Football Fallout: The Legalities of CTE

The abundant media and academic hype about CTE has its roots in the contentious battle waged against the National Football League (NFL) by players and their families. This lengthy and adversarial battle has played out on and off the field for at least a decade. Although the principal lawsuit has been settled, CTE continues to star as a player in criminal and civil courts nationwide. And CTE now is gaining traction in both research and litigation relating to combat veterans, domestic violence, and the wide world of sports. Given the emergence of knowledge and acceptance of CTE in civil and criminal matters, it is vital for counsel to understand the illness, its manifestations, and its utility in devising legal strategy.

Overview of CTE

Although a definitive diagnosis of CTE only can be made postmortem, this syndrome has dramatic implications for the living. Clinical sequelae of CTE cause a host of cognitive, mood, behavior, and motor disturbances—circumstances that were vital to the allegations made against the NFL.

The illness and its manifestations are not unique to the NFL, nor even to modern sports. (J. Corsellis, Boxing and the Brain, 298 Brit. Med. J. 105 (1989).) In the 1920s, for example, athletes exposed to repeated head blows were described as experiencing “head punishment,” and their conditions were deemed examples of dementia pugilistica. (H. S. Martland, Punch Drunk, 91 J. Am. Med. Ass’n 1103 (1928).)

CTE research and practice were pioneered by Bennet Omalu, a Nigerian-American physician, forensic pathologist, and neuropathologist who was the first to publish findings on American football players with CTE while working at the Allegheny County Coroner’s Office in Pittsburgh. Thanks to Dr. Omalu’s work, and to the former NFL players who donated their bodies for post-mortem brain studies, the medical community has a growing awareness of what CTE actually is, what causes it, who is potentially affected, and how it manifests itself in everyday life. (Jeanne M. Laskas, The Doctor the NFL Tried to Silence, Wall St. J. (Nov. 25, 2015).)

Causes of CTE

CTE is caused by repetitive traumatic brain injury arising from acceleration and declaration forces of closed-head impacts. (Traumatic Brain Injury & Concussion, Ctrs. for Disease Control & Prevention (CDC), last visited June 10, 2018.) This happens every Sunday in the fall—think about all those NFL players bursting forward with brute strength, using their heads as a first line of attack against the opposing team. This illness should not be confused with a concussion, where symptoms appear immediately. CTE can affect anyone exposed to blunt force head impacts—including but not limited to football players. There are many other sports in which players are subjected to repeated head blows, including soccer, hockey, and boxing.

Blunt force trauma to the head also is being studied widely outside of sports. Autopsies of combat veterans who survived IEDs and later died of other causes reveal a unique pattern of injuries in parts of the brain involved in decision making, memory, reasoning, and other executive functions. (M. Martinovich, Executive Dysfunction and Domestic Violence, 20 Brain Injury 61 (2006).) Advanced CTE has been found in veterans who experienced repeated neurotrauma while in the service and in others who were accomplished athletes. (Ann C. McKee & Meghan E. Robinson, Military-Related Traumatic Brain Injury and Neurodegeneration, 10 Alzheimers & Dementia 242 (2014).)

Domestic violence and traumatic brain injuries (TBIs) are major societal problems with public health implications. A clinically relevant relationship is suggested by recent outcome data showing that TBI survivors who are victims of assault are more prone to a suboptimal outcome. (John D. Corrigan et al., Early Identification of Mild Traumatic Brain Injury in Female Victims of Domestic Violence, 188 Am. J. Obstetrics & Gynecology 71 (2003).) But women who are victimized receive far less attention than male counterparts—especially those who make millions. But that does not minimize the headaches, memory loss, and confusion that women suffer too as a result of domestic violence. (Lindsey Tanner, Like NFL Players, Abused Spouses Can Suffer Brain Trauma—But with Little Attention, Miami Herald (Aug. 23, 2016).)

In the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-5), CTE is not a “stand-alone” diagnosis. Instead, it falls under the more general heading of Neurocognitive Disorders (NCD). The DSM-5 identifies the following criteria for NCD:

(A) Evidence of modest cognitive decline from a previous level of performance in one or more cognitive domains (complex attention, executive function, learning and memory, language, perceptual motor or social cognition) based on: (1) mild decline in cognitive function; (2) modest impairment in cognitive performance (preferably with neuropsychiatric testing); (B) Cognitive deficits do not interfere with capacity for independence in everyday activities.

(Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders (2013).)

No longer an ambiguous diagnosis, CTE is still not directly defined by the DSM-5, posing challenges for attorneys whose strategy relies heavily on assertion of the presence of a scientifically valid diagnosis. In particular, criminal defense attorneys will find themselves in a conundrum when defending a client with clear cognitive and behavioral impairments that could be best attributed to CTE. Still, the trier of fact may be less than convinced when counsel is unable to point to CTE in psychiatry’s well-known diagnostic “Bible.” This is where the retention of a thoughtful expert, one adept at explaining the nuances of a diagnosis, can be vital to a case.

CTE Clinical Presentation

The clinical presentation can start out as subtle but over the years progresses into striking cognitive and behavioral changes—such that it may become difficult even to recognize an individual. Cognitive changes can range from memory problems to deficits in performing seemingly routine day-to-day tasks that require little strategy and execution. It can start with persons not remembering simple details, like what they ate for lunch or where they left their car keys. This becomes a pattern as it develops into more serious memory issues like getting lost going to work and forgetting one’s name and address. Eventually, this condition can evolve into full-blown dementia.

Mood also shifts for individuals with CTE, perhaps involving depression, hopelessness, anger, and even suicidal thoughts, feelings, and actions. Behavioral problems such as impulsivity, explosion, and aggression can happen as well. Former NFL players Dave Duerson and Junior Seau suffered the consequences of mood disorders secondary to CTE. Duerson, a Chicago Bears safety and successful businessman, committed suicide at 50 years of age. He was noted to have memory loss, a “short fuse,” and a hot temper. Meeting a similar tragic fate was Seau—a San Diego Chargers linebacker who committed suicide at 43 years of age. (G. Simpson & R. Tate, Suicidality in People Surviving a Traumatic Brain Injury: Prevalence, Risk Factors and Implications for Clinical Management, 21 Brain Injury 1335 (2007).)

On the neurological front, CTE victims can experience significant motor problems. They may develop a pill-rolling tremor of the hands or shuffling walk—both early manifestations of Parkinson’s disease. Also, they can suffer from slurred speech, known as dysarthria. If their gait isn’t merely shuffling, then they could develop full-blown ataxia, which is an unstable walk that renders them prone to falls and further injury.

Making the Diagnosis

A critical means of guiding clinicians toward the potential presence of CTE involves taking a thorough medical history of the individual, with particular attention to whether or not the individual has sustained a blow to the head. Perhaps surprising is the fact that CTE does not require a history of “big” or even symptomatic hits. Sub-concussive blows may be enough to cause CTE, impacting the brain with adequate “g-force” to have an effect on neuronal functioning, albeit with no immediately discernible symptoms.

Consider the situation of professional sports players. Professional football linemen endure 1000–1500 hits per season. That’s a 20–30g force with every single hit. To put that into perspective, a car driving 35 mph into a brick wall will hit that wall with a 20g force. This amounts to considerable head trauma for each NFL player. The brains of athletes can look similar to those of patients with Alzheimer’s disease—that is, riddled with tauopathy. (Ann C. McKee et al., Chronic Traumatic Encephalopathy in Athletes: Progressive Tauopathy After Repetitive Head Injury, 68 J. Neuropathology & Experimental Neurology 709 (2009).)

Now think about those combat veterans who are exposed to blasts. Studies show that hippocampal-dependent learning and memory deficits persist and the result is neurophysiological function, learning, and memory problems. (Lee E. Goldstein & Andrew M. Fisher, Chronic Traumatic Encephalopathy in Blast-Exposed Military Veterans and a Blast Neurotrauma Mouse Model, 4 Sci. Translational Med. 134 (2012).)

Despite all we know of the clinical symptoms of CTE, it can be diagnosed conclusively only postmortem. But in “real life,” doctors can at least piece together the clues of CTE, keeping a watchful eye for the myriad of clinical symptoms described above. Brain imaging scans are sometimes used to help elucidate the presence of the illness, and psychologists can use a battery of neuropsychological tests to gauge the victim’s reported symptoms of memory loss and mood disturbance. (Tanner, Like NFL Players, supra.)

Promising research out of UCLA suggests that doctors will be able to diagnosis CTE in the living with neuroimaging. (Brain Injury Research Center—BIRC, UCLA Health, last visited July 11, 2018.) The purpose of the UCLA Brain Injury Research Center (BIRC) is to maintain a comprehensive basic and clinical scientific program in the field of TBI emphasizing translational research to develop effective therapies for head-injured patients. (Rachel Champeau, UCLA Study Finds Characteristic Pattern of Protein Deposits in Brains of Retired NFL Players Who Suffered Concussions, UCLA Newsroom (Aug. 6, 2015).)

PET or MRI Scans

Research, including contributions by Dr. Bennet Omalu, have been promising when looking at brain changes with positron emission tomography, or PET scans, and MRI. (Jim Schnabel, The MRI-Based Method, Which Uses No Radioactive Materials, Is Safe and Relatively Inexpensive, UCLA Newsroom (Aug. 6, 2016).)

This Season

With all that you know about CTE—from the media hype and the literature—the question remains: Will you be watching football this fall? If you’re anything like the billions of Americans who lobbied with NBC to make the Super Bowl a national holiday, then the answer is a resounding “yes”!

The NFL is an entertainment and economic powerhouse. (Phil Barber & Ray Didinger, Football America: Celebrating Our National Passion (1996).) Its gross annual income is $9.3 billion, with ESPN paying $1.9 billion annually to broadcast Monday Night Football, and CBC, FOX, and NBC paying $39.6 billion to broadcast other games. In 2012, a Super Bowl ad cost $103,000 per second. Each NFL team itself is valued at approximately $1 billion.

Whether they watch the games or not, attorneys and medical experts will undoubtedly be watching for the resolution of an ongoing conflict between former players and their families against the NFL. Led by Jason Luckasevic, a Pittsburgh attorney who filed the first concussion-related complaint against the NFL in 2011, hundreds of former players and their families brought lawsuits against the League, alleging that it had concealed the link between football and brain damage.

Over 3,000 players and families signed onto these lawsuits. CTE was a central figure in the complaint, which alleged that the NFL makes money

by promoting a product of brutality . . . and inculcating in players at every level of the game the false and life-threatening ideas that (a) brutal, ferocious and debilitating collisions are a required and desired outcome in the game of football; and (b) playing despite repetitive head impacts is a laudable and desirable goal.

(Plaintiffs’ Amended Master Admin. Long-Form Complaint at 52, In re Nat’l Football League Players’ Concussion Injury Litig., No. 2:12-md—2323-AB (E.D. Pa. July 17, 2012), MDL No. 2323.)

In August 2013, the U.S. District Court for the Eastern District of Pennsylvania awarded a tentative $765 million settlement in the NFL-concussion lawsuits. For its part, the NFL made several monetary contributions to support research into head trauma. The League donated $30 million to the National Institutes of Health (NIH) for research funding. The NFL also has promulgated concussion guidelines and has collaborated with the U.S. military to raise awareness of TBI. Not stopping there, the NFL has further focused its attention on youths by donating $1 million to the “Heads Up” campaign, geared towards funding helmets for children playing football and teaching about safety. (Kevin Seifert, How Is the NFL Concussion Protocol Supposed to Work?, ESPN.com (Dec. 11, 2017).)

But things are far from over. One might think with resolution of the aforementioned lawsuit, this issue would be laid to rest. But nothing could be further from the truth. The legal profession now finds itself immersed in a different kind of battle, and forensic experts also are weighing in.

A 2017 press release by ESPN opens with “The $1 billion NFL concussion settlement—nearly six years in the making yet still to deliver a penny to former players and their families for brain injuries stemming from football—is revealing the underbelly of the legal system to former players and their families.” (Mark Fainaru-Wada, Lawyers, Others Vie for Pieces of NFL Concussion Settlement, ESPN.com (Mar. 29, 2017).)

There is a new onslaught of legal issues—largely focused on the attorneys and experts who stand to profit handsomely from this settlement. Attorney contingency fees in some cases could reach as high as 40 percent. Apart from that, plaintiffs’ attorneys have individual retainer fees ranging anywhere from 15 to 40 percent for work done on behalf of their clients, according to some plaintiffs and court filings, and, of course, that cut is expected to come out of whatever monies the players or their families are awarded. There are also concerns about lawyers poaching clients from competing attorneys. Central to the controversy is the $112.5 million set aside for lawyers who played roles in negotiating the settlement. This has contributed to fears that a slew of opportunists are seeking a piece of the pie and raises a number of ethical concerns for attorneys and experts alike. (Michael Sokolove, How One Lawyer’s Crusade Could Change Football Forever, N.Y. Times (Nov. 6, 2014).)

What’s Next?

Understanding the full scope of the CTE controversy is important because criminal and civil practitioners alike are going to be seeing more of it. The NFL highlights the CTE debate, but the syndrome can come to play a crucial role in civil and criminal cases.

Criminal cases that could involve an opinion about CTE include diminished capacity, with the potential argument that CTE-based behavioral dyscontrol led to the commission of the offense in question. Likewise, CTE potentially could be a factor in an insanity defense. Consider a fraud case, in which counsel might assert that cognitive changes caused by CTE rendered the defendant unable to comprehend fully a given series of financial transactions. Incompetence to stand trial could ensue from cognitive changes related to CTE. Finally, CTE could be brought up as a mitigating factor in a number of contexts, including capital litigation.

Let’s consider a couple of criminal defense scenarios. World Wrestling Federation legend Jimmy “Superfly” Snuka used CTE in his defense. (Doree Lewak, Athletes Charged with Heinous Crimes May Try the “CTE Defense,” N.Y. Post (July 18, 2016).) He was found incompetent to stand trial for the 1983 homicide of his girlfriend after telling a judge that he could not recall the name of the president or his age. In 2015, this cold case reopened and Snuka was charged with third-degree murder and involuntary manslaughter, facing 20 to 40 years behind bars. In this case, CTE starred as a defense, with his lawyers arguing that CTE rendered him incapable of understanding what was happening.

But is the defense taking advantage of the media coverage surrounding sports-related CTE or simply being strategic in their consideration of medical sequelae interfering with one’s actions? Could other athletes claim that head trauma rendered them unfit to stand trial or somehow contributed to their commitment of a crime?

Let’s consider another case. Former NFL tight end Kellen Winslow Jr. faces nine charges and disturbing accusations that he kidnapped, raped, and terrorized multiple women in Encinitas, California, over the last three months. (Michael McCann, Could Kellen Winslow Jr.’s Attorneys Use Football-Induced Brain Injury as Defense for Alleged Crimes?, Sports Illustrated (June 16, 2018).) If convicted on the charges, the 34-year-old Winslow could be sentenced to life in prison. California law permits defendants to invoke the “diminished actuality” defense—asserting that because of a mental impairment, the defendant lacked the specific intent necessary for the crime to have been committed. Not to be confused with diminished capacity, diminished actuality contends that there was no mens rea or criminal intent.

Under this paradigm, Winslow’s attorneys could offer evidence and expert testimony showing that he suffered from brain damage and because of this he lacked the mental capacity to form intent.

One last (and famous) NFL case to consider is that of Aaron Hernandez, the former New England Patriots tight end who killed himself in prison after being found guilty of first-degree murder in April 2015. Medical tests reportedly indicate that he suffered from a “severe” case of CTE, a degenerative brain disease, at the time of his suicide. He is famous for going from National Football League “golden boy” to convicted killer. The Associated Press stated that Boston University’s CTE Center chief Ann McKee concluded that Hernandez “had stage 3 of 4 of the disease, and also had early brain atrophy and large perforations in a central membrane” at the time of his death. Now, the Hernandez family is seeking a $1 billion settlement against the NFL. (Jared Keller, Aaron Hernandez and the Rise of the CTE Defense, Pac. Standard (Sept. 22, 2017).)

Evidence suggests that CTE can result in violent and even criminal behavior as well as memory loss, confusion, and severe mood disorders. (Bruce Y. Lee, Could Concussions Become a Legal Defense?, Forbes (Feb. 5, 2016).) And so beyond the NFL and sports, CTE could crop up in other litigation too. Consider the victims of domestic violence. About one-quarter of American women and 14 percent of men have experienced severe physical assaults by a partner in their lifetime, including hitting, punching, being slammed against something hard, or being pushed down stairs. (Intimate Partner Violence, Ctrs. for Disease Control & Prevention (CDC), last visited July 11, 2018.)

With the “MeToo” movement women, where women are speaking out about their injustices, it’s likely that we will see more litigation around domestic violence. There’s been a paradigm shift in society, and people are being held accountable for their actions now.

CTE is therefore of growing concern to doctors, scientists, and lawyers. There will likely be more legal scenarios, civil and criminal, where CTE stands to play a starring role. Football might have started the hype about CTE, but the illness has since taken off as a legitimate factor in legal matters. It is vital for counsel to understand the illness, its manifestations, and its utility in devising legal strategy.