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Head cases

A flurry of lawsuits from ex-players question whether the league had their best interests in mind

Updated: August 13, 2012, 3:22 PM ET
By Peter Keating | ESPN The Magazine

Clinton PortisScott Cunningham/Getty ImagesA Nov. 8 concussion sidelined Clinton Portis for the season. Roger Goodell has cracked down on hard hits, but that's not enough for everybody.

This story appears in the Feb. 20, 2012 "Rivalry Issue" of ESPN The Magazine. Subscribe today!

SINCE ROGER GOODELL became commissioner in 2006, the NFL has taken measures to improve brain safety -- and fend off critics of its concussion policies. These steps continued in this year's playoffs, when the league used sideline video monitors so doctors could replay hits before clearing injured players.

The NFL deserves cheers for immediately reviewing dangerous hits. But a rising chorus of former players is demanding the league be held responsible for injuries suffered during the years the NFL claimed there was no evidence linking concussions and long-term brain damage. In 21 lawsuits across six states, more than 300 players and their families are charging the NFL with negligence, and in some cases fraud and conspiracy, saying the league should have done more to warn them about the consequences of brain trauma. In a statement to ESPN The Magazine, NFL spokesman Greg Aiello strongly disputes those claims: "Any allegation that the NFL intentionally sought to mislead players has no merit. It stands in contrast to the league's actions to better protect players and advance the science and medical understanding of the management and treatment of concussions."

Still, on Jan. 31, a multidistrict federal judicial panel approved six of the cases to be tried together in Philadelphia, perhaps within a year. "Here might be the weapon that brings the mighty billionaires to their knees and forces them to accept their liability," says former Vikings guard Brent Boyd, founder of the player advocacy group Dignity After Football.

Although most of the litigants are relatively unknown players, the list includes Hall of Famers Joe DeLamielleure and Tony Dorsett, as well as Ottis Anderson and Jim McMahon. The NFL says players must follow rules spelled out in the labor deal to get help, which means submitting a claim subject to review by arbitrators appointed by the NFL and NFLPA. As league lawyer Beth Wilkinson put it after a hearing in January, "You don't get to come to court." But this isn't just one more round in the long battle over disability benefits for ex-players. Instead, it puts a focus on what the league knew about concussions and when -- and that's difficult ground for the NFL to defend.

For 15 years after its launch in 1994, the NFL's concussions committee denied -- despite vocal opposition from independent researchers -- there was evidence that repeated concussions have ill effects on player health, such as depression and dementia. And the longtime head of the committee, rheumatologist Elliot Pellman, dismissed the first diagnoses of chronic traumatic encephalopathy, the brain damage that comes from head trauma, as "speculative and unscientific."

In 2009, the NFL finally overhauled the committee and admitted for the first time that concussions can lead to long-term problems. But Goodell hasn't exactly cleaned house. Pellman stepped down from the concussion committee but is still the league's chief medical adviser, which underscores the commish's own long-term problem: The NFL can't cling to its old claims that concussions didn't harm players, but it also can't completely repudiate its own research and risk massive liability.

Up to this point, Goodell has tried to blow through the dilemma with forward-looking reforms and initiatives, such as assigning independent athletic trainers to monitor brain injuries on all teams. But now he must choose between a long, public fight in court against injured athletes and a settlement that could cost the NFL hundreds of millions of dollars. Either way, permanent damage has been done.

Peter Keating is senior writer for ESPN The Magazine. Follow The Mag on Twitter, @ESPNmag, and like us on Facebook.

Peter Keating is a senior writer at ESPN The Magazine, where he covers investigative and statistical subjects. He started writing "The Biz," a column looking at sports business from the fan's point of view, in 1999. He also coordinates the Magazine's annual "Ultimate Standings" project, which ranks all pro franchises according to how much they give back to fans. His work on concussions in football has earned awards from the Deadline Club, the New York Press Club and the Center for the Study of Sport in Society.