Concussion Inc. Read online

  In his travesty of a decision, Judge Motz held that Boyd’s attorneys did not prove “changed circumstances,” “abuse of discretion,” or “­conflict of interest.” The Bert Bell/Pete Rozelle NFL Player Retirement Plan successfully sold the argument that introducing into evidence a decade’s worth of new published findings on CTE, along with the reason for Duerson’s own death by self-inflicted gunshot, was simply a desperation ploy by a rejected disability claimant to get “a second bite of the apple.”

  Oh, I see. The Duerson suicide was not a “changed circumstance” for the dozens, scores, or hundreds of retired players still living with depression, still unable to function or support their families or live normal lives, still getting no relief from the $9-billion-a-year NFL. It was only a “changed circumstance” for Alicia Duerson.

  Outrageous.

  14 June 2011..........

  In the story of the late Dave Duerson’s loud altercation with Sam Huff and Bernie Parrish in a Congressional committee hearing room in 2007, I have characterized both Huff and Parrish as historic builders of the National Football League Players Association who became disenchanted with the NFLPA’s advocacy on behalf of disabled retired players.

  In an email to me, Dave Meggyesy objected to what he called “revisionist history” with respect to Huff. “Sam Huff was not a union supporter or a union leader. He was and is a management guy,” Meggyesy wrote. “Sam claims union affiliation and sentiment through his father, mine workers I believe. This apple fell far from the tree. The Marriott hotel chain is and has been non-union; Sam has been a spokesman for them for years.”

  I respect Meggyesy, who played linebacker for the old St. Louis football Cardinals from 1963 through 1969 before retiring and writing the book Out of Their League, a breakthrough critical look at the football industry. He later served many years as the NFLPA’s western regional director.

  Regarding the case of Brent Boyd — the proximate cause of Duerson’s outburst during criticism of his role on the NFL retirement and disability review board, which rejected Boyd’s application for mental disability benefits — Meggyesy said, “Duerson shows the impact of CTE, nothing more. Boyd’s case should stand on its own, and no doubt be reevaluated.”

  I disagree with Meggyesy on that point. Duerson, and by extension the NFLPA, have been wrong, loud wrong, on the issue of football brain injuries and on taking the most aggressive and best steps to protect the community of retired players. The Brent Boyd case emphatically does not stand “on its own”; it must be viewed in the context of years of league-friendly, suppressed, and incomplete research on chronic traumatic encephalopathy.

  16 August 2011..........

  Alex Marvez of Foxsports.com has an important new piece up on Dave Duerson, which focuses on Duerson’s battle with depression and uses as its main source former quarterback Eric Hipple.12

  Credit Marvez with tackling a subject, mental health, which remains taboo. It’s also good to see a prominent football journalist daring to talk at all about whether Duerson’s service on the joint NFL/NFLPA disability claims review board was tainted by his own likely diminished capacity in his last years.

  The FoxSports article quotes former defensive end Andrew Stewart, who has pending litigation against the Bert Bell/Pete Rozelle NFL Player Retirement Plan, using that exact phrase, “diminished capacity,” to describe Duerson’s state when he joined a unanimous board vote in rejecting Stewart’s claim for an increase in disability benefits. At the May news conference announcing the autopsy finding of chronic traumatic encephalopathy after Duerson committed suicide, I used the same words in asking whether there should be a review of the case files on which Duerson helped the disability board rule.

  What is unfortunate about the Marvez piece is that it quotes Duerson’s friends as saying they perceived no “noticeable change in his demeanor or acumen,” while failing to document his tirade against retired players who confronted him at a 2007 Congressional hearing in which Duerson downplayed concussion syndrome. (The article does note Duerson’s 2005 domestic violence incident — but rather creepily puts distance between it and an observation by Belinda Lerner, executive director of NFL Player Care, that “he looked fine the last time I saw him.”)

  We can all have our opinions on how fine Dave Duerson was at any particular point before he took his own life and was found to have CTE. But the constellation of facts leads to the conclusion that ex-players with disputes over disability claims that were adjudicated, in part, by Duerson deserve rehearings. Period. That is elemental justice.

  A second Marvez piece today, “NFL retirement plan faces ­challenge,”13 is highly recommended. In it, Andrew Stewart’s attorney, Michael Rosenthal, pounds hard on the theme that the entire process was corrupted by our retrospective knowledge that retirement board trustee Duerson, who committed suicide in February, himself had chronic traumatic encephalopathy.

  I am less interested than some others in all the internal politics of the NFLPA. Maybe Duerson was a good guy, maybe he wasn’t. But he was definitely brain-damaged, he was in denial about an already deep body of research on football and brain damage, and he was in a position of power, ruling on the disability claims of brethren. Stewart and others are right about this, and those calling them names for pointing this out are wrong. I hope the dissident retirees achieve justice, in this Maryland courtroom and elsewhere.

  9 September 2011..........

  The pro football season opened last night with a game on NBC — coinciding, to the delight of Republicans, with President Obama’s latest dithering televised address. Collectively, fans are wondering why kickoffs have to start at the 35-yard line this year rather than the 30. Most haven’t given a second thought to the death last Sunday, at age 56, of Lee Roy Selmon, the Tampa Bay Buccaneers’ Hall of Fame defensive end in the ’70s and ’80s.

  They should. Selmon is Dave Duerson Lite.

  Though no direct causal link can be established between Selmon’s fatal cerebrovascular accident and the no-longer-quite-so-well-­covered-up epidemic of traumatic brain injuries in football, the scenario in the round amounts to another grotesque twist on the fatal flaw of America’s sport. And the sooner we have a real conversation about all this, the better. It is not a problem that can be willed away by hard counts, play-action fakes, or John Madden’s belated brand of “concussion awareness.”

  A revered figure in the Tampa Bay community, Lee Roy Selmon had numerous business interests, including a popular chain of sports bars. He was athletic director at the University of South Florida from 2001 to 2004.

  Early last week reports surfaced of a new lawsuit filed in Los Angeles Superior Court, on behalf of retired players, most of whom had played for the Bucs, against the NFL and two helmet manufacturers. Like other recent litigation — the mass action represented by Thomas Girardi of Erin Brockovich fame, and another in which the most prominent plaintiff is Super Bowl–winning quarterback Jim McMahon — this one alleges a cover-up of known evidence of the long-term effects of football-inflicted brain trauma.

  Both Lee Roy Selmon and his brother Dewey (who also played for the Bucs) were listed as plaintiffs in this new action, but that turned out to be a mistake. Their attorney, David Rosen, who was representing the Selmons in other matters (notably, a contemplated lawsuit on behalf of retired players for non–head-injury disability claims), took public responsibility for a clerical error and amended the court papers to remove the Selmons.

  Incredibly, Lee Roy Selmon then suffered a massive stroke on Friday and died two days later.

  Was the stroke football related? I don’t know, except to observe that it’s for us to find out and for the NFL to hope we don’t. Also that it’s not a question the mostly timid and incurious mainstream sports media are eager to pursue.

  Stroke, like spinal-cord injuries, is a different phenomenon than chronic traumatic encephalopathy. The delivery system, however, is identical. In pro wres
tling, Bret Hart’s 1999 stroke in his early ­forties, which partially paralyzed him, almost certainly was a byproduct of botched “sports entertainment” stunts. Last year another WWE ­legend, Ricky Steamboat, nearly died from a brain aneurysm — later euphemized to a “burst capillary” — caused by a fake beatdown by a posse of bad guys on live TV.

  One exception to the list of journalists flinching from the implications of the Selmon story is Joey Johnston of the Tampa Tribune. In an email, Johnston told me that the potential parallel of the errant report of Selmon’s involvement in a lawsuit, followed by his being stricken, was chronicled by his newspaper “the day of the stroke but not mentioned the day of the death. There’s an element of conjecture there, sure, but it all makes you wonder.”

  Johnston led the reporting team for a lengthy and highly recommended July 25 article in the Tribune about the lifelong health price paid by Selmon’s teammates on the 1979 Tampa Bay team that almost reached the Super Bowl.14

  Unlike Duerson, Selmon did not loudly and publicly deny what was becoming widely known about concussion syndrome. Unlike Duerson, Selmon didn’t live to see his judgment, businesses, personal finances, and family life go to pieces. Finally, unlike Duerson, Selmon didn’t serve on a joint league-union board that reviewed disability claims and rejected many of them.

  Of course, by that point Dave Duerson himself was not Dave Duerson. He had CTE.

  10 September 2011..........

  The Andrew Stewart case, as I suggested last month, might reveal more about the work on the disability claims review board of Dave Duerson. But it turns out that, while Stewart’s attorneys have made a lot of progress in getting scrutiny in open court of the board’s inner workings — a very good thing — Duerson himself did not participate in the deliberations of Stewart’s case in August of last year.

  The three NFL Players Association representatives on the board for Stewart’s review were Andre Collins, Robert Smith, and Jeff Van Note. “I do not know why Duerson was not on the board that day,” Stewart attorney Michael Rosenthal emailed me.

  According to John Hogan, who represents many retired players from his disability law practice in Georgia, retirement board members occasionally designate others as proxies, and that is probably what happened here. The whole process is mysterious and secretive, which is why we need the drip-drip-drip of additional cases to break down the NFL and NFLPA’s limestone wall.

  12 September 2011..........

  Why wasn’t Dave Duerson, one of the three regular Players Association appointees on the review board for the Bert Bell/Pete Rozelle NFL Player Retirement Plan, not at the hearing in August 2010 at which a disability claim by former player Andrew Stewart was rejected?

  If Duerson’s absence were the result of a routine scheduling ­conflict — if he had to attend a wedding the same day, for example — that would be one thing. But we know that Duerson committed suicide six months later and that a study of his postmortem brain tissue showed he had chronic traumatic encephalopathy. So it is crucially important to determine if there is another explanation for his not having been at the Stewart review. What if Duerson suffered during this period from a flare-up of depression or general mental confusion?

  Related question: how many other retirement board meetings did Duerson miss?

  Writing about the Stewart case last month, FoxSports.com’s Alex Marvez quoted an unnamed fellow board trustee as defending Duerson’s performance in that role in the last five years of his life. The trustee said Duerson “never displayed impairments that reflected brain damage.” Since both this trustee and Douglas Ell, the NFL attorney who talked to Marvez for his story, knew that its focus would be on Duerson’s involvement in the Stewart matter, it seems odd that they wouldn’t have mentioned that Duerson was not present at the August 2010 meeting.

  Another source who is named — NFL Player Care Foundation executive director Belinda Lerner — told Marvez “that Duerson ‘had his complete faculties working’ and ‘contributed to the conversation’ at the last trustee meeting both attended six months before his death.” What was the date of that meeting? I will ask Lerner.

  Dave Duerson was in good spirits at the August 2010 NFL retirement board meeting. Or Duerson missed the meeting. Which is it?

  Ever since Dave Duerson’s February suicide and the finding of chronic traumatic encephalopathy, I have been calling for the reopening of all rejected National Football League disability claim files on his watch as one of the three NFL Players Association trustees of the Bert Bell/Pete Rozelle NFL Player Retirement Plan.

  The first step is figuring out exactly when Duerson served in that capacity. We’re making some progress — though today’s information arrives with tantalizing ambiguity.

  Back in the winter, NFL spokesman Brian McCarthy told me he didn’t know the dates of Duerson’s tenure and suggested I ask the NFLPA. But the NFLPA never responded to my inquiries.

  Last month Alex Marvez of FoxSports.com reported on the Maryland court case of retired player Andrew Stewart, who is suing to reverse the rejection of his disability claim by the retirement board. The Duerson angle, which I have been pushing, was a central element of Marvez’s story. Belinda Lerner, executive director of the NFL Player Care Foundation, was directly quoted about seeing him at the trustee meeting six months before his death: “He seemed fine the last time I saw him. He was with his fiancée. To me, someone who is going to get married is someone who is feeling hopeful for the future.”15

  Six months prior to Duerson’s death, of course, would have been August 2010.

  Yet Michael Rosenthal, the attorney for Andrew Stewart, told me last week that disclosures by the NFL to his client now reveal that Duerson did not participate in the deliberation of that claim, which was at the August 2010 meeting.

  On the chance that Lerner and Rosenthal were referring to two different meetings, I asked the former for the specific date and explained why I was asking.

  I got this back, via NFL spokesman Greg Aiello: “The meeting referred to by Belinda was a Bert Bell/Pete Rozelle retirement board meeting — one of four quarterly meetings — February, May, August, and November. There was a retirement board meeting on August 18, 2010, in Boston. Belinda’s comment referred to the last meeting Dave attended as a trustee for the Players Association.”

  I believe Aiello is confirming that Lerner was saying that the meeting where she saw Duerson was on August 18, 2010 — the one in which, according to the records provided to Stewart, Duerson was not a trustee but had been replaced by Andre Collins. If my interpretation is wrong, then Lerner or Aiello should tell me, and I will quickly reflect exactly what they were saying.

  John Hogan, the Georgia disability attorney for many players, emailed me, saying, “I have the minutes of the August 2010 retirement board meeting from Jimmie Giles’s case, which was considered at that meeting.” (Giles, the ex–wide receiver, is a plaintiff in the latest of three lawsuits filed recently against the NFL alleging a cover-up of known evidence of the long-term effects of traumatic brain injuries from football.) “It confirms that Andre Collins was there in place of Duerson. It does not indicate why he was not present.”

  13 September 2011..........

  Belinda Lerner, executive director of the National Football League Player Care Foundation, has changed her story. Or if you prefer, she has clarified her statements about Dave Duerson last month to Alex Marvez of FoxSports.com. In one key respect, Lerner has admitted she was mistaken.

  In my follow-ups with her, via NFL spokesman Greg Aiello, Lerner at first continued to insist that Duerson was one of the three NFL Players Association trustees at the August 2010 meeting. But after carefully reviewing the minutes, Lerner now acknowledges that alternate Andre Collins replaced Duerson. Duerson did attend the next meeting, in New Orleans in November, before committing suicide in February of this year.

  Regarding Lerner’s recollection that Duerson was fin
e “the last time” she saw him, NFL spokesman Greg Aiello said, “Dave also attended the November 17 board meeting in New Orleans, the last time Belinda saw him and last time he acted as a trustee. Belinda recalls that meeting as when he introduced his fiancée to the other board participants.” That was three months, not six months, prior to Duerson’s death.

  The NFL’s Aiello, whom I respect as a consummate professional, expressed pique at my line of questions. “We are trying to be helpful. This is not a deposition. Belinda was pretty clear that whatever comments were attributed to her were based on the last time she saw Dave — precise date was unknown. Why are you more concerned about the dates than her observations of Dave?”

  I responded to Greg: “To be clear, this all started because I’d read Alex Marvez’s 8/16/11 coverage of the Andrew Stewart court case. One important focus of Marvez’s story was whether Duerson’s participation as a trustee matters in disputed disability claims — an issue I have been pushing, as you may know. I don’t speak for Marvez, but as a reader of his work I know him to be a good and careful reporter, and I suspect he would have written his story quite differently had he known that Duerson didn’t hear Stewart’s particular case (which would come out at the pretrial hearing last week or in the discovery leading up to it).”

  I added to Aiello: “Why the FoxSports.com article proceeded from a flawed premise is not something I’m going to speculate on in this email, except to note that Marvez had multiple NFL sources (not just Belinda Lerner). But I emphasize that my questions here were and are legitimate. No, I was not deposing Ms. Lerner; I was asking her questions for a piece of journalism, in the course of which I also openly answered your own questions as to why I was asking them. I am glad I got the right answers, even if it took a few rounds.”

  Further crucial questions remain. Why wasn’t Duerson at the Boston meeting? And did he miss any other board meetings, and if so, why?