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, )

"A player who suffers a concussion should not return to
play or practice on the same day," said an NFL release on
those guidelines, which lists among symptoms "Loss of
consciousness" and "Confusion as evidenced by
disorientation to person, time or place; inability to
respond appropriately to questions; or inability to
remember assignments or plays."

So what are we missing here? Reid said repeatedly
Sunday, and again yesterday, that appropriate answers
were given to questions. He said Kolb's inability to
remember plays was only evident after he returned to
play, and he was yanked after a three-and-out series.

But both men were clearly disoriented when they first
reached their feet, and this is where we tread into the
NFL's continued ambiguity over what it views as serious
head trauma. Was Bradley's stumble due to poor balance
or dizziness? The guidelines say poor balance
necessitates removal, dizziness not necessarily so. But
what's the difference and how the hell can anyone tell?
Aren't they the same thing?

178.
("Collie"),

a

As another example, the Concussion Blog reported on Austin Collie

wide receiver who played for the Indianapolis Colts in 2010. Collie suffered a

concussion in Week 9 of the regular season and was benched in Week 10. He returned in Week
11, and was withdrawn after playing part of that game because of "worsening symptoms." He

was benched in Weeks 12-14, but retumed in Week 15, only to receive yet another concussion.

As Concussion Blog noted:

NFL "Policy" indicates that a player will not retum from
a concussion unless they pass all tests. Therefore if
Indianapolis followed the "policy" then Collie \Mas
cleared and passed all tests by V/eek 11, and his first
concussion resolved. The reports of more/worsening
symptoms after lst half of Pats game indicates that he
MUST have sustained a second concussion. Then upon
retuming this week that would have meant that he cleared
all tests and AGAIN sustained a concussion, his THIRD.
Let me be clear here, you can only "agglavate" a
concussion if you have not recovered from the f,rrst. And
75

a player SHOULD NOT be playing with an unresolved
concussion, by "policy". The Colts already are
spinning this one, but no matter how you look at it they
either failed the "policy" or knowingly put him back into
action with a concussion. At the very least they
misreported the second. If he were returned in Week 11
and "aggravated" it then he was not properly handled the
first time.

179. The plight of former NFL players suffering from brain injuries caused by
their service in the game has continued. One example is provided by the case of Dave Duerson
("Duerson"), a former safety for the Chicago Bears and the New York Giants. After suffering
months of headaches, blurred vision and deteriorating memory, Duerson committed suicide at
the age of 50 on February 17,2011. His final note asked that his brain be given to the NFL brain
bank for evaluation.

180.

On May 2,2011, researchers at CTSE at Boston University reported that

Duerson was suffering from CTE and released photographs of the autopsy of his brain.
Examples of those photographs obtained from the website of CBS Chicago are reproduced
below:

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The top row of photographs depicts three half sections of Duerson's brain that exhibit multiple
areas

of damage (brown coloring) in the frontal and temporal cortex, hippocampus and

76

amygdala. The bottom row of photographs depicts microscopic images from these damaged
areas, showing severe neurodegeneration. As CBS Chicago reported:

Dr. Robert Cantu, co-director of the CTSE, said at a news
conference that such results normally are published hrst,
but the Duerson family wanted them released earlier.

"It is our hope that through this research questions
that go beyond our interests may be answered," The
Duerson family said in a statement. ooQuestions that
lead to a safer game of football, from professional to
Pop \ilarner; Questions that lead to better diagnostic
tests for those alive; and Questions that lead to a cure;
will all hopefully be answered." (Emphases added).
181.

When this information was reported, DeMaurice Smith, Executive

Director of the NFLPA, stated that the fact that Duerson was suffering from CTE "makes it
abundantly clear what the cost of football is for the men who played and the families. It seems to
me that any decision or course of action that doesn't recognize that as the truth is not only

perpetuating a lie, but doing a disservice to what Dave feared and what he wanted to result from
the donation of his brain to science."

182.

Another example is provided by the case of John Mackey ("Mackey"), the

former tight end of the Chicago bears, who died in July of 2011 and for whom the 88 Plan
described below was named. Mackey was diagnosed with frontotemporal

dementiain2}}T,

forcing him to live full-time in an assisted living facility. The NFLPA refused to pay a disability
income to him because it claimed that there was no proven direct link between brain injury and

NFL game participation. When the 88 Plan came into being, he received payments pursuant to
it, but they were far less than his family's costs. Mackey made less than a total of $500,000
during his decade-long NFL career. His wife, Sylvia, had to work as a flight attendant to
supplement his NFL pension of $2,500 a month after they sold their Califomia home to provide
77

for his extensive medical care. The legendary Chicago Bears player, Gale Sayers, was asked
about Mackey's demise by a reporter for the Chicago Tribune and his response was reported as

follows: "Sayers feels the NFL could have done more to help Mackey during his final years.
oYou

know, John Mackey died at 60-something (69),' said Sayers. '(The NFL) could have

helped him more, I felt. But they didn't, and the players (NFLPA) could have helped more, and it

didn't happen."'

183.

On information and beliei proposals have been submitted to the NFL

MTBI Committee about concussion concerns and the need to do regularized testing of players.
To the best of Plaintiffs' knowledge, the League has never acted on them.

184.

The

NFL's conduct stands in sharp contrast to what

has been done or

promulgated by other sports or medical bodies.

185.

For example, Rule 4.2.14 of the V/orld Boxing Council's Rules and

Regulations states: oo[b]oxers that suffered concussion by KO, should not participate in

sparring sessions for 45 days and no

less

than 30 days after concussive trauma, including

but not limited to KO's, and should not compete in a boxing match in less than 75 days."
(Emphases added).

186.

The Second International Conference on Concussion in Sport met in

Prague in2004 and released the following statement:

"[wlhen a player shows ANY symptoms

or signs of a concussion ... the player should not be allowed to return to play in the current
game or practice ... When in doubt, sit them out!" (Emphases added). This directive echoed
the position taken by the First International Conference on Concussion in Sport, held in Vienna

in 2001.

78

187. As ESPN has noted, "[a]ll standard U.S. guidelines,
set by the American Academy of

such as those first

Neurolory and the Colorado Medical Society, agree that

athletes who lose consciousness should never return to play in the same game." (Emphases
added).

188. Another

example is provided by the National Collegiate Athletic

Association ("NCAA"), which also recognized inexcusably late the link between head impacts
and brain injuries, not taking affirmative action until 2010. The

NCAA is the subject of class

action suits for this tardiness. Nevertheless, once it did act, it did so in a manner that was more
decisive than the NFL. The NCAA's webpage on concussion-related resources (see

<htþ://www.ncaa.org/wpsþortal/ncaahome?WCM_GlOBAl_CONTEXT:/ncaa,/NCAA/Acade
mics*and+Athletes/Personal+Welfare/Health+and+Safety/ConcussioÈ) indicates that in an
educational partnership with the Centers for Disease Control and Prevention. The NCAA has
supplied each member college campus with two posters and two sets of fact sheets addressing
concussion awareness, prevention, and management. It has issued the "NCAA Sports Medicine
Handbook - Guideline on Concussions in the Athlete" that recommends best practices. And the

NCAA requires each member college to develop

a "Concussion Management

Plan". One

exemplar plan offered on the NCAA's website is the University of Georgia Athletic

Association's ("UGAA") o'Concussion Management Guidelines," which reads as follows:

1. UGAA will require student-athletes to sign
^
statement in which student-athletes accept the
responsibility for reporting their injuries and illnesses
to the sports medicine staff, including signs and
symptoms of concussions (attachment A). During the
review and signing process student-athletes will watch a
NCAA video on concussions and be provided with
educational materiall on concussions (attachment B).

79