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Sunday, February 03, 2013
Super Bowl 2013: Players' lawsuit over brain injuries looms in background of big game
From The Times Picayune:
Ex-NFL quarterback John Fourcade keeps a framed photo of a 1990 game. He’s wearing aSaints uniform and eyeblack. It’s the first quarter under the dome in Minnesota, with 56,000 fannies in the seats. Fourcade’s is on the turf.
The camera caught him head-on, helmet off, eyes glazed. Three team staffers kneel around him. He seems to stare into nothingness.
“I’m in another land. Dazed and confused.” Fourcade said, glancing at the print in his Marrero bedroom. “I went back in a few plays later and played the rest of the game.”
Soon after, he threw a perfect pass, he says – to a Vikings linebacker.
“He caught it and ran down the sideline. I said, ‘Okey dokey.’ I didn’t bother chasing him.”
These days, Fourcade wakes up every day in pain that he attributes to hits like the one he took that day.
Stiff headaches squat above his eyeballs, he says. Fourcade beats them back with Vicodin, Tylenol, whatever’s handy. He “squinches” at bright lights, has trouble focusing at night. His vision blurs.
At 52, he creaks, he said, from a pair of cracked vertebrae. He’s had three operations on each knee, and three on each shoulder. One on a hand, another on an elbow.
Fourcade started all of 11 games as a pro. All told, he played in a few dozen NFL games. As a quarterback, he rarely got touched in practice, never facing the barrage of sub-concussive helmet shots that researchers now say can foster brain damage.
Still, Fourcade counts at least three concussions. The response, he said, was always the same: Smelling salts, “Where are you?” “How many fingers?” Back on the field.
Whether the head shots caused his problems is unknown, and possibly unknowable. But Fourcade has a hunch. He’s among more than 4,000 former NFL players enmeshed in a bitter legal battle with the league over damages and future monitoring and treatment.
“Yeah, I’m worried. I’ve been having headaches for years. I had Lasix (surgery). It hasn’t done anything,” Fourcade said of his vision problems, adding that he’s uninsured. “You come to a point, how much pain can a man take now? I’d like to be able to go see a doctor when I need it.”
The controversy over concussions and brain injury has taken center stage in the lead-up to Super Bowl 2013 in New Orleans -- a city with its own beef against the NFL. The local consensus: the league jettisoned the Saints’ season with excessive Bountygatepunishments out of self-interest, hoping to project a proactive stance on violence in the sport.
The league, meanwhile, has been busy this week touting its heavy support for new scientific research, player safety measures and an education campaign intended to reach sports youth, aiming to burnish its commitment to the issue.
But at the same time, the league is fighting to have the players’ suit tossed out before it really begins, and before details of the allegations – that the league shirked its duty to protect players and rebuked compelling research while promoting violent hits – emerge in a federal courtroom.
Nearly 300 players who at some point wore a Saints uniform are involved as plaintiffs against the league.
They range from the heralded to the hardly noticed. From Hall of Fame linebacker Rickey Jackson, who played in 227 games for the Saints and 49ers, to Cephus Weatherspoon, a wide receiver who is credited with playing a single game.
Many are linemen, the helmet-to-helmet infantrymen of the NFL who, according to some studies, suffer the greatest brain damage.
Among them, too, is Conrad Dobler, who played offensive guard in the 1970s and was named “pro football’s dirtiest player” by Sports Illustrated because of his penchant for spitting on players, punching them and kicking them in the head.
Some, like Klaus Wilmsmeyer, punted the ball.
Also on board are the families of several ex-players, such as heralded linebacker Junior Seau, who died and were later deemed to have suffered severe brain injuries,
Seau played 20 seasons in the NFL, then in May, at 43, committed suicide by shooting himself in the chest – possibly so his brain could be preserved for research. Brain specialists later diagnosed him with chronic traumatic encephalopathy, or CTE.
The neurodegenerative disease, associated with repeated head trauma, has now been discovered in the brains of several former NFL players, many of them suicides.
Seau’s death, along with the growing roster of ex-players who have joined the litigation, have only added steam to questions about the high-impact future of the game itself, from Pop Warner to the pros.
The ex-Saints involved in the lawsuit are a motley crew.
Tom Dempsey, who kicked a still-NFL record 63-yard field goal for the Saints during the 1969 season, now suffers from dementia that he suspects came from crashing into human wedges on kickoff returns.
Dempsey, 66, now struggles with his ABC’s, with memory loss, and with anger. He says he could use the money to help with treatments such as a hyperbaric regimen aimed at sending more oxygen to his brain. He wouldn’t mind some lagniappe either.
“I would like to make some money on it,” Dempsey also says, at home in Jefferson, where he now spends most of his days. “I think I earned it.”
Kyle Turley, the former offensive tackle who said he’s suffered seizures and vertigo in retirement, is on a mission to expose a league that he stridently believes looked the other way on concussions. Turley had planned to host an event focused on head injuries at LSU Health Sciences Center Thursday, but it was abruptly canceled without explanation.
Steve Baumgartner of Mandeville, a 61-year-old former lineman for the Saints and Houston Oilers in the 1970s, says he mostly joined the fight out of solidarity.
He is skeptical about claims that the NFL is guilty of neglect. Still, Baumgartner wouldn’t mind getting to the bottom of the pulsating in the back of his head. “It feels like my heartbeat is in my ears,” he says.
Pat Swilling, the former Pro Bowler and Dome Patroller, just joined the fray last week. Swilling said he took a look at his career and the growing chorus of research tying football to brain and spinal troubles, and that he’s trying to protect his rights and his family. He hasn’t suffered any ill effects yet, he says.
“I don’t think anyone knows exactly what’s going to happen to us older players as we move forward, especially the guys who played on the line of scrimmage,” said Swilling, 47. “Every down, I’m taking on a tight end or offensive lineman head-first. We’re talking about practice. How many blows to the head I’ve taken is countless. Hell, you’re talking about 15-20,000 blows to the head.”
Nobody can rightly say just how many of the former NFL players who have signed onto the lawsuit are suffering the kind of brain and nervous system disorders that have been linked to football, much less whether their injuries can be attributed to their time in the NFL.
That’s the issue at the crux of the consolidated lawsuit that now sits before a federal judge in Philadelphia: What the league knew, or was in a special position to find out; whether it skirted a duty by suppressing valid research on brain injuries; and how much of that information also was available to the NFL players’ union.
For its part, the NFL sent out a stock response to the lawsuit this week.
“Any allegation that the NFL intentionally sought to mislead players or otherwise conceal information from players concerning the risks, treatment or management of concussions is entirely without merit,” the statement read.
“The NFL has long made player safety a priority and continues to do so. In fact, the NFL was at the forefront of supporting concussion-related research and continues to support important research to help further the science and medical understanding of the management and treatment of concussions.”
Amid the increased scrutiny – including recent comments from President Obama that he would think twice about allowing a son to play football - the NFL on Thursday wheeled out a host of executives and others on Thursday in New Orleans for a news conference to discuss player health.
But the former players face a major hurdle first: Convincing U.S. District Judge Anita Brody that their complaints shouldn’t be governed under the NFL’s collective bargaining agreement, rather than be settled in the courts.
Just this week, the former players lodged their final legal arguments over the issue, claiming the NFL is trying to hide behind a few provisions of the labor agreements that related to the duties of teams and their doctors. On Tuesday, Brody set an April 9 hearing on the league’s motion to dismiss the case.
“It’s not a straightforward case. It’s a very complicated case that involves players from different eras, sometimes complaining of very different injuries or injuries that haven’t manifested themselves at all yet,” said Gabe Feldman, director of the Sports Law Program at Tulane University.
“What we’re dealing with right now are a lot of allegations. We know that many former players are suffering severe and often debilitating brain disease. The question is, is the NFL liable for those injuries? Those types of claims are, as a general matter, preempted by the collective bargaining agreement.”
If the case survives, Feldman said, “we have a whole host of other obstacles the players have to deal with. You have physical causation issues – proving the injuries they suffered were caused by collisions or hits they suffered while playing in the NFL, as opposed to playing college or youth football,” he said.
“It’s still very difficult. We’re talking in almost all these cases cumulative trauma,” Feldman said. “That’s just part of the battle, because no one’s going to contest the fact NFL players get injured playing football. That doesn’t mean the NFL is on the hook for those injuries.”
Feldman said it’s more likely that the NFL would settle the case if the players get beyond the April dismissal hearing, fearing the risk of a deeper public relations nightmare and high-priced individual judgments.
Many of the players have sympathetic stories; others are probably getting on a litigation train.
“Part of them are just trying to get a piece of the action,” he said. “It doesn’t cost them anything at this point. Maybe they’re buying a lottery ticket.”
In the meantime, evidence continues to mount that NFL players face a greater risk of troubling brain disease.
Last week, Baumgartner got a letter in the mail from the Department of Health and Human Services, describing a recently completed study by the National Institute for Occupational Health and Safety.
The letter targeted NFL alumni who played for at least five years between 1959 and 1988, informing them of some grim research results from a look at 3,439 former players, dead and alive.
It found that brain and nervous system disorders were more than three times higher among the group. Cases of Lou Gehrig’s disease were four times higher, as was Alzheimer’s.
Baumgartner said he’s not so worried, although he recalls taking some vicious head shots in a career that spanned seven years, including a knee to the helmet that knocked him cold.
He keeps his old helmet – its Saints colors painted over in the pale blue and white of the Houston Oilers, his next and last stop in the NFL.
The helmet, with an interior of webbed lacing and foam, is gashed and scratched on the left side. Baumgartner played on the right and took most of his helmet hits to the inside.
“I don’t have any pain, but I feel pulsing. It’s something that wakes me up all the time. I don’t sleep, I can’t hear anymore,” he said.
“He has ringing in the ears,” added his wife, Mary.
“Other than that, I would consider myself healthy,” he said. “The practices are the practices they had. Smelling salts, flashlight in the eye, shake your hand and go back out.”
Baumgartner sounds ambivalent about his feelings toward the league. He says he holds no grudge against the NFL – “I don’t blame them at all” -- but he also likens the players to thoroughbred racehorses.
“We raced until we couldn’t race anymore, and kind of got put out to pasture. We’re sitting like glue. Or dog food.”
The study did not include kickers like Dempsey, who drives twice a week to Tulane University for therapy, but mostly stays home.
Dempsey, who was born without toes on his kicking foot, said he was expected to run down the field and make tackles in a way that today’s kickers rarely do.
He said he recalls three head shots – “because people have told me about it” – including one that had him veer off mistakenly to the opponents’ bench.
His wife, Carlene, says the “senior moments” began turning more serious in 2010, although in retrospect there were signs six years earlier, she said.
Dempsey could still sign autographs, but if he was asked to include a personal message, he couldn’t spell it out.
Recently, Dempsey recalled playing Baltimore Ravens linebacker Ray Lewis.
“He said, ‘Boy, he hit me hard.’ That was new. Somewhere in his mind he had delusions of playing against Ray Lewis,” Carlene said. “And then he gets mad. It frustrates him.”
Lewis was four years old when Dempsey retired in 1979, making $50,000 that year.
There are other problems as well. “He’s getting his times mixed up. He can’t really tell time anymore,” said Carlene.
Dr. Daniel Amen, who studied the images of 135 brains of former NFL players, is convinced that Dempsey’s dementia is the result of “many hits to the head.
“There’s no question in my mind. We see this pattern. You were not made to start putting on a helmet and start slamming against other people,” said Amen. “We look at blood flow and activity. If you think of a healthy scan, it’ll look like a big grape. His looks more like a raisin.”
Until 2010, Amen said, the NFL had turned their heads away from the problem, denying disability to players with clear head trauma.
“In the kindest way, you could say they were in active denial,” he said. Amen said.
Now the league has poured money into funding studies into CTE and other brain injuries. But Amen argues that the lawsuit has distracted from research into medical treatment that has shown promise in making the lives of many older, brain-injured ex-NFLers better.
“That’s exciting. Still, most of the conversation this week is, not can we make them better. It’s ‘Did the NFL know? Were they lying?’”
In the meantime, Dempsey goes twice a week to Tulane, one of seven league-approved programs that provide evaluation and therapy to NFL alumniwho need it.
He takes his homework with him – alphabet sheets he uses to relearn his letters – and does physical and cognitive exercises there.
Though he lives just a few miles away, Dempsey won’t be attending any of the Super Bowl events in New Orleans, Carlene said.
“He was asked to, but as a family we decided we wouldn’t even mention it to him, rather than put him up front and center on a stage that I don’t think he can handle anymore,” Carlene said.
“There was a time when he would take charge and take over. He can’t do that anymore.”
Link to the Times Picayune.
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