Concussion Inc. (2 page)

SANTA CLARA SYMPOSIUM ON SPORTS LAW AND ETHICS

12 August 2011..........

And now for a heartwarming anecdote from last weekend's Pro Football Hall of Fame festivities that you probably don't know: the executive director of the National Football League Players Association, DeMaurice Smith, crashed the dinner in Canton, Ohio, which is traditionally reserved for Hall of Famers and new inductees, and started to speak. According to NFL legend Joe DeLamielleure, blogging for Dave Pear's Independent Football Veterans, around a dozen guys walked out in the middle of Smith's remarks.

The NFLPA chief “had no idea that this audience consisted ­mostly of pre-1993 players,” said DeLamielleure, who estimated that the Hall of Famers in attendance included around 40 guys who receive monthly pension checks of exactly $176 from the $9-billion-a-year NFL. Confronted by the retirees, Smith said the “legacy fund” negotiated in the new collective bargaining agreement (CBA) would increase them to between $1,000 and $1,500 a month.

But here's the thing, football fans: a lot of NFL veterans, for good reason, don't trust the NFLPA to negotiate on their behalf and honorably administer the new centimillion-dollar legacy fund.

After a group of the richiest-rich NFLers filed their antitrust lawsuit in Minnesota,
Brady v. NFL
, which helped end the lockout, Judge Susan Nelson of U.S. District Court allowed a class of disabled retiree plaintiffs to join the lawsuit. That contingent, led by Carl Eller, didn't obstruct the consummation of the CBA and the resumption of the 2011 season. But the Eller class action does demand a seat at the table as the devil in the details of the legacy fund gets hashed out.

Another set of facts with which few in the general public are familiar is the sickeningly corrupt history of the NFLPA under DeMaurice Smith's predecessor, the late Gene Upshaw.

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 repentant 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?