The NFL's tacit admission of a link between playing football and CTE is a complete game-changer.
If you think it's a big deal that someone in an official capacity with the NFL finally admitted a link between football and CTE, you're right. Jeff Miller, the NFL's Senior Vice President for Health and Safety, said Monday during a roundtable forum on concussions convened by the House Committee on Energy & Commerce that there was "certainly" a link between football and chronic traumatic encephalopathy, the degenerative brain disease that has plagued a disproportionate number of former professional football players. It was the first public admission on this subject from anyone employed by the NFL. Reported first by ESPN's Steve Fainaru, Miller's comments made a lot of waves because they were seen by many to be an explicit admission of the league's awareness of the link after so many years of denials, both vague and outright.
The importance of what Miller said was outlined in a Tuesday morning e-mail from NFL spokesman Brian McCarthy to me, in which he said, "The comments made by Jeff Miller yesterday accurately reflect the view of the NFL."
But to fully understand Miller's answer and the league's seeming assent, we must first take Miller's remarks in context. Miller had been asked by Rep. Jan Schakowsky, D-Ill. if there was an established link between football and degenerative head trauma. His testimony followed that of Dr. Ann McKee, a longtime advocate of that link based on her own extensive research.
"The answer to that question is certainly yes," he said.
But again, it's important to point to the bigger picture. McKee, who has been involved in diagnoses of CTE in the brains of 90 of 94 NFL players and 50 of 55 college players (CTE can only be diagnosed posthumously at this time), had just said that there was an "unequivocal" link between football and CTE.
"I don't think this represents how common this disease is in the living population, but the fact that over five years I've been able to accumulate this number of cases in football players, it cannot be rare," McKee told Schakowsky. “In fact, I think we are going to be surprised at how common it is."
Schakowsky set up the question based on her own frustrations about the NFL's inability to give a straight answer.
"The NFL is peddling a false sense of security," she said. "Football is a high-risk sport because of the routine hits, not just diagnosable concussions. What the American public need now is honesty about the health risks and clearly more research."
So, given that, and given Schakowsky's yes-or-no-question format, Miller had no choice but to admit the link. He could have flat-out denied it, but perhaps with the memory of Roger Goodell being excoriated by Congress over this subject in 2009 after he gave a series of vague denials, Miller went another way.
"Well, certainly Dr. McKee’s research shows that a number of NFL players were diagnosed with CTE, so the answer to that question is yes. But there’s also a number of questions that come with that... I think the broader point, and the one that your question gets to, is what that necessarily means, and where do we go from here with that information."
Where Schakowsky's line of questioning got really interesting is when she asked Miller about the comments made by Dr. Mitch Berger, a member of the NFL's Head, Neck, and Spine Committee, a few days before Super Bowl 50. During the league's annual Health and Safety press conference, Miller absolutely refused to acknowledge any link between football and CTE. Bruce Arthur of the Toronto Star asked Berger the question point blank, and Berger responded with a truly staggering level of stonewalling.
“There’s no question that you can find degenerative changes that are indicative of CTE in individuals who have played football . . . [but] I think tau [the protein found in the brains of those who have CTE] is found in brains that have traumatic injuries. Whether it’s from football, whether it’s from car accidents, gunshot wounds, domestic violence, remains to be seen.”
What about in football, Berger was asked again.
“Well, again, we’ve seen evidence anecdotally of a number of players who have come to autopsy who have had the diagnosis made. We’ve also seen a number of players who have done very well. I feel that there is clearly a link to degenerative brain disorders, and tau is one piece of it, and it occurs in all spectrums of life.”
More specifically, is there a link between football and degenerative brain disorders?
"No," Berger replied.
After Miller’s admission during Monday's testimony, Schakowsky brought up what Berger had said, and Miller responded thusly:
"Well, I'm not gonna speak for Dr. Berger."
Schakowsky then asked, "But you're speaking for the NFL, right?"
"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," Miller replied. "Because she’s found CTE in a number of retired football players. I think the broader point, and the one that your question gets to, is what that necessarily means and where do we go from here with that information? So when we talk about a link, or you talk about the incidents or the prevalence, I think that some of the medical experts around the table—and just for the record I’m not a medical physician or a scientist, so I feel limited in answering much more than that, other than the direct answer to your question. I would defer to a number of people around the table as to what the science means around the question that you’re asking. I’d be happy to answer a specific question."
Fainaru reported that Miller left the panel without making any additional comments. As reporters attempted to ask him questions, Miller departed in the company of Jill Pike, an NFL spokeswoman.
As to why the NFL has been so vague on a subject that seems to have overwhelming statistical proof in its corner, the answer is obvious—liability. One major construct of the $765 million settlement between the league and over 4,000 former players who had been set to file class-action lawsuits against the NFL for negligence was that previous liability was taken off the table—in other words, if you take this money, you forego any liability claims for past transgressions. That settlement was tentatively reached in August, 2013, subsequently rejected in January, 2014 because of questions of fairness in the final monetary value, and finally approved by the court in April, 2015.
However, just hours after Miller made his comments, Stephen F. Molo of Molo Lamken LLP in New York City, an attorney representing seven former players, sent a letter to the U.S. Court of Appeals indicating that Miller's statement represented a breach of the NFL's assertions at the time of the settlement.
“The NFL’s comments further signal the NFL’s acceptance of Dr. McKee’s conclusions regarding CTE—a stark turn from its position before the district court, which relied on the NFL’s experts to dismiss the significance of the same research,” Molo wrote. “The NFL’s testimony also directly contradicts its position in the case. 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 ‘Speculation that repeated concussion or sub-concussive impacts cause CTE remains unproven.’”
I asked Daniel L. Wallach, a noted attorney familiar with the appellate process at the highest court levels (and specifically familiar with sports law) how this turnaround could affect the NFL's legal maneuverings in future.
"While it’s debatable whether the appeals court would consider this new information at this late stage, it could still have a significant impact going forward," Wallach told me. "For one thing, the NFL can no longer credibly deny or equivocate on the direct link between playing professional football and developing CTE symptoms. That is gone forever. They can no longer deny it. So, even if this admission doesn’t scuttle the settlement—and it may—it will undoubtedly be "Exhibit A” in future lawsuits brought by those ex-players who have 'opted out’ of the class action settlement.
"But I still believe that the Third Circuit was troubled by the disparate treatment of CTE victims in the district court-approved settlement. Yesterday’s admission raises serious questions about the fairness of the settlement and whether CTE victims were adequately represented by class counsel. It may also be grounds to reopen the settlement at the district court level”
So, Miller's comments may or may not break this settlement wide open, but the tacit admission of a CTE link without a strong denial is a complete and total game-changer. The NFL is fighting for its life on this issue, and what happened Monday could add several new rounds.