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Patrick Hruby

Mark Rypien, the NFL concussion lawsuits and missing the point

Earlier this week, my Washington Times colleague Nathan Fenno broke the news that former Washington Redskins quarterback Mark Rypien is the lead plaintiff in a 126-person mass-tort lawsuit filed against the NFL over traumatic head injuries. The suit is one of many facing the league; too often, fan reaction seems to break down as follows:

1. Getting hit in the head is bad for you;

1a. Duh;

2. Former football players understood this risk when they signed on the NFL's dotted line;

3. Ergo, the league is not responsible for helping players deal with subsequent memory loss, lack of emotional control, cognitive decline or early-onset dementia;

4. Also ergo, any former football player with the sheer gall to file a lawsuit is greedy moocher trying to work the system, akin to the lady who sued McDonald's over spilled hot coffee.

Or, as Washington Times online commenter Karla Milner put it:

... two words people: PERSONAL ACCOUNTABILITY. We all make choices - not all of them are good. But they are our choices and we should own them. If you choose to smoke all your life you should NOT be able to sue the tobacco companies as in my lifetime there's never been one second that we didn't know it was bad for our health (and I'm over 50). And if you choose to play football (professionally or otherwise) you should not be able to sue over issues from concussions or other injuries because there's no way in hell you could NOT know that the risk of injury and issues down the road was a possibility ...

Now, I understand this point of view. I really do. It's actually the same point of view that fuels so much current conservative political sentiment, the crusade for "tort reform" and much of the anger over the financial crisis bank bailouts. It's valid, essentially an argument for moral hazard, and it makes sense, at least in general terms.

In the specific case of the NFL and concussions, however, it's also spectacularly ill-informed.

As I've written about before -- more than once, actually -- the brain trauma lawsuits are akin to both the Hot Coffee case and the tobacco settlements in one crucial regard: they are not, at the core, about a lack of personal responsibility. They're about a dangerous lack of institutional responsibility, about powerful people and corporations -- who are people, too, my friend! -- dissembling and being negligent and failing to act when they really ought to have known better. They're about morality, a disturbing lack thereof, and the resulting hazard. They're about the same thing the financial crisis was about, risk-taking motivated by greed.

Again, I'm not talking about the players.

In the Hot Coffee case -- the lynchpin of a must-see HBO documentary -- McDonald's was brewing its coffee at dangerous, flesh-melting temperatures as a matter of company policy. The fast food giant reportedly ignored hundreds of incidents in which customers were burned, sometimes badly. That's why a jury found against the corporation -- not because they were bamboozled by a greedy, clumsy old woman. In the case of Big Tobacco, the cigarette industry spent years denying that their product was a health hazard, hiding private evidence to the contrary while producing public junk science to support their case. In essence, Phillip Morris and Co. didn't just stick their heads in the sand. They actively lied. Ultimately, they got popped. Deservedly so. The justice system forced them to be accountable, just the way Ms. Milner prefers.

Regarding the NFL, there is significant public evidence -- note: stuff that's already out there, not additional discovery process information -- that the league attempted to minimize and cover up scientific and medical information about concussions and brain trauma, thereby unnecessarily putting players in harm's way. A few examples:

* ... the NFL did not formally begin to investigate the issue until 1994, when the league formed its Committee on Mild Traumatic Brain Injury. Heading the group? Former New York Jets team doctor Elliot Pellman. Not a neurologist. A rheumatologist. A man who claimed in his biographical material that he had a medical degree from the State University of New York at Stony Brook, when in fact he reportedly attended medical school in Guadalajara, Mexico. A man who shared the following moment with concussed Jets receiver Wayne Chrebet during a 2003 game against the New York Giants, later detailed by ESPN writer Peter Keating in a chilling magazine article:

"There's going to be some controversy about you going back to play." Elliot Pellman looks Wayne Chrebet in the eye in the fourth quarter of a tight game ... A knee to the back of the head knocked Chrebet stone-cold unconscious a quarter earlier, and now the Jets' team doctor is putting the wideout through a series of mental tests. Pellman knows Chrebet has suffered a concussion, but the player is performing adequately on standard memory exercises.

"This is very important for you," the portly physician tells the local hero, as was later reported in the New York Daily News. "This is very important for your career." Then he asks, "Are you okay?"

When Chrebet replies, "I'm fine," Pellman sends him back in ...

* ... Appearing on HBO's "Inside the NFL" that same year, Pellman flatly dismissed a study linking multiple concussions with depression among former players. Months later, Pellman and his colleagues produced a paper stating that there was "no evidence" that concussions produced "permanent or cumulative" damage; in 2006, they published a summary of their work to date, declaring "mild traumatic brain injuries" -- read: concussions -- "in professional football are not serious injuries" ...

* ... when forensic pathologist Dr. Bennet Omalu dissected the brain tissue of dead NFL players such as Pittsburgh Steelers Hall of Fame center Mike Webster. Omalu published an article in the academic journal Neurosurgery concluding that football-related head trauma caused the players to suffer the mind-destroying disease chronic traumatic encephalopathy (CTE). Pellman and two other committee members didn't just blow Omalu off -- they wrote a letter to the journal attempting to discredit his research ...

All of this is significant. It's significant, of course, because it casts the NFL in a terrible moral light -- but also significant because it speaks to the issue of personal responsibility, the very thing that has Ms. Milner and so many other fans bent out of shape. Personal responsibility involves personal choice. Choice involves understanding -- or, as Ms. Milner so eloquently put it, "KNOWING the risk of injury." If you choose to work in a coal mine -- and your employers know the risk of future lung cancer but decline to both inform you and create working conditions that minimize that risk as much as possible, instead telling you that airborne carcinogens are just fine -- are you really making a fair choice? The kind that requires you to "own the consequences?" Or are you in some fundamental way being duped, with tragic results?

The concussion lawsuits are about the NFL owning the consequences of its actions. Anyone who thinks otherwise is missing the point.