Concussion Inc. Read online

  According to dissident retirees, the “union” not only abandoned their interests in a morally and financially sound pension and disability system, but also blatantly ripped off the athletic and celebrity personae of ex-players for royalties from the Madden video game and other licensed merchandise. These measures contributed to feathering a bloated and overpaid NFLPA bureaucracy and enriched Upshaw in particular (along with “super agents” with NFLPA ties, such as Tom Condon) to the tune of impossible millions.

  A new book, The Unbroken Line: The Untold Story of Gridiron Greats and Their Struggle to Save Professional Football — co-authored by former Dallas Cowboys tight end Billy Joe DuPree and his lawyer, Spencer Kopf — traces the narrative to the end-game negotiations of the 1982 players’ strike. Today the key fault line in the fight to design equitable pension and disability plans is between active players (who tend to defer to their agents and the NFLPA) and those who retired before 1993.

  When he accepted the NFLPA post following Upshaw’s 2008 death from cancer, “De” Smith pledged “due diligence” of the organization’s controversial past practices. But dissidents say he has kept the Upshaw office team intact.

  What makes all this even more intriguing and grotesque is that Smith is a former aide, and by some accounts best friend, of U.S. attorney general Eric Holder. That gives fresh perspective to explanations for why President Barack Obama, a hopeless March Madness addict, crusades on superficial fan issues, such as abolition of college football’s Bowl Championship Series, while saying nothing about the Big Sports public health issue of concussions.

  I don’t think for a minute that Obama is the problem in contemporary America. But I know he’s not the solution. There was a time in our country when we elected presidents, but in the mauve days of late empire, the only thing we’re doing is appointing Jocksniffers in Chief.

  8 September 2011..........

  Today I attended the second annual Sports Law Symposium at Santa Clara University Law School. I wanted to see the advertised panel on concussions, including the keynote speech by DeMaurice Smith, executive director of the National Football League Players Association.

  Dissident NFL retirees, who don’t like the union’s performance in safeguarding their health and interests, say Smith no-showed his scheduled appearance at last year’s Santa Clara symposium.1

  I enjoyed the opportunity to meet symposium panelist John Hogan, the Atlanta attorney who has done valuable work representing retired players (plus others from all walks of life) on disability issues. The symposium’s proceedings book includes a comprehensive and lucid paper by Hogan entitled “Concussions, Brain Injury, and NFL Disability.” I highly recommend the article, available at the Dave Pear post listed below.

  Regarding De Smith, I was disappointed when the organizers of the event canceled the public question-and-answer portion of the concussion session, explaining that the symposium was behind schedule. This had the unfortunate effect of giving it the feel of a rubber chicken circuit rather than a colloquy.

  Smith prefaced his keynote speech with some lame jokes about his Baptist preacher forebears and asked indulgence to deviate from the concussion prompt and address the issue in the total context of “justice and fairness” for athletes. That actually was not a bad frame at all for the discussion, and it led to the panel’s most interesting moments when the special guest, football great Jim Brown, gently pressed Smith on the NFLPA’s second- and third-class treatment of retirees. Appropriately, Smith countered by citing improvements in this area in the new collective bargaining agreement. Some of these, such as the redistribution of hundreds of millions of new “legacy fund” dollars, remain vague in the details, but they will certainly be improvements, even if still inadequate.

  My own No. 1 purpose in attending this event was to confront Smith about a cause I have been championing, essentially all by myself, for months: the idea that the joint NFL-NFLPA disability review board must reopen all claims rejected during the board tenure of the late Dave Duerson. Decisions during that period were fundamentally tainted by the participation of a player advocate who not only had publicly downplayed the link between football and mental disability in Congressional testimony, but also wound up committing suicide — whereupon he was found to have had chronic traumatic encephalopathy himself.

  With the announcement that the concussion panel was skipping the public microphone, I joined a gaggle of audience members who pressed Smith at the podium for one-on-one dialogue. (Just ahead of me was Delvin Williams, the 56-year-old former NFL running back. Williams and Smith seemed to be discussing a private matter.)

  By the time I got Smith’s ear, he was being hustled out the door to his next appointment. Unburdened of the need to give my Duerson question a lot of background for the benefit of a general audience, I said, “Mr. Smith, picking up from your theme of justice and fairness, can you please tell me whether you think Duerson-reviewed claims should get a second look? Please don’t answer in legalisms — the confidentiality of the review board process, or not knowing exactly how Duerson voted in individual cases or whether his votes made a difference. Isn’t this Fairness 101?”

  Smith regurgitated the question but didn’t answer it before we separated.

  7 September 2012..........

  Yesterday, for the second straight year, I observed the Santa Clara University Law School’s annual Sports Law Symposium — the third. The event provided loads of good foundational information on topical issues in sports world dysfunction. To my pleasant surprise, the university’s Institute of Sports Law and Ethics has not skimped on the second half of its titular mission.

  Last year I panned the conference for allowing one of the keynote speakers, National Football League Players Association boss DeMaurice Smith, to stray from the prompt, then duck out a side door before he could be confronted with public questions. These included my own on why the NFL retirement plan board won’t reopen rejected mental disability benefits claims which had been reviewed by board member Dave Duerson.

  This year’s Santa Clara confab was much more substantive, with fewer Kiwanis Club flourishes. I didn’t mind a couple of the eye-­glazing presentations on such technical arcana as the state of right-of-­publicity law; after all, this was a continuing education event aimed at professional practitioners.

  I still feel the symposium falls short on public colloquy, largely because of time constraints. That problem can be solved by trimming the panels, which are overloaded with the usual suspects. For example, Linda Robertson, a Miami Herald sports columnist, could hardly have been blander or more redundant.

  The keynoter was Joe Nocera, the New York Times op-ed columnist who lately has become civil rights historian Taylor Branch’s baby brother in trumpeting equitable compensation for athletes in the college “revenue” sports of football and men’s basketball. As readers here know, I am sympathetic, having penned a piece on the subject for the Los Angeles Times Magazine in 2003. But I also have become skeptical of the reductio ad absurdum of this solution. (Dan Wetzel of Yahoo Sports now calls for paying the pipsqueaks of the Little League Baseball World Series.) More importantly, I believe the labor-­management model here distracts from the root pathologies of our national athletics system, which can be found in open amateur programs for ponderously professionalized niche, or wannabe revenue, sports.

  That said, I appreciate the currency of this topic, especially when, as in Santa Clara, it becomes a bridge to an examination of child rapist Jerry Sandusky’s Paternoville and loss of institutional control — and soul.

  And my old friend Ramogi Huma, head of the precursor union National College Players Association, was exceptionally strong in his presentation. The old warhorse Harry Edwards, whose 40-plus years of scholarship and advocacy sometimes come off like a greatest-hits package, brought his “A” game to Santa Clara and nailed the Penn State scenario as the logical end point of the sports arms race. Sonny Vaccaro, the repent
ant old sneaker company marketing specialist, delivered a jeremiad.

  Though disappointed that sex abuse was not probed in greater depth, I applaud the Santa Clara organizers for giving a reception-­speaker slot to Katherine Starr of Safe4Athletes. We will all be hearing a lot more from Katherine in the years to come as she builds her program.

  13 September 2013..........

  For the third year of its four-year history, I thank the organizers for giving me a seat in the audience of the University of Santa Clara’s Sports Law Symposium. The lunch buffet and the program compendium of background articles were great. The depth of two-way conversation fell short, though in entirely expected ways, given that three of the four major sponsors are local major league sports franchises (San Francisco 49ers, Oakland Athletics, San Jose Sharks).

  I enjoyed the opportunity to network with friends and colleagues, some of whom I had the pleasure of meeting in person for the first time. So as not to compromise their own more lubricious relationships with the hosts, I’ll name none of them.

  The notable exception to my general criticisms below is Tom Farrey of ESPN and the Aspen Institute’s Sports & Society Program. In the panel he moderated, “Could Concussion Liability Reshape Youth Sports?” Farrey did his best to propel a substantive dialogue on the fraught future of public high school football. Unfortunately, despite his efforts to get out of the Kiwanis Club comfort zone, his co-panelists gave him nothing to work with. More on that shortly.

  The winner of this year’s Linda Robertson Award — named for the Miami sports columnist who last year was flown thousands of miles to the Bay Area for the purpose of saying absolutely nothing of intellectual heft — is Shawn Stuckey, the former National Football League linebacker who is now a Minnesota-based litigator for ex-players’ claims.

  On the Farrey panel, Stuckey first said high schools had little to worry about from the NFL’s recent $765 million settlement with retirees, as the law is well established that the schools don’t have much custodial responsibility for the welfare of participants in extracurricular activities. Later, Stuckey said schools are liable if they don’t provide safe, up-to-date equipment. From there, he zigged and zagged like Barry Sanders in tanbark, with standard riffs on the NFL’s ­bottom-line avarice.

  For all our sympathy for the plight of disabled pros who have been screwed by the NFL, Stuckey’s performance is a reminder that this population does not supply our most articulate or trustworthy arguments in the area of public policy.

  As is the case every year, the main problem with the Santa Clara symposium is the preponderance of usual-suspect speakers, plus poor time management. These combine to kill audience feedback time. I don’t fetishize open mic per se, but an event advertised as offering continuing education for legal practitioners and freewheeling debate should not be allowed to fritter the day away with filibusters and mutual back-scratching. How about fewer redundant panelists and more hard-hitting Q&A?

  Alan Schwarz of the New York Times was one of the keynote speakers, and I don’t begrudge Schwarz his victory lap as the granddaddy of mainstream concussion crisis coverage. Also, Schwarz was witty, informative, and well prepared with a solid multimedia presentation. I was fascinated by audio clips of two of Schwarz’s earliest (2007) interviews with key figures. In one, the late National Football League Players Association president Gene Upshaw disclaimed a link between football and early cognitive decline — even as Schwarz politely pointed out that an NFLPA-funded study by the University of North Carolina said otherwise. In the other clip, NFL commissioner Roger Goodell had the nerve to blow off the concussion problem by mentioning a head injury his brother once sustained in a swimming pool.

  The other keynoter, Hall of Fame defensive back Ronnie Lott, reprised his decades-old sensitive assassin shtick. I count myself among the minority who are thoroughly weary of this routine, which comes complete with weepy and inapt parallels between his blood sport and the traumatic brain injuries and wanton death of military exercises. In other words, the entertainment of football and wars to protect our sovereignty and freedom are equivalent, and we’re supposed to be OK with that, even sentimental about it. Pat Tillman, the football player turned post 9/11 army volunteer who got killed by friendly fire in Afghanistan, apparently is fungible enough to be exploited by every conceivable agenda.

  Lott recalled the 1989 paralysis of his 49ers secondary mate Jeff Fuller. I recall it, too: I was at Stanford Stadium that day reporting my cover story on Joe Montana for the New York Times Magazine. That was the day the media relations staff herded us down to the field with four minutes left because of changed post-game interview logistics (the game had been shifted from Candlestick Park after the big earthquake). Standing on the sidelines, I had close-ups of half a dozen car wrecks per play … all during garbage time of a game whose result had long ago been decided. For me, it was the day the football music died. I was 35 years old and ready to define adulthood for myself.

  In the course of clichéd encomiums to the late coach Bill Walsh, Lott bragged that the 49ers offensive linemen “were real good at” crack-back blocks: sadistic blind-side shots behind the opponents’ knees. Of course, Lott would do it all again, at the stroke of a stroke. But of course, he would do so repentantly — this time he’d practice “safe football.” It’s so important to save football from itself — for it is only by means of this precise outlet for mitigating phenomena such as “childhood obesity” (have you looked at a “run-stuffing” defensive tackle lately?) that America’s boyly boys can be transformed into manly men. Some of us feel otherwise, that the process can be achieved in multiple ways — for instance, by teaching boys (and girls) to use their heads, including to think.

  Lott concluded his stem-winder with a wish list for all youth football players, including and especially in the ghetto from whence he came: brand-new helmets and pads every year, a sideline athletic trainer, baseline neurocognitive tests starting the day they were weaned from mama’s breast, and a municipal ambulance service on standby to cart off quickly every kid whose brain matter gets mooshed or spinal cord cracked. The Santa Clara Sports Law Symposium offered no platform for the point of view that the proponents of “concussion awareness” and “safe football” don’t even bother to put forth back-of-the-envelope projections of what this would cost our society and whether it would be worth it.

  The lunchtime presenters were Jack Clark, the legendary Cal rugby coach, and Jim Thompson, the cloying CEO of an organization called the Positive Coaching Alliance. These two gentlemen flashed the infamous video of jackass Rutgers basketball coach Mike Rice’s verbal and physical abuse in practice. The publicity from the Saturday Night Live Melissa McCarthy spoof of the footage would get both Rice and Rutgers athletic director Tim Pernetti fired. Clark and Thompson shook their heads and earnestly agreed that this is not positive coaching.

  From the buffet line, I was recognized and allowed to ramble for a minute about a contemporaneous and much worse coach outrage: the widespread sexual and physical abuse of swimmers at the University of Utah by coach Greg Winslow. The difference was that nobody cared and Utah athletic director Chris Hill, after covering up for Winslow for years, wasn’t canned. (An “independent review” of the cover-up, commissioned by the university trustees, concluded that Winslow should have been fired a year earlier, for being a boozer.)

  I might as well have been speaking in Serbo-Croatian. Thompson thanked me and moved right along to such questions as whether girls start crying more quickly than boys when coaches yell at them.

  In a subsequent email, Thompson told me, “I had not heard about the [Winslow] case. We most often focus on high school and youth sports so I don’t keep up with college sports in general.”

  That doesn’t explain the session’s theme of Mike Rice, a college coach. Nor does it explain why the Positive Coaching Alliance seems to have zero knowledge, much less a position, on the Catholic Church–level problem of sexual abuse of f
ar too many of the 400,000 youth by far too many of the 12,000 coaches in USA Swimming.

  Admirably, Tom Farrey’s panel tried to lock on the question of how much it would take for public high schools to get out of the football business.

  My first criticism here is a quibble. Though Farrey correctly used the recent NFL settlement as his hook, his cite of the fast-following Dougherty family $2.8 million wrongful-death settlement with their high school in Montclair, New Jersey, missed an opportunity to talk about not just liability costs, but also the dubious effectiveness of preventive measures. The Dougherty case includes facts about the school district’s incipient use of the ImPACT concussion management system, developed by the ever-reputable medical director of the WWE, Dr. Joe Maroon.

  More Dougherty-style lawsuits are sure to follow. Baseline testing is a key component of the pie-in-the-sky state-by-state concussion awareness mandates, the so-called Lystedt Laws, which NFL lobbyists love because they shift the football industry’s public health tab completely onto the back of the public sector. If ImPACT and all the other nice-sounding measures don’t do the job anyway, then what are we talking about here, besides continuing mass delusion?

  The other basic flaw of Farrey’s panel is that he talked about the cost side for schools only in terms of lawsuit exposure, insurance premiums, and equipment. But Farrey did press panelist Mike Pilawski, the athletic director of Saint Francis High School in Mountain View, to disclose the total “nut” for the football program. Pilawski finally said around $80,000 — an obviously low-ball number, as it didn’t account for insurance, facilities maintenance, and other line items not charged to the athletic department budget. Moreover, Pilawski acknowledged that as a private school, Saint Francis has a lot more flexibility to subsidize football than a public institution does.