SBJ/Jan. 27-Feb. 2, 2014/Law and Politics

Settlement wouldn’t cover living players with CTE

The discovery in the last decade of the disease chronic traumatic encephalopathy in the brains of deceased NFL players helped tip the scales of public concern about the effects of playing football and influenced the proposed $760 million settlement of concussion litigation brought against the league by thousands of retirees. But if tests to diagnose CTE in the living reach fruition — such testing is still in its infancy — those who are found to have the brain ailment that is thought to be caused by repeated blows to the head wouldn’t necessarily be eligible to receive money from the proposed settlement — because it only covers post-mortem cases.

Former NFLer Tony Dorsett has undergone testing for CTE.
Photo by: AP IMAGES
That detail became available in the wake of the 85-page settlement filing that was submitted in federal court earlier this month. The settlement is on hold after an initial judicial ruling did not advance the agreement.

“We are only a few short years from a diagnostic test of CTE [pre-mortem], so I find it interesting that the settlement is setting up something that is meant to last decades, and one of the criteria will already be obsolete within a few years,” said Chris Nowinski, founding executive director of the Sports Legacy Institute and the co-director of the Center for the Study of Traumatic Encephalopathy at Boston University. “The idea of the settlement is that football is contributing to the trauma, to these symptoms, many of which are caused by CTE. A test like this would allow for greater accuracy in determining who might be deserving of compensation.”
 
Christopher Seeger, the co-lead counsel overseeing the proposed settlement for the retirees, said in a statement that the deal does provide a means for coverage for players while still living.

“The compensation program is symptom-driven,” he said. “Retired players will be eligible for compensation if they present with the symptoms of a qualifying condition. Living retired players do not need to prove they have CTE; a diagnosis of dementia, Alzheimer’s, Parkinson’s or ALS qualifies them for compensation.”

Two months ago, several former players, including Tony Dorsett and Leonard Marshall, publicly revealed they had undergone testing at UCLA that found they had signs of CTE. The test, the first to publicly indicate it had discovered CTE evidence in the living, is not yet medically accepted.

Nowinski predicted it would take approximately another decade for a medically accepted CTE test in the living. The proposed settlement covers 65 years.

Should such testing be formalized, it could increase the number of players who are diagnosed with and publicly identified as having CTE. That, in turn, could increase the pressure on the league to compensate not only the estates of deceased players found to have had CTE, but also to compensate living former players for the balance of their retired lives.

The settlement is essentially on hold as Seeger readies medical and actuarial documentation for the court following a judicial request to prove the proposed $760 million in compensation is enough. Seeger told Pro Football Talk last week that it could be another three months before he files a new motion for preliminary approval of the settlement. His filing on Jan. 6 was turned down by Judge Anita Brody less than a week later.

One attorney, Thomas Girardi, has publicly stated he would advise his clients in the proposed class who are not among the most hard-luck ones to opt out of the settlement because it largely confers benefits only to the most needy.

Others, however, see the deal as a best available option. One source, who blasted the CTE provision of the settlement, did not disagree with Girardi’s analysis of the deal but said players would be hard-pressed to find better options than the settlement given the legal hurdles to bringing the case to trial.

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