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, )

Institute at West Virginia University, spoke before members of the House Judiciary Committee
at a forum in Houston, Texas with regard to "Head and Other Injuries in Youth,

High School,

College, and Professional Football." In his prepared testimony, he explained:

1954] founded the Pop
Glenn Pop Warner [871
youth football league in 1929. He still remains
Warner
one of the greatest football coaches in the history of
American football. The single event, which necessitated
the use of pads and helmets by football players took
place in 1888 when the annual rules convention for the
emerging sport of college football passed a rule
permitting tackling below the waist.
"Football changed dramatically. Teams no longer arrayed
themselves across the entire breath of the field. Teams
bunched themselves around the runner to block for him.
The wedge and mass play arrived. Football became, for a
time, a savage sport full of fights, brawling, even
fatalities."

ln

1912, Pop Warner said: "Playing without helmets
gives players more confidence, saves their heads from
mâny hard jolts, and keeps their ears from becoming
torn or sore. I do not encourage their use. I have
never seen an accident to the head which was serious,
but I have many times seen cases when hard bumps
on the head so dazed the player receiving them that
he lost his memory for a time and had to be removed
from the game.tt

We have known about concussions and the effects of
concussions in football for over a century. Every blow to
the head is dangerous. Repeated concussions and subconcussions both have the capacity to cause permanent
brain damage. During practice and during games, a single
player can sustain close to one thousand or more hits to
the head in only one season without any documented or
reported incapacitating concussion. Such repeated blows
over several years, no doubt, can result in permanent
impairment of brain functioning especially in a child.
(Footnotes omitted; emphases added).

45

134.

The scientific evidence on concussions and subsequent brain disease in

boxing, football, and other sports has been mounting, but for a long period, the NFL attempted to
deny, discredit, and ignore it.

135.

The risk of repeated head impacts in certain sports and brain disease has

been understood for decades.

In 1928, a New

Jersey pathologist, Harrison Martland, described

the clinical spectrum of abnormalities found in'onearly one half of the fighters who stayed in the
g¿ìme

long enough." Follow-up studies on encephalopathy and repeated head impacts in sport

were published in 1952. The risk of second impacts (Second Impact Syndrome) in sport was

identified in1973. It was also clear by the 1970's that the patterns of neurodegeneration
associated with head impacts in boxing also occurred in other sports.

136.

From 1931 to 2006, the National Center for Catastrophic Sport Injury

Research has reported 1,006 direct and 683 indirect fatalities resulting from participation in all

organized football in the United States; the annual number of indirect fatalities has remained near
9.0 per year.

137. A 1994 Ball State University

survey found that "players in the 1980s

suffered serious injuries and underwent operations at twice the rate of those who played in the
1950s or earlier."

138.

A study presented at the American Academy ofNeurology's 52nd Annual

Meeting in 2000 and authored principally by Dr. Barry Jordan, Director of the Brain Injury
Program at Burke Rehabilitation Hospital in White Plains, New York, surveyed 1,094 former

NFL players

between the ages of 27 and 86 and found that:

least one concussion in their careers

with 30 o/o of

(a) more than 6l

o/o had suffered at

the players having three or more and 15

o/o

having five or more; (b) 5l% had been knocked unconscious more than once; (c) 73 % of those

46

injured said they were not required to sit on the sidelines after their head trauma; (d) 49 o/o of the
former players had numbness or tingling; 28 Yohad neck or cervical spine arthritis;

difficulty with memory; 16 Yowerc unable to dress themselves; and 1l

3l

o/ohad

o/owere unable to feed

themselves; and (e) eight suffered from Alzheimer's disease.

139.

A 2001 report by Dr. Frederick Mueller that was published in the Journal

of Athlete Training reported that

a

football-related fatality has occurred every year from 1945

through 1999, except for 1990. Head-related deaths accounted for 69 % of football fatalities,
cervical spinal injuries for 16.3

o/o, artd

other injuries for I4.7 %. High school football produced

the greatest number of football head-related deaths. From 1984 through1999,69 football headrelated injuries resulted in permanent disability.

I40.

A series of important studies emanated from the University of North

Carolina ("UNC") that were attacked by members of the NFL's MTBI Committee.

l4l.

A 2000 IINC study found that in the period between 1977 and 1998, an

annual average of 13 athletes had suffered catastrophic injuries (primarily permanent paralysis)
as the direct result of participation in

football. The study also found that between 1977 and

1998,200 football players received a permanent cervical cord injury , and 66 sustained a
permanent cerebral injury." As reported in Science Daily:

The study, published in the September-October issue of
the American Joumal of Sports Medicine, suggests that
the brain is more susceptible to injury when it has not had
enough time to recover from a first injury. Researchers
say the finding is important because concussions can lead
to permanent brain damage, vision impairment or even
death if not managed properly.

ttWe believe recurrences are more likely because
injured players are returning to practice and to
games too quickly after blows to the headr" said Dr.
Kevin M. Guskiewicz, assistant professor of exercise
47

and sport science at UNC-CH and study leader.
"Many clinÍcians are not following the medical
guidelines that players should be symptom-free for
several days before returning." (Emphases added).

142.

A 2003 study partially authored by the aforementioned Dr, Kevin

Guskiewicz ("Guskiewicz") of UNC analyzed data from almost 2,500 retired NFL players and
found that263 of the retired players suffered from depression. The study found that having three
or four concussions meant twice the risk of depression as never-concussed players and five or
more concussions meant a nearly threefold risk.

143.

In November of 2003, Guskiewicz was scheduled to appear on HBO's

"Inside the NFL" to discuss his research. Pellman, who was also going to be on the show, called

Guskiewicz. "Ihad never spoken with him before, and he attacked me from the get-go,"
Guskiewicz said. "He questioned whether it was in my best interest to do the show. He was a

bull in a china shop." On the program, Pellman said unequivocally, "[w]hen I look at that

study,I don't believe it." (Emphases added).

144.

In 2005, Guskiewicz did a follow-up to his 2003 study and found that

retired NFL players who sustained three or more concussions had a fivefold greater likelihood

of

suffering Mild Cognitive Impairment ("MCI") than retired NFL players who had no history of
concussions. Guskiewicz based his conclusions on a survey of over 2,550 former NFL players.

Dr. Mark Lovell ("Lovell") of the NFL's MTBI Committee asserted that Guskiewicz's
study lacked o'scientific rigor'o and that one couldn't tell anything from a survey.

145.

"Pellman's committee has repeatedly questioned and disagreed with

the findings of researchers who didn't come from their own injury group," said Julian
Bailes, Chairman of Neurosurgery at \ilest Virginia University.

48

146. The MTBI Committee

decided to respond to these types of studies by

presenting biased research derived from its ongoing survey of retired NFL players. ESPN The
Magazine described what happened:

In October 2003, Pellman and members of his committee
published the first of a long-running series on
concussions in Neurosurgery, a scholarly journal edited
by Mike Apuzzo, the New York Giants' neurosurgical
consultant. The committee's earliest studies used crash
test dummies to reenact helmet blows. Later, the group
decided to explore the ill effects of multiple concussions,
and Pellman charged one of its members, Mark Lovell,
head of the University of Pittsburgh Medical Center's
Sports Medicine Concussion Program, to oversee the
collection and analysis of leaguewide data. Pellman

chose Lovell because he had conducted
neuropsychological tests for the Steelers as early as 1993.
And in 1995, Lovell began to run the NFL's
neuropsychology program, which encouraged teams to
gather data to help decide when to return players to
games.

Using the information they would obtain, Pellman,
Lovell and the committee planned to look at baseline
results and identify a normal range of scores for
uninjured NFL players. Then, comparing postinjury
scores to baseline data would show the effects of
concussions. Comparing data from players with multiple
concussions to that of all injured players would show
whether concussive effects changed as injuries
accumulated.

A lot was riding on the analysis.

The committee had
never imposed recommendations on team medical staffs.
But this was the first study ever to analyze the brain
function of NFL athletes.If it showed that concussions
were significantly impairing players, the league might
be forced to institute new rules for evaluating and
treating head injuries. Pellman and Lovell both say they
invited all teams to participate in the research (Lovell
says 11 teams elected to join the study) and tried to
collect as many results as they could. As Lovell puts it,
"More data is always better." Several of the doctors

involved, however,

tell a different story. [William]
49