HITS KEEP COMING
Concussion settlement could exclude the likes of Hall of Famer Webster
In the final years of Mike Webster’s life, the former Pittsburgh Steelers center shocked himself with a stun gun to sleep. Nicknamed “Iron Mike” for durability during 17 seasons in the NFL, Webster couldn’t hold down a job. He got lost on routine trips. The husband and father who loved John Wayne movies seemed to disintegrate into a haze of angry outbursts, depression and paranoia. After Webster died from a heart attack at age 50 in 2002, an autopsy revealed a crippling neurodegenerative disease thought to be linked to the thousands of hits to the head he sustained as a player. The diagnosis, the first for an NFL player, made Webster synonymous with football and brain injuries. So when thousands of retired players sued the NFL over concussions, Webster’s family was among the natural litigants. But under the preliminary settlement with the NFL announced in July, Webster’s estate would not get a penny. Webster’s son Garrett had expected the deal to bring closure and perhaps some peace. “I thought we could finally put things behind us, finally move on. Watch football. Have good feelings,” he said wearily. “Then it came crashing down.” The proposed settlement, which will be reviewed in a fairness hearing Wednesday, has been hailed by the co-lead counsel for the retired players, Christopher Seeger, as “extraor dinary,” while some players called it a “sellout.” The NFL could pay out hundreds of millions of dollars in compensation to some former players, and the hearing could be the last significant hurdle before the deal receives final approval. Attorneys — including the lawyer representing Webster’s family — will join NFL widows and retired players in a Philadelphia courtroom to argue for or against the deal or petition for amended terms. Many involved expect U.S. District Judge Anita Brody to allow the deal to proceed later this year. Only a small fraction of the NFL’s 20,000 retired players have pulled out of the settlement. The deal compensates retired players who suffer from a variety of neurocognitive disorders, including amyotrophic lateral sclerosis and Parkinson’s disease. The maximum payout is $5 million; award amounts are tied to the player’s age at diagnosis and years in the NFL. The compensation could be reduced if he suffered a non-football traumatic brain injury or stroke. Players who died before 2006 aren’t eligible for payouts unless the local statute of limitations, which varies by state, permits a claim. That means the families of Terry Long and Justin Strzelczyk, former Steelers who died after Webster and were among the first players also diagnosed with the same brain disease, may not receive any money, either. Strzelczyk died in 2004 after smashing into a tanker truck while driving 90 mph in the wrong direction on a highway; Long drank antifreeze to kill himself in 2005. “They’re the reason players have some sense of what’s wrong with them today,” said Jason Luckasevic, the Pittsburgh attorney who represents about 500 retired players or their estates, including the families of the three former Steelers. “If not for Mike and Terry and Justin dying for them, guys would still be going around the country confused and bewildered,” he said, “and there wouldn’t be anything called the NFL concussion litigation.” In July 2011, Luckasevic and two other law firms filed the first concussion lawsuit against the NFL in Los Angeles Superior Court on behalf of 75 former players. Luckasevic said the case was supposed to be about the neurodegenerative disease called chronic traumatic encephalopathy, or CTE. It was intended to be about the tangles of a protein called tau that Dr. Bennet Omalu discovered clogging Mike Webster’s brain. The original case spawned more than 300 similar lawsuits by scores of attorneys across the country. The cases were eventually consolidated in federal court in Philadelphia. Now, Luckasevic thinks that the proposed deal, which applies to all of the NFL’s former players who didn’t opt out, is about everything but CTE. “The settlement ignores the underpinnings of why the case was brought. ... Never again is it relevant if a guy dies from CTE,” Luckasevic said. “The guys who died for the peace of mind of everybody, they don’t even get paid.” This doesn’t make sense to Garrett Webster. He thinks the settlement eligibility date should be the day his father, a member of the Pro Football Hall of Fame, died. The cutoff resulted from negotiations to include as many players as possible whose claims otherwise would fall outside the statute of limitations, Seeger said. Data prepared for the NFL and the players project 5,900 retired players — about 3 in 10 — will develop serious cognitive problems over the deal’s 65-year life. But there is no compensation for anyone who dies after July 7 and receives a postmortem diagnosis of CTE. The disease is able to be conclusively diagnosed only after death. The claim that CTE isn’t compensated is a “fundamental misunderstanding” of the agreement, the NFL said in a court filing last week. Former Miami Dolphins defensive back Shawn Wooden sees such details as an inevitable result of compromise. “Is it 100% of everything we wanted or everything on our wish list? No. But it’s a settlement,” Wooden said. “There’s give and take on both sides. I believe we got the fair end of the stick.” One court filing described the deal as a labyrinth filled with deadlines and requirements that, if not met, make the retired player ineligible for a payout and strip them of the ability to sue the NFL over brain injuries. It’s a characterization that Seeger dismisses. A total of 201ex-players or their estates filed objections to the settlement, and 196 others opted out, including Pro Football Hall of Fame offensive lineman Joe DeLamielleure and the family of the late San Diego Chargers linebacker Junior Seau. They plan to sue the NFL separately. “Why would I give up when I know I’m right?” De-Lamielleure said. The families of the three ex-Steelers players aren’t giving up, either. After final approval of the settlement, they hope to show that the statute of limitations shouldn’t apply under the terms of the deal because of what their attorney believes is “massive fraud” by the NFL over the existence of CTE. “Why would they fight those three claims?” attorney Luckasevic said. An attorney representing the NFL in the case didn’t respond to requests for comment. Garrett Webster, 30, tries to be realistic. The deal isn’t fair, he believes, but litigation against a league with $9 billion in annual revenue could drag on for years with no certain outcome. Webster sees the league as too big, too powerful to be forced to offer more. But the sting from being left out lingers. “We’ve become used to being kicked to the ground emotionally,” Webster said. The money isn’t the motivation for Webster. He would trade any amount to spend one more day with his father. “This fight has consumed our entire lives as a family, and, frankly, it wasn’t worth it,” Webster said. “I would rather my dad have had some kind of peace, have had some kind of a good life rather than spend the last part of his life consumed by a crusade against the NFL.” nathan.fenno@latimes.com Twitter: @nathanfenno
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