[originally published 6/16 at http://www.beyondchron.org/articles/America_s_Game_NFL_Poised_to_Win_Labor_Battle_and_Lose_Public_Health_Fight_9269.html]
by Irvin Muchnick
Those who think the bargaining and legal skirmishes surrounding the National Football League and its players are in sudden death overtime have fallen for the oldest play-action fake in the book. The NFL lockout likely will resolve itself, perhaps even very soon and essentially in the owners’ favor. But the abject failure of both sides to accept accountability for the mental health of a generation of athletes – putting American youth in harm’s way in service of an industry bursting at the seams with greed – is a story that hasn’t even reached the two-minute warning of the first half.
The eyes of the sports-legal world are on Tom Brady v. NFL, the lawsuit by some of football’s richest stars to end the lockout. Not a single major newspaper or radio/television outlet has picked up the decision last month, in U.S. District Court in Maryland, in Brent V. Boyd v. Bert Bell/Pete Rozelle NFL Player Retirement Plan.
In a miscarriage of justice no less profound for not being shocking, Judge J. Frederick Motz granted summary judgment to the league’s retirement plan in a suit brought by Boyd, a Minnesota Viking offensive lineman in the 1980s, whose diagnosis of chronic traumatic encephalopathy was all but confirmed by a recent “virtual biopsy.” Boyd’s case and countless parallel ones, over a period of many years, will bring the human and societal toll of football home to the American public long after the beer and guacamole have been taken out of ice for this fall’s tailgate parties.
Outrageously, Judge Motz ruled that Boyd had not established “changed circumstances” in reapplying for NFL Player Care mental health benefits – this despite a decade of fresh, smoking-gun research on CTE, which league-affiliated doctors did their damndest to downplay. To the everlasting shame of the NFL Players Association, which appoints three of the six members of the disability plan review board, one of them was Dave Duerson, who loudly minimized multiple-concussion syndrome in 2007 Congressional testimony before killing himself this February – whereupon he was found to have had CTE himself.
According to the court, the newly published research and the Duerson scenario don’t matter; Brent Boyd did not have “changed circumstances,” for he was just as depressed and non-functional in 2000, when he first applied for mental disability benefits, as he remains in 2011.
Thanks for cutting to the heart of the matter, Your Honor.
Let’s see if the federal government now can be persuaded to take time out from its grandstanding investigation of the Bowl Championship Series, and have the Labor Department audit the Bell/Rozelle Plan. Underfunded and riddled with conflicts of interest, it makes a mockery of the Employee Retirement Income Security Act.
But regardless, disabled players’ litigation, Boyd’s and others, will proceed. At this point in the evolution of these cases, the plaintiffs’ attorneys, working on contingency fees, are outgunned by cost-plus-billing corporate law firms representing the NFL, which have the resources to make craven, sideline-tiptoeing arguments while they try to run out the clock. But eventually the cases will be joined, in spirit or in explicit class actions, as the magnitude of the slow destruction of millionaire professionals’ lives becomes evident and is connected to the stark and undercovered hazards of high school and peewee football. (One of the most intriguing pending cases, the first to touch the hot button of worker’s compensation, is by Dr. Eleanor Perfetto, wife of Ralph Wentzel, an NFL lineman in the sixties and seventies.)
After that, and as in the tobacco industry narrative, an enterprising state attorney general or two will step forward to frame lawsuits as public health system recoveries and to steer the fees to friendly and powerful plaintiffs’ firms. By then, outlets like The New York Times – which today seems to think we can all lean a little harder on football helmet manufacturers and call it a day – will have completed the process of measuring out their front-page crusades in coffee spoons.
Before that can happen, the nation must crab-walk through an interlude of the new half-assed “awareness,” which is little more than sophisticated and profit-enabling denial. This will include – you can all but set your watch by it – a second-concussion death of a teenage football player in a program that had been scared into buying the nearly useless neurocognitive testing system marketed by NFL doctors (one of whom, Joseph Maroon, also shills for that charming death mill at World Wrestling Entertainment).
So far just one prominent CTE researcher is saying with clarity that only grown men should be playing tackle football. That is Dr. Bennet Omalu, who discovered this discrete pathology in 2002 and commenced shouting about it from rooftops – for which he got himself drummed out of the NFL establishment.
But who cares? Hank Williams Jr. is warming up his vocal chords. Meanwhile, the biggest scandal in sports history plays out in the shadows.
Irvin Muchnick, author of CHRIS & NANCY: The True Story of the Benoit Murder-Suicide and Pro Wrestling’s Cocktail of Death, blogs at https://wrestlingbabylon.wordpress.com and is “@irvmuch” on Twitter.