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, )

by Dr. Casson and, you know, is denied in

the

pamphlet that they hand out to NFL players?

Mr. GOODELL. Well, first let me say I do not, and I
think you stated that he is the only one examining these
patients and the findings. That is not correct.
Ms. SANCHEZ. He is not controlling the examinations
or the findings?

Mr. GOODELL. I would not say he is controlling that at
all, no.
Ms. SANCHEZ.He is participating in it, though.

Mr. GOODELL. I do not know if he is participating in
the examinations. I can find that out.

Ms. SANCHEZ. And he has been a consultant to the
NFL, is that correct?
Mr. GOODELL. He has been on our MTBI committee
for several years, yes.

Ms. SANCHEZ. And some of the people who are
participating in this study have other conflicts of
interest. You know, one of the committee members on
the concussion committee owns the company that
makes and markets, mainly through its use by most of
the NFL teams, the neuropsychological test that is
used in the study. Isn't that true?

Mr. GOODELL. I don't know the

answer

to that

question, but I will find out for you.
r& *<

*

rl.

Ms. SANCHEZ.My suggestion would beo and my time
has expired, but my suggestion would be that instead
of having NFl-connected consultants and doctors,
that perhaps the true findings of a truly unbiased
study would be better conducted by people who have
not been on the payroll or not been retained by the
NFL in any capacity. (Emphases added).

65

169.

The NFL thereafter reacted to this barrage of criticism by having Casson

and Viano, who had replaced Pellman as co-chairs of the

MTBI Committee, resign, and

suspending that Committee's research. The League also pledged to donate a paltry $1 million to

subsidize the CSTE's research on CTE.

I70.

On December2,2009, Goodell announced an update on concussion

guidelines for the League's players. The statement outlined several changes. First, players who
sustained a concussion should not return to practice or game play the same day

if the following

signs or symptoms are present: loss of consciousness, confusion, amnesia or other memory

problems, abnormal neurological exam, new and persistent headache, or any other persistent
concussion signs. Second, if a player is held from a game, clearance for return to play should be
determined by both the team physician and an independent neurological consultant. Return to

play should not be considered until the athlete is asymptomatic, both at rest and with exertion,
has a normal neurological exam, and has normal neuropsychological testing. The NFL

subsequently clarified that primary sports care physicians could be treated as independent

neurological consultants.

17l.

Aiello, the League spokesperson who had made staunch denials of the link

between concussions and brain injury as late as September of 2009, made the following
admission in a December 20,2009 interview with a reporter for the New York Times:

After weeks of transforming its approach

to
concussions and its research into their long-term
effects among players, the N.F.L. not only announced
Sunday that it would support research by its most
vocal critics but also conceded publicly for the first
time that concussions can have lasting consequences.

"It's quite obvious from the medical research that's been
done that concussions can lead to long-term problems,"
the league spokesman Greg Aiello said in a telephone
66

interview. He was discussing how the league could
donate $1 million or more to the Center for the Study of
Traumatic Encephalopathy at Boston University, whose
discoveries of brain damage commonly associated with
boxers in the brains of deceased football players were
regularly disuedited by the N.F.L.

Told that his statement was the first time any league

official had publicly acknowledged any long-term
effects of concussions, and that it contradicted past
statements made by the league, its doctors and
literature currently given to players, Aiello said: "We
all share the same interest. That's as much as I'm
going to say."
Since an Oct. 28 hearing before the House Judiciary
Committee, when the league's approach to science was
compared to that of the tobacco industry, the N.F.L. has
accepted the resignations of the co-chairmen of its
concussion committee and overhauled its policies toward
concussion management. Players now must be cleared by
brain-injury experts unaffrliated with the team, and
cannot return to a game or practice in which they have
shown any significant sign of concussion.

The second rule has since been recommended by an
N.C.A.A. committee as standard policy for athletes in all
sports, and will be considered by several state legislatures
that have bills governing high school athletics before
them.

The recent changes by the N.F.L. had amounted to tacit
acknowledgments that it was no longer able to defend a
position that conflicted with nearly all scientific
understanding of head trauma.

Until recently, the league and its committee on
concussions had consistently minimized evidence
testiffing to the risks of repeated brain trauma in
N.F.L. players
from researchers like those at
- to phone surveys the league itself
Boston University,
commissioned, to demographic analysis of players
known to have early-onset dementia. While
discrediting such evidence, a pamphlet on concussions

currently given to players states, "Research

67

is

currently underway to determine

if

there are any

long-term effects of concussion in N.F.L. athletes."

That research study, conducted by the

N.F.L.'s

committee on concussions, was recently suspended amid
strong criticism of its design and execution by outside
experts, players and members of Congress.

it's a clear
sign of how the culture of football has changed in recent
months," Dr. Robert Stern, a co-director of the Boston
University center and its Alzheimer's Disease Clinical
and Research Program, said in a telephone interview.
"Mr. Aiello's statement is long overdue

"There is no doubt that repetitive blows to the head result

in long-term problems in the brain, including progressive
dementia. With the N.F.L. taking these recent actions, we
are finally at a point to move forward in our research and
ultimately solve this important problem for
professional athletes and collegiate and youth players."
(Emphases added).

172.

Despite these concessions, the problem continued unabated. Thirty of 160

NFL players surveyed by the Associated Press in November of 2009 stated that they either failed
to report or undeneported concussion symptoms. Players admitted that they returned to play
after a concussion feeling dazed or woozy or suffering from blurred vision.

173.

In March of 2010, the MTBI Committee got a new name and new co-

chairs. It was rechristened

as

the Head, Neck and Spine Medical Committee, and became jointly

chaired by Dr. H. Hunt Batjer ("Batjer") of Northwestern Memorial Hospital, and Dr. Richard
Ellenbogen ("Ellemborgen") of Harborview Medical Center in Seattle. Batjer and Ellenbogen
replaced Casson and Viano, who in turn had replaced Pellman.

174.

In a May 2010 Congressional hearing, Representative Anthony Weiner

addressed Batjer and Ellenborgen as follows:

"[ylou have years of an infected system here,

[andl your job is...to mop [it] up." (Emphases added).
68

175.

Batjer and Ellenborgen conceded in June of 2010 that the League's efforts

with respect to concussions and brain injury were riddled with duplicity, conflicts of interest and
shocking ineptitude. As was reported in a June 1,2010 New York Times article:

They accused a fellow doctor of minimizing solid
evidence of the dangers of football concussions. They
concurred that data collected by the N.F.L.'s former
brain-injury leadership was "infected," said that their
committee should be assembled anew, and formally

requested that the group's former chairman, I)r.
Elliot Pellman, not speak at a conference Wednesday.
For the first time these remarks came not from outside
critics of N.F.L. research but from those now in charge of
Dr. H. Hunt Batjer and Dr. Richard G. Ellenbogen,
it
prominent neurosurgeons who became co-chairmen of a
new league committee in March. One week after two
members of Congress accused the doctors of sounding
too much like their predecessors, and on the eve of a
league-sponsored symposium in Washington held by
Johns Hopkins Medicine, Batjer and Ellenbogen made
clear they planned to chart a new course.
The two doctors criticized Johns Hopkins's promotional
which was
brochure for Wednesday's conference
N.F.L. medical personnel, other doctors and
open only to
members of the United States Department of Defense
for playing down existing evidence of brain damage -in
retired football players.

The opening paragraph described the disease chronic
traumatic encephalopathy as "now being reported in
football players, although with unknown frequency." It
added that these and related matters had been reported by
the news media "with considerable hype around
assertions of long-term harm to players from head
injuries."

Batjer and Ellenbogen said that the frequency of
a
reports of C.T.E. in players is not unknown
Boston University research group has diagnosed -it in
all 12 former college and N.F.L. players of various
ages it had tested for the condition.

69