Eleanor Perfetto watched her husband shrivel, and she watched him die. Near the end, Ralph Wenzel was a husk: a once strapping and energetic 225-pound former National Football League lineman, down to 145 pounds, eating mashed-up doughnuts, unable to walk or bathe himself, his mind unraveled by dementia. He was posthumously diagnosed with both Alzheimer's and chronic traumatic encephalopathy, the latter neurodegenerative disease linked to repeated blows to the head; a scientist who examined his 69-year-old brain said it had shrunk to the approximate size of an infant's. Wenzel's dissolution was slow. Horrific. So Perfetto understands. Understands the pain. Understands the relief over the proposed $765 million settlement of the NFL concussion lawsuits, the eagerness to assist the former players in the most dire need -- and their families, too -- while calling off a long, draining legal fight.
Still, Perfetto can't help but feel torn. Torn that the league is just walking away, cash left on the nightstand. Admitting nothing.
"This is a positive step, good for the players and families that need help now," says Perfetto, a senior director at Pfizer and one of the over 4,600 former players and their family members who have sued the NFL. "But I'm very disappointed that the league gets to continue to deny the relationship between head injury and the illnesses that we see. They're not taking on any culpability. And we will never know the timeline of just how long they have known this and the extent of them blocking it as much as they could. That will be kept secret unless some whistleblower comes forward in the future."
When it comes to mixed feelings, Perfetto is hardly alone. Former All-Pro defensive back Bruce Laird worries that the settlement won't be large enough to cover the brain trauma-related medical needs of all current and future players. Retired linebacker Scott Fujita believes that full NFL disclosure -- what, exactly, did the league's executives and denialist doctors know, and when did they first know it? -- is a public health matter. Retired lineman Kevin Mawae likens the pending deal to "taking it 99 yards, but not getting that last yard" and taking "a little bit of our milk money back" from a schoolyard bully while getting a "promise that he won't touch us again." On the other hand, all three former players -- Laird is a plaintiff in the lawsuits; Mawae and Fujita are not -- are pleased that peers like former NFL fullback and Amyotrophic Lateral Sclerosis sufferer Kevin Turner will receive concrete financial assistance sooner rather than later. For that matter, so is Turner: in a recent USA Today editorial, he wrote that many of us also feared that a resolution would take years. That this agreement happened so quickly lifts an enormous burden off of our shoulders. We will get the care and security we need now, without being forced to wait for years of litigation to work its course. Indeed, NFL executives, plaintiff's lawyers and mediator Layn Phillips all have framed the pending settlement as a choice between competing goals: plaintiffs can push for more money and evidence of league wrongdoing via a bruising court battle that could last years, or they can help men like Turner as quickly as possible. They cannot do both.
Or can they?
To borrow Mawae's metaphor, the concussion plaintiffs don't have to take a knee at the goal line. Nor do they have to abandon their brothers in need. They can help men such as Turner and continue to fight. They don't need to take a crummy deal. They can demand something better. They should demand something better. They have more potential resources -- more potential leverage -- than commonly believed.
Now is not the time to settle.
* * *
Start with the money. Suppose retired players had as much as $493.7 million available to them over the next eight years, earmarked for medical care and financial assistance. Would that change the settlement equation? Guess what: this money isn't hypothetical. It's real. Available now. Available since last year. A pot of cash hiding in plain sight, roughly equivalent to the $495 million NFL is scheduled to dole out over the first eight years of the proposed deal.
Pull up the league's current collective bargaining agreement. Go to page 78. Look for Section 5: Joint Contribution Amount. You'll find an annual fiscal carve-out from the players' share of football revenues, starting at $55 million in 2012 and increasing at compounded rate of five percent annually through 2020. Who controls this money? Where is it going? That's where things get interesting. And frankly, a bit curious. According to the CBA:
• $22 million "shall be dedicated to healthcare or other benefits, funds, or programs for retired players as determined by the NFLPA";
• $11 million "shall be dedicated to medical research, as agreed to by the parties";
• $22 million "shall be dedicated to charities as determined by the NFL, including NFL Charities and/or Youth Football or successor organizations."
At the time this article was published, the NFLPA had not responded in any detail to repeated Sports on Earth requests to explain what the $22 million for retired players is being spent on. The $11 million appears to be funding a 10-year, $100 million Harvard University study of player injuries, including brain trauma. The other $22 million -- again, player money, yet oddly controlled by the league -- presumably goes to the NFL Foundation to fund things like youth football camps and USA Football's mom-reassuring "safe" tackling clinics.
Better idea: why not put most -- or all -- of that money toward taking care of the lawsuit's most heartbreaking plaintiffs, and any other former players who need immediate medical and neurological care?
The Harvard study reportedly will screen 1,000 retired players, then study the 100 healthiest and 100 sickest players over a decade's time. Researchers will test experimental treatments for everything from torn knee ligaments to concussions. All of which is all well and good. But perhaps not the most pressing priority, given that 233 former players already have qualified for the league's 88 Plan, which awards up to $100,000 a year to cover medical expenses for individuals with a diagnosis of dementia, ALS or Parkinson's. These are men (and families) who need tangible intervention and financial support right away, not the results of a longitudinal study published in the final days of Hillary Clinton's second presidential term. As for the $22 million of charity funding controlled by the NFL? League executive vice president Jeff Pash says the top concern of commissioner Roger Goodell and the team owners who employ him is to "do the right thing for the game and for the men who played it. We thought it was critical to get more help to players and families who deserve it rather than spend many years and millions of dollars on litigation." Goodell himself says that the "right thing" is to "move forward and to try to do what we can to help our players and their families."
Gentlemen: instead of being compelled to help dementia patients like Hall of Famer Willie Wood at legal gunpoint, how about Doing the Right Thing TM by putting your money -- excuse me, player money you inexplicably get to play with -- where your mouths are? How about focusing your charitable efforts on charity cases your violent industry has created?
This is not an outlandish request. Nor is it a complete reshuffling of financial commitments. To the contrary, redirecting some or all of the Joint Contribution Amount toward neurologically-impaired NFL retirees would be fulfilling the reason the annual $55 million-plus set-aside was taken out of active player salaries in the first place. The NFLPA has made a number of mistakes over the years -- chief among them stumbling into an underfunded pension hole that gives team owners powerful bargaining leverage -- but in this case, its heart was in the right place. Union leaders like Mawae and Fujita wanted to care for past, present and future players' brain health. In fact, at least $22 million of the JCA appears to have been originally earmarked for a comprehensive clinical research program integrating care for symptomatic former players, spearheaded by former NFLPA executive committee member and Mackey-White Traumatic Brain Injury committee co-chair Sean Morey.
A longtime special teams standout who retired in 2010 due to debilitating post-concussion symptoms, Morey proposed creating a Players Health Trust, tasked with indentifying and treating players suffering from neurological damage and disease. Run by players and directed by independent scientists and clinicians, the Trust would have partnered with world-class medical institutions including the Mayo Clinic and Cleveland Clinic, setting up an open science platform with teams of specialists covering 35 different areas of brain and nerve injury. Thousands of former players would have been screened, with those in need receiving immediate care. The general idea? Learn by treating. Publish research findings as you go.
"Basically, I was trying to structure a solution so that symptomatic players could access adequate medical care while helping clinicians learn how to treat these issues more effectively," Morey says. "[Neurological] disabilities affect not just who you are, but also your ability to work at a high level. [The Trust] would have offset that diminished ability to earn a living and provided care to delay the onset of problems and improve the quality of life of players and their families. The reality is a lot of people leave this game damaged, and whether you recover from that depends on the medical care you get."
Although the NFLPA's board of player representatives approved a resolution authorizing Morey to pursue his plan with the $22 million in JCA funding designated for "healthcare or other benefits, funds, or programs for retired players," the Trust ultimately was scuttled. It could be revived. Something similar could be created. Needy players could be getting aid, without waiting for the concussion suit settlement. Again: the blueprint already is there. So is the money. Today. According to mediator and former federal judge Phillips, there's "no question" that the settlement will "provide benefits much sooner, and at much less cost, for many more retirees, than would have been achieved through extended litigation." Sooner than litigation? For sure. Sooner than putting JCA funds to their intended use? Probably not. Assuming the settlement is finalized and approved by all parties and Judge Anita Brody, complex litigation experts predict it could take between five months and two and a half years for former players like Turner to receive their first checks.
"The NFL is motivated to put this behind them," says Jordan Kobritz, a sports management professor at the State University of New York at Cortland , who is a former attorney and minor league baseball owner. "They have the financial wherewithal to put money in a trust virtually immediately. Some of the plaintiffs have serious medical conditions. In theory, it can certainly happen in a few months. But that's theory. In this particular case, I think it's a lot closer to reality to compare it to similar situations.
"For example, when you set up a commission to try to figure out how to distribute money, like in the  Oklahoma City bombing case, there are still millions of undistributed dollars. The people in charge can't agree on how to distribute it. I think you'll see [the NFL concussion] distribution start to flow sooner rather than later. But could it take years? Yes. Has it taken years in past class actions? Absolutely."
While plaintiffs' lawyers have yet to file a finalized proposal with Judge Brody, Philadelphia attorney Sol Weiss told Nathan Fenno of the Washington Times that the proposed settlement won't require players already diagnosed with neurodegenerative diseases to undergo baseline examinations before becoming eligible for compensation. (Basically, a doctor's note will suffice.) Moreover, Weiss says that economists and actuaries have evaluated the $675 million compensation fund and believe that the money will last for 65 years. This seems unlikely. Remember the 233 former living and deceased players who have qualified for the 88 Plan? According to the settlement's reported award structure, individual payouts will be capped at $5 million for Alzheimer's, $3 million for dementia and $4 million for CTE deaths.
Suppose the awards for each condition average $2 million. Take those 233 players. Add 34 diagnosed NFL CTE cases. Now do the napkin math: 267 times $2 million is $534 million -- more than the $382.5 million the NFL will make available during the first three years of the settlement. And that's without adding a single new or undiagnosed case of degenerative brain disease. Football players are a proud, stubborn bunch. They are conditioned from a young age to endure, overcome and show neither pain nor weakness. How many NFL retirees are hiding problems? Also remember: there are roughly 4,600 concussion suit plaintiffs, but an estimated 15,000 to 18,000 living retired players. Does anyone think we've seen the final case of Alzheimer's or ALS among the entire cohort? The last suicide victim posthumously diagnosed with CTE? Does anyone think that some of today's retirees managing relatively mild cognitive problems won't become tomorrow's hard cases? Does anyone think the problem has already peaked, even though: (a) former players in their 20s, 30s and 40s generally have played more football than their predecessors; (b) bigger, faster, stronger athletes are generating greater impact force in a game where the helmet has evolved into a weapon; (c) an entire generation of NFL players was routinely shot up with Toradol, a pain-deadening, prescription-only anticoagulant that could make concussions more damaging and is considered dangerous enough that some European countries have banned it outright?
"We are going to see more cases in worse condition in [the] next 20 years than we have seen in the entire history of football," says a researcher studying brain trauma in former NFL players. "And these guys won't see a dime. No recourse."
That may be a worst-case scenario. Still, consider a recent Los Angeles Times report that examined California workers' compensation data and found that almost 80 percent of 4,400 athlete claims filed since 2006 alleging serious brain or head injuries come from former football players. According to the Times, worker's comp claims could cost the NFL as much as $1 billion to resolve. Which is larger than the proposed settlement. Of course, not every claim against the league involves brain damage. Comparing the concussion suits to worker's comp is something of an apples-to-oranges -- or maybe Fuji-to-Red Delicious -- comparison. But given the expenses involved, can plaintiffs afford to settle for anything less?
As Fenno notes, former Oakland and Seattle fullback Steve Smith's ALS forces him to use a ventilator to breathe. Former All-Pro Otis Taylor's dementia and Parkinson's have left him dependent on a feeding tube. The aforementioned Wood resides in an assisted-living facility. None of this is cheap. Frank Neuhauser, the executive director of the Center for the Study of Social Insurance at the University of California, Berkeley, told the Los Angeles Times that dementia and Alzheimer's patients can cost "millions of dollars and can involve 10, 20, 30 years of medical care and income support." Forbes reports that the average cost for a single year of nursing home care is about $80,000 -- and that for specialized care, costs are typically higher. University of Toronto neurosurgeon Charles Tator told Medscape Medical News that the total costs related to repetitive traumatic brain injury -- including lost productivity and medical and custodial care -- are in the ballpark of $10 million per case.
"Right now, I don't know what they are basing their calculations on," Perfetto says. "What do they think the rate of disease will be in the population over time? You have to remember, of all the players who have ever played in the NFL, we're not aware of how many have diagnoses right now. We have the numbers for the 88 Plan. That's a small fraction of the number who have low-level disease and haven't been diagnosed yet. That doesn't include people who died with disease and were never counted because the 88 Plan didn't exist yet.
"Players who have a diagnosis now are largely concerned with making sure their families are taken care of. If there's a guy out there who is 30 [years old] and has been playing in the league for 7-8 years, and then he gets diagnosed at the age of 56 as my husband did, I can't see that there will be a dime left for him and his family."
* * *
In July, Cincinnati Bengals owner Mike Brown told reporters at a promotional luncheon that any link between football-induced brain damage and long-term cognitive harm was "merely speculation." His evidence? The fact that he suffered concussions in high school and college, and can "still count to 10."
Oh, and also this: Brown claimed that the NFL had "statistics" substantiating his claim.
That's right: statistics. Cold, hard numbers. Was Brown telling the truth? Probably not. If the league had solid data disproving a connection between football and dementia, Goodell would dress up like Paul Revere, hop on a
horse Budweiser-sponsored Clydesdale and trumpet the news from coast-to-coast. Still, suppose Brown is right. If so, it would be grossly irresponsible not to share that information with worried current and former players. Similarly, if the NFL's research actually shows that players have plenty to worry about, it would be grossly irresponsible not to disseminate it.
Of course, disclosure is not exactly the league's strong suit.
Four years ago, University of Michigan researchers completed a study showing that former players appeared to suffer high rates of dementia, Alzheimer's and memory-related diseases -- between five and 19 times the national average. After the study was leaked to the New York Times, NFL doctors dismissed its findings, while a league spokesman questioned the study's methodology and told reporter Alan Schwarz that "memory disorders affect many people who never played football or other sports." Fun fact: the study was commissioned by the league. Not that the NFL's risk-downplaying spin was out of character. In 1994, former commissioner Paul Tagliabue formed the league's Mild Traumatic Brain Injury Committee. Headed by resume-padding former New York Jets team doctor and Tagliabue personal physician Elliot Pellman -- a rheumatologist, not a neurologist -- the committee spent the next decade and a half producing since-discredited research papers proclaiming that concussions in professional football "are not serious injuries" and that concussed players, even those knocked unconscious, could be "safely returned to play" on the same day of their brain injuries, two findings that contradicted both independent science and common sense.
In 2007, Bernard Goldberg of HBO's "Real Sports" interviewed then-NFL concussion committee co-chair Ira Casson about football-induced brain damage:
Goldberg: Is there any evidence, as far as you're concerned, that links multiple head injuries among pro football players with depression?
Goldberg: With dementia?
Goldberg: With early onset of Alzheimer's?
Goldberg: Is there any evidence as of today that links multiple head injuries with any long-term problems like that?
Casson: In NFL players?
What did the NFL know? What should it have known? When did it know it? These aren't simply scandal-mongering, backward-looking questions. They're vital. Vital because the answers directly impact player health and safety. At the same time Pellman's committee was downplaying and denying brain trauma risk, Pellman and other league doctors were allowing and encouraging concussed players like Wayne Chrebet and Ted Johnson to remain on the field, essentially manufacturing cases of post-concussion syndrome. Continuing the concussion lawsuits would mean depositions of top executives and disclosure of committee records, revealing the full extent of the NFL's knowledge of football's risks; settling will permit Pellman -- still employed by the league, by the way -- to stiff-arm plaintiffs and the public alike with a final, resounding no.
"You know what we hear all the time from so many people?" says Laird, a plaintiff in the concussion suit. "You knew what you were doing. Everybody told you that playing football was really tough. All these things could happen. You could have all these injuries. And you're just a bunch of greedy bastards trying to get money.
"That is so far from the truth. I'm not here to make a score. I hope I never receive a dime of the $675 million, because I don't want any part of the worst illnesses. What I want is to peel the onion and figure out what they knew. Why were we not told what could possibly happen after that second or third concussion? Why were we treated by unqualified people on the sidelines? Why weren't we told, so our loved ones could understand the risks?"
There's another reason the league should be pressured to open its vault. Trust. Past, present and future players deserve to know who at the league values their health and safety, and who values those things only to the point where they conflict with the bottom line-driven desire to disassociate football and brain damage. Call this The Pellman Problem. Who, exactly, at the league office decided to retain Pellman as a medical advisor? Who, if anyone, disagreed with that move? Who sounded alarms about Toradol and junk science? Who looked the other way? Who is behind the NFL's Big Tobbacco-esque nothing to see here propaganda, like a ridiculous recent article on the official league website citing 18 Major League Baseball concussions this season and claiming that "MLB is dealing with the same concussion culture that the NFL has been trying to change?" Who is sanctioning the league's ongoing use of ImPACT, a concussion evaluation system built on conflict of interest-ridden research by NFL-affiliated doctors and deemed unreliable by many experts, largely because it produces high rates of false positives and inconsistent results when administered repeatedly to the same person?
"I live on a lake in South Louisiana," Mawae says. "If I hire someone to come work on my yard, I should warm them that, 'Hey, there are two alligators and some snakes out there.' They can still take the job, but there's a moral obligation for me as a property owner to let them know that there's an inherent risk.
"The NFL was doing concussion studies as early as the mid-1990s. That's information that the players could have used to make more intelligent decisions on their career and possibly to change the rules of the game 15 years to make the sport safer, instead of reactionary policy changes the last few years. Information is knowledge. Knowledge is power. Power gets you what you need. Without that knowledge and information, we're stuck. Players have to go play the game hoping, hoping that the NFL will do the right thing for the players -- when historically they help the shield. So there's a huge part of me that wishes the players would have taken this to the end."
* * *
Finishing the fight won't be easy. The case could drag on for years, an emotionally-draining slog. "It's a tough road to do something like this," Perfetto says. "People want to have it behind them." It could go all the way to the Supreme Court, a conservative, corporate-friendly group of justices that Santa Clara law professor Brad Joondeph describes as "immensely hostile to class actions." The NFL could mount a robust defense rooted in the concept of causation -- in other words, questioning the origins of plaintiff brain damage. Did it come from hits absorbed in professional football? College? High school? Pee Wee? Did it come from -- as Goodell infamously once put it -- banging one's head while "swimming?"
According to a report by ESPN's Steve Fainaru and Mark Fainaru-Wada, Judge Brody may have signaled to the plaintiffs' lawyers that she was prepared to accept at least part of the league's argument that the NFL's collective bargaining agreement precludes players from suing:
… that would have gutted the lawsuit in two ways. First, it would have removed many of the nearly 6,000 former players and/or their families suing, including, lawyers for the players believed, players who appeared in the league from 1994-2010, the controversial period at the heart of the lawsuit. Second, those who remained would have faced a major hurdle proving fraud allegations, given that the NFL's controversial concussion committee wasn't formed until 1994 …
"You have a lot of built in headwinds against the plaintiffs," Joondeph says.
Headwinds can be overcome. Causation is a potentially powerful argument -- but for the NFL's purposes, it's also pyrrhic. Does the league really want to argue, over and over in a prominent public forum, that youth football causes lasting brain damage? Wouldn't that be more detrimental to the NFL's long-term business interests than paying an additional billion to settle?
Legal observers believe Brody's supposed threat to throw out some or most of the players' suits might have been a bluff designed to encourage a mediated settlement, or perhaps a purposeful leak intended to encourage plaintiffs to accept the proposed deal. Either way, the NFL's contention that the concussion suits fall under the CBA can be challenged. Lawyer and NFLconcussionlitigation.com proprietor Paul Anderson argues that by creating a concussion committee in 1994, the league voluntarily assumed a duty to inform players about and protect them from brain trauma -- a duty that exists independently of the CBA. He also argues that case law precedents in the Third Circuit -- where any decision by Brody would be appealed -- support this position.
"The idea that you have a committee peddling misinformation over a 15-year period of time that is borderline fraudulent, that is sufficient in and of itself that it belongs outside the CBA," Anderson says. "Judge Brody is super bright, fair and practical. But I think if you talk to the plaintiffs' lawyers that were part of the negotiations, they all would have been very shocked if she had gutted those claims."
The proposed settlement isn't simply a potentially bad deal for players. It's a potentially bad deal for the public. Going forward, perhaps additional high-powered lawyers or state attorney generals could be persuaded to join the case. After all, the NFL already suckles from the public teat. Taxpayer-funded stadiums and giveaways. Non-profit status for the league office. A lucrative antitrust exemption under the 1961 Sports Broadcasting Act. A settlement insufficient to cover the full cost of player brain injuries over time ultimately will result in an industrial cost shift, with Medicare and other public health money covering the shortfall.
"You, the NFL, caused this problem," says David Cay Johnson, author of "Free Lunch: How the Wealthiest Americans Enrich Themselves at Government Expense and Stick You With The Bill" and a Pulitzer Prize-winning investigative reporter. "You profited from this problem. You should pay 100 percent of the costs. Imagine somebody was running a company that was knowingly dumping pollution. We would say, 'you have to pay to clean that up.' I think it's unconscionable that taxpayers should be looking at picking up any of this. It will be interesting to see if the judge gets a complaint from anyone about this."
As for the Pellman Problem? It applies to youth football, too. If the NFL is hiding relevant concussion information, then pee wee, high school and college players may be taking unnecessary risks. Conversely, the league's high-profile, self-congratulatory efforts to foster and promote youth safety make full disclosure a must. Earlier this year, Goodell appeared on "Face the Nation" and refused to explicitly acknowledge a link between football, concussions and long-term cognitive damage. Can he really be trusted with the brains of young football players? There's only one way to find out. What did the NFL know, and when did it know it? New York Attorney General Eric Schneiderman recently issued a consumer alert attacking marketing boasts about "concussion-proof" or "anti-concussive" football helmets. Perhaps he'd like to examine league-funded USA Football and its "Heads Up" tackling technique program, which has led executive director Scott Hallenbeck to boast "there is no question that the game can be played safely and is safe, as long as it is taught properly and the players execute it properly."
In May, 17-year-old Louisiana high school football player Jaleel Gipson was taken off life support after fracturing a vertebrae during a tackle in practice. Gipson's school principal said the boy was "head up in the exact position he needs to be. The tackler lead [sic] with his shoulder, as textbook, as taught."
"I don't know at what point or to what degree the NFL has admitted the link between concussions and [long-term] cognitive injuries," says former player Shawn Stuckey, now a Minneapolis-based attorney. "If they come out and admit a direct link between concussions and brain injuries, parents are then going to stop allowing their kids to play. So [the league] is going to slow play this as much as they can. It's going to be incumbent on the media, doctors and attorneys to put the pressure on."
Pressure still can be applied. The proposed settlement is not a done deal. Not yet. Final documentation needs to be filed. Judge Brody must grant preliminary approval. Retired players will have an opportunity to file objections -- and also to opt out entirely. From there, final approval requires Brody to determine that the settlement meets three criteria.
Is it fair?
Is it reasonable?
Is it adequate?
"In my mind," Morey says, "it couldn't be anything further from those things."
The fight should go on. For a bigger, perpetual player care fund that doesn't function as a one-time payoff. For an end to the NFL's brain damage dissembling and omertà. For not only what's expedient, but also what's right. Over the course of his pro football career, Morey played through countless sprains and strains. Two broken ribs that left him unable to breathe. Multiple concussions that made every hit to the head feel like his skull was getting zapped by a Taser. Even now, the game continues to take a toll. Morey presses forward. In NFL Europe, he once played for a coach named Sam Rutigliano. Brilliant man, Morey recalls. Empathetic and courageous. Truly cared about the well-being of his players, enough to found an anonymous support group for those struggling with substance abuse. Time and again, the coach would ask Morey a question: What is the measure of a man?
"What it takes to discourage him," Morey says.