NFL concussion case filing cites Miller's CTE statement, calling it a 'stark turn' in NFL position
Comments made by an NFL health and safety executive on Capitol Hill about the debilitating brain disease chronic traumatic encephalopathy (CTE) represent “a stark turn from its position” that should impact a proposed $1 billion concussion settlement between the league and former players, a lawyer who represents several retired players wrote in a federal appeals court filing on Tuesday.
“The NFL’s statements make clear that the NFL now accepts what science already knows: a ‘direct link’ exists between traumatic brain injury and CTE,” Steven F. Molo wrote in the filing made in the U.S. Court of Appeals for the Third Circuit. “Given that, the settlement’s failure to compensate present and future CTE is inexcusable.”
NFL reacts to league official's statement that links CTE to football
Jeff Miller, the NFL’s senior vice president of health and safety, was asked by Rep. Jan Schakowsky, D-Ill., if he thought the research by into the CTE by Boston University neuropathologist Ann McKee showed a link between the disease and football on Monday.
"You asked the question whether I thought there was a link and I think certainly based on Dr. McKee’s research that there’s a link because she’s found CTE in a number of retired football players," Miller said.
NFL STATS CENTRAL: The latest NFL scores, schedules, odds, stats and more.
The admission comes after the NFL has claimed for several years that was sufficient scientific proof of a linkage between CTE and football.
“This could change everything,” sports attorney Daniel Wallach told USA TODAY Sports. “It undermines what the league has argued for years as it’s denied football had any link to CTE. Yesterday’s admission is a compete 180 from its prior statements. It should impact the case and could throw the whole settlement wide open.”
George Cochran, an attorney who also represents players in the appeal of the concussion settlement, also filed an objector-appellant letter on Tuesday.
The NFL said in a statement after the roundtable at the House Energy and Commerce Subcommittee on Oversight and Investigations that Miller “made the additional point that a lot more questions need to be answered.”
Tuesday's filing comes as about 90 former players are appealing the final settlement that covers about 21,000 retired NFL players that was approved last year. The settlement does not include future payments for CTE and the NFL has cited in litigation that science on the matter was still evolving.
“The NFL’s testimony (on Capitol Hill) also directly contradicts its positions in this case,” Molo wrote. “For example, the NFL argued that ‘researchers have not reliably determined which events make a person more likely to develop CTE.’ And it stated that ‘the speculation that repeated concussion or subconcussive impacts cause CTE remains unproven.’
“But clearly, the NFL, per its Executive Vice President Mr. Miller, believes that football is 'certainly ‘ linked to CTE. That cannot be reconciled with the NFL’s position in (in court).”
Wallach, a partner at the firm Becker & Poliakoff, said the three-judge panel that is hearing the appeal could take Miller's comments into account.
"In any appeal, judges can consider 'supplemental authorities' to decide an appeal," Wallach said. "The admission by the NFL may be viewed as a 'supplemental authority' that should impact the court's decision. It will likely lead to an objection from the NFL that Miller's statements should not be considered in their ruling."
The Third Circuit is expected to rule on the appeal in the coming weeks.