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Why the Court must not dismiss the lawsuit by players against the NFL

I am honored that my thoughts on the current players lawsuit against the NFL, "NFL Lawsuit Sheds lIght on Concussion Risks"  was published this evening on the Huffington Post, blog:

 

http://www.huffingtonpost.com/michael-v-kaplen/post_4612_b_3039472.html

 

April 9, 2013, marks the date for oral argument in the United States District Court in Philadelphia, Pennsylvania, on the National Football League's motion to dismiss the lawsuit brought by brain damaged professional football players. The players allege that the league intentionally concealed the risks of concussion and permanent brain injury. It is essential and necessary that the district court allow these law suits to proceed to expose the reprehensible pattern of deception and intentional misconduct committed by the league, whose management exalts profits over player safety.

The suit spotlights players who have sustained brain damage while playing professional football, while the league knew and intentionally obscured the known risks of serious brain injury. If this theme sounds familiar, it is. Similar successful claims have forced the tobacco industry to be accountable to seriously injured individuals for intentionally misleading them and the general public by hiding the known risks of smoking. So, too, the asbestos industry was found responsible for its intentional cover-up of the dangers of asbestos exposure and the serious pulmonary consequences. The NFL, like tobacco companies and asbestos manufacturers, has concealed relevant and crucial evidence from those whose very lives depend on the league's behaving in a responsible manner to protect them from these dangers.

The popular appeal of professional football and the inherent violent nature of the game, encouraged by the league to garner a larger fan base, make it imperative that the truth be revealed. The public not only has a right to know, they have a need to know that these deceptions and misrepresentations have nurtured both a professional and amateur culture that condones and celebrates violence. Over the years, the NFL staunchly refused to acknowledge the accumulating body of impartial medical evidence highlighting the risk of permanent brain damage from repeated blows to the head. More than 40 years ago, the prestigious Congress of Neurological Surgeons repudiated the misconception that concussions are not brain injuries.

The NFL, however, hid behind the inaccurate statements made by its own Committee on Mild Traumatic Brain Injury. The committee's inaccurate statements include their unsupported assertion that "mild TBIs in professional football are not serious injuries;" their questionable studies which reach the suspicious conclusion that the second impact syndrome and permanent brain damage as a result of multiple concussions is not a risk to professional football players; and their dangerous statement that "many NFL players can be safely allowed to return to play on the day of the injury after sustaining a mild TBI." These deceits imperiled professional football players and innocent children, who model themselves after their football idols, with the permanent cognitive, behavioral, social and emotional consequences of brain trauma. Their coaches all look to the NFL for guidance in protecting their players.

The Committee formed in 1994 was a charade. The group's leader, a rheumatologist, was unqualified to render any opinion about brain injury, possessed no formal training or certification in neurology, and misrepresented his credentials on his CV and during Congressional testimony. The committee reports were deliberately designed to mislead the players and the public. Twenty-five years later, when Congress held hearings on the important issue of concussion and player safety, committee and league representatives denied the connection between football and brain trauma.

The NFL mild traumatic brain injury committee's co-chair, Ira Casson, in a written statement to Congress stated: "My position is that there is not enough valid, reliable or objective scientific evidence at present to determine whether or not repeat head impacts in professional football result in long-term brain damage,"

Representative Linda T. Sánchez, Democrat of California, skeptically responded to similar assertions by NFL Commissioner Roger Goodell by stating; "And it sort of reminds me of the tobacco companies pre-'90s when they kept saying, 'Oh, there's no link between smoking and damage to your health.'" The league and its physicians prior to, during and after this hearing, have conspired together in what amounts to a pattern of civil racketeering, to deprive injured players of their right to disability benefits, medical care and rehabilitation treatment coverage.

A searchlight must be directed at the morally reprehensible long-term conduct of the NFL in failing to be truthful and protect the lives and health of players. The players and their attorneys must be given the opportunity to conduct discovery and expose the game of Russian roulette that the league has played with dire consequences to players. The questions, "What did they know?" and "When did they know it?" must be answered under penalties of perjury.

There has never been any serious question that football is a concussion delivery system. But despite this knowledge, over the years, players have been encouraged to "shake it off." They have been rewarded for big hits and for violently sacking a quarterback. They have been told there is no evidence linking concussions to long-term brain trauma. The conduct of the NFL is duplicitous and must be scrutinized under a bright and honest light to reveal the truth.

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