Authors: Mark Fainaru-Wada
Jason Luckasevic, the young Pittsburgh lawyer, was out for bigger game than Feenberg. Relatively speaking, the workers’ compensation cases were small legal matters, often involving thousands of dollars. His fight was against the entire NFL, with the stakes potentially in the billions. But the workers’ compensation cases were not entirely unrelated to the whale Luckasevic was pursuing. To mount a case that the NFL had denied and concealed evidence that football causes brain damage, Luckasevic needed actual living players (or the families of deceased players) who were willing to come forward. This had proved one of his more difficult hurdles. During his three-year journey,
Luckasevic had found numerous players who initially expressed interest, but when push came to shove, they were ambivalent about taking on the league or fearful of exposing their grotesque afflictions to a public that admired them for their mental and physical toughness. The workers’ comp cases provided a potential feeder system to lawyers such as Luckasevic who were girding for the bigger fight ahead.
One of the first brain-related workers’ compensation cases involved Fred McNeill, a quiet and thoughtful former Minnesota Vikings linebacker who played from 1974 to 1985. Ironically, McNeill himself had
been a lawyer—even handling some workers’ comp cases on behalf of former Vikings—until the deterioration of his brain abruptly ended his legal career. He had started attending law school just before his retirement, and by his late thirties he had made partner at Zimmerman Reed, a Minneapolis firm. Then, at 44, he was fired. McNeill managed to get other jobs and lost them, too. “It seems like it started that I was taking a longer time to do the work,” said McNeill, his voice slow and gentle, edged with a kind of bewilderment at what had happened to him. “What I found is that in those firms, the attorneys that were managing me perceived that it was taking me longer to do the work than it should have been taking.” Before long, McNeill was bankrupt, no longer practicing law, his loving family broken apart. He drifted through his days in intermittent states of lucidity and confusion. McNeill was still able to recall in great detail pieces of his distant past, such as his blocked punt on Oakland’s Ray Guy in the first quarter of the 1977 Super Bowl. But his short-term memory was shot. He often couldn’t remember people he just met or conversations he just had. He was living with his 23-year-old son, Gavin, who managed most of his father’s needs out of their Los Angeles apartment. Gavin compared the experience to “seeing Superman lose his powers. But, in the brighter side of things, I’m gonna save him now.”
Asked what he feared most about the future, Gavin said: “You know, I don’t even want to talk about it. I don’t even want to put it out there in the universe.”
Luckasevic met Fred and his ex-wife, Tia, at a meeting of retired players in Las Vegas and recruited them to his cause.
On July 19, 2011, the McNeills joined the 75 former players and their relatives suing the NFL for concealing the link between football and brain damage. The other players included Mark Duper, a longtime wide receiver for the Miami Dolphins; former New York Giants running back Rodney Hampton; and Steve Nelson, who played linebacker for 14 years with the New England Patriots.
Luckasevic finally had his lawsuit. It had grown out of an idle conversation with his friend Bennet Omalu one morning in Pittsburgh five years earlier. Along the way, Luckasevic had been laughed out of a conference room by the partners in his own firm and turned away by countless other lawyers. Now the 34-year-old associate was the coauthor of an
86-page complaint that would precipitate a tsunami of litigation against the NFL.
The complaint, written by Luckasevic and edited by his more experienced cocounsels Tom Girardi and Herman Russomanno, and Russomanno’s partner, Bob Borrello, alleged that the NFL had created a fraudulent research arm to whitewash a problem that directly threatened its bottom line. At the center of the allegations was the league’s MTBI committee. The complaint claimed that the NFL, “to further a scheme of fraud and deceit, had members of the NFL’s Brain Injury Committee deny knowledge of a link between concussion and cognitive decline.” Most of the major players in the drama of the previous decade figured prominently in the legal narrative: Omalu, McKee, Pellman, Casson, Guskiewicz, Lovell. Riddell, the NFL’s official helmet maker, was named as a codefendant over allegations that its product was unsafe and the company had failed to provide sufficient warnings about the potential for long-term brain damage. In a cover sheet that outlined the nature of the filing, the lawyers checked the box for “Product Liability” in which bodily injury, death, or damage occurred.
When the complaint was filed, the lawyers had no idea where it might lead and whether other players would follow. “
We thought maybe there was a body out there of two or three hundred players who’ve really been significantly harmed,” said Girardi. Right up until they filed, their suit included only a few players, but as word spread that it was about to become a reality, more and more players signed on.
After the case was filed, players (and, with them, lawyers) continued to come out of the woodwork. It was as if an unspoken taboo had vanished. Luckasevic and Girardi had filed their case in California Superior Court, the logic being that the case might do better in state court.
The next month, though, a Philadelphia personal injury lawyer, Larry Coben of the firm Anapol Schwartz PC, filed the first suit in federal court on behalf of seven more players. Coben previously had won cases against helmet makers Riddell and Schutt, and he had been exploring a lawsuit against the NFL for some time. Now, among his clients was former Chicago Bears quarterback Jim McMahon, who the previous year had acknowledged that he was having memory problems at age fifty-two. McMahon’s admission was particularly jarring: Most fans still
remembered him for his rebellious leadership of the 1985 Bears, mooning reporters, snubbing his nose at NFL Commissioner Pete Rozelle, and leading with his head. When he appeared in public now, McMahon still wore his trademark sunglasses, but it was generally to talk about how he had trouble finding his way home.
“
I won’t remember a helluva lot about this interview in ten minutes, probably,” McMahon told ESPN’s Steve Delsohn.
The lead plaintiff in the federal suit was a former Atlanta Falcons safety named Ray Easterling. The suit did not provide much detail about his plight, but the litany of Easterling’s problems was by now
painfully familiar: mood swings, inattentiveness, business failures, erratic behavior. Easterling’s hands shook. He had impulsive urges to run for miles in the dark or to chop wood, which he stacked in his driveway in Richmond, Virginia; once, while chopping, he accidentally took off part of his thumb.
Eight months after the lawsuit was filed, Easterling shot himself to death at the home he shared with his wife of 36 years. He was 62. His brain, it was later discovered, was
riddled with CTE.
By the time the results were released, one year after Jason Luckasevic and his colleagues filed the first lawsuit, more than 3,000 retired players and their relatives were suing the National Football League—nearly one quarter of all living former NFL players. And counting.
Every few days, Fred McNeill would travel to a clinic in Newport Beach and stuff his 6-foot-2 frame into a small space-age room while 100 percent oxygen was pumped into his lungs. The hyperbaric oxygen therapy had been recommended by a psychiatrist and author, Daniel Amen, whose Amen Clinics around the country had attracted the attention of numerous retired NFL players who were concerned about their brains. Many players swore by the treatments, which were said to promote healing and improve memory, but to date there was no conclusive evidence that the process worked. A November 2012 study of
50 military service members with post-concussion syndrome found “no efficacy in symptom relief” after 30 straight days of 90-minute treatments in the hyperbaric chambers.
No longer a backwater of medical research, concussions had become
a booming industry, attractive not only to the world’s most prominent researchers but also to any number of entrepreneurs. No one could keep up with the array of products and gadgetry suddenly flooding the market. There were dietary supplements to treat brain swelling and others to prevent brain cells from dying. There were soft protective coverings that fit over helmets and hard skullcaps that sat beneath them like Kevlar yarmulkes. There were mouth guards and neck braces and helmet sensors that recorded the magnitude and frequency of each hit. After producing a few concussion stories for ESPN, the authors of this book found themselves bombarded with creative proposals. One read: “I would like to talk to you about the last 7 years of development of a Physics and Engineering foundation I have discovered. It is an Energy Absorption System that only allows 10 to 15 G’s to the end user of all helmets. I have found the Holy Grail that will protect and preserve football, our troops and so much more.”
It was a strange new world of experimentation and opportunism. The rapid pace of the research and the high-profile disclosures of prematurely demented football players were provoking a wave of anxiety among parents, coaches, athletes, and medical professionals. Everyone wanted answers to the proliferating questions: Since CTE could be diagnosed only postmortem, was there any way to detect the disease in living patients? Was there a way to predict—through genetic profiling or other means—who was more likely to get the disease (and get them out of harm’s way)? How many concussions were too many? What products, if any, might reduce the effect of head trauma in football? The questions produced more questions, which in turn produced more opportunities.
No one was better positioned to cash in than the early pioneers, researchers such as Bailes and Maroon and Lovell. Each staked out new territory that presented opportunities for (1) scientific discovery and (2) financial gain. Bailes was researching a
medieval-sounding device that he said could potentially prevent the brain from rattling around inside the skull. “You have to indulge me a little bit here,” he said one afternoon in his office outside Chicago, displaying what appeared to be a form of neckwear with two large rubber beads in front. “So this is a new device. It’s a first attempt ever to prevent brain injury by using a
collar that compresses the jugular veins, which back up the blood in the brain some, and it decreases the room for slosh.”
Some of Bailes’s other initiatives sounded more promising. He and Omalu coauthored a
pilot study that used brain scans to detect tau protein in five former NFL players—including Fred McNeill—the first time researchers were able to show signs of CTE in living patients. The scans, developed by Gary Small, a UCLA professor of psychiatry and behavioral sciences, had previously been used to detect Alzheimer’s disease. “I’ve been saying that identifying CTE in a living person is the Holy Grail for this disease,” Bailes said. “It’s not definitive, and there’s a lot we still need to discover to help these people, but it’s very compelling. It’s a new discovery.” The announcement produced a cascade of new questions, in particular: If CTE could be diagnosed in living players, could the NFL force them to be tested? Would brain scans become mandatory at the NFL Combine? Was it a collective bargaining issue? Would children have to be tested before playing contact sports? Before every season or even every game? After a concussion? What was the threshold for banning a player? The mind reeled at the implications.
Concussions had become a full-time profession. ImPACT was so successful that Mark Lovell left his job at UPMC to run the company full-time. Fifteen years after Lovell and Maroon administered crude neuropsychological tests on Merril Hoge and 26 of his Steelers teammates, ImPACT had become a global phenomenon, the default standard for concussion testing. There were occasional skeptical studies and people such as Bill Barr and Chris Randolph, a Chicago neuropsychologist, who railed against the claims that ImPACT was better than any of the myriad other neuropsych tests that were out there. But it was like complaining about the domination of Kleenex over all the other facial tissues. ImPACT was what people turned to when a concussion occurred. The test was used by
nearly every NFL team, all NHL teams, all Major League Baseball teams, all Major League Soccer teams, and the U.S. Olympic boxing, soccer, and hockey teams, not to mention rugby, soccer, and auto racing leagues around the world. ImPACT was used by Cirque du Soleil, the Pittsburgh Ballet, and the Lingerie Football League. It was used by 62 colleges and universities in California alone. Lovell and Collins insisted that ImPACT was just “a tool in the toolbox” for treating
concussions, but it was marketed to schools as a tool no less indispensable than a screwdriver or a hammer. An army of ImPACT trainers stood by to ensure, for a small fee, that the test was administered correctly.
Lovell’s reputation as a researcher had taken a big hit because of his association with the MTBI committee. The obvious conflicts of interest—pushing his own company to teams while running the NFL’s neuropsych testing program—also had caught up with him, and the league finally cut him loose, like Casson, Viano, and most of the other original MTBI members. “Mark was canned,” said Guskiewicz. Unlike the combative Collins, who took the attacks on ImPACT personally, Lovell seemed not to care much about the criticism anymore. In many ways, that was easy: ImPACT was a success beyond anyone’s wildest dreams, and Lovell was in demand from Europe to South Africa. But he also had suffered
two heart attacks—one at 43, another at 59—for reasons no one could explain, and the experience made him more laconic and philosophical than ever. “I’m not out to get anyone,” he said over dinner one evening. “I’ve moved on, you know? I don’t want to spend the rest of my life chasing down Bill Barr. I just don’t care.”
After leaving UPMC, Lovell, often wearing jeans and a fleece pullover, spent most of his days at ImPACT’s new headquarters, a largely vacant suite in a business park down the road from the Steelers’ practice facility. In the afternoons, a flock of geese often settled outside his window, which looked out on the Monongahela River. Lovell, still youthful-looking at 60, knew his legacy in the NFL saga was mixed at best. His research had helped bring attention to the problem. He had created the most widely used concussion test in the world. But he also had played a key role on a discredited committee whose major findings he now disavowed. Lovell continued to see himself as a marginal figure in the drama, the MTBI committee a product of its ignorant times and no more.