Archive for June 10th, 2011

Dave Duerson Is the Pandora’s Box of NFL Mental Disability Cases – But Cowardly U.S. District Court Judge J. Frederick Motz Refused to Open It

To the best of my knowledge, not a single media outlet except this blog has reported on the May 24 ruling in Baltimore by U.S. District Court Judge J. Frederick Motz, who threw out retired Minnesota Viking lineman Brent Boyd’s case against the Bert Bell/Pete Rozelle NFL Player Retirement Plan. If any readers find otherwise, they should forward the links to me.

My initial story on Judge Motz’s summary judgment for the defendants appeared yesterday under the headline “Brent Boyd Loses NFL Disability Court Case – It Shouldn’t Be the Last Round,” https://wrestlingbabylon.wordpress.com/2011/06/09/brent-boyd-loses-nfl-disability-court-case-%E2%80%93-it-shouldn%E2%80%99t-be-the-last-round/. The judge’s memorandum in support of his order is at http://muchnick.net/boydruling52411.pdf.

Boyd’s attorney, Mark DeBofsky, told me, “We felt we had presented sufficient evidence of changed circumstances and that despite the court’s finding of no conflict of interest, the numbers suggest otherwise.  Given the paltry number of claims paid by the NFL disability and retirement plan for head injuries, it appears the plan is biased against such claims out of fear of an avalanche of brain trauma disability claims.”

I described the ruling as a miscarriage of justice, but that didn’t go far enough. Motz was also cowardly. Cut through the legalese and split hairs, and it all comes down to this: The court decided that the retirement plan “did not abuse its discretion” in rejecting Boyd’s reapplications and administrative appeals. There was no showing of “changed circumstances” – even though we have tons more basic information on the legitimacy of Boyd’s claim of traumatic brain injury from football than was known at the time of the original filing some 11 years ago; and even though one of the three National Football League Players Association members of the disability claims board was Dave Duerson, who himself had chronic traumatic encephalopathy when he committed suicide in February.

What extraordinary judicial incuriosity.

Last month John Hogan, the Georgia lawyer who is perhaps the best-known representative of NFL retiree disability claims, told The New York Times that he was considering requesting an audit by the U.S. Department of Labor to see how Duerson had voted on claims. Hogan added: “He had to exercise a high degree of care, skill, prudence and diligence — the CTE findings, coupled with his suicide, certainly raise the question of whether he was capable of properly fulfilling those duties as is required in such an important undertaking. It therefore calls into question the possibility that some or all of the decisions he made when passing on disability claims are suspect, and perhaps invalid.”

Boyd attorney DeBofsky told me that during litigationwe had requested discovery that would essentially have been an audit of the plan and benefits paid for head injuries, but the judge denied our request.”

Judge Motz’s rulings on discovery and on the merits were both farces. They must not stand.

Irv Muchnick

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‘NFL Too Big To Fail – That’s Our Real National Concussion Problem’ … today at Beyond Chron

NFL Too Big to Fail – That’s Our Real National Concussion Problem

by Irvin Muchnick

In sports, as in everything, we love our scandals served on a tabloid plate: the jock DUI’s, the strippers taunted with $100 bills, the sexting, the dog-fighting rings, and most recently, the “amateur” football players for whom the National Collegiate Athletic Association prohibition against “extra benefits” turns out to cover not just cars but also tattoos.

What we don’t enjoy so much is contemplating life and death. That is why the sports-industrial complex can succeed in feeding the public appetite for the concussion pandemic by substituting pablum for information. Most of us just want this thing to go away, and the National Football League and its circle of friendly media have devised an easy way out: state legislation making youth football “safer” – with the assistance of a “solution” that, it just so happens, was packaged and sold by NFL doctors.

… [N]o matter how noble the sentiment behind ending the central hypocrisy of the NCAA, our No. 1 national sports issue is … the set of willfully ignored corollaries of the groundbreaking work of Dr. Bennet Omalu[….] Omalu is espousing a position totally at odds with the pushers of neurocognitive testing to help determine when concussed athletes can return to play. Omalu says anyone who suffers a concussion should sit for three months, period. The reason is that a concussion, often involving violent head rotation, rather than (or in addition to) a blow to the skull, can cause tearing of brain tissue all the way down to the brain stem, and it can take 90 days for brain fluid to return to normal.

Omalu, along with others, also comes very close to calling for an out-and-out ban on youth football. Growing brains should not be subjected to a diet of concussive and subconcussive blows, any more than growing arms should throw baseball curveballs – and the stakes of the former activity are a lot higher.

FULL TEXT TODAY AT BEYOND CHRON, THE SAN FRANCISCO ONLINE NEWSPAPER:

http://www.beyondchron.org/articles/NFL_Too_Big_to_Fail_That_s_Our_Real_National_Concussion_Problem_9249.html


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