Ex-NFL Players’ Lawyers Don’t Need Concussion BriefingJef Feeley and Sophia Pearson
As one of eight brothers who played college football, Derriel McCorvey says he has the game in his blood. Now the Louisiana lawyer is trying to make the National Football League bleed over claims that it concealed data about the dangers of concussions.
The ex-Louisiana State University safety is part of a group of plaintiffs’ lawyers in cases filed by ex-NFL players and their families.
Their side argued in a Philadelphia hearing today that the league can’t claim immunity under its collective-bargaining agreements. The NFL is asking a judge to toss the cases, arguing the claims should be heard by arbitrators, not juries.
“The league is pretty powerful,” McCorvey said last year in an interview. “Most people don’t have a good chance of taking on the league.” Still the players’ cases are strong enough that a judge may “reject the NFL’s arguments” for dismissal, the attorney said last week.
Former NFL stars such as Miami Dolphins receiver Mark Duper and Arizona Cardinals running back Lyvonia “Stump” Mitchell allege that league officials knew at least since the 1970s that concussions posed long-term health risks and didn’t warn players, coaches or trainers. The league is facing suits filed by more than 4,000 former players, according to court records.
The NFL can’t claim immunity from the suits because it established itself as the “guarantor of player safety,” a players’ lawyer, David Frederick, argued today. An attorney for the league countered that safety is a responsibility shared by individual clubs and the players’ union.
NFL officials failed to take substantial steps to address the risks until 1994, when the league created a Mild Traumatic Brain Injury committee, the players say.
In the 16 years that followed, the league allegedly tried to suppress medical literature and studies showing that repeated head blows could cause chronic traumatic encephalopathy, a progressive brain disease that can lead to dementia and death.
Autopsies showed Junior Seau, an All-Pro San Diego Chargers linebacker; Dave Duerson, a Chicago Bears’ safety; and Andre Waters, a Philadelphia Eagles defensive back, suffered from the disorder before committing suicide.
Their families are suing the NFL and Riddell Sports Inc., the league’s official helmet provider, for refusing to properly acknowledge or address the concussion threat.
Riddell is a unit of Van Nuys, California-based Easton-Bell Sports Inc., which is majority owned by the private-equity firm Fenway Partners LLC. Riddell had $121 million in sales of helmets, shoulder pads, face masks and other football gear in 2011, up 48 percent from $81.9 million in 2009, according to Easton-Bell filings.
Commitment to Safety
Brian McCarthy, an NFL spokesman, said the league is committed to player safety and is prepared to counter arguments that it downplayed or hid concussion risks.
“Any allegation that the NFL intentionally sought to mislead players has no merit,” he said April 5 in an e-mailed statement.
“It’s not appropriate to comment on pending litigation,” Erin Griffin, a Riddell spokeswoman, said in an e-mail. “We are confident in the integrity of our products and our ability to successfully defend our products against challenges.”
The cases have been consolidated before U.S. District Judge Anita Brody in federal court in Philadelphia for the exchange of pretrial evidence. Brody will decide whether the players’ claims can proceed to trial.
McCorvey, a former second-team All-Southeastern Conference safety at LSU, is lining up on the plaintiffs’ steering committee with David Buchanan, a former University of Delaware all-conference offensive lineman; Mike McGlamry, an ex-Wake Forest University quarterback; and Gene Locks, a former Princeton University quarterback.
Opposing them in the concussion cases are defense lawyers Beth Wilkinson and Brad Karp, partners in New York’s Paul, Weiss, Rifkin, Wharton & Garrison. Wilkinson was hired last year to lead the Federal Trade Commission’s antitrust investigation of Google Inc.
The NFL’s dismissal motion was argued today by Paul Clement, a former U.S. solicitor general, McCarthy said. Clement recently defended the Defense of Marriage Act, enacted by Congress in 1996, before the Supreme Court.
The litigators representing players in the concussion cases include veterans of lawsuits that generated billions of dollars in settlements and damage awards. Buchanan litigated claims against drugmaker Merck & Co. over its withdrawn painkiller Vioxx. Locks helped lead suits against Pfizer Inc. unit Wyeth over its fen-phen diet combination.
Frederick convinced the U.S. Supreme Court in 2009 that federal law didn’t pre-empt product-liability cases filed in state court against pharmaceutical makers. He’ll argue that labor law doesn’t pre-empt the concussion suits.
Unlike attorneys in most product-liability cases, the former players have first-hand experiences with their clients’ injuries, said Tom Girardi, a Los Angeles-based lawyer who also represents ex-NFL players who suffered concussions.
Having lawyers who took the same hits as their clients “is extraordinarily valuable,” Girardi said last year in an interview. Buchanan, McGlamry and McCorvey give the legal team “a certain amount of credibility with the players,” he said.
Buchanan, a partner at Seeger Weiss LP in New York, said his football experiences provided a spark for his work on the concussion cases. Chris Seeger, the firm’s managing partner, is one of the co-lead counsels in the concussion litigation.
“There’s a part of me that’s really motivated to pursue this case, because I had no idea this is what any of us who played football were gambling with,” Buchanan said. “I see our clients struggling with day-to-day activities because of the hits they took. Seeing what this does to people makes me glad the way my life worked out.”
Buchanan, 45, said he never suffered a “documented concussion” on the field and missed only one Delaware Blue Hens game due to injury. After being tapped for an all-star team as a senior, he passed up free-agent tryouts from the Philadelphia Eagles and Indianapolis Colts, opting for law school.
McGlamry, who lives in Atlanta, said he took some shots at Wake Forest that left him woozy, but doctors never diagnosed him as having concussion symptoms.
“I remember one time in practice I got hit so hard that when I got back to the huddle and called a play, I couldn’t remember what play I’d called when I got under center,” the litigator said in an interview.
McGlamry, 56, said his football experiences may have prompted ex-NFL stars such as Jamal Lewis, a Baltimore Ravens running back; Chris Doleman, a Minnesota Vikings linebacker; and Joe Bostic, a Washington Redskins offensive lineman, to call seeking representation on their concussion claims.
“I think the fact that I played makes a difference,” he said. “I understand the culture of the game and the pressures players face to stay in and perform no matter how many hits they take.”
McGlamry’s client list includes Dorsey Levens, who spent 11 seasons as an NFL running back, including eight with the Green Bay Packers. He also played two seasons with the Eagles and one with the New York Giants.
The former Georgia Tech player helped lead the Packers to victory in the 1996 Super Bowl and was selected for the league’s Pro Bowl game the next year. He’s now a commentator for Atlantic Coast Conference college football games.
Levens, 42, said he suffered knee injuries in his college and professional careers but avoided concussions. He endures bouts of sleeplessness and irritability and worries that he may have undiagnosed brain injuries, he said in a phone interview.
The running back hired McGlamry after the attorney was recommended by a former college teammate. He wanted an advocate who knew what it meant “to get your bell rung,” he said.
In dealing with other lawyers on sports matters, Levens said, he was frustrated because it seemed “most times, we were speaking different languages.”
“Football is a brotherhood,” he said. “If you’ve played it, you speak the language. Mike can speak that language as well as navigate through the legal issues.”
Levens appeared in a cameo role in the 2006 football movie “We Are Marshall.” He also produced and narrated the documentary “Bell Rung,” on concussions’ long-term effects.
McCorvey, 43, had head-to-head collisions repeatedly as a defensive back with the LSU Tigers and during a short stint with the NFL’s Colts, he said.
He recalls four hits in the Colts’ 1993 training camp, including one with running back Roosevelt Potts that left him seeing stars. McCorvey was cut before the season started.
“When you’ve had your bell rung you don’t know where you are,” he recalled. “You just have to wait for your senses to come back.”
McCorvey says youngsters, including him, never thought about such hits when lacing up their shoulder pads for Pop Warner league games.
The age 5-to-14 football program was started in 1929 in Philadelphia and spread through the U.S. McCorvey said he and his seven older brothers began playing football at about 6 and continued through college.
McCorvey grew up in football-mad Pensacola, Florida, which produced such NFL stars as former All-Pro Dallas Cowboys running back Emmitt Smith and current NFL Cleveland Browns running back Trent Richardson.
McCorvey’s brother Errol played with future NFL stars Terrell Buckley and Deion Sanders at Florida State University. Another brother, Herman, played at Alabama State University, and a third, Quinton, played at Alabama A&M University.
“Each one of my brothers, with the exception of one, all played college ball on an athletic scholarship, so competing academically and athletically in our home is something you kind of just did,” he said.
Sitting in his Lafayette, Louisiana, law office decorated with family photos and mounted elk heads, McCorvey gazed at his LSU helmet on a shelf near his desk.
“If you would have told me when I was playing in college or when I got to the Colts that the NFL had a study showing multiple concussive and sub-concussive hits to the head can cause memory loss, dementia and all kind of cognitive degenerative diseases, I wouldn’t have played,” he said, referring to players’ claims of suppressed reports.
Still, McCorvey said, he understands the passion that drove the more than 70 ex-NFL players who’ve hired him to surrender their bodies to the game.
The intense competition for high-dollar NFL roster spots means players are reluctant to acknowledge they’ve suffered any injury, McCorvey said. The average salary of an NFL player is $1.9 million a year, and the average player’s career length is 3.5 years, according to data compiled by Bloomberg Businessweek.
“If you get hurt, or show signs that you’re hurt, you’re more likely” to get cut, McCorvey said. “It’s a culture where the emphasis is on winning and maximizing profits. So players are put in a position where they have to either mask injuries” or play through them to keep their jobs, he added.
Among McCorvey’s clients is Charlie Granger, an ex-Southern University football player, who joined the NFL during the integration of African-American players into the league in the early 1960s. Granger, 74, said he no longer drives in his hometown of Port Allen, Louisiana, after he found himself repeatedly lost on a road he’d taken home for years.
Episodes of explosive anger, along with memory lapses and depression, prompted Granger to retire early as a gym teacher. He blames his ailments on more than a dozen concussions he thinks he suffered in his 14 games as an offensive lineman with the Dallas Cowboys and St. Louis Cardinals in 1961. Granger is listed as one of pro football’s oldest living players.
“The league never told players this stuff is going to mess you up in the head,” Granger said in a Nov. 14 interview in his brick ranch house. “They gave you smelling salts and sent you back out in the game.”
The NFL contends in court papers that Granger and McCorvey’s other clients chose to play a violent game and can’t plausibly argue they were unaware of the risks. The league didn’t hide or downplay the game’s concussion risks, it says.
The league asked the judge today to find that because the players perform under union contracts, federal labor law covers the concussion claims. That law favors arbitration of employment-related claims rather than trials, the league says.
The players contend their claims are independent of any collective-bargaining agreement covered by labor laws and the league owed a duty to them beyond their employment contracts to advise them fully about concussion risks.
McCorvey said the former players want the league to pay for an extensive medical-monitoring program that will allow ex-athletes to receive appropriate care as their conditions worsen.
“I want the NFL to adequately compensate the players who have bona fide, documented, neurological problems,” the lawyer said. “That’s the immediate need.”
The consolidated concussion case is In re National Football Players’ Concussion Injury Litigation, 12-md-02323, U.S. District Court, Eastern District of Pennsylvania (Philadelphia).