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, )

ooThey

arentt assertions or hype
they are factsr"
said Ellenbogen, the chief of neurological surgery at
Harborview Medical Center in Seattle, who has been
instrumental in drafting legislation to protect young
athletes from head injuries.
He added: 'oDoctors were relatively ineffectual for 25
years on this issue. Then it's on the front page and
everything focuses like a laser beam and things begin to
change from baby steps to giant steps forward protecting
kids. From a doctor-patient perspective, it's been the
single best thing that has happened to this subject."

Dr. Constantine G. Lyketsos, a professor of psychiatry
and behavioral sciences at Johns Hopkins who is
directing W'ednesday's conference, said in a telephone
interview that he wrote the brochure and that the N.F.L.

had no role with the event, other than providing
financing. He defended his choice of words.
ooWe

know of 12 cases" of C.T.E., Lyketsos said. "We
don't know how many don't have it."
Regarding news media coverage of the harm caused by
repeated concussions in football players, Lyketsos said:
"There is a concern that I have that the possibility of
serious long-term consequences are being
overemphasized without clear evidence. It could turn out
correct. It could turn out incorrect. We don't know."
He added: ool worry that it might be a disservice. That's a
possibility."
The league spokesman Greg Aiello declined to comment
on Lyketsos's statements, other than saying that the
league has given $l million to the Boston University
group to support its research.

The former leaders of the N.F.L. concussion committee

generally agreed with Lyketsos, an attitude that
ultimately came to the attention of Congress and led to
several hearings on the subject of sports concussions in
athletes of all ages. Batjer and Ellenbogen had a shaky
debut before some frustrated members of the House
Judiciary Committee during a forum in New York on

70

May 24, but in the following days they made sure they
would no longer resemble their predecessors.

The doctors said the old committee's ongoing studies
on helmets and retired players' cognitive decline
whose structure and data were strongly criticized by
outside experts
would not be used in any way
moving forward. -They said they were influenced by a
comment made to them last Monday by
Representative Anthony D. Weiner, Democrat of New
York: 66You have years of an infected system here that
your job is to some degree to mop up.'n

"The word 'infected' hit me right between the eyes,"
said Ellenbogen. He and Batjer became co-chairmen
of the N.F.L. committee in March.

Batjer added: "We all had issues with some of the
methodologies described, the inherent conflict of
interest that was there in many areas that was not
acceptable by any modern standards or not
acceptable to us. I wouldn't put up with that, our
universities wouldn't put up with that, and we don't
want our professional reputations damaged by
conflicts that were put upon us."

Batjer said that he and Ellenbogen had

begun
reconstituting their committee from scratch. He said that
six members had been selected so far, none of them
holdovers from the prior regime.

The doctors so \ilanted to distance themselves from
the past that on Monday they requested that Pellman,
who was scheduled to deliver some opening remarks
at the Johns Hopkins symposium, be removed from
the program. Pellman was the chairman of the N.F.L.
concussion committee from 1994 to 2007 and stayed
on it until he resigned in March. He remains the
league's medical director and helped with the
conference's Iogistics.

On Tuesday, an e-mail message was distributed to
conference organizers saying that Pellman would not
attend the conference for family-related reasons.

7t

"Neither Rich nor I thought he should appear to represent
the N.F.L. in what would look like a leadership role,"
Batjer said. "It's not about Elliot. It's about a complete
severance from all prior relationships from that
committee." (Emphases added).

176.

As reported in a July 26,2010 article in the New York Times, on June 10,

2010, the NFL issued a warning poster that was placed in the locker rooms of member clubs and
was also tumed into a pamphlet. A copy of the poster is reproduced below. It stands in stark
contrast to the pamphlet issued by the League in April of 2007. This advice was never given

previously by the NFL and was certainly not given to players who retired prior to June of 2010.
As the same article went on to note:

The league's reversal is not necessarily complete. On
April 30n an outside lawyer for the league, Lawrence
L. Lamade, wrote a memo to the lead lawyer for the
leagueos and union's joint disabitity plan, Douglas Ell,

discrediting connections between football

head

trauma and cognitive decline. The letter, obtained by
The New York Tímes, explained, "\Ve can point to the
current state of uncertainfy in scientific and medical
understanding" on the subject to deny players' claims
that their neurological impairments are related to
football. (Emphases added).

72

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A Must Read

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for NFL Players

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Let's Take Brain lnjuries Out of Ptay
Concussion Symptoms

Concuseion Facts
lr r äñh ,lt'rry lh¡l lllâf3 lho wry your
brt¡n luncllont
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r lollowlng hdfirçt lo hahìtt Êoûlåcl trxl, ôr
. conhcl w¡ti th0 gfol'nd, 0üi0ct of rnolh0f plryof
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Why Should I Report My Symptoms?

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Pr¡clicing or playing while still expwiencing symptome crn prolong the time to Í€covor ¡nd raturn to phy.
Unllhe othor iniurios, thene may bo eignilicrnl eon¡equgncea ol "plrylng lhrough'' a concussion. Rop{t¡l¡yo
brain lnJury, wl¡sn nol trselod prompüy end propedy mly csue6 permanonl drmrge to your brain.

What Should I Do lf I Think I've Had a Concussion?

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RepOft
tovor lgnoE symptoms even ll they rppear mlld. Loot wl for your lermm¡tss. Tell your
Athlatlc Trslner or Te¡m Phplclrn lf you lhlnk you or s lormmaio mry hava h¡d a conc¡r¡¡lonGet CheCked OUt.

Your loem rnedlc¡l strff hrc your hsslth ¡nd rvell belng ae lt¡ tlrst priorlty. Ihey wlll
your Êoncuriloffi ÐÊcofdlng to t{FL, i{FLPÂ Gu¡dollnü* ûtich lncludo bo¡ñg fu¡u ¡rrnplomûlic, both
ñmügo
rt ¡r¡t ¡nd ¡ltcr oroil¡eri, havlng a norñrl nor¡rûloE¡c oråmlûillon. üorïìtl neutofrychologlcál lûll¡ng, tnd
ch¡r¡ncr t'o phy by both tñË ùetn mcdlc¡l gt¡f ¡nd tho lndepsndcnt neurohglc cûnsülltnt.

Bfain.

Accord¡ilg to thû cDc', "tråuilråtiÊ hriliil inj$ry cnn cûuro il ïlür nrlgo ot
ahod- or long term chengea rflactlng thlnklng. gen¡¡llon, bngung* , or omoüon¡". ïhe¡a chrngoa mry leed
lo proHomr wllh menory ond communlc¡llon , pemonrllty changec, re wrll ra depree¡ion ¡nd thr errly onr*t
ol demenfe. Goncue¡lons ¡nd conditlon¡ mrulting from repealod bnln injury can change your lifo and your

Take Cafe Of YOUf

hmil¡/a llfo lorove¡,

ffiffiffiiï,H#vt"::r*kffiffi
'for

rnore lnlornr¡tion ¡bout lraurn¡tlc

br¡ln lnjury and concuslon,

73

go

to httpl//www.cdc.govlconcu*lon

177.

Yet even after this new waming, NFL players are still going out on the

field after receiving significant concussions. In a September 19,2010 posting by Sam Donellon
on philly.com,

it was noted:

A THOUSAND pardons. For the game plan, for the
execution, for the ever-present "Not putting the guys in
the right places" to succeed during Sunday's 27-20loss to
the Green Bay Packers.
[Philadelphia Eagles Head Coach] Andy Reid issued his
familiar post-loss mea culpas yesterday, vowing to
"tighten up" special teams play, execution particularly on
offense, and even his play-calling.
The only thing he didn't apologize for was how, or why,
two of his stars were allowed to re-enter the game after
getting concussed Sunday afternoon at Lincoln Financial
Field.
That's because in his mind, and apparently in the minds
of too many still involved in the NFL, he and his medical
staff did what it was supposed to do in the cases of
Stewart Bradley and Kevin Kolb. Asked all the right
questions, got all the right answers, sent both back into a
game even after both had displayed, for a national
audience to see, evidence of head trauma.

To wit:

Kolb lying face down for several seconds before rising
slowly, grass hanging from his facemask, walking slowly
from the field;
Bradley bouncing up after an inadvertent knee-to-helmet
hit, only to stumble back down to the ground, clearly
disoriented.
That's a key word, disoriented. It's used in those famous
updated guidelines the NFL issued last December to

teams regarding concussions

in the wake of

congressional hearings and some high-profile injuries,
including the repeated concussions to former Eagle Brian
Westbrook.

74