Concussion Inc. (8 page)

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 fine “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?

Meanwhile, Lerner's account of Duerson's introduction of his fiancée in November 2010 does fill in some gaps in the timeline of the last months of his life.

Retired player Dave Pear, leader of the dissident group Independent Football Veterans, cc'd me on an email today to DeMaurice Smith, executive director of the NFL Players Association. The message was spurred by this blog's coverage of the late Dave Duerson's role as one of the three NFLPA-appointed trustees of the Bert Bell/Pete Rozelle NFL Player Retirement Plan.

Here's the full text of the email by Dave Pear and his wife, Heidi.

Dear De Smith,

Dave Duerson was on the disability board as a voting member in 2008 when my claim for total and permanent degenerative disability was denied (again). I would like my case reopened and I would like a full report as to the merits of my denial and specifically why you think Dave was qualified (along with Robert Smith and Jeff Van Note) to make this decision.

How can an individual with severe brain damage and no disability training or legal expertise as were Robert Smith and Van Note allowed this abuse of power and breach of fiduciary duty? Or was Andre Collins filling that day (or moonlighting as a disability board voting member)?

Does ERISA law allow unqualified people the power to make these types of decisions?

Please explain.

Thank you.

Regards,

Dave & Heidi Pear

(The Pears don't even mention that Duerson, in 2007 Congressional testimony, was downplaying known evidence of the connection between football traumatic brain injuries and long-term mental-health problems.)

15 September 2011..........

FoxSports.com's Alex Marvez now reports that a federal judge in Maryland has set a February 27, 2012, trial date in retired National Football League player Andrew Stewart's lawsuit against the Bert Bell / Pete Rozelle NFL Player Retirement Plan.
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Marvez's story notes that, as I have reported — and in contrast to the strong suggestion of the collective NFL statements to him for FoxSports.com coverage of the Stewart case last month — “Dave Duerson didn't vote upon Stewart's claim as initially believed. Duerson — a star NFL safety who committed suicide in February — was one of the NFL Players Association's three trustee appointees on the board. The other three were appointed by the NFL.”

This trial, the story says, “could reveal some of the NFL's retirement program's secretive inner workings.”

Marvez writes that a proxy “is believed” to have taken Duerson's spot at the August 18, 2010, meeting of the board in Boston, where Stewart's disability claim was reviewed and unanimously rejected. From my reporting, I think it's pretty clear that that proxy was Andre Collins.

NFL lawyer Douglas Ell “declined comment to FoxSports.com.”

Interestingly, Ell has filed a motion to remand the case to re-review by the NFL board. I support some kind of re-review of all Duerson-tainted cases. Stewart's attorney, Michael Rosenthal, however, opposes the motion — apparently because he feels, no doubt correctly, that at this point his client would get a fairer shake in a court of law than through a process now so despised and distrusted by many in the NFL retiree community.

19 October 2011..........

The Senate Commerce, Science, and Transportaton Committee held a two-hour hearing on sports concussions on Wednesday.
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Despite an annoyingly oily good-old-boy performance by the chairman, Senator Jay Rockefeller of West Virginia, the hearing had valuable moments. When we set aside the football element of the debate, the promotion of “concussion awareness” through such forums is immensely educational for participants in minor sports and especially for female athletes.

In my opinion, the most penetrating interlude was almost an aside: an exchange between Senator John Thune of South Dakota and one of the witness panelists, Dr. Jeffrey Kutcher, the director of Michigan NeuroSport, about the appropriate ages at which athletes can begin engaging in violent contact.

The star of the hearing, of course, was Senator Tom Udall of New Mexico, who has spearheaded the investigations by executive agencies of the Riddell football helmet company. But in two important ways, Udall seriously disappointed.

First, and as expected, Udall directed a lot of outrage against the spurious claims of Riddell and other “Concussion Inc.” marketers — while saying nothing about how the National Football League and its operatives were in bed with many of those same companies.
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Udall also cited the suicide of Dave Duerson, the donation of Duerson's brain to chronic traumatic encephalopathy research, and the finding that Duerson had CTE. Udall said Duerson wanted to help others in the future, which is standard superficial commentary. But the senator went over the line when he went on to mention that Duerson had testified before the very same commerce committee in 2007.

Well, indeed he had, but Udall's suggestion that Duerson had the same intent in that appearance is shockingly misleading. As the senator well knows, the Duerson of the '07 testimony, in his role as a NFL Players Association–appointed trustee of the NFL's retirement and disability plan, had emphatically
downplayed
mounting evidence of long-term traumatic brain injury.

24 February 2012..........

The family of Dave Duerson has sued the NFL for its alleged liability for the brain damage he was found to have in the special autopsy he requested in his suicide note.

In recent months, more concussion-linked litigation has been filed by various groups of former players than even the 24/7 NFL Network could possibly cover. They add up to lots of confusing legal wrangling by professionals and their professional mouthpieces. The Duerson case is different, though — a bona fide potential game-changer in terms of both the NFL's exposure and the public's broader understanding of what I maintain is the bleak future of the sport of football.

All civil court actions involve two parties, a plaintiff and a defendant. But in this one, we have two institutional bystanders with more than a passing interest. The first is the community of disabled NFLers whose claims were rejected by the Bert Bell/Pete Rozelle NFL Player Retirement Plan — on whose board Duerson sat, denying the scientific evidence on chronic traumatic encephalopathy even as the disease ate away at his own brain, destroying mood, impulse control, and judgment.

The other spectator-stakeholders are all of the rest of us who are trying to sort out this concussion mess for the millions of kids who play football in peewee and high school leagues. Some believe the game, which is inherently violent, simply needs rule changes, better protective equipment, and smarter health and safety practices. I am in the camp holding that football concussion reform is oxymoronic, and that the medical, financial, legal, and educational bottom line is tobacco-like age restrictions, which would chop-block the knees out from under the NFL's $10-billion-a-year global marketing machine.

Duerson case discovery and testimony will subject key theories to empirical tests. As the process plays out, the Duerson family and their image will not emerge unscathed. Last year's suicide got spun as martyrdom because of the decedent's instructions to donate his brain tissue for research by Boston University's Center for the Study of CTE. The part about Duerson as a bad guy in his role as a NFL Players Association retirement board trustee got muted. That will no longer be the case, as the NFL's legal team submits for the court record and magnifies Duerson's every utterance in his years of denial.

Alan Schwarz of the
New York Times
is reporting Tregg Duerson's contention that his father had a private change of heart between 2007 — when he verbally and almost physically confronted other NFL retirees at a Congressional hearing — and his death. A change of some sort is manifest. Its effect on the entire Bell/Rozelle Plan mental-­disability claim file, whose reopening and daylighting I have advocated? That is what remains to be seen.

The most devastating litigation against American football culture, our lay religion, is yet to come, from the parents of youth players who will continue to suffer catastrophic injuries and death, notwithstanding the medicine-wagon “solutions” being hyped by the cottage industries of “concussion awareness.”

If you can't acknowledge which way the arrows are pointing, then you flunk your baseline neurocognitive test. You've been playing football for too long, with or without a helmet.

..........

1
Since the original publication of this article, the site has been rebranded NFLevolution.com.

2
“A Suicide, a Last Request, a Family's Questions,”
www.nytimes.com/2011/02/23/sports/football/23duerson.html
.

3
“‘You Have to Accept My Pain,'”
http://deadspin.com/#!5767609/you-have-to-accept-my-pain-an-interview-with-dave-duerson-three-months-before-his-suicide
.

4
youtube.com/watch?v=yeSsYOgGJW4
.

5
This paragraph, reprinted here as originally published online, is incorrect. See the clarification in the next piece.

6
“Duerson's case highlights the limits of the N.F.L.'s disability plan,”
www.nytimes.com/2011/05/05/sports/football/05duerson.html
:

7
Video of the press conference is available at
www.bu.edu/buniverse/view/?v=1GIhOEcN
.

8
sportslegacy.org/index.php/science-a-medicine/chronic-traumatic-­encephalopathy
.

9
“New technique targets ex-athletes' head injuries,” December 1, 2010,
www.cbc.ca/news/health/story/2010/12/01/brain-injury-virtual-­biopsy-nfl.html
.

10
The judge's opinion can be viewed at
muchnick.net/boydruling52411.pdf
.

11
www.usatoday.com/sports/columnist/lopresti/2011-05-23-dave-alicia-duerson-brain-injury-nfl_N.htm
.

12
“Duerson didn't have to die to have impact,”
msn.foxsports.com/nfl/story/dave-duerson-didnt-have-to-die-to-have-impact-081511
.

13
msn.foxsports.com/nfl/story/andrew-stewart-dave-duerson-nfl-­retirement-plan-faces-legal-challenge-08151
.

14
“Broken Bucs,” at
duke1.tbo.com/content/2010/jul/25/260710/bucs-first-success-came-costly-toll/sports-bucs-broken/
.

15
msn.foxsports.com/nfl/story/dave-duerson-didnt-have-to-die-to-have-impact-081511.

16
See
msn.foxsports.com/nfl/story/nfl-retired-players-injury-claim-court-date-set-091511
.

17
You can view the video at
www.c-spanvideo.org/program/Concuss
.