a group of researchers at the University of Rochester and the Cleveland Clinic published research that showed elevated concentrations of a certain protein in the blood correlated with more hits to the head among a group of college football players.

This protein, S100B, is mainly present in the brain and spinal fluid, so increased levels in the blood show that the barrier separating the brain and the bloodstream has been opened by some kind of head trauma. At the moment a blood test for levels of this protein is best used for ruling out concussion rather than diagnosing it, and takes about an hour to yield results in an emergency room. It’s not yet a rapid yes/no sideline concussion test, but such a test might not be far off.

Changes in the brain can be quantified with the help of technology, even something as simple as a virtual reality system or an app developed by Cleveland Clinic that uses a tablet’s built-in accelerometer and gyroscope. These tests register a longer return to baseline than other widespread assessment tests like the imPACT or SCAT2. By 2025 we might see the accepted timeframe to return from a concussion increasing from a seven- to 10-day window to a few weeks, on par with a high ankle sprain.

More advanced imaging tools might also give a better window to what’s going on inside the brain, something General Electric is working toward through its $40 million research and development partnership with the NFL. Standard MRI or CT scans do not detect concussions. But a specialized scan like diffusion tensor imaging, for instance, uses water flow in the brain to show damage to the structure and connectivity of its white matter. The goal would be faster scans, tailored to people with larger body mass indices, so the morning after No. 97’s concussion he can be taken for a routine diagnostic scan, as if he had injured his knee.

Today’s players, like Seahawks cornerback and The MMQB columnist Richard Sherman, describe accepting the risks of football for the career opportunities and the love of the game. It’s true that football will always have risks; the difference in the future could be that a player like No. 97 might have the ability to quantify his risks.

A risk algorithm for each player—not to determine if he will experience long-term consequences from sports-related brain trauma, but rather, an assessment of his risk—may sound far-fetched. “It’s complex to get there. But if it’s pie in the sky now, it doesn’t mean it always will be,” says Stanley Herring, the director of Sports, Spine and Orthopaedic Health for UW Medicine and a Seahawks team physician. “If you could stratify the risk around concussion, you may be able to provide informed decision-making for the patient.”

Hits in the head occur regularly and always pose a danger. But the critical question for football players at all levels is how many hits, and at what magnitudes, trigger long-term damage? Though it’s not a perfect analogy, is there a threshold you shouldn’t pass, like a baseball pitcher being put on a pitch count? And why do some people respond differently to head impacts than others?

The average number of head impacts a player receives per season has been tracked in youth football (around 100), high school football (around 600) and college football (around 1,100), according to published research. For the first time this season, sensors to measure head-impact will be used on four NFL teams as part of a feasibility study run by University of North Carolina researcher Kevin Guskiewicz and supported by the league and the players’ union (only Guskiewicz’s research staff, and the individual players, if they choose, will have access to the data this season).

Diffusion tensor imaging could reveal in real time what is happening inside the brain—much more effectively than MRIs and CT scans do now. (Getty Images/Science Photo Library RM)

Using accelerometers leaguewide, if approved by both sides of the bargaining table, would fill in key blanks about the number and magnitude of hits sustained by NFL players. The data could be used with individuals, to modify playing techniques or as an extra set of eyes to catch big hits that may have gone unnoticed—there are limits to what the “eye in the sky” can see. But it could also play a vital role in answering questions about the long-term effects of head trauma.

Robert Harbaugh, director of the Penn State Institute of the Neurosciences, chairs an NFL subcommittee that is proposing the development of a player database. It would collect the kind of neurological passport we described earlier on every player entering the league, and then retest every three years. This would be a research project, and teams and the league would not see individual data, but funding and player consent are hurdles. Still, says Harbaugh, “if we are ever going to really find out what factors lead to a CTE picture, at some point we have to collect data prospectively and follow players long-term.”

 Former players are an important piece of the puzzle, too. Boston University neuropathologist Ann McKee established the presence of CTE among a distinct sample of former players whose brains were donated for research, but what is still missing is how, when and why the disease develops, and the degree to which it is degenerative. The next frontier is diagnosing CTE in living patients, which may be done using a radioactive compound that binds to the signature Tau protein and shows up on positron emission tomography scans. Both the NFL, with partner NIH, and the NFLPA, with Harvard, have proposed long-term studies examining former players’ health.

Some describe the idea of a risk algorithm as akin to a radiation dosimeter (like those used by X-ray technicians or nuclear plant workers) for head trauma, quantifying how much exposure a player has had and how close he is to dangerous levels. There are benefits to the player’s being informed, but also serious questions: How does an NFL player balance risk versus a lucrative career with a short shelf life? How much information will a team be given about a player’s risk levels? Does the player want to know his genotype, something he can’t change, for a gene like ApoE that is believed to be connected not just to recovery from brain injury but also to risk for developing Alzheimer’s? “I can see 10 years from now posing serious ethical dilemmas,” says Robert Stern, professor of neurology and neurosurgery at Boston University School of Medicine, and a member of the NFLPA’s Mackey-White Committee.

 Kids in New Britain, Conn., practicing Heads Up football during a clinic in early October. (Kike Calvo/AP Images for National Football League)

In 2025, No. 97’s concussion diagnosis automatically places him on a short-term injured reserve for concussed players. Similar to Major League Baseball’s seven-day disabled list, he’ll be sidelined for at least a week, without the pressure of the team being down a player.

Falcons president Rich McKay, the chair of the NFL Competition Committee, said this idea has been discussed, and while owners haven’t seen a need for it yet, he could see it being raised again. The Competition Committee has also asked players if they view the three-point stance as unsafe (not right now), and talked about the NCAA’s rule to eject players for helmet-to-helmet hits (fines and a penalty are currently considered enough of a deterrent). McKay wants changes to be evidence-based, such as the 2011 move of the kickoff to the 35-yard line, but the rule of thumb is to keep an open mind.

“Lamar Hunt proved to our league that no idea is a bad idea, because I think he asked us to vote on the two-point conversion maybe 15 times,” McKay says. “And then, one year it got voted in.”

Frames of reference change, and that’s how football will endure this identity crisis.

The NFL sets an example that trickles down to youth leagues across the country, but these players are also the ones who trickle up. In time they may bring with them tackling techniques taught by programs such as USA Football’s Heads Up Football (backed by the NFL), to take the head out of the game, and a different way of thinking about concussions.

“Part of the campaign of awareness is if we begin to treat head injury like we treat heat exhaustion,” Herring suggests. “It’s unthinkable now in practice that you wouldn’t have fluids for your players regardless of sport, right?” Another part of the campaign of awareness is recognizing that risks and benefits may be different for each person. Maybe No. 97’s brother is watching from the stands at Wembley because he took a few months to return to baseline after a second concussion in high school football, and then through a consultation with their family doctor, learned he had one copy of the most risk-prone ApoE e4 allele.

Today’s youth players are tomorrow’s NFL stars—and the hope is that advances in techniques on the field and technology off of it will make the game safer for them. (Kike Calvo / AP Images for National Football League)

A parent in Fairfield, Conn., asked Roger Goodell the question that has put football at this crossroads—How much is too much?—during the NFL commissioner’s visit to the town’s Heads Up Football youth league practice in August. Specifically, the mother asked, “How many concussions is too many?”

Goodell mentioned awareness, prevention and advancing treatments—all factors that will improve by 2025. But, he added, “If this is a constant issue, you may want to think about your child playing another sport or a less active sport. But that’s OK, and that’s a good decision as a parent and a child. These are personal decisions.”

WE WATCHED CONCUSSION WITH 70 RETIRED PLAYERS: Why, for some, the movie was a panic-inducing horror film

 WE WATCHED CONCUSSION WITH 70 RETIRED PLAYERS: Why, for some, the movie was a panic-inducing horror film

As for continuing concussion lawsuits against the NFL, those who opted out can still sue, and, theoretically, active players can eventually sue as well. The opt-outs will face the same obstacles—years of litigation, interrogative depositions, etc.—as well as the fact that the settlement has been blessed by the Court of Appeals. Regarding current players, who are not covered by the settlement, the league’s recently instituted concussion protocols and head trauma awareness initiatives will make their prospects of suing later in life far more difficult than those for players from previous eras.

And speaking of those previous eras, the settlement will put to rest—legally if not morally—a time that was, well, simply not a good look for the NFL. “League of Denial” and “Concussion,” as well as the recent exposé in The New York Times that prompted threats of a litigation by the NFL documented a time during which there certainly appeared to be obstacles in seeking the truth on this important topic. The NFL is certainly now in a much better place with regard to head safety, but it cannot ignore that previous time in its history.

The settlement, now careening towards final resolution, allows the NFL to avoid a major threat to its continued unrivaled prosperity. It avoids the potential of billions of dollars of exposure for an amount that will end up costing each team roughly $25 to $30 million, much of it covered by insurance. And the settlement, as we know, will provide no coverage for CTE and carries no admission of liability. The league’s lawyers will receive nice bonuses for this work, and the plaintiff’s lawyers will make—as per the settlement—more than $100 million without activating one deposition or paying one expert witnesses.

The hope here is that while legal liability may be extinguished, moral liability will continue to be monitored with proper diligence and vigilance.

Submit a New Case


The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.