Authors: Mark Fainaru-Wada
Even that, Luckasevic knew, would be a very tough sell. Who could possibly argue that the players didn’t know what they were getting into when they strapped it on? But he would deal with that later. A similar claim had been made about smokers, after all.
Luckasevic began to look for cases that picked apart the argument that the CBA protected the league—a shield for the Shield.
One such case, he felt, was
Brown, et al. v. N.F.L.
, a bizarre 2001 suit brought by Orlando Brown, a 6-foot-7, 360-pound offensive tackle who went by the nickname Zeus. While playing for Cleveland, Brown had been hit in the right eye by a penalty flag during a game against the Jaguars, temporarily blinding him. At the time, Brown was one of the highest-paid offensive linemen in the game, his contract worth nearly $35 million. The injury knocked him out of the sport for several years, though he did return in 2003 (Brown died at 40 in 2011 of an ailment related to diabetes). Brown sued the NFL for $200 million, arguing that the referee who hurled the penalty flag was a league employee whose negligence superseded the protection of the CBA. The NFL settled the case for an estimated $15 to $25 million in 2002.
Luckasevic began to
line up consultants and expert witnesses. One
of the first was none other than Nowinski. On September 19, 2007, the activist and author of
Head Games
quietly signed a $5,000 retainer to “perform litigation services relating to potential and/or actual claims that may be asserted by one or more of our clients against the National Football League and others.” Those services included “performing primary and secondary research regarding, among others, concussions in the NFL and related medical care and policies, epidemiology, helmets, player contracts, collective bargaining agreements and the ‘88 Plan.’ ” Luckasevic later ended the contract, feeling that Nowinski had promised much and delivered little, but
questions lingered about whether Nowinski continued his involvement in the suit. When Nowinski was asked in spring 2013 if he was still consulting for lawyers suing the NFL, he replied: “Where did you hear that?” After a long pause, he said: “I have no comment.” A few hours later, he wrote in an e-mail that “all of my consulting agreements” are vetted by the Sports Legacy Institute’s board. A few months later, when interviewed again—this time with a lawyer and a PR person on the line with him—Nowinski reiterated his no-comment. Asked specifically about the 2007 agreement, he said, “That doesn’t exist; you don’t have a contract.” After he was read the specific language from the contract, which had been obtained by the authors, he said, “I don’t have any recollection of signing that contract.”
Other researchers who had challenged the NFL would stay as far away from the lawsuit as possible,
fearing it could compromise their independence. Guskiewicz, for one, said he could have built “a beach house on both coasts” with the money lawyers offered him, but he turned them all down.
As he pressed forward, Luckasevic thought more and more that he had
a viable case. He decided he was ready to take it to his bosses. He needed to convince them that it was worth his time and their money. He made his pitch during a meeting with the partners. Explaining the case, he told them he wanted to take on the National Football League.
They laughed at him. The players were simply crazy, they told him. Moreover, the players had known that football was dangerous;
everybody
knew that. How would he prove to a jury that their problems were related to some brain disease, much less a sport? “I’d love to
cross-examine these experts,” one partner told Luckasevic. “I’d have a field day if I was the NFL’s lawyer.”
“They practically laughed me out of the room, to put it nicely,” Luckasevic recalled.
It wasn’t that
Goldberg, Persky & White was afraid of the NFL. The firm had helped pioneer asbestos litigation in the rust belt. But beyond the partners’ howling skepticism about the potential for a lawsuit, the case probably would require a huge number of man-hours. It wasn’t a case that one lawyer or even necessarily one firm could take on.
Finally, Luckasevic pleaded: “If I can pull this together, are you okay with it?”
The partners agreed to give him
time to fish around as long as his other work didn’t suffer. Here was a glimmer of hope. Luckasevic started cold-calling firms with a history of bringing class-action suits, but the reaction was much the same. “It was like being a musician and wanting to get your album bought or somebody to produce it,” he said. The standard response was “We’ll get back to you.” At one point, Luckasevic thought he had a partner in a
Houston-based firm, Lanier, which had won a $253 million judgment in the first lawsuit related to Vioxx, the notorious pain medication manufactured by Merck. But
Lanier’s lawyers ultimately pulled out after the NFL updated its concussion guidelines in 2007, telling Luckasevic they thought the move created timing and statutory problems.
By 2010, Luckasevic had neither clients nor a partner and was close to giving up. He was working closely with Jack Tierney, an older attorney in semi-retirement at Goldberg, Persky. Tierney had become Luckasevic’s primary source of encouragement, “the only guy to support me, believe in me, believe in the case.” When Luckasevic told Tierney he was ready to throw in the towel, Tierney said there was a lawyer in Miami that perhaps they should try. Herman Russomanno was just coming off
a big win. He and another personal injury attorney, Stuart Ratzan, had won $11.5 million for O. J. McDuffie, a former Miami Dolphins receiver who had sued the team and its doctor for malpractice. McDuffie had led the AFC in receptions in 1998 and then sustained an injury to his left big toe that forced him to retire.
“Jack, I’ve already been told no about two dozen times,” Luckasevic
said, wallowing in pessimism and self-pity. “Is this a joke? Do you want me to be told no again? I mean, seriously, give me a break.”
“Fine, I’ll call them,” Tierney said.
Tierney was right. Russomanno was prepared to join the fight. Not only that, he told Tierney and Luckasevic he had
a big gun in Los Angeles who might be interested, too. His name was Tom Girardi, and he had extensive experience suing utility giants and pharmaceutical companies. Girardi had been part of the famous “Erin Brockovich” lawsuit that won a $333 million settlement from Pacific Gas & Electric for leaking a toxic chemical into the groundwater of tiny Hinkley, California. Girardi thought the cases were similar: PG&E, like the NFL, had ignored warnings for years. “You have these players that have been knocked around,” he said. “You have studies that are done with respect to the constant hitting of somebody’s head; they are well known in the medical community. And that was information we can prove was given to the NFL.”
There was an obvious disconnect. The dire warnings from the experts, the stirrings of a class-action lawsuit, and the steady parade of diseased ex-players all pointed to a gathering storm. Yet the NFL mostly carried on business as usual. There were changes—the 88 Plan, mandatory neuropsychological testing, a blizzard of concussion literature distributed by the league—but the response was hardly commensurate with the industry-rattling developments in the air. It was like reeling in the laundry in the path of a giant tornado. The MTBI committee stood largely intact. Pellman, the former chairman, had been reassigned but continued to work as NFL medical director and remained part of the committee. The MTBI committee kept on publishing:
NFL Paper Number 16 ran in the June 2009 issue of
Neurosurgery
. That study involved bashing rats in the head to simulate “impacts … experienced by professional football players.” The results: “no or minimal brain injury” for the players, although the rats admittedly took a beating.
What would it take for the NFL finally to respond? That September, Schwarz, the intrepid
Times
reporter, came out with
another confounding story. The NFL had commissioned a study that reported that
former players between 30 and 49 years old were 19 times more likely to have Alzheimer’s disease and other mental disorders than the normal rate among men that age. Bailes, whose own studies a decade earlier had shown the exact same thing, called the findings “a game-changer.… The ball’s now in the NFL’s court. They always say, ‘We’re going to do our own studies.’ And now they have.”
Aiello, the league spokesman, had the unenviable assignment of attacking the NFL’s own work. The league-funded study by the University of Michigan’s Institute for Social Research didn’t formally diagnose the players with dementia, he said, and was limited because the information was derived from unreliable phone surveys. It was essentially the same argument Feuer had used to dismiss the work of Bailes and Guskiewicz as “virtually worthless” except that Aiello was using the argument against the NFL.
A few days later, in response to the latest disclosures, the House Judiciary Committee
announced that it would hold hearings on football and brain damage.
Democratic committee staffers had been looking for an opportunity to bring the NFL back to Washington ever since the dramatic but obscure 2007 hearings on retired players in which Garrett Webster had described finding his addled father at a roach motel next to “a bucket of human waste.” The NFL had managed to prevent the commissioner from testifying at those hearings, but this time the committee would insist on Goodell’s attendance. The hearings held out the promise of drama and confrontation, a chance in many ways to put the NFL on trial for its handling of the concussion issue.
Weeks of not unexpected maneuvering preceded the hearings as committee staffers put together a roster of potential witnesses. Many were drawn from the neuroscience all-star team: Cantu, Bailes, Maroon, McKee. The fact that Omalu wasn’t invited—and Nowinski was—was an indication of how far he had fallen and Nowinski had risen. After some resistance, the NFL agreed to send Goodell. But other potential witnesses—notably Casson, Viano, and Pellman—never got near the hearings. Committee staffers, working through the NFL’s lobbyist, Jeff Miller, had asked for recommendations of NFL doctors who could testify. The league came back with three, none of whom were the current
or former chairs of the MTBI committee. Eric Tamarkin, the counsel for the Democratic majority, said he personally reached out to Casson, who ultimately did not testify.
Right up to the hearing, the NFL worked to massage the imagery and the message. One of the witnesses scheduled to appear with Goodell was Dick Benson, an Austin, Texas, man whose 17-year-old son, Will, a high school quarterback, had died in 2002 several weeks after sustaining a concussion. Benson had spent four years pushing for passage of “
Will’s Bill,” which mandated training for high school coaches and trainers. Benson’s testimony would be a powerful reminder of how the issue trickled down to the 3 million kids who played tackle football. Tamarkin informed Miller, the NFL’s lobbyist, that he intended to put Benson on the same panel with Goodell.
“He went apoplectic,” Tamarkin said. “Having a picture of a kid who passed away from playing football, he didn’t want that message to be on the same panel.” Tamarkin agreed to change the order. “We didn’t want to sandbag anybody,” he said. Instead, Gay Culverhouse, former president of the Tampa Bay Buccaneers, was placed on the panel that included Goodell. Culverhouse, whose father, Hugh, had owned the Bucs, had become an outspoken critic of the league, referred to by some retired players as a “
rebel with a cause.”
On October 28, 2009,
the packed hearing was called to order at 10:03
A.M.
in the Rayburn Building. The chairman, Michigan Democrat John Conyers, began: “Everyone that plays football at any level knows it is a dangerous sport. In fact, everyone that watches it knows it is a dangerous sport. There should be no surprise when a football player separates his shoulder, twists an ankle, busts a knee. But over the past several years, an increasing number of retired players have developed long-term memory and cognitive diseases such as dementia, Alzheimer’s, depression, and chronic traumatic encephalopathy.”
Conyers added, “There appears to be growing evidence that playing football may be linked to long-term brain damage.”
Tamarkin and others had hoped to get Goodell finally to concede the link. In his opening statement, the commissioner, wearing a light blue tie with thin white stripes, and a yellow ribbon in support of the military, gave a bland review of the league’s accomplishments on player
safety and head injuries during his first three years. Goodell told the committee that he expected the NFL soon would announce its support for research into CTE. Goodell mentioned nothing about the link between football and brain damage, though in his written statement he allowed: “It is fair to say head trauma may play a role.”
“Commissioner Goodell, is there a link between playing professional football and the likelihood of contracting a brain-related injury such as dementia, Alzheimer’s, depression, or CTE?” Conyers asked, getting straight to the point during the question-and-answer period.
Goodell said the league was not waiting “for that debate to continue” among medical experts but instead was doing everything “we possibly can for our players now.” He continued for nearly a minute before Conyers interrupted.
“Well, you have testified to that. But I just asked you a simple question. What’s the answer?”
“The answer is, the medical experts would know better than I would with respect to that. But we are not treating that in any way in delaying anything that we do. We are reinforcing our commitment to make sure we make the safest possible deal for our—”
Conyers again cut him off dismissively: “All right. Okay. I have heard it.”
Goodell wasn’t Casson, but in his own equivocating way, the commissioner was just as resistant. Then, toward the end of the session,
Linda Sanchez, a perky Los Angeles Democrat, ruined the NFL’s day. Sanchez had been a driving force behind the 2007 hearings. A former labor lawyer, she had been elected in 2002, joining Loretta Sanchez as the first sisters to serve together in Congress. Their father, a Mexican immigrant and former machinist, had Alzheimer’s disease. Sanchez said she regretted that Ira Casson hadn’t made it to the hearing “because there are a number of really great questions I would have loved to have asked him.” She still managed to make his presence felt by showing a clip of Dr. No’s rapid-fire denials to HBO.