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NFL’s $766 million payout is not ‘historic’

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The National Football League reached a settlement Thursday in the combined lawsuits of 4,500 former players: The NFL will pay out up to $766 million (plus legal fees) to help retirees whose brains were damaged by concussions. That’s a good deal for league brass, who will not admit any liability or negligence. If the case had moved ahead, they might have faced several billion dollars’ worth of damages, and a longer run of bad publicity. Worse, they would have been forced to put a huge library of internal documents on the record. As the bioethicist Daniel Goldberg points out, it’s doubtful that even the NFL’s top executives know what embarrassing secrets or damning evidence might have turned up.

The settlement looks like a solid deal for the plaintiffs, too. The terms apply to every retiree who presents "medical evidence of severe cognitive impairment, dementia, Alzheimer’s or ALS," or to those players’ families. If I’m reading that correctly, the athletes won’t have to prove that any of their disabilities came specifically from trauma sustained while in the pros. Since these guys all played football in high school and college — and got hit in the head over and over again along the way — the requirement for specific harm would have posed a major obstacle in court. Lucky for them, the terms appear to sidestep this issue altogether. Any retiree with signs of brain damage will be eligible for cash, including those who would have gotten these diseases even if they never tackled anyone. (Among normal men above the age of 70, the rate of Alzheimer’s and other forms of dementia is 11 per cent.)

If you’re not a party to the lawsuit, though, Thursday’s announcement hardly has the same appeal. According to the mediator, the NFL and former players reached a "historic" deal to "promote safety for players at all levels of football." That simply isn’t true. Concussion litigation that ends here won’t help resolve the questions that affect players at every stage of their careers. Exactly how much disability do concussions cause? Can the game be made much safer? Just how dangerous is football, overall? A jumbo payout to retirees doesn’t get us any closer to the answers.

Then there’s the problem of how the money will be distributed. The league plans to set up a fund of $675 million, to be distributed to anyone with signs of disability. Neurologists use simple screening tests to figure out if patients have dementia but rarely check to see who might be hamming up their symptoms. In compensation cases, especially, rates of exaggerated symptoms and malingering are very high. According to a 2002 survey, neuropsychologists-who tend to be more thorough than neurologists-suspected chicanery in about 39 per cent of patients who reported "mild head injuries."

Clinicians can employ a set of "symptom validity tests" or "effort tests" when they’re evaluating patients for cognitive impairment, to make sure there’s no funny business. These are given on the sly-practitioners don’t like to talk about the details with the press — but according to Dominic Carone, a clinical neuropsychologist at SUNY Upstate Medical University, they’re quite important. It’s unclear if the NFL will demand these double-checks, but I’m guessing it won’t. If you’re trying to avoid negative publicity, you don’t want to start calling anyone a faker.

Of course, we shouldn’t be too worried about "healthy" football retirees getting payouts they don’t deserve. The NFL has done an abysmal job of caring for its former players, whether they suffer from mild traumatic brain injury or other common football ailments — busted joints, twisted spines and all the rest. It’s not a tragedy if the league has to throw some extra dollars in the pool on account of some "false positives." A wide net will at least ensure that every player who is truly suffering receives his compensation. But the imprecision of diagnosis means that even with all this money changing hands, we’ll still have no idea how prevalent these disabilities really are.

The settlement does almost nothing to elucidate this question, nor any other in the science of concussions. How serious is the problem of head injuries in football? No one has ever done a well-controlled, long-term study of cognitive impairment. No one has ever selected a random group of athletes in advance, then followed them over time to figure out how their rates of brain pathology relate to everybody else’s. These are just the most basic questions that are yet to be answered.

Doctors now suspect that a gene called ApoE4 puts athletes at higher risk of brain injury. Does this mean anyone with that marker in their DNA should stop playing football right away? Maybe, but we’ll need more research to find out for sure. Clinicians tell concussed athletes to stay off the field and "rest their brains" until all theirs symptoms clear. Is that really the best way to treat a player’s injuries? Probably not — there’s evidence to the contrary — but we can’t say for sure without a better set of data. Coaches like to test their players’ mental skills with fancy software, before and after scary hits. Do these exams lead to better outcomes? Right now it’s hard to measure.

In the past few years, the NFL has disbursed more than $100 million on concussion research, and the Player’s Association has been spending money, too. Still, it’s troubling that as part of its final deal with plaintiffs, the league set aside just $10 million more for purposes of "research and education." We’re talking about barely more than one per cent of the total pot, and not all of it will go towards doing science. According to the settlement, that fund will also pay for outreach projects such as one promoting "safety initiatives in youth football." In light of what we know-and don’t know-about concussions, these are almost guaranteed to be a waste of money. You can’t promote "safety" in football, youth or otherwise, until you understand — scientifically — how dangerous it really is.


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