BOYD et al v. NATIONAL FOOTBALL LEAGUE et al

Filing 1

COMPLAINT against NATIONAL FOOTBALL LEAGUE, NFL PROPERTIES LLC ( Filing fee $ 350 receipt number 055871.), filed by MACARTHUR LANE, MARK COOPER, BRAD JACKSON, ROBERT BELL, CHARLES ANTHONY, CLIFF HARRIS, MARVIN WOODSON, PAUL KRAUSE, NOEL JENKE, CHARLES MYRTLE, CEDRICK HARDMAN, BRUCE LAIRD, JOE DELAMIELLEURE, DON HORN, DENNIS HARRAH, JAMES WILLIAMS, MARK KONAR, TOMMY NOBIS, JAMES JONES, CALVIN JACKSON, TROY JOHNSON, MICHAEL MORTON, PETER LAZETICH, CALEB MILLER, JOSEPH KAPP, MICHAEL WEDDINGTON, HARVEY ARMSTRONG, DERLAND MOORE, MICHAEL MERRIWEATHER, JAMES HARRELL, AARON JONES, II, KENNETH EASLEY, JR, ESTATE OF GREGORY LENS, RICK SANFORD, WILLIAM "BILLY&quo SHIELDS, GARY PADJEN, CHARLES KRUEGER, PHIL VILLAPIANO, KEN FANTETTI, DONNIE GREEN, LEON "RAY" JARVIS, EDWARD WHITE, JOE FERGUSON, JR, LARRY WOODS, DONALD MACEK, JEFF BARNES, CHARLIE SMITH, LEE FOLKINS, DERRICK GAFFNEY, AUGUST "GUS" OTTO, PHILLIP FREEMAN, III, OLRICK JOHNSON, JR, WILLIE GREEN, JAMES HOUGH, CHARLEY HARRAWAY, THOMAS BEER, JAMES GARCIA, FRED FORSBERG, TERRANCE "TERRY&quo METCALF, BOBBY HARDEN, JR, DENNIS MCKNIGHT, ALFRED GROSS, GENE LANG, LEMUEL BARNEY, BRENT BOYD, DELLES HOWELL, JERRY ROBINSON, WILLIAM "BILL" CODY, VICTOR HICKS, ARTHUR STILL, REGINALD CLARK, CRAIG CURRY, DONALD MANOUKIAN, MARK NICHOLS, JEFF MCINTYRE, DAVID RECHER, LEONARD "BUBBA&quo MCDOWELL, JR, MIKE WOOD, TERRY OWENS, CLARENCE VERDIN, BRYAN STOLENBERG, ROD MARTIN, ROBERT KROLL, KEITH NORD, MICHAEL "TONY" DAVIS, CONRAD DOBLER, MELVIN CARVER, MIKE AUGUSTYNIAK, TRUMAINE JOHNSON, FRED SMERLAS, RANDY RAGON, MARGENE ADKINS, NEAL CRAIG, WILLIAM "BILLY&quo TRUAX, KORY MINOR, J. BRUCE JARVIS, LIONEL ANTOINE, STEVE JONES, PETER CRONAN, IRA MATTHEWS, III, MARK COTNEY, JEFFREY WALKER, MERVIN KRAKAU, JON MELANDER, LARRY WEBSTER, FRED ANDERSON. (Attachments: # 1 complaint, # 2 complaint, # 3 complaint, # 4 complaint, # 5 complaint, # 6 complaint, # 7 complaint, # 8 complaint, # 9 complaint, # 10 complaint, # 11 complaint, # 12 complaint, # 13 complaint, # 14 complaint, # 15 complaint, # 16 complaint, # 17 complaint, # 18 complaint, # 19 Civil Cover Sheet)(mima, )

NFL Players Association. "Outside of being knocked out,
I stayed in the game."

After a player suffers a concussion, his team's medical
staff determines when he is ht to return to play. Studies
vary on whether a quick retum puts the player at risk
more severe injury.

of

The NFL commission, after reviewing five years of
on-field concussions, found no evidence for an
increase in secondary brain injuries after
^
concussion, a conclusion that has met with skepticism.
"Science is very clear that returning guys to play in the
same game, or quickly within a few days, contributes to
neuron loss and long-term problems," said former pro
wrestler Christopher Nowinski, who retired after repeated
concussions and has written a book on the controversy.
"With the NFL being both the only and most prominent
voice to say it doesn't exist, it slows down acceptance and
adoption of policies to reduce risk."

While the NFL commission has focused on short-term
effects of concussions, recent findings suggest players
may suffer depression, dementia and other symptoms
later in life. (Emphases added).

157.

The result of this conference was a complete whitewash of the problem

by the NFL. The League issued a press release and pamphlet to players on August 14,2007. It
stated that:

Current research with professional athletes has not
shown that having more than one or two concussions
leads to permanent problems.... It is important to
understand that there is no magic number for how
many concussions is too many. (Emphases added).

158.

This act of denial and deception was consistent with the positions taken by

Pellman, Casson, Lovell, and Viano as described above.

55

159.

The NFL's refusals to face reality and its attempts to cover up the links

between on-held concussions or head impacts and brain injuries are exacerbated by the way its

member clubs provide medical services top players. As one 2009 article explained:

The conflicted interests that burden many NFL trainers
exacerbate the NFL's concussion problem. An emerging
practice in sports medicine involves medical providers
"auctioning off the right to be an NFL team's 'official'
medical provider, hospital, or physician-group." The
privilege of being selected comes with the right to
advertise in one's promotional materials that her group
has been named the "official healthcare provider" of a
particular team. ooln return, the team is provided with
medical care for free or at reduced cost."

NFL players are the victims of this pay-to-play system
as they receive medical care compromised by the
financial interests of NFL trainers. It is no secret that
the NFL is a business, and an extremely successful
one at that. When trainers are intertwined with team
management, their medical decisions become clouded
by the number one money-making criterion in the
NFL business: winníng. In order for teams to
maximize profit through winning games, it stands to
reason that coaches and management place incredible
pressure on trainers to return their most talented
athletes to the playing field as soon as possible.
Concussions might represent one of the injuries that
trainers send their patient-athletes back on the field
with before players are completely healed.
Former New York Jets lineman Peter Kendall efficiently
articulated the conflict-ridden nature of team physicians'
retum-to-play decisions: "I see guys playing in games
that I don't think a personal advocate would allow them
to do[.] The doctor who is supposed to be looking out for
you is also the same guy who may put you into a game
that the team has to win. You're mixing business with
medicine." Thus, in three sentences, Kendall summarized
the risk involved with trainers practicing medicine under
conflicted financial and medical interests.

The physician-patient dynamic of the New York Jets
presents a paradigm conflict of interest. Dr. Elliot
56

Pellman serves as both the Director of Medical
Services for the New York Jets and as NFL
Concussion Committee member. Because of
Pellman's dual role, the Jets concussion policies and
procedures have drawn heightened scrutiny from
outside observers.

Pellman's management

of the concussion Jets wide

receiver Wayne Chrebet sustained on November 2,2003
triggered significant criticism from both scientists and
players. In this November 2,2003 game against the New
York Giants, Chrebet's concussion left him face down in
an unconscious state for several minutes. Pellman elected
to send Chrebet back into contact during the same game
despite Chrebet's prolonged state of unconsciousness.
Chrebet was subsequently placed on injured reserve for
the remainder of the season. "Chrebet, 34, has recently
acknowledged that he has bouts of depression and
memory problems so severe that he cannot make the
routine drive from his New Jersey home to his Long
Island restaurant without a global positioning system."
(Emphases partly in original; footnotes omitted).

160.

ESPN TheMagazine reported vividly on this incident:
"There's going to be some controversy about you going
back to play." Elliot Pellman looks Wayne Chrebet in the
eye in the fourth quarter of a tight game, Jets vs. Giants
on Nov. 2,2003, at the Meadowlands. A knee to the back
of the head knocked Chrebet stone-cold unconscious a
quarter earlier, and now the Jets'team doctor is putting
the wideout through a series of mental tests. Pellman
knows Chrebet has suffered a concussion, but the player
is performing adequately on standard memory exercises.
"This is very important for you," the portly physician
tells the local hero, as was later reported in the New York
Daily News. "This is very important for your career."
Then he asks, "Are you okay?" When Chrebet replies,
"I'm fline," Pellman sends him back in.
*{€rßr.

A

couple of days after Wayne Chrebet is knocked
senseless by the Giants, he is sluggish and tired, and his
head aches. "It was stupid, trying to get back out there,"
he says. "That's just me trying to convince them and
57

myself that everything is all right." The Jets staft
including Pellman and Barr, diagnose Chrebet with
postconcussion syndrome. Ten days after the game, the
Jets place Chrebet on injured reserve.

Pellman makes no apologies. "Wayne returned and was
fine," he tells the media. "He did not suffer additional
injury. If he had suffered additional injury, his prognosis
would be no different.

"Let's say I didn't allow him to return to play, and he
played the following week," he continues. "The same
thing could have happened. The decision about Wayne
returning to play was based on scientific evaluation. As
we stand now, that decision made no difference as to
what's happening today.

"This decision is so that I can sleep well at night and so
Wayne's wife can sleep well at night," he says about
ending Chrebet's season.
"Nobody gets second-guessed."

161.

This incident corroborates another factor contributing to the NFL's

practices-that NFL player contracts are structured in a manner to incentivize underreporting of
concussions. Such contracts typically do not guarantee payment to players beyond the season in

which an injury occurs. If the player cannot pass the medical check-up at the commencement of
the subsequent season, the contract is voided and the player may end up paying medical expenses

for brain injuries or cognitive impairment incurred on the playing field. This system operates to
discourage players from admitting to concussions. As the same 2009 article quoted earlier
explained:

A

sad consequence of the NFL's player contract
scheme is the tendency of players to withhold
concussion symptoms from their trainers and team
management for fear of losing their jobs. Dr. Kenneth
Podell, director of the Sports Concussion Safety

Program

at the Henry Ford Health

System,
summarizes the problematic situation: "The pressure
58

is intense; there's always someone on the

bench

waiting to take your place."
When team management becomes privy to a player's
concussion history, the team holds all leveraging power
in restructuring a player's contract. Players are faced with
the following Hobson's choice: (i) accept a less lucrative
contract or (ii) face employment termination. Dan
Morgan, former Carolina Panthers linebacker, suffered at
least five concussions during his tenure with the
Panthers. Faced with the alternative of termination,
Morgan'oagreed to restructure his $2 million roster bonus
into payments of $125,000
for each game played. Beyond acknowledging the team's
concerns about subsequent concussions, the contract gave

Morgan financial incentive not to reveal any concussion
for treatment."
Even when a player is confident enough to disclose his
concussive symptoms to a team trainer, he will not
likely refuse a coach's orders to return to play for

fear of losing his starting position in the lineup. A
recent example of this situation involved the New
England Patriots franchise. While playing linebacker for
the Patriots in 2002, Ted Johnson sustained a severe
concussion. After Johnson discussed his symptoms with
his team trainer, the trainer advised Patriots coach Bill
Belichick not to return Johnson to contact play until he
became asymptomatic.

Belichick disregarded the trainer's advice by
continually sending Johnson back into full contact
practices. In defending his decision to retum Johnson to

play against the trainer's orders, Belichick said:

"'If

[Johnson] felt so strongly that he didn't feel he was ready

to practicel,] he should have told me."' The flaw in
Belichick's logic is that it assumes Johnson was
confident enough in his job security to defy his coach's
orders. If Johnson informed Belichick of his inability to
return to play, he would have effectively terminated his
own contract with the Patriots. (Emphases added).

162. In November

of 2008, Greg Aiello ("Aiello") sounded a similar theme,

saying to the press that " [h]undreds of thousands of people have played

59

football and other