League of Denial (38 page)

As Davies peered into his microscope, he couldn’t believe what he was seeing.

“I remember that day, you know, it’s one of those days where you’re just so blown away by what you see:
What on earth am I looking at?
” Davies said. “I’ve never seen anything like it. With the best stains around, we’re seeing far too many tangles. Way too many. More than I’ve ever seen in anything else before.”

The results were so off the charts, Davies thought his technicians
had botched the staining. He had them do it again. That was part of the reason for the delay. When the slides came back, the results were the same.

On January 28, 2009, Davies sent an e-mail to Omalu, beginning to lay out his findings. He was perplexed by one thing. There seemed to be two distinct groups: one with unprecedented widespread disease and the other also with numerous tangles, but not nearly as prevalent. He wondered if there might be a reason other than head trauma for the differences. He began to speculate that perhaps steroids were a factor. Nevertheless, Davies was convinced. The following day he wrote Omalu: “This is amazing stuff: you really have opened a major can of worms!”

Two days later Maroon, still acting as a liaison between Omalu and the NFL, wrote Davies: “I have been asked to comment on this and wondered if you could coach me a little on just where we stand on this. ANY input is appreciated.”

Davies wrote back 38 minutes later:

When Maroon informed Casson, the cochair of the NFL committee indicated that he thought the findings still didn’t implicate football: “WOW!!! Amazing,” he wrote Davies. “This seems to raise more questions than it answers. Is it fair to say that something is going on here but it is not clear exactly what that something is?” He again cautioned Davies against collaborating with Omalu and Bailes “until your further studies are completed.”

The NFL had brought in its own independent expert, but that expert had muddied the waters further. Davies had validated the magnitude of Omalu’s findings. When he issued his final report, he differed only in that he thought some of the cases might have resulted from “either a toxicological or pharmacological cause, rather than traumatic events.” That was scientific conjecture; there was no evidence that steroid abuse led to neurodegenerative disease (later, a Bailes study would show that it didn’t). Davies also thought genetics might play a role. In light of the extensive history of mental illness in Webster’s family, that certainly seemed plausible.

None of it was good news for the NFL. Davies was essentially telling the league it had two issues on its hands: head trauma
and
steroids.

At the time, in light of the way baseball had been consumed by the BALCO steroids scandal while football had stayed under the radar, the steroids scenario wasn’t much better for the NFL. “Obviously this wasn’t really what the head injury committee wanted to hear,” Davies said. Interestingly, once the NFL realized that a steroids problem was in many ways preferable to the suggestion that the sport itself was to blame, committee members and league officials publicly latched on to the steroids theory as the possible cause of neurodegenerative disease.

Davies came away entertained by the experience. He wasn’t certain football had caused brain damage in all of Omalu’s cases, but it was clear that he had stumbled onto something huge. Casson hadn’t gotten what he and his committee expected out of Davies.

“Rightly or wrongly, the perception of that original head injury committee was that they were downplaying the long-term consequences of concussion,” Davies said. “Certainly, Ira Casson didn’t believe that Omalu was right. And I don’t think that anybody on that committee thought that Omalu would come out looking right. When he did, I think there was more of a panic mode, the realization that something was really going on here and it was very serious.

“I was kind of amused at the time. It was one of those things: Be careful what you wish for. You brought me in to find out if Omalu was right, and I said he was right in spades.”

When Goodell took over from Tagliabue, he couldn’t have foreseen how the concussion issue would overwhelm his tenure as commissioner and how damaging the discovery by an obscure forensic pathologist would be for his business. Omalu’s conclusion that Webster had brain damage—and the implications that grew out of it—was quickly turning into the defining issue of Goodell’s commissionership. After the precipitating event, the scandal continued to spin out in different directions, seemingly with a momentum of its own.

Omalu had become the fulcrum around which most of the action revolved. As the NFL continued to attack him, one of his closest friends, a Pittsburgh personal injury attorney named Jason Luckasevic, asked him one day: “
What are you going to do about this?”

“I don’t know. What do you mean?” Omalu said.

“Shouldn’t you be doing something against the NFL, fighting back or whatever it takes?”

“I don’t know. You’re a good lawyer; you figure it out,” Omalu said. Jason Luckasevic was even greener than Omalu, a 30-year-old associate at the firm of Goldberg, Persky & White. He had a modest office near Duquesne University, where he had gone to law school. The two men had become friends through Luckasevic’s older brother Todd, a pathologist in training at the Allegheny County coroner’s office. The Luckasevics were from a sports-obsessed working-class family in the Monongahela Valley; their father was a machinist in a glass factory, and their mother worked at a credit union. Joe Montana had grown up down the street from their grandmother. The Luckasevics had Steelers season tickets and were devoted fans of the Pirates and the Pens. The family loved Omalu—his Nigerian perspective on life, his obvious smarts and religiosity. The Luckasevics invited him over for Christmas every year.

As Jason Luckasevic and Omalu spent more time together, Omalu began insisting that he would make a great expert witness and that Luckasevic should hire him. Luckasevic was dubious, for obvious reasons. Omalu was black, baby-faced, and foreign, not exactly the prototypical expert to persuade a jury to award millions. But Omalu was persistent and persuaded Luckasevic to use him on a major asbestos case. By the eve of the trial, Luckasevic was in a panic. What was he thinking? Omalu had never testified in an asbestos case. The trial was
in a predominantly white rural county 90 miles east of Pittsburgh. He would get creamed.

Luckasevic tried to prep Omalu the night before, but Omalu just wanted to go out for a beer.

“Don’t worry, don’t worry,” Omalu insisted

The next day, when Omalu took the stand, Luckasevic tried to lay the foundation to at least show the jury that his expert witness was qualified.

“Dr. Omalu, you are board-certified in anatomic pathology?” he asked.

“Yes,” said Omalu, impeccably dressed, as usual.

“And you are board-certified in clinical pathology?”

“Yes.”

“And you are board-certified in forensic pathology?”

“Yes.”

“And you are board-certified in neuropathology?”

“Yes.”

“And you have a master’s in epidemiology?”

“Yes.”

“And you’re currently attending Carnegie Mellon University to earn your business degree?”

“Yes.”

“And, do you have plans to be a lawyer.”

“Yes,” Omalu said, beginning to laugh, the jury joining in.

The judge finally asked Luckasevic to move on; he had made his point.

“They loved him!” Luckasevic said of the jury’s reaction. “We won the case. I mean, it was a huge verdict for Indiana County. It was like almost $300,000. Ever since then I was a Bennet fan like beyond belief.”

As Luckasevic watched his friend absorb repeated shots from the NFL, he grew protective. “Basically, I wanted to have his back as his friend,” Luckasevic said. “They’re saying that my expert and my friend is a quack, and he wasn’t and he isn’t. I wasn’t gonna let his reputation go down the tubes for the NFL docs saying that there was nothing there.”

“Maybe there’s something that you can do from the legal side,” Omalu suggested.

Luckasevic laughed. He was a lowly associate, spread ridiculously thin, with no time to tilt at windmills. Besides, whom was he going to find that would be willing to take on the NFL in court? And what was the case?

Omalu had a thought: What if you reached out to the families of all the players who had suffered, people like Terry Long’s wife, Lynne, and the Waters family, and soon there would be others. Omalu noted that he knew some other potential expert witnesses who had been fighting the NFL for years, people such as Cantu, Bailes, Guskiewicz, and Nowinski. Omalu could make those introductions, laying a chronological history of the issue at Luckasevic’s feet.

The young lawyer thought maybe it wasn’t so far-fetched. He recognized he would have a long, long road before filing an actual claim, if it ever got to that, but it was
plausible
. In that way, Luckasevic was like Omalu—perhaps too confident and naive to know better.

It was yet another unlikely moment that soon would turn very bad for Big Football—two outraged young friends shooting the shit, thinking about how to sue the NFL.

Although such a lawsuit was still years away, its potential to wreak havoc unclear, the NFL found itself facing more immediate challenges that were also bad for business. To that point, the league’s concussion policies had escaped regulatory scrutiny, but that too was about to change. The mounting press coverage—the steady stream of heartrending stories of former players who felt abandoned by the NFL—caught the attention of Congress, which began to examine the plight of retired players from different angles, putting more pressure on Goodell.

On September 18, 2007, the Senate Committee on Commerce, Science, and Transportation convened a hearing titled “Oversight of the NFL Retirement System.” The hearing focused on the overall complaint that the retirement system was broken, that the league had abandoned the men who had built the modern NFL, but concussions and mental illness had become inextricably linked with that story.

One of the first witnesses was Garrett Webster. He had been invited to tell the story of his father’s six-year battle with the NFL disability board, which had culminated with the appellate court’s lacerating
opinion and a $1.8 million judgment against the NFL rendered four full years after Webster’s death. Garrett used the occasion to provide the Senate Commerce Committee with a sordid recounting of Webster’s life after football. He asked if anyone in the room had any idea what it was like to shock one’s father with a Taser to alleviate his pain; or if they had experienced receiving a desperate phone call from their dad, saying he was about to kill himself to escape the unending torture; or if they had watched a “once-proud, strong man” like Mike Webster beg for Kentucky Fried Chicken. But it was Garrett’s story about how his father missed his tenth birthday without so much as a phone call—a man who once called him practically every night before bed—that left everyone in the room pondering the future of pro football.

“Later that month I found out why,” Garrett told the rapt committee members, “when our family discovered Iron Mike Webster, bloated to over 300 pounds, shivering naked in a bed in a rat-infested motel, and at his side were not pictures of his kids, nor his Super Bowl rings, nor autographs or any glory that you associate with football, but a bucket of human waste, because he was too weak to make it to the bathroom.”

Garrett was followed by a former player, Brent Boyd, who had played six seasons as an offensive guard with the Minnesota Vikings before retiring in 1986. Boyd had been looking forward to the opportunity to testify. It was a chance to tell the nation’s policymakers, and by extension the public, his story.

“I do have brain damage,” Boyd began. He asked the committee to please indulge his “invisible disability,” which most affected him when he was under stress. Boyd explained that he had been diagnosed with football-induced brain damage in 1999. He said that he had been advised by a member of the disability board not to bother filing a claim because the NFL owners “would never open that can of worms by approving a claim for head injury.”

The NFL’s schizophrenic policy on concussions was beyond confusing at this point. The league had set up the 88 Plan for retired players with dementia, and the retirement board had distributed benefits to at least
some
players with brain damage. Yet its official concussion committee, cochaired by a neurologist universally known as Dr. No, continued to deny the connection between football and brain damage while
players like Brent Boyd testified under oath about what they perceived as a conspiracy. Boyd likened the NFL to the “tobacco companies fighting against the link between smoking and cancer.” He alleged that the NFL had destroyed his medical files. His disability claim, he said, had been denied by the board even though multiple doctors supported it.