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A new approach to legal action against the NFL

Today's New York Daily News has a guest editorial authored by my partner, Shana De Caro and myself:

"Lawyers assert need for NFL to do more to address needs of players suffering from concussions"

The full story is below:

BY Sports Editor

By Michael V. Kaplen and Shana De Caro

As the New York Giants and the New England Patriots prepare for their Super Bowl showdown amid great hype and fanfare, another battle is being waged off the field which is not spoken about all that publicly.

While the National Football League's management of traumatic brain injuries has been duplicitous at best, the current groundswell of class-action lawsuits will neither provide essential assistance for brain damaged players nor protect those on the field.  

They do not redress the league's deliberate misconduct denying players' contract disability benefits, but rather aim to penalize the league for morally reprehensible conduct - failing to design safe concussion management protocol. Failure to acknowledge scientific evidence and institute proper return-to-play protocol is not equivalent to legal liability. The failure to fulfill the terms of a guaranteed benefit plan, however, does expose the league to liability.

Cumulative sub-concussive and concussive blows have left a wake of brain injured football players with lifelong consequences. Retired players question if they will suffer the effects of an untended brain injury. Each week, crowds roar, cash registers ring, and players are devastated by concussions. Current lawsuits ignore complex worker's compensation immunity issues, assumption of risk, and complications proving the time of suffering brain damage.

The Congress of Neurological Surgeons repudiated the misconception that concussion requires loss of consciousness more than 30 years ago. A National Institute of Health consensus statement on Brain Injury Rehabilitation in 1999 confirmed that traumatic brain injury has cognitive, behavioral, social and emotional consequences. The league continues to ignore the warnings and consequences of brain trauma despite these impartial findings. Players who deliberately ignore symptoms and knowingly assume the associated risks in exchange for short-lived glory must share in the responsibility for the current crisis. This bargain includes a long-term disability plan ostensibly intended to provide lifetime medical benefits and economic compensation. The league's intransigent and systematic denial of brain injury disability retirement applications precludes brain injured players from receiving these benefits.

The NFL has steadfastly refused to acknowledge the accumulated and overwhelming medical link between head trauma, concussions, and disability, in administering the league disability plan. Conspiring with their physicians, the league has engaged in a pattern of civil racketeering, wrongly depriving player's benefits, due process, and a full and fair opportunity to obtain disability benefits, including medical and rehabilitation care.           

The league should be commended for changes in concussion management, albeit precipitated by Congressional hearings, media attention, and threatened federal legislation. But there has been no redress for wrongful denial of disability benefits. Contract changes are vital to remove the disincentive for players to hide their symptoms. It is essential that concussion disabled players receive full contract and disability benefits.

Although brain injury is part of the game, players should not be doubly penalized. They must be assured of receiving necessary medical rehabilitation and future lost earnings. Appropriate and effective legal action must tackle the irrefutable, wrongful, and malicious league conspiracy denying disability benefits if the goal is to right the lifelong wrongs inflicted upon brain damaged professional football players.

Michael V. Kaplen is a Pleasantville lawyer who specializes in concussion cases and serves as chairman of the New York State Traumatic Brain Injury Services Coordinating Council, an advocacy agency for concussion patients. He is also past president of the Brain Injury Association of New York State and past chair of the American Association for Justice, Traumatic Brain Injury Litigation Group. Attorney Shana De Caro is the treasurer of the American Association for Justice, Traumatic Brain Injury Litigation Group and secretary of the Civil Justice Foundation. They believe the NFL needs to do more to address the needs of players who have suffered traumatic brain injuries.

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