Concussion Inc. (28 page)

Finally, regents need to evaluate whether it is appropriate for football and other sports programs to be covered by the limited immunity from tort liability that Maryland law provides to state institutions and their personnel. Under Maryland law, the liability of a state agency such as the Board of Regents for tort damages is up to $200,000.

School personnel, that is, coaches, athletic directors, university presidents, the chancellor, and even regents are only liable for torts — like a student dying in a school-organized football practice — if their conduct is malicious or grossly negligent. For negligence, these school personnel get a free pass.

The regents need to ask whether the limited immunity has created perverse financial incentives for the universities it supervises. Football and other sports programs represent significant revenue source and an opportunity to market a school's “brand.” If liability for a tragedy like Derek Sheely's death is capped at $200,000, in a perverse Ford Pinto–like cost benefit analysis, does this represent a small operating cost with no financial incentive for a university to correct dangerous conditions?

One private sector discipline that gets lost by ­intercollegiate athletics being conducted by state employees is the discipline of liability insurance. If the University System of Maryland had to obtain insurance on the private market for the football program at Frostburg, would an insurer be willing to provide coverage? If so, would the premiums be affordable?

Would a private insurer condition coverage on the regents banning dangerous football tackling drills, like the Oklahoma drills that the Sheely family allege caused their son's death?

These serious issues may be beyond the regents' willingness to address. That is why Governor O'Malley needs to step in.

Tom Hearn is a parent from Montgomery. Last year, after his son sustained a concussion playing JV football, he advocated to the Maryland State Board of Education that they take steps to address concussions in high school sports. Hearn is @ConcussionMCPS on Twitter.

10 September 2013..........

“The family of a Montclair High School football player who died two days after collapsing in a 2008 junior varsity game agreed Monday to settle its lawsuit against the school and the township's Board of Education for $2.8 million, the family's lawyer said.”
26

Though the National Football League's recent $765 million settlement with thousands of retired players hogs the headlines, the resolution of the Ryne Dougherty case is a much more telling harbinger of football's future.

Not mentioned in the news account cited above is that this case involved more than the liability of a public school system for wrongful death. It also exposed the expensive futility of newfangled “concussion awareness” measures, such as the quack ImPACT “concussion management system.”

21 September 2013..........

We're happy to report that yesterday the regents of the Maryland state university system invited Tom Hearn to address them at their board meeting. An adaptation of Hearn's article here on September 2, also has run in online versions of both the
Baltimore Sun
and its sister
Chicago Tribune
.

Way to go, Tom. Again — these kinds of places are where the debate over the future of football is headed.

2 October 2013..........

Appropriately, corrupt doctors are front and center in separate excerpts of the book
League of Denial
, by Mark Fainaru-Wada and Steve Fainaru, which are published today by
Sports Illustrated
and
ESPN: The Magazine
.

Other than Joe Maroon and the Pittsburgh neurology quack pond, what jumps out at me most in the
ESPN
excerpt by the Fainarus is the role of Kevin Guskiewicz, the MacArthur fellow I now mockingly call “Dr. No Junior” — after the original “Dr. No” Ira Casson, whose repeated
nyet
negativity at a Congressional hearing grilling him about traumatic brain injury is lampooned on YouTube as the ultimate in tobacconist defensiveness.

In the Fainarus' account, Guskiewicz, who attended a 2006 NFL doctors' concussion summit organized by new commissioner Roger Goodell, felt the event “had the makings of a
Saturday Night Live
skit, with Casson as the parody of a man in denial”:

Oh, my gosh, as long as I live I'll never forget that day. I use that as a teaching point with my students. I'm like, ‘The day that you have to stand up in front of a group and tell them that you're a man or woman of science, your credibility is shot, especially when you have nothing to put in front of people to convince them.' That was a bad, ugly, ugly day for the NFL.

But ugliness is as ugliness does. Today Guskiewicz himself shills for the football establishment as a promoter of “safe football” — a position with all the public health conscientiousness of a marketer of filtered cigarettes.

The story, as told by me, isn't about all these great men, who it turns out aren't so great but simply stiffs like you and me, but with advanced degrees allowing them to peddle selective expertise to the highest bidder.

No, the story is about the power of a brand and the money behind it. The shill docs come and go, through the revolving door of PR hard denial to the revolving door of PR soft denial. Ending the systematic braining of young American males for mass entertainment isn't in their hands. It's in the hands of parents and the public.

13 November 2013..........

The most revealing quote in
League of Denial: The NFL, Concussions, and the Battle for Truth
— Mark Fainaru-Wada and Steve Fainaru's page-turning game-changer of a book — comes early on from Dr. Ann McKee, the central casting blonde-bombshell laboratory coat face of chronic traumatic encephalopathy. She replaced Dr. Bennet Omalu, the original sprightly African lab coat face of CTE.

Musing aloud to the Fainarus a year ago, McKee says, “[H]ow come I just don't say, ‘Let's ban football immediately'?” She answers her own question: “I think I would lose my audience.”

Yes,
League of Denial
is a book about science in the sense that, along the way, CTE earns classification as a discrete pathology. This is because, under a microscope, a dead brain that was impaired by the disease exhibits the strangling tau protein accumulations also found in Alzheimer's, but in different parts of the brain and without the beta-amyloid residue also attendant to Alzheimer's. The Fainarus explain it all concisely, brilliantly, for a general readership.

It's important to bear in mind, however, that
League of Denial
is not only, or even primarily, about science. For whenever public health collides with ingrained, commercially successful social customs, hard science gets you only so far. Moreover, what the world recognizes as pure science is often only slightly less elusive than art.

And that problem is the tangled web the Fainarus weave: a ­chaotic, improvisational dance of academic egotists, corporate butt-­coverers, bad timing, and juicy intrigue, all with an unmistakable ­overlay of ­inevitability. Anyone who hasn't been playing football without a Riddell Revolution helmet knows how this story will end … at some indeterminate point in the future, with a whimper, after all the books have been written and read. What remains to be known are just a couple of details — how long it will take to get there and precisely what will constitute the tipping point.

With its bickering ensemble, mixing crude politicos and earnest pointy-heads, and its long, truth-bending narrative arc,
League of Denia
l
is in the tradition of
The Best and the Brightest
, David Halberstam's 1972 opus on how Team McNamara came — if I may be permitted to exploit a gridiron term — to “put the ball on the ground” in Southeast Asia. From my perspective, the Fainarus' final product has foibles, and I'll get to some of them. But don't let those cloud what, in the round, is a huge achievement in sports journalism. In journalism journalism.

In coming years, literature will further concentrate the American mind on the gross national cognitive product–decimating insanity that our billion-upon-billion-dollar football industry has become. These forays have to combine good writing, good reporting, good analysis, and, finally, “bona fides”; like Ann McKee said, you mustn't lose your audience! The authors of
League of Denial
, who work at ESPN, have delivered on their end. They found Goldilocks' sweet spot: their verbal porridge is not too hot, not too cold, just right.

In a few places, the book tips its cap to ConcussionInc.net, for which I am grateful.
League of Denial
goes deep with the tragedy of Dave Duerson, a retired defensive back and fallen business tycoon who joined in stonewalling old colleagues' brain injury claims on the Bert Bell/Pete Rozelle NFL Retirement Plan board — virtually up to the moment Duerson shot himself to death while admitting that he, too, was a victim of the syndrome. In the wake of that 2011 episode, Rick Telander and Paul Solotaroff wrote a fine article for
Men's Journal
chronicling Duerson's tormented last days, and Alan Schwarz of the
New York Times
raised the question of whether the deluded Duerson's presence on the disability review board tainted its body of work. But so far as I know, only Alex Marvez of FoxSports.com and I have persisted in digging into the Duerson case files with an eye toward correcting injustices.

League of Denial
also quotes my friend, Missouri-based writer Matt Chaney, calling Kevin Guskiewicz “Gus Genius” (a jab at that worthy's MacArthur Fellowship), plus me tagging him “Dr. No Junior” (a reference to the senior “Dr. No,” Ira Casson, who once chaired the NFL's Mild Traumatic Brain Injury Committee). These sallies appear in the epilogue, where the Fainarus ably bring their story home.

Heretofore, Guskiewicz had been part of a group of researchers the authors refer to as “The Dissenters,” since they pecked away at stubborn denial in the higher councils of the league and even in the scientific research the league's well-connected consultants manufactured for publication in the most prestigious “peer-reviewed journals.” But like just about everyone in
League of Denial
at one time or another, Guskie shows his own ass once he becomes an ultimate insider, apologizing for the health toll of the football system and nitpicking at others' more aggressive extrapolations of concussion-related findings.

In contrast, other figures in the book come off better at the end than in the middle. One is Dr. Robert Cantu, who had signed off on corrupt NFL research and bizarrely lax editorial standards when he was sports section editor of the journal
Neurosurgery
(whose jocksniffing editor-in-chief, Dr. Michael Apuzzo, was also a team physician for the New York Giants). At least Cantu came around to clearly opining that no one under age 14 should play tackle football, period.

Still others intersperse good deeds with manipulative self-­promotion, such as the formidable activist and ex-WWE performer, Chris Nowinski, sometimes in concert with the
Times
' Schwarz, his veritable amanuensis.

Without the spadework and high-end media access of the troika of Cantu and Nowinski in Boston, and Schwarz in New York, no tome as powerful as
League of Denial
would have had any hope of coming to light from a major publisher in 2013. Yet the Fainarus call out the vanity of these haughty Northeasterners, too. The climax of the process was a million-dollar NFL grant to the Boston University Center for the Study of CTE, which was accompanied by — and this is strictly my interpretation — a year or more of the Gray Lady's compromised coverage of the age of “concussion awareness.” Dutifully, in the wake of the uncontrollable Omalu's split from the Boston group, the
Times
and others blacked out this native Nigerian, who didn't give a rat's rear about football, in favor of the mediagenic McKee, a rabid Green Bay Packers fan.

Commenting on the sister PBS documentary
League of Denial
, some have said the NFL Players Association is a missing character. After reading the more fully developed book (whose review here supersedes further comment on the television production), I agree. As noted, the Duerson angle is there, but not the dissenting work of disillusioned union activist Sean Morey.
League of Denial
doesn't deal with the fault line between pre-1993 retirees and beneficiaries of the more recent collective bargaining improvements, or with the corruption and cronyism of the late NFLPA executive director Gene Upshaw. I suspect the authors were just making economical storytelling choices.

The same might be said of another missing character: government at all levels. When the battle of the buzzards was on, between Nowinski's Boston research group and Omalu's, for the right to examine the CTE evidence in another celebrity suicide, Junior Seau, the NFL maneuvered the family to donate the brain, instead, to the National Institutes of Health. This was quickly followed by a $30 million donation to NIH, the largest charity check in league history. The Fainarus don't bother pausing to underscore that NIH is an agency of the federal government, whose pursuit of the public interest gets warped by such levels of supposed corporate largesse.

League of Denial
doesn't get around at all to the NFL's parallel eight-figure underwriting of a “public education” campaign under the auspices of another federal agency, the Centers for Disease Control. A pity, as this would have fit neatly into the too-short chapter so tastefully entitled “Concussion, Inc.” (And, guys, you know where to send the royalty checks.)

The Fainarus only briefly touch on the regime of state statutes known as “Zackery Lystedt Laws,” which add to the expensive and untenable “safety mandate” burdens of public high school football.
League of Denial
seems mostly uninterested in our theme, at least in this context, of how concussion awareness got vacuumed up by the NFL and its retinue — especially the developers of the ImPACT concussion recovery testing program — in ways that would not only protect Big Football's interests, but also isolate new profiteering opportunities from them.