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Monday, August 29, 2011
Stop fighting NFL retirees' claims

By Cy Smith
Special to ESPN.com

Editor's note: Cy Smith represented Mike Webster's estate in the first successful lawsuit against the NFL pension plan and has testified before Congress about the pension plan and head injuries.

If the NFL is serious about addressing head injuries, it must look beyond the action on the field and stop fighting the past. Although modest steps have been made to reduce the dangers of the game, the league pension plan continues to systematically deny compensation for injured athletes whose playing days are over.

Mark Duper
Mark Duper and other former players have sued because they feel they should have been better informed of the risks of the NFL.

Under the current system, former players suffering from the debilitating effects of head injuries can apply for benefits covered by the NFL pension plan. But the plan requires them to meet a series of strict -- often arbitrary -- standards to qualify. It's much easier for recently retired players to prove a connection between their head injuries and their illnesses. For a former player who has been retired for years, it's often impossible for him to receive the benefits he deserves without bringing a lawsuit against the NFL.

The league's inability to address head injury concerns became an issue during negotiations over the new collective bargaining agreement, has caused Congress to investigate and has led to numerous lawsuits. Most recently, a group of 75 former players sued the NFL, claiming the league failed, as far back as the 1960s and 1970s, to act on information about the dangers of head injuries.

Although it is clear that the NFL has done a poor job over the years of addressing this enormous concern, it is much less clear whether this, or any other, lawsuit has any real chance of making the game safer -- let alone succeeding in court. There does not appear to be strong evidence suggesting that the NFL knew 30 to 40 years ago that concussions would lead to early-onset dementia.

It has been reported that the league recently reviewed medical evidence about retired players in their 30s and saw no evidence of brain injury. There is also research suggesting that the effect of multiple concussions is delayed, and strikes when players reach their 40s or 50s -- as in the case of Dave Duerson. It will therefore be difficult to prove that the league was willfully deceptive, or even just negligent, in not alerting players to this risk back in the 1970s and '80s.

The players' lawsuit also takes on helmet manufacturer Riddell and accuses the company of failing to warn them of potential head injury risks. This argument, which essentially says that players would have acted differently had they known that a helmet would not fully protect them from injury, will also be very challenging to prove.

Cy Smith
Cy Smith has represented men seeking pension benefits for injuries sustained as NFL players.

Today, the long-term risks from concussions are well-established, yet players voluntarily accept those risks because of the opportunity to be highly paid to play a sport they love. It is simply human nature to continue to engage in profitable or enjoyable activities -- from driving a car, to riding a roller coaster -- when the dangers are well-known to us. I have spoken to well-educated, well-informed current and retired players who have made this tradeoff explicit. As one Ivy League graduate now in the NFL put it to me, "I know the risks -- but if I play my cards right, I could retire after five years and be set for life."

It is hard to believe that, had Riddell or any other equipment maker issued explicit warnings years ago, many professional players would have walked off the field and away from the admiration, fame and wealth.

Given all of this, the players' lawsuit, however well-intended, is far from a sure thing. Furthermore, it is unlikely that any lawsuit, no matter how much evidence is produced linking football with brain injuries, will result in development of a "safe" way to play the game.

Football is a violent sport; much of its appeal is based around the thrill and intensity of athletes colliding at high speeds. The league and equipment makers have an obligation to do everything possible to reduce the danger on the field. But ending violent contact would end the game of football itself. The sport's dangers are, and will always be, inherent to the game.

The NFL's current popularity has a basis in its own legends of a hard-hitting past. For this reason, the NFL should take care of those former players who face life-altering injuries.

Even with the growing body of evidence clearly linking on-field play and head injuries (which has been acknowledged in league-sponsored public service ads), retired players are forced to bring lawsuits against the league's pension plan just to receive the benefits they were promised after their time in the league. Although the average fan may quickly forget about an athlete once his playing days are done, the NFL has a contractual obligation to look after its players for the rest of their lives.

The retired players don't need more litigation -- they need a simple and equitable method for getting the pensions promised to them by the league.

Today, without further studies, more lawsuits or another congressional investigation, the NFL pension plan should simply agree to stop fighting compensation requests when a player's head injury or other serious impairment is clearly linked to his service in the league. The league should amend the rules which restrict many pension payments to problems which arise within a year or two of retirement -- especially since the evidence shows many disabilities can show up decades later.

We know that the degenerative effects of concussions can take years to appear, so the NFL pension plan should give players a longer window of time to connect the dots. The NFL also should establish a truly independent, impartial system for medical reviews of claims -- with no influence from the retirement board.

Players need a fairer system for determining the benefits they deserve. It won't change a violent sport, but it will make it possible for retired players to live with dignity after football.

Cy Smith is a partner with law firm Zuckerman Spaeder, LLP. He won a multimillion-dollar judgment in retroactive benefits from the NFL Player Retirement Plan for the estate of Pittsburgh Steelers great Mike Webster. That first win against the NFL pension plan paved the way for public, media and legislative scrutiny of the benefits available to retired players.

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