Concussion lawsuit and the Steelers: Is $765 million enough?
October 6, 2013 4:00 AM
Bryan Hinkle was a linebacker for the Steelers from 1982-93.
Former Steelers center Jeff Hartings has only been out of the NFL seven years, but already can feel the effects of numerous concussions throughout his 10-year career.
By Ray Fittipaldo Pittsburgh Post-Gazette
There is a secret Frenchy Fuqua has kept for more than four decades about the Immaculate Reception. He's telling it now because of his advancing age.
No, it's not the secret. If Fuqua touched the ball on Dec. 23, 1972 before Franco Harris caught it out of the air and galloped into the end zone to complete the most famous play in NFL history, he's not telling.
The secret Fuqua has been keeping is whether he and Raiders defensive back Jack Tatum were concussed on the play.
"Let me tell you something about that play," Fuqua said by phone from his Michigan home last month. "Jack and I used to talk all the time. We used to do speaking engagements together. We were having a beer one time in Chantilly, Virginia. Here is what Jack told me. He said, 'Frenchy, I know you had to be knocked out on that play because I was dizzy, and I knocked the [heck] out of you.'
"Me? All I can remember is floating down the field like a ballet dancer following Franco into the end zone."
While the Immaculate Reception lives on as the greatest play in NFL history, it also serves as a reminder about how brutally physical the game can be. Fuqua and the late Tatum's estate are two of more than 4,400 retired players who are plaintiffs in a class-action lawsuit against the NFL. Of the 4,400 players, at least 212 are former Steelers.
Last month, under pressure from a federal judge, the lawyers for the former players and the NFL reached a $765 million settlement that still must be approved by the court.
It is undetermined how the money will be awarded, but players that have been in need of money for their health care will be the first to reap the benefits. Others, like Fuqua, who have the onset of cognitive impairment but have not been diagnosed with a brain disease will undergo baseline testing and be monitored on a regular basis free of charge.
Fuqua can't say for sure if he was concussed on the Immaculate Reception because he said players in those days were not informed about what a concussion felt like. He doesn't know how many concussions he sustained in his eight-year NFL career because such records were not kept.
"If you played in the '60s or '70s, what was a concussion?" Fuqua asked. "Is a concussion when you see stars? Is a concussion when you see a flash of light? I don't think any of us really knew what a concussion was. If you got knocked cold and they busted that ammonia capsule on you and when you could smell it, you were OK. If you couldn't, you had a concussion."
Recently, Fuqua has worried about his future. He is 67 and scared because he is forgetful and exhibiting symptoms of cognitive impairment. He has not been diagnosed with a brain disease, but he doesn't want to become a burden to his family if his health fails in the future.
For Fuqua, it was an easy decision. He made a nice living as a professional football player, but he did not get rich. He worked for the Detroit Free Press for 30 years after his NFL career ended. If his health deteriorates in the future, he would like his family to have the peace of mind that money will not be an issue for his long-term care.
"Over the last couple of years, some things have happened," Fuqua said. "I'll forget my bank number. Or I'll tell my son something and he'll be like, 'Dad, you already told me that three times.' When things repeat like that, it's scary. It's OK if you forget something once or twice, but I'll call my son and I'll forget why I called him."
Does settlement fall short?
Attorney Jason Luckasevic of the Pittsburgh law firm Goldberg, Persky and White represents 550 of the plaintiffs in the lawsuit against the NFL. He said the majority of former players who sued the NFL are like Fuqua and suffer from moderate or mild cognitive impairment.
There are a few well-known cases of players with amyotrophic lateral sclerosis, or Lou Gehrig's Disease, who will get immediate help once the settlement is approved by the court. Though details of the settlement are not final, Luckasevic confirmed an ESPN report that said players with ALS are expected to be capped at a $5 million award. Players with chronic traumatic encephalopathy will be capped at $4 million and players with dementia or Alzheimer's disease capped at $3 million.
Luckasevic said the next category is for players with severe or serious cognitive impairment, but he is not aware of the monetary figure associated with that category or exactly how the courts will define "severe" or "serious."
Exact terms of the settlement will not be known until the settlement is finalized by lead lawyers and the judge presiding over the lawsuit.
"Mild traumatic brain injury is far from mild," said Luckasevic, who also is on the board of the brain injury association of Pennsylvania. "You can't treat brain injury with a band-aid or stitches. People who have mild traumatic brain injuries have chronic problems. If you have mild cognitive impairment, are you disabled? The answer is yes, obviously."
Luckasevic said if plaintiffs are unhappy with the final settlement, they can object to the settlement and explain why it is unfair or opt out of the lawsuit and retain their rights to sue in the future.
Luckasevic filed the two original concussion lawsuits against the NFL on behalf of Vernon Maxwell and Dave Pear in July 2011. Scores of others lawsuits were filed against the NFL over the past two years.
Luckasevic said he was concerned about the settlement and whether it will provide enough money for the plaintiffs.
"I expect guys to object or to opt out, and I expect to be fighting for them," Luckasevic said. "The more I see of it and hear about it, the more I think it's not the right thing."
Former Steelers quarterback Mike Tomczak is one of the plaintiffs and is a former player representative for the NFL players association. Like Luckasevic, Tomczak has problems with the settlement, but he said coming to terms was better than the alternative.
"It allowed us to get money in the hands of people who really need it," Tomczak said. "There are hundreds of thousands of dollars in care that guys need. It's almost embarrassing that we had to litigate this. It's the No. 1 spectator sport in the world. They could have put $2 billion dollars toward this and made it historic rather than the $765 million. But it's better to have access to this money now. If we had played it out where it was one lawsuit at a time, it could have gone on until 2050 and lots of players would have died waiting for money they need now."
Tomczak, 50, is experiencing some mild cognitive impairment. He is worried about his future, but he also wants to help get the word out on how destructive brain injuries can be for football players.
Tomczak said he is taken aback by the problems older players are facing. In early September, he attended an alumni weekend for the Chicago Bears, his first NFL team, and he was struck by what he witnessed.
"The 1963 world championship team was recognized," said Tomczak, who played for the Bears from 1985-90 and for the Steelers from 1993-99. "To see what these guys are like now, it doesn't make you smile or look forward to the future. It brings to realization of the effects the game has over the years."
'You think you're invincible'
Bryan Hinkle, who played linebacker for the Steelers from 1982-93, once played an entire game with a broken fibula, which he injured in a game against Cincinnati. Doctors evaluated him on the sidelines, told the trainers to tape it up and allowed him to reenter the game. It wasn't until the next day that he had an X-ray that revealed the break.
But bones heal over time. Injuries to the brain might never completely heal if they are not diagnosed properly, and the effects can last a lifetime.
"I'll be talking to someone, and all of a sudden, I'll be thinking 'What are we talking about?' " said Hinkle, 54. "And it's happening more often than a couple of years ago. There are a lot of things going on. I try not to think about it or talk about it because in reality there is nothing you can do about it. There is no pill you can take. There is no treatment you can do. The damage is done."
Hinkle said he had three diagnosed concussions during his playing career, but said the care he received from team doctors then pales in comparison to the treatment players receive today.
"There are a whole group of guys like myself who have had concussions," Hinkle said. "Back then, I don't know if anyone knew or cared. If you got a concussion, the next week no one is saying a word about it. As long as you could see how many fingers they were holding up, they were putting you back in the game."
Hinkle said he believes the NFL and its owners owe former players compensation and the right to the best health care because the effects of brain injuries were either not completely understood or ignored in his era.
"We're not trying to get something for nothing," he said. "People say you knew what you signed up for. Well, no. You know what? If someone had come to me and told me if you get a concussion it can affect you later in life, I don't know if I would have signed up for that. If someone had told me my body would fall apart when I'm in my 50s and 60s because I'm beating the hell out of it. ... I really didn't think about that.
"I was focused on playing and being the best I could be, and I had a coach, Chuck Noll, who I respected immensely, that pushed you. We were scrimmaging every day. We were literally fighting for our jobs every day. Chuck had that mentality. The practices were harder than the games. We were doing that five days a week what the guys now are doing 12 times a year.
"There are two sides to it. I understand the arguments. I can see why people say you knew what you were getting into. Well, you did but you didn't. You're young, you think you're invincible."
For three decades, the Steelers had three centers. The first two -- Mike Webster and Dermontti Dawson -- are in the Pro Football Hall of Fame. The third was Jeff Hartings, a two-time Pro Bowl player who anchored the line for the team's fifth Super Bowl winner in 2006.
After Webster died at 50 in 2002, he was diagnosed with CTE post-mortem. Webster was in his 40s when he first started to experience cognitive impairment. Hartings, who played center in the NFL from 1996-2006, is already beginning to experience some instances of cognitive impairment.
Hartings, 41, is an example of how a player can have problems without ever being diagnosed with a concussion.
Hartings said he was never diagnosed with a concussion during his playing career, but he is convinced that he suffered head trauma on a weekly basis.
"There was probably only five or six times in my career when I saw stars or had my bell rung," Hartings said. "What they understand now about diagnosing concussions is that severe headaches can be concussions. You don't have to be knocked out. If you're a lineman and banging heads for 65 plays there is going to be trauma to the head.
I can think of some seasons, especially the 2004 season when we ran the ball 55 times a game, there was not a game when I didn't have a severe headache after the game. A great outcome of this lawsuit is the diagnosis of a concussion in 2013 is different than it was in 2006 or before."
Hartings has episodes of cognitive impairment that are not usually associated with people in their 40s.
"The symptoms I have are short-term memory loss," said Hartings, who played with the Steelers from 2001-06 and with the Lions from 1996-2000. "I'll think of a task, do something else and then I'll be sitting there not knowing what it is I was supposed to do in the first place. It could be something like getting up to go to the fridge for milk. I'll get there, and I won't know what I'm supposed to be getting. Or, I've forgotten to pick up my daughter from volleyball practice. How in the world can I forget to get my daughter? But it happened. Now I have a calendar in my [cell] phone so I know exactly what I have to do on a daily basis."
Hartings knows there is not much he can to do prevent the onset of more severe cognitive impairment, but he takes steps to ensure his brain does not endure more traumatic blows, however small they may be.
"I'm trying to be proactive," he said. "I'm very physically active. I work out. I keep my body in good condition. I'm very aware of my health and fitness. I start to feel symptoms when I'm not taking care of my body.
"There's not a whole lot I can do in regards to my brain, but I do take precautions. To eliminate other brain injuries, I don't wrestle at home with my kids because there have been times when they bumped my head with them, and I'll get dizzy. A symptom like that is proof that I've suffered from brain injuries."
Luckasevic does not represent any of the former players profiled in this story, but he does represent the families of Webster and two other former Steelers who died and had brain injuries diagnosed post-mortem. Terry Long, who played guard for the Steelers from 1984-91, committed suicide in 2005. An autopsy showed he had CTE. Justin Strzelczyk, who played guard and tackle for the Steelers from 1990-98, died in a car crash in New York following a high-speed chase with police in 2004. An autopsy showed Strzelczyk also suffered from CTE.
According to an ESPN report, the Webster, Long and Strzelczyk families are not eligible for an award because the tentative terms of the settlement eliminated players who died before 2006. All three families contacted Luckasevic in the days following the ESPN report. Luckasevic will file separate lawsuits on their behalf and they will be added to the class-action suit against the NFL. They will be eligible for compensation should the terms of the settlement change.
The elimination of players who died before 2006 is not the only problem Luckasevic sees with the proposed settlement. The final amount expected to be available for players is $675 million. Luckasevic is one of many lawyers to express concern that it will not be sufficient for the plaintiffs in the long run.
The Steelers declined comment on the lawsuit until the terms of the settlement are final.