The NFL and Dave Duerson's brain
His family's lawsuit against the league looks potent. Plus, unraveling the Braun case.
It's always fun to watch a high-powered offense in action. That's true in football and it's true in legal disputes, especially in the view from our Courtside Seat. Two major offensives -- one by the family of an NFL concussion victim and the other by a young baseball superstar who surprised MLB authorities with some trick plays -- currently have our attention. We'll get to Ryan Braun's attack on the MLB drug testing system in a moment, but we start today with
Reaching Critical Mass in the NFL's Concussion Crisis
In the summer of 2004, when their candidate for the U.S. Senate was ensnared in a sex scandal and forced to withdraw, the leaders of the Republican Party in Illinois turned to a highly successful, 43-year-old businessman who was making a fortune producing meat for fast-food restaurants.
He was charismatic and articulate, a father of four beautiful children, and was so highly regarded that the University of Notre Dame, his alma mater, had made him a trustee. His candidacy, the Republicans believed, would be their best chance to defeat the Democrat in the race -- a young state senator named Barack Obama.[+] EnlargeAP PhotoDave Duerson (No. 22), shown here in 1989, had an 11-year career at safety for the Bears, the Giants and the Cardinals.
It was not the first time politicos had looked at the young businessman. A year earlier, Chicago's then-mayor, Richard M. Daley, a Democrat, had suggested to him that he would be a worthy successor when Daley chose to retire.
But Dave Duerson, in perhaps one of the last wise decisions he made, told the Republicans he was not interested in a career in politics.
Over the next few years, he picked fights with banks, vendors and manufacturers who had been critical to his business, and he landed in a jumble of litigation and bankruptcy. Within view of a hotel concierge in South Bend, Ind., in February 2005, he threw his wife against a wall and was arrested and then forced to resign from the Notre Dame board. At a Congressional hearing in 2007, security officials (at least five of them) grabbed him as he seemed about to attack a 75-year-old retired NFL player.
On Feb. 17, 2011, divorced from his wife, estranged from his children, and without a vestige of his former success, he shot himself.
Duerson, who was 50 when he died, knew there was something wrong somewhere. He told people, "There is something going on in my brain." In his final moments, he wrote a note requesting that his brain be examined for football-related damage. And to make sure it would be available for medical study, he aimed the fatal bullet at his chest rather than his head.
As Duerson must have suspected, the pathological postmortem study of his brain showed that he suffered from chronic traumatic encephalopathy (CTE), a form of damage to the tissues of the brain that results from concussions. The laboratory finding and the final years of Duerson's life offer a clinical chronology of the depression, flawed judgment, mood swings and loss of impulse control that derive from damage to the brain.
Duerson's four children are now relying on the medical evidence and their father's troubled last few years in a wrongful death lawsuit they have filed against the NFL. It's only one of 659 similar lawsuits filed thus far against the NFL, but it's the one to watch.
Corboy & Demetrio, the Chicago law firm representing the Duerson family, employs some of the nation's greatest trial lawyers, collecting more than $3 billion in settlements and verdicts. The Duerson case has special status in the firm's inventory, partly because Thomas Demetrio, the lead attorney, attended Notre Dame while Duerson played in South Bend; and Demetrio's associate attorney on the case, William Gibbs, played football at Notre Dame.[+] EnlargeAP Photo/Charles Rex ArbogastDuerson's son, Tregg, announced the filing of the wrongful death lawsuit against the NFL last week.
Most of the concussion crisis cases against the NFL are expected to wind up in an enormous series of class actions in federal court in Philadelphia, but the Duerson family and Demetrio expect their action to be tried in state court in Chicago, a venue they clearly view as a home-field advantage. It could easily become the first court test of the NFL's responsibility for concussion-related injuries that, years after retirement, manifest themselves in depression, dementia and death.
Demetrio expects the NFL to file what is known as a "removal" petition to transfer the case to federal court and ultimately to the growing cluster of cases in Philadelphia. The league's attorneys have used that procedure in other concussion cases, based on the idea that it would be highly advantageous for the NFL to defend all concussion crisis litigation in a single courthouse. If the Duerson case is added to the others that way, the details of his dramatic story might be hidden among the hundreds of other claims.
The Corboy & Demetrio lawyers will try to stop the NFL from moving the Duerson lawsuit.
"We know that it will be sent to federal court, but we also know that it is not ripe for federal court. We expect it to be sent back to state court in Chicago and to try our case before a Chicago jury," Demetrio told ESPN.com., with the certitude of a master trial lawyer who has practiced in the Chicago courts for nearly 40 years.
In the 36-page lawsuit filed by the Duersons last week, the lawyers present a powerful array of evidence of what they say is the NFL's years-long "propaganda" effort to convince NFL players that concussions were injuries of no consequence and did not lead to CTE or any other form of brain damage.
They cite the now-notorious NFL "Mild Traumatic Brain Injury Committee," which began a "propaganda scheme" in 1994 that was, according to the suit, "designed to mislead NFL players and retirees regarding the long-term ramifications of concussions, sub-concussive brain trauma, and repetitive brain trauma."
The Duerson lawyers might even find it worthwhile to point out the word "mild" in the name of the committee and ask these questions: (1) Can there even be such a thing as a "mild" brain injury? (2) Do people who have suffered brain damage use the word "mild" to describe what happened to them? (3) Wouldn't the only "mild" brain injury be one that happens to somebody else?[+] EnlargeAP Photo/Susan WalshIn September 2007, Duerson and former Cowboys fullback Daryl Johnston testified on Capitol Hill about the NFL Retirement System.
The suit claims that instead of warning players of the consequences of multiple concussions, the MBTI committee told players there was "no evidence of worsening injury or chronic cumulative effects" and that it was perfectly "safe to return to play a game" on the day of a concussion.
The Duerson lawyers also cite the examples of six other NFL players who died from CTE-related problems, four of them, like Duerson, by suicide.
The most dramatic of the six examples are former Steelers center Mike Webster, whose tragic story of CTE, dementia, homelessness and death was documented in Greg Garber's 2005 ESPN.com series and in other places; and Terry Long, another former Steelers offensive lineman. Like Duerson, Long was building up a meat business when his life spun into a vortex of bad decisions and tantrums. Facing personal and business bankruptcy, a federal indictment and an arson investigation into a fire at his processing plant, Long died after drinking battery acid in 2005. An autopsy showed CTE.
In addition to the laboratory evidence of brain damage and the NFL's history of denials of the effects of concussions, the Duerson legal team expects to present material that links damage to specific parts of the brain to specific behaviors -- for example, damage to the portion of the brain that would ordinarily control suicidal impulses.
Like other concussion crisis lawsuits, the language of the Duerson complaint is accusatory and confrontational. It employs terms such as "epidemic" and "national health crisis" to describe concussions among NFL players, and it accuses league officials of "false statements" and a pattern of "creating confusions and uncertainty" about the link between concussions and CTE. There is no doubt that the NFL's early response to assertions of a link between concussions and CTE was defensive and, in several cases, misleading. But in recent months, the league has modified its approach. The owners agreed in the new collective bargaining agreement last summer to invest $100 million in concussion research, and commissioner Roger Goodell has conceded that "more can be done for retired players" and that "head trauma may play a role" in their difficulties.
It could not have been easy for the Duerson family to look back on the final years of their father's life and go public with all that he did to them and to others. They and their lawyers know the NFL will fight them vigorously, attempting to turn their father's actions and statements into a story of self-destruction.
But in the trial of their lawsuit, using Duerson's behavior as a model for the damage caused by concussions and CTE, they might be able to return their father to the heroic status he enjoyed as an All-Pro safety and a member of two Super Bowl teams, as well as a citizen that both political parties viewed as an ideal candidate for high office.
Elusive Truth and Consequences in the Ryan Braun Case
Major League Baseball officials are still incensed that Ryan Braun and his attorneys were successful in their attack on the drug testing process. Braun remains incensed that anyone would suggest he used a banned substance. And the part-time urine collector who kept Braun's sample in his home for nearly two days is incensed that anyone would question his methods or his integrity.
With all of this righteous indignation floating around, it's difficult, if not impossible, to determine who is right and who is wrong.
But one thing should be clear. The rules of the testing program as negotiated by the players and the owners are designed to establish and to protect the integrity of the testing. They apply to all MLB players, and they apply to those who do the tests.[+] EnlargeJoe Robbins/Getty ImagesRyan Braun and other players face consequences if they don't completely comply with MLB's drug testing rules. Shouldn't all the parties in the program?
If a player does not conform to the written requirements of the program, there are consequences. The player can be suspended.
If the tester does not comply with the written requirements, there must also be consequences.
In the Braun arbitration hearing, the collector, Dino Laurenzi Jr., testified at the end of the first day and well into the second day, according to a person familiar with the transcript of the hearing who wished to remain anonymous because Shyam Das, the arbitrator, has not yet issued his written opinion. There was no suggestion, a source insists, of any tampering. Nor was there any suggestion that the laboratory testing of the sample was flawed.
But there was the suggestion that the collector didn't comply with the rules of the collection. During cross-examination, Braun's attorneys attempted to convince Das that Laurenzi did not stick to the letter of the procedure. Laurenzi disputes that, insisting this week that he followed protocol.
Another source (they all want to be anonymous until the official opinion is issued) suggests that the detailed and forthright statement that Laurenzi issued with the help of a lawyer this week was significantly different from his reluctant and halting testimony in the hearing. For example, he said in this week's statement that "I followed the same procedure in collecting Mr. Braun's sample as I did in the hundreds of other samples I collected under the program." But according to the source, Laurenzi was less definitive and less specific in his testimony at the hearing.
It's an indication, the source continues, of a lack of preparation on the part of MLB attorneys and "their arrogant attitude toward anyone who would question their procedures." If, when Das issues his opinion in the coming weeks, we learn that his ruling was based on procedural non-compliance, as appears likely, it will be easier to understand. We still won't know for certain whether Braun used steroids, and we still won't know for certain whether there was tampering with the sample. We will know only that there was a violation of the rule that governs collection, and the sanction for that violation had to be to disqualify the sample and lift Braun's 50-game suspension.
Then, instead of lobbing accusations against each other, the players and the owners should recognize the basic principle that the rules apply to all parties. If they aren't working, then these two long-time adversaries are going to have to do one of their least-favorite things: Negotiate rules that will.
Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.
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