By Abigail Plouff, 3L at University of Miami School of Law and a Legal Extern for the Miami Dolphins
Chris Nowinski, PhD, the founding CEO of the Concussion Legacy Foundation (CLF), gave an impassioned keynote speech, entitled “Concussion Litigation & Health and Safety,” last month at the annual Global Entertainment & Sports Law + Industry Conference. The event was hosted by the Entertainment and Sports Law Society and the LL.M. in Entertainment, Arts and Sports Law at the University of Miami School of Law.
Nowinski was joined by panelists Mike Adamle, former NFL player and retired announcer for NBC Sports and the WWE, and Kim Adamle, activist and organizer for player safety and recognition of CTE and other brain-related trauma by the NFL. The couple are also co-founders of The Mike Adamle Project, which seeks to create a supportive network of resources for all of those who have been affected by CTE.
First a little background: The CLF, a 501(c)(3) charity founded in 2007, is “leading the fight against concussions and Chronic Traumatic Encephalopathy (“CTE”) and is dedicated to improving the lives of those impacted. The mission of the CLF is to: (1) Support athletes, Veterans, and all affected by concussions and CTE; (2) Achieve smarter sports and safer athletes through education and innovations; and (3) End CTE through prevention and research.”
Nowinski is a former Harvard football player and professional wrestler who retired from WWE due to concussions. He sounded the alarm in 2006 with his book Head Games: Football’s Concussion Crisis and later got his PhD in behavioral neuroscience. Robert Cantu, MD, is the Founding Medical Director of the CLF. Dr. Cantu has been one of the world’s most respected concussion experts for decades, creating the first return-to-play guidelines in 1986 and authoring all major concussion consensus statements since. He treated Nowinski in 2003 for his concussions. In founding the CLF, Nowinski and Dr. Cantu articulated their vision as “A world without CTE, and concussion safety without compromise.”
Before Nowinski dove into his presentation, the Adamles told the story of how Mike came to be diagnosed with CTE – or rather, he became as much diagnosed with CTE as one can be without post-mortem confirmation. When the couple first moved to Chicago and Mike had just started working there, Kim said that “Mike was on the air one night live and started having a seizure.” Mike explained his seizure as, “a wave that overcomes your body and you don’t understand what’s going on.” Mike continued: “And all I know is when I was done that night I was sitting in a chair in my office, and I was just sort of really scared because this had never happened before. I got my way through the broadcast and I was really happy that happened because I don’t know how much farther I can go. I highlight that day and the next thing I knew I was in my office chair and a friend came by and I was dripping wet [with sweat] and I didn’t know how I got there, and I remember forgetting the name of the news anchor that I worked with for a hundred years.” Following that incident, Kim took Mike to the emergency room. Kim said, “We were fortunate to be hooked up with one of the best neurologists around and they kept him at the hospital at the base and diagnosed him with epilepsy. So, Mike has had continuous neurological care since 1999. It’s a fortunate thing because we have been able to track what’s been happening with his brain’s functioning through really good professional care. He would do periodic three-day stays in the hospital where they would check everything out – comprehensive neurological evaluations. At the one in January 2016, Mike had started having seizures again. So, they did some extra testing and more MRIS and everything – and EEGs and bloodwork, and neuropsychological testing. And at the end of this three days, the doctor came in with the whole team. . .. Mike was sitting there on the bed. The doctor said, ‘Mike, you have all the symptoms that we know to be commensurate with CTE.’ . . . Mike was in tears because he knew what that meant. What little we knew at that time – that science knew at that time – about CTE, but what we did know, had been in the headlines with other players who had committed suicide and had devastating results and stories. So, Mike was in Tears and he said, ‘If I have to have this, I want to be the one to show how to live with it.’ That started actually a whole new way of life for us and our whole lives have been committed to keeping Mike healthy, finding out what we can, and using our experience to reach out and bring awareness and help others to get help they need.”
As mentioned, Nowinski is no stranger to head trauma himself. Nowinski said he “got kicked in the head too much” as a Harvard football player and WWE wrestler. When Chris was diagnosed with post-concussion syndrome and trying to get better, he met his partner Dr. Cantu. Dr. Cantu changed Nowinski’ entire perspective on what Nowinski thought he knew about concussions and long-term consequences of the activities that he had been engaged in for the previous 19 years. Together, Nowinski and Dr. Cantu created the CLF, which is the largest and most influential non-profit in both the concussion and CTE spaces. CLF operates eight impactful programs in three areas of focus to accomplish its mission. These focus areas are (1) Education & Advocacy, (2) Research, and (3) Patient and Family Services. These focus areas help protect the people CLF serve. Nowinski said, “We want to protect kids through prevention. We want to intervene when people are actually getting hurt. And we want to support those affected by long-term symptoms.”
The CLF deals with two major issues. The first issue is concussions. Most concussions go undiagnosed. According to the CDC, there are 1.6 to 3.8 million sports and recreation related concussions each year in the U.S. Traumatic brain injury (TBI) is the signature wound of the war on terror, with 20 percent of Veterans suffering a TBI. Concussions, especially to the developing brain, can derail a life, causing problems with cognition, depression, anxiety disorders, and even suicide. The second issue is CTE. CTE is a neurodegenerative disease caused by brain trauma that causes problems with cognition, mood, behavior, and sleep, and results in dementia. Studies suggest 0-3 percent of the population has CTE. CTE cannot yet be diagnosed accurately nor effectively treated in the living – but CTE is entirely preventable. While it is quite rare in the general population, it is highly prevalent in the exposed population – people who have taken thousands of blows to the head. What is known about CTE has been learned in the past twenty years.
There have been various lawsuits against professional leagues and against the NCAA relating to concussions and player health and safety. Among these, the NFL lawsuits stand out. This is partly because the NFL has actively downplayed the concussion issue and ignored safety protocols. Paul Tagliabue once famously said, “Concussions is one of these pack journalism issues, frankly. There’s no increase in concussions. The number is relatively small. The problem is it is a journalist issue.” In 2005, the New York Jets wide receiver Wayne Chrebet was knocked unconscious for over one minute. He returned to the game ten minutes later, cleared by the Jets team doctor Elliot Pellman, who was the chair of the NFL’s Mild Traumatic Brain Injury Committee. Examples such as the Wayne Chrebet incident have been brought up in these lawsuits because there has been a long history in America of it being known that concussions are bad for one’s health. There has been guidance advising against a player returning to play right away after a concussion or severe blow to the head for many years. In September 1968, the NCAA wrote, “Even those individuals who have been rendered unconscious, even momentarily, in a given game should never be allowed to play again in the same game and not allowed to return to contact until all symptoms have cleared up entirely and he has been checked by a competent medical authority.” In 1937 and the 17th annual meeting of the American Football Coaches Association Meeting, it was said: “During the past 7 years the practice has been too prevalent of allowing players to continue playing after a concussion. Again, this year this is true. Sports demanding personal contact should be avoided after a concussion.” As far back as 1921, West Point football head coach Charles Daly advocated for no return-to-play on the same day for a “Blow on head.”
Interestingly, Mike Adamle’s father, Dr. Tony Adamle, was a professional football player himself who then became a sports medicine doctor. Dr. Tony Adamle was considered ahead of his time and was a proponent of “no flag under fourteen” – meaning he encouraged kids not to play flag football under high school. Mike said of his father, “He cared and knew about football. One of the things that made him special was having played football himself for the Cleveland browns. He knew what guys were going through. And he started back in the day where they didn’t have facemasks. One of the things he discovered – he said, ‘listen Mike, I want you to go out and play football, but I want you to be prepared to make sure that you’re safe. And by being safe you also become a better football player.’ I used to walk to school, do all kinds of exercises. . .. He was a real proponent of preparing yourself. ‘I don’t want you playing until you’re ready – until your body is ready. So just do that first. The rest will come by itself.’”
The first person to put a face to the concussion issue with the string of lawsuits against the NFL was Ted Johnson, former Patriots linebacker. In 2007, he went public with the fact that he had been put back into a practice before it had been cleared by a doctor. He suffered back-to-back concussions within days which derailed his life. He explained how not following proper medical advice was hurting players directly.
The CTE issue and how it became part of the lawsuit was because of how the NFL reacted to the Ted Johnson incident. Nowinski became involved in this ordeal in 2006. At the time, Nowinski’s book had come out. The public was not overly focused on concussions right then. Nowinski had written a chapter in his book about the first two NFL football players that had been diagnosed with CTE, but there had not yet been a national news article addressing that subject. Andre Waters, an NFL safety from 1984-1995, committed suicide on November 20, 2006. Waters had been a player Nowinski looked up to, and Nowinski was interested in studying his brain because of a quote Nowinski found. Asked in 1994 by The Philadelphia Inquirer to count his career concussions, Waters replied, “I think I lost count at 15.” Waters later added: “I just wouldn’t say anything. I’d sniff some smelling salts, then go back in there.” Nowinski reached out to the medical examiner and tried to convince him to do the studies for CTE. The examiner refused, but told Nowinski he kept some brain that he would release if Nowinski could find a doctor to study it and get permission from the family. Nowinski obtained permission from the family. At the time Nowinski found the quote, Nowinski believed concussions were directly tied to CTE. However, Nowinski stated, “What we’re now learning is that it’s more repetitive brain trauma – the 20,000 hits that’s more driving the risk than the individual concussions.” Regardless, Waters did end up having a CTE diagnosis and the CLF convinced the New York Times that this was a worthy story to put on a front page article. The gist of the article was that “Guys are taking their lives out there. They’re suffering depression, mood problems. [Waters] was getting lost on his way home – from his mother’s house to his house – that he’d been going to for years.” Nowinski continued, “We need to let people know this is happening so they can seek help rather than not knowing what’s wrong with them and just thinking they’re going crazy, and them taking their lives.” Following the article’s release, the NFL denied any connection with multiple head injuries and depression, dementia, early onset of Alzheimer’s, or any long-term problem of the sort in NFL players.
Inspired by what transpired because of Waters, CLF founded the VA-BU-CLF Brain Bank in 2009, which is the leading CTE research program in the world. The VA-BU-CLF Brain Bank has identified over 600 cases of CTE disease, which includes about 80 percent of all football player’s brains it has looked at, and over 70 percent of the world’s cases of CTE overall. The 2017 JAMA study on CTE on football conducted by the VA-BU-CLF Brain Bank was the decade’s most widely read and impactful study in neurosciences. The study looked at 111 brains of NFL players. Of the 111, 110 had CTE. 110 accounted to 9.6 percent of those who had died over that eight-year period. This shows that there is a minimum prevalence of 10 percent of CTE in the NFL, but it is likely higher.
The CLF in 2021 has come out with how it believes living people could be diagnosed with CTE. This criterion is:
- Substantial exposure to repetitive head impacts (5+ years in football)
- Core clinical features
- Cognitive impairment
- Neurobehavioral dysregulation
- Progressive course
- 3. Supportive features: delayed onset, motor signs, psychiatric features (anxiety, depression, apathy, paranoia)
- Not fully accounted for by other disorders
The CLF has recently published a study titled “Why do Football Players Get CTE?” CLF used the VA-BU-CLF Brain Bank and the FHS Brain Bank (which Nowinski referred to as the CLF’s “control brain bank”) which had a combined number of 266 football players. Of these, 223 had CTE and 43 did not. What distinguished those who did and did not was how long they played. Only two participants who played more than fourteen years of football did not have CTE. Of those who played less than five years, most did not have CTE. Nowinski explained, “You have a dose response relationship. How long you play is probably the number one driver on whether or not you get CTE. And your odds appear to go up – based on this first look at these 266 brains – as 30 percent per year of exposure. Each 2.6 additional year you play, your odds double.” The number of years playing football in relation to a football player getting CTE follows a similar curve as the number of years one smokes with the likelihood of that individual getting lung cancer.
The Opt-In/Opt-Out Settlement with the NFL regarding concussions and other head trauma is well-known. The settlement provides for all valid claims to be paid in full for 65 years. There’s a $75 million Baseline Assessment Program for retired NFL players. There’s an Uncapped Monetary Award Fund for: ALS, Alzheimer’s, Parkinson’s, Dementia, and certain cases of CTE diagnosed after death. In regard to CTE, the settlement does not apply to those who died with CTE after 2013. The story behind that cut-off date is as follows: The initial proposed compensation in regard to CTE included all post-mortem diagnosis. Chris saw that information released publicly and called a lawyer he knew was involved in the conversation and said, “‘I’ll give you a headsup here, we just had a number of former players shoot themselves in the chest and ask that their brains be donated to science. If you say, “we’re going to offer millions of dollars to people who die and get a post-mortem CTE diagnosis,” I’m concerned you’re going to incentivize some suicide.’” The lawyer said to Nowinski, “That’s a really good point.” Nowinski thought that as a result of their conversation, there would be a carve-out for suicide. Instead, the result was that no one going forward could get a settlement for a post-mortem CTE diagnosis following a certain date.
So far, the settlement has paid out approximately $838,757,014. Of those payments, only 134 payments were awarded for those who were diagnosed with CTE post-mortem. Players who were diagnosed with CTE after the cutoff date are not eligible for the settlement payment on that basis, but may qualify under a diagnosis for another condition. For example, 536 payments have been made out for Alzheimer’s disease. It is estimated that at least some portion of those cases may have misdiagnosed and were actually CTE – which looks very similar to Alzheimer’s and shares some of the same diagnostic characteristics – though they are distinct diseases.
Players are having a difficult time collecting from the Monetary Award Fund as only approximately 30 percent of the claims have been paid out. Kim and Mike have firsthand experience in how difficult this process is.
Kim said, “It first came to our attention in 2014. An attorney that I was an acquaintance of referred us to William Gibbs about this lawsuit. Mike and I made an appointment. We went in. So, we’ve been at this now since 2014. Mike has not been awarded anything yet. And it’s interesting because our lawyer from one of the biggest firms involved in the lawsuit, he says, ‘Mike probably has more medical data than any other player in the suit.’ Literally we have a stack with everything all organized. Because as I mentioned, from 1999 to the current time, he has been treated consistently by a neurologist. So, there’s a lot of data to confirm the difficulty. The other unique thing about Mike is because he was a sportscaster in the public eye, anything that happened you could google it. And there was a lot of chaos in our lives as the CTE started to manifest. Nowinski alludes to, in one of the slides (of the presentation given in his speech), the behavioral dysregulation because of the prefrontal cortex damage. And those are the first signs that you see. Which is this constant spiraling. So, despite all that evidence, the NFL has thrown up obstacle after obstacle after obstacle. And of course, Mike has been qualified by neurologists 2.0. Multiple ones. But they say – first they wanted more data, we provided that. Then they wanted him to be seen by one of their neurologists who also confirmed 2.0. And then from that diagnosis, they tried to invalidate that because they said that the neuropsychologist who conducted the evaluation – they didn’t agree – she didn’t have the licensing and the board they wanted, etc. etc. Then they changed what you see again, but it has to be within a radius of 150 miles of where you live. So, it’s just one thing after another obstacle thrown up. The lawyers say, ‘Yeah, it’s there. Mike will be awarded. But within the families – the wives, the saying ‘deny, delay until the day they die’ – that’s the MO. They just wear you down. And we are just trusting in our lawyers and doing what we can. Because of the obstruction going on, you honestly can’t count on it. The other thing about it I think worth mentioning, is because of the behavioral and emotional dysregulation that happens, beginning stages are the most damaging to the players’ lives and to the family. This doesn’t happen in a vacuum. This is like a consecutive circle with the player in the middle and the family and their workplace and the monetary things and it’s all waves and ripples of chaos and destruction that happens. So, in the lawsuit they give – there’s 1 or 2 percent supposed to be awarded specifically ‘to the wife.’ Many wives are not aware of that, don’t receive that, but it barely – it doesn’t begin to make the family or the player whole again in any respect. The amount of the financial destruction that happens to the family cannot be [overstated.] – People say, ‘Oh the football players. They’re rich. They make a lot of money.’ Mike never made more than $45,000 maximum in his last year playing. Mike didn’t get rich off this sport. He played because he loved it. And Mike was not a super mean aggressive player. Mike was just enthusiastic and he’s 110 percent heart. And that’s how he played. But he’s carrying the scars and the burden of the damage from the brain and the denial from the league. And that’s passed along to the families. So, a lot of what we do – and I want to mention, because I think this is important, speaking of the families, there’s a “secret” woman of the NFL group of 2500 women and a lot of action that has happened and networking that has happened is because of the women. The men can’t. The men don’t have the cognitive abilities to see what is going on and handle it and take action. It’s the women. And it’s the women who lead the changes initially in the men. The men can’t see it. Again, because by nature of the cognitive impairment they can’t see it. And you’ve got the NFL and all the powers that be denying it. So, it’s been action and advocacy and networking from women involved. And I think Chris – in your studies – I remember – it was Dr. Robert Stern’s saying that one thing that has come out is that the women in the families are pretty darn accurate in predicting the prevalence of CTE when their family member or spouse has passed and had the brain autopsy.”
Nowinski promptly agreed with Kim. He said, “That is one of the most amazing things about this.” With no scientific training and with no criteria for CTE, more than 80 percent of women in the families of professional and college athletes who have donated their brains to CLF have been accurate in predicting whether the athlete had or didn’t have CTE.
Toward the end of Nowinski’s presentation, he received a text with the headline “NFL pro Phillip Adams killed five, then himself.” At a later date, the CLF secured the brain donation of Phillip Adams.