Concussion Case: An Unsettling Wait

By Bridgette Bjorlo

Leonard Marshall  (Photo: Getty Images)

Marshall, right, says the players need more out of the concussion case settlement. (Photo: Getty Images)

Detailed studies and statistics couldn’t do it. Expert medical testimony was ignored. Not even player suicides could shake the National Football League out of a denial reminiscent of the tobacco industry’s ‘smoking doesn’t cause cancer’ campaign.

But after years of dismissing the link between repeated concussions and long-term brain injury, the multi-billion dollar league may soon be forced to pay for its role in the suffering of many of its retired players.

“I think they have a moral obligation to us, but they’re businessmen, and their bottom line is money and if it threatens the money, then there’s a challenge there,” said Karl Mecklenburg, a former captain of the Denver Broncos and an All-Pro linebacker, in a phone interview. “Somewhere along the line, someone made the decision that money’s more important than the lives and the problems that this business causes.”

Mecklenburg is one of nearly 5,000 retired players who signed onto a class action lawsuit against the league, claiming that the NFL failed to warn them about the dangers of head injuries.

Karl Mecklenberg (Photo: jeffpearlman.com)

Mecklenburg, right, claims the league didn’t protect its players. (Photo: jeffpearlman.com)

“The NFL was aware that there were long-term effects of concussions, and they didn’t tell the players, and they didn’t protect the players,” he said. “They told us that we were fine and to go back in the game.”

Under the proposed settlement, the NFL will spend at least $765 million on health care and clinical testing for retired athletes who suffered concussion-related injuries.

“I think the NFL should be paying more,” Leonard Marshall, a two-time Super Bowl champion and former All-Pro defensive lineman for the New York Giants, said in a phone interview. “I don’t think it’s enough to cover all the guys and families that have been affected by this. It’s just not enough.”

Players also criticized the league for failing to properly treat injured players on the field and for dismissing football’s neurological health risks. Paul Rochester, former co-captain of the New York Jets and a defensive tackle, keeps his Super Bowl III-winning helmet in his office to remind him of the continued damage his brain endured during his 10 years in the league.

“Basically when I went off the field, the team physician, who was paid for by the Jets, looked at me

Rochester (Photo: NY Daily News)

Rochester wonders if his hearing loss is connected to the hits he took. (Photo: NY Daily News)

and said ‘Rocky, are you alright?’ I said ‘I’m a little woozy’ and he said ‘don’t take your helmet off for the rest of the game.’ I thought it was to protect my head, but it was so that I wouldn’t see the dent in my helmet,” Rochester said by phone.

Marshall condemned the league for its inadequate handling of brain injuries and said he lost count of the number of concussions he suffered throughout his 12 pro football seasons. He recalls how the New York Giants, his employer of 10 years, responded when a player got ‘dinged.’

“When you got your bell rung, they gave you some stuff to smell, which would serve as a jolt to wake you up, and then they would ask you questions like ‘do you know where you’re at’ or ‘do you know who you’re playing,’” he said. “I remember getting my bell rung a number of times.”

Marshall now serves as an advocate and national spokesman for sports safety. He educates children and families about the trials and tribulations associated with head trauma. He also participated in the documentary “The United States of Football” and co-wrote a book titled “When the Cheering Stops,” which sheds light on the many hardships players face in the years following their retirement.

“I wish the NFL did more,” Marshall, 53, said. “I think each and every player wished they did more. What players wished the most was to be told what traumatic brain injury was and the risks versus the rewards of head trauma.”

Though the players have accused the NFL of wrongdoing, the league can defend itself with causation and assumption of the risk arguments. David Schwartz, a New York based defense attorney and former state prosecutor, said the players would face a high burden of proof if the case went to trial.

Broday (Photo: legalnewsline.com)

Federal Judge Anita Brody is considering the settlement. (Photo: legalnewsline.com)

“You have to prove that the brain injury that you sustained is connected with your football playing career in the NFL, and that’s very speculative,” Schwartz said in an interview. “The other hurdle the players must jump over is that they assumed the risk. This is a tough sport, and the NFL is not responsible for every single risk. They pay these players to perform a function and for a player not to know that they can get injured is a very questionable argument.”

But Dr. Martha Shenton, a Harvard Medical School health scientist and neuroimaging expert, finds holes in the causation argument.

“A person who has a neurodegenerative disease, who’s played 12 years in the NFL, what’s the likelihood that it came from something else? I would say small,” she said. “The obvious thing that’s staring you in the face is the repetitive head impact to the brain.”

Mecklenburg, Rochester and Marshall all battle continued mental and physical injuries as a result of their time in the league. Mecklenburg, now 54, struggles with short-term memory loss.

“I go to the grocery store and park my car, and when I come out, I don’t know where my car is,” Mecklenburg said. “I’ve had to adjust. My phone is filled with pictures of parking spots and room numbers and stuff like that so I know where I’m going.”

Rochester, 76, had a cochlear implant after years of hearing impairment. The device allows him to talk on the phone, while having the caller’s words translated into text for him to read. He attributes his hearing loss to the many hits to the head he endured over the years. As for his mental state, he says it’s “livable.”

“My wife doesn’t think it’s so hot,” Rochester said, laughing. “She gives me directions for around town that I forget all the time.”

Though most players have agreed to the settlement, more than 200 retired players and families have chosen to opt out. While some have argued that the NFL should be paying more settlement benefits to suffering players, those with the most serious health problems had no choice but to pursue further litigation. Players believed to have Chronic Traumatic Encephalopathy (CTE), a neurodegenerative disease common in athletes with repeated brain trauma, are only compensated after their death according to the settlement proposal.

“We’ve studied 96 NFL players and there are changes in their brains,” Shenton said. “Most cases of repetitive head trauma end up having, what seems to me, this pattern of brain pathology that’s consistent with CTE.”

Because the disease cannot yet be diagnosed in a living person, researches identify CTE by assessing the brains of deceased athletes. Shenton said that one develops CTE as a result of repeated symptomatic concussions in addition to asymptomatic subconcussive head impact, such as hitting one’s head on a car door.

Marshall is among the group of retirees showing signs of possible CTE. Marhshall said he has chosen to remain in the settlement and is seeking compensation for other injuries, which his attorney has advised him not to disclose at this time.

“I have some problems, and I have these problems as a result of playing the game,” he said. “You can’t make this stuff up.”

Marshall said he holds resentment toward the NFL for denying him the opportunity to make informed judgments about his health.

“I think I would have been able to make better decisions as a result of knowing what was ahead,” he said. “Having those kinds of collisions at practice 85 to 100 times a day, as a defensive lineman, if I had known what that meant, I probably would have played a lot less.”

Though both Mecklenburg and Rochester have yet to be diagnosed with a neurodegenerative disease, they both remain plaintiffs in the lawsuit against the NFL. Rochester said he views the settlement as a form of long-term health insurance, in case he is diagnosed with one of the diseases covered by the agreement.

As for Mecklenburg, he said the lawsuit was never about the money. While he wants his family to be compensated if anything happens to him, Mecklenburg pursued legal action for his football successors.

“Because this lawsuit was filed, the NFL has set up protocols to protect the guys that are playing now, and that trickles down,” Mecklenburg said. “Colleges now have concussion protocols, high schools now have concussion protocols, and even the little Pop Warner kids are now very aware of the seriousness of concussions. So to me, that’s the value of the lawsuit. It’s not that I get to make some money; it’s that things change.”

Though more than a year and a half has gone by since the proposed settlement, the agreement has yet to be finalized.

“Nothing has been done,” said Cedrick Hardman, a former defensive end for the San Francisco 49ers and the Oakland Raiders, by phone. “I played twelve years, and so be it.”

Marshall said that something has to be done because many of these retirees need the money for their health care needs.

“This group of athletes is no better today than they were a year and a half ago,” he said. “It’s totally unfair and unjust.”

Despite the rising frustration surrounding the settlement limbo, those players who opt out of the proposed settlement face great risk in going to trial.

“The fact that the players and the league didn’t get everything they wanted, that’s usually a sign of a good settlement,” Schwartz said. “I think the settlement is fair because those who don’t think it’s fair could opt out and take the case all the way, but they are risking getting zero.”

Both Mecklenburg and Rochester said that if they could relive the past, they still would have played professional football, though Mecklenburg vowed he would have taken his concussions more seriously. As for Rochester, he doesn’t have any regrets about his football career but admitted he influenced his grandson to play lacrosse.

Marshall, on the other hand, said though he can’t rewrite history, he would have made different decisions had he known about the dangers of head injuries.

“In terms of my career, it would have been shortened by a number of years,” he said. “I think a lot of guys wouldn’t have stayed as long knowing that those types of collisions would take the toll that it did.”

He predicted the league would undergo changes in the years ahead as information on concussions becomes more available, possibly resulting in fewer athletes risking head injuries.

“I think if the future of football ever was at risk, it’s now,” Marshall said.

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