How The $1B Concussion Settlement Fails Former Players

Sportswriter Patrick Hruby recently got a phone call from a guy he didn’t know.

"This gentleman is in his 30s," Hruby recalls. "And he sounded pretty suicidal."

The guy had played in the NFL. He knew Hruby had been writing about former players suffering from the effects of hits to the head. He needed somebody to talk to.

"He hears his young kids cry and he wants to throw them to the ground," Hruby says. "His marriage has gone bad. He told me, 'I’m a college-educated man, Patrick, and I cannot read a one-page letter anymore. I cannot make the paragraphs and the words make sense.'"

Just because these kind of problems that come from neurological damage, from brain damage, aren’t covered by this deal, it doesn’t make those problems any less real.

Patrick Hruby

That former player, whose name Hruby didn’t want to reveal, doesn’t have Alzheimer’s disease, Parkinson’s disease, or ALS. If he did, he’d be entitled to compensation according to the settlement between the NFL and the former players who sued the league four years ago. That settlement was upheld by the U.S. Court of Appeals on Monday. If it turns out that the player has chronic traumatic encephalopathy, which can’t be determined until after he’s dead, his family will be compensated. They will also get some help if dementia renders the player helpless and incompetent.

But right now, he’s out of luck.

That’s not how the thousands of former players who sued the NFL in 2012 thought it would work out.

'Frustration' And 'Betrayal'

"Basically, we thought if we've had any type of concussion, that we would be able to get some type of settlement from that," says Dennis DeVaughn, who played for the Philadelphia Eagles in the early '80s. "Once it got started and the length of time and all the appeals and everything that’s happened, a lot of that has changed."

“A lot of that” certainly has. And perhaps the biggest change involves how the settlement deals — or fails to deal — with chronic traumatic encephalopathy. Evidence of CTE has turned up in nearly all of the former players whose brains have been examined. Those discoveries led thousands of players to join the lawsuit. Yet most of the players suffering from the consequences of CTE are unlikely to get relief under the terms of the settlement OK-ed by the court on Monday.

"I’m 59, right, and I’ve had multiple — I had concussions every day," says five-time Pro Bowler Fred Smerlas. "But, yeah, obviously I’m concerned. I can’t sleep. I’ve got headaches, you know, anger, all that kind of stuff."

"This is the NFL," Smerlas says. "They wield a giant club. And we’re just a bunch of old guys that can hobble around."

"People like Fred, they're kind of going to be on their own," Hruby says. "And that’s a tough thing. Look, just because these kinds of problems that come from neurological damage, from brain damage, aren’t covered by this deal, it doesn’t make those problems any less real."

The attorneys representing the players over the past four years had a rationale for compromising. They felt it was crucial to get some money to the most desperate players and their families as quickly as possible. In order to do that, they were apparently willing to sacrifice the interests of the many less desperate players: the ones who could not sleep and were prone to violent mood swings, the ones whose marriages were disintegrating, the ones who couldn’t hold a job or read a newspaper. So it was not surprising that some of the players who will not benefit much — if at all — from the settlement appealed it. And, given the “giant club” to which Smerlas referred, perhaps it’s not surprising that they lost. Which is why journalists like Hruby are hearing from them now.

"They’re all very concerned about how CTE has essentially been written out of this deal to a large extent," Hruby says. "And I think there was a sense, too, emotionally, for a lot of these guys of frustration and even a sense of betrayal."

Looking Ahead

Those players can contest Monday’s judgement, but there’s little chance the full appeals court will reverse the decision. Individual players, such as DeVaughn, who opted out of the settlement, can try another strategy.

"If I feel like I’m suffering from those symptoms due to now what we know [is] CTE, I would definitely feel that the NFL would be responsible," DeVaughn says, "and I would definitely try a lawsuit."

Lawsuits take time, especially when brought against entities determined to delay them. They require resources many of the players don’t have, whereas the NFL has resources aplenty.

Perhaps the best hope for the former players currently suffering from symptoms of CTE is in the league’s stated willingness to revisit the terms of the agreement if medical science develops a CTE test that can be administered to a living person. The consensus seems to be that this will happen, perhaps within a decade.

That can’t be much comfort to the men and families whose lives are falling apart now.