One lawyer’s crusade could change the NFL forever, writes Michael Sokolove
THERE are 1,270,000 million lawyers in the United States, one for about every 300 Americans — about 400,000 more of them than there are doctors. Their work is rarely glamorous, and especially for those just starting out in the profession, it can be grinding and repetitive.
Jason Luckasevic, hired out of law school in 2000 by a firm in Pittsburgh, passed the bar exam on his first try and was quickly sworn in to practice. The ceremony, such as it was, took place on a Thursday in a clerk’s office, rather than in a courtroom in front of family and friends, because his bosses needed him to get started.
The following Monday morning, he drove to Johnstown, about 90 minutes away, where he spent the day taking depositions from former employees of an enormous steel plant that had exposed them to asbestos. Late that afternoon, he climbed back into his Honda Civic and headed home. He repeated this routine for the next six months, five days a week, racking up some 400 depositions and about 20,000 miles on the road.
Luckasevic harboured no grandiose visions for himself — no ambition to clerk for a Supreme Court justice, no thought of blazing new legal ground. His father was a machinist, his mother a teller at a credit union, his godfather the president of a United Steelworkers local.
“Working lawyers for working people” was the motto of Goldberg, Persky & White, the firm he joined, and it suited him just fine. “We were one of the early firms into the asbestos world,” Luckasevic explained to me over breakfast not long ago. “It was difficult, but it was also great. My attitude was, I’m going to work hard, do good at this and be successful. Hopefully, I’ll be like some of the established guys in the firm and start making some nice money and have a nice vehicle.”
As Luckasevic was getting started on his legal career, his older brother, Todd, was in his medical residency at the Allegheny County medical-examiner’s office, working under a forensic pathologist named Bennet Omalu. The Nigerian-born doctor spent some Thanksgivings with the extended Luckasevic clan. He and the Luckasevic brothers sometimes went out for beers together or to hockey games. Luckasevic found Omalu to be good company, “an easy guy to be around, even though you could tell he was brilliant or even a genius”.
In 2002, Omalu performed an autopsy on Mike Webster, a former Pittsburgh Steelers offensive lineman and a member of pro football’s Hall of Fame. Webster was just 50 when he died, and he spent the last years of his life suffering from dementia, at times living in his pickup truck.
When Omalu studied Webster’s brain in his laboratory, he noted a degeneration of tissue and other markers of decline usually present only in people decades older or sometimes in boxers suffering from “punch drunk” syndrome. Over the next few years, he autopsied five other former NFL players, none of them old, and saw the same patterns: tangled brain tissue and the accumulation of tau protein, a characteristic of Alzheimer’s disease.
Luckasevic by this time had begun to take on other types of cases: car accidents, slip-and-falls — the bread and butter of the plaintiffs’ bar. He did not seem to be on the verge of initiating a landmark case. At first, his response to the public controversy picking up around Omalu, whom he occasionally employed as an expert witness, was just to step up and defend his friend.
He remembers thinking: Why would Bennet make this stuff up. I mean, why would he? It’s just not done. He worried that Omalu would pay a professional price. “It looked to me like Bennet had raised his hand and said there’s a problem we need to be aware of, and he got savaged for it.”
One day as they sat together at his law office, Luckasevic told me, he asked Omalu how he was going to fight back and defend his reputation. “Bennet’s response was something like: ‘You’re a good lawyer. You’ll figure it out’.”
Luckasevic began to think about whether he could buttress Omalu’s lab findings. In 2006, he had his first meetings with retired NFL. players, who introduced him to other players. The damage that Omalu observed when he looked at brain tissue under a microscope, Luckasevic saw in human terms.
Many of the men he met suffered from headaches, memory loss, depression and sleeplessness. He went down a checklist when one of them came into his office the first time. Was the former player employed? On disability? Could he follow the conversation, or did his wife have to fill in details and answers to questions? The worst off among them seemed many years older than their chronological age.
To build a case against the NFL., Luckasevic knew that he first had to win the trust of the former players. They came from a distinct subculture, men who had built their lives and identities playing a violent game. They were deeply connected to one another and still invested in football — even as they came to believe they were suffering from its effects.
“These guys, they have to feel they have a friendship with you before there’s a business relationship,” Luckasevic said. “They have to have your cellphone number. They’ll keep calling and calling and calling until they get you, and you’ll have a conversation, and then they’ll call you back an hour later and ask the same questions and have the same conversation. It’s really horrific.”
In 2011, Luckasevic filed suit against the NFL, at first on behalf of 75 players. Among them were Mark Duper, a three-time Pro Bowl selection at wide receiver for the Miami Dolphins, and Fred McNeil, a linebacker who played a dozen seasons for the Minnesota Vikings. (McNeil became a lawyer after he retired from football, but dementia has forced him to leave the profession; an article published on the Vikings’ website said that he cannot remember the scores of the Super Bowls he competed in.)
Luckasevic’s civil action, later joined by dozens of lawyers around the nation who brought thousands of their own clients, is now moving toward final settlement, perhaps as soon as later this month. In September, the NFL filed documents in federal court, prepared by actuaries, estimating that 28% of the retired players eligible for payments under the settlement will develop long-term cognitive deficiencies, many of them at “notably younger ages” than the general population.
In other words, they will suffer from early-onset dementia. With that, the connection between football and brain damage was validated. There was no more denying it.
The NFL has been shadowed by bad news this year. None of it seemed to be directly related to the issue of head injuries, but everything about football now looks a little different knowing what we know about the game’s impact on players’ brains.
Two prominent NFL players faced criminal charges for allegations of physical abuse of loved ones: Ray Rice, whose one-punch knockout of his fiancée inside a casino elevator in Atlantic City was seen by millions on a leaked security video; and Adrian Peterson, who was charged with beating his four-year-old son with a “switch,” or tree branch stripped of its leaves. Other recent events below the professional level have added to football’s season of troubles and to the incipient impression that there might be something defective at the core of the sport.
The college game’s most prominent player, the Florida State quarterback Jameis Winston, has been embroiled in multiple scandals — the most serious a rape allegation that may have been incompletely investigated. Seven high-school players in Sayreville, NJ, were criminally charged with hazing, and their team, a perennial state champion, was disbanded for the season. Over the course of a week in September and October, three high-school football players died after collapsing on the field.
For decades, the NFL has been seemingly immune to bad publicity, swings in the wider economy or entertainment trends. Every addition to the increasing number of ways that Americans amuse themselves — DVRs, streaming content on computers and mobile devices and perhaps soon our watches — benefits the lords of professional football.
Their game only becomes more valuable as the number of people watching TV programs in real time shrinks. The sole non-NFL event on the 2013 list of the Top 10 most-watched television programs was the Academy Awards broadcast, at No. 7, between two postseason playoff games.
The Oscars had 40 million viewers, the Super Bowl 108 million. NFL revenue last year was about $9 billion, but the stated goal of its commissioner, Roger Goodell, in 2010 was to increase that to $25 billion by 2027.
It seemed reasonable, as the season began under a dark cloud, to ask: could this be the moment when things turn sour for the NFL, the beginning of the end of its long dominance? Boxing, once hugely popular, has been pushed to the margins of American culture. Many commentators have asked whether that could happen to football. And yet, past the halfway point of the season, the game is as popular as ever.
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