Don Brady, PhD, PsyD, NCSP

Licensed Clinical Psychologist

NY State License # 018115
Medical Building East
5900 North Burdick Street
Suite 102 C
East Syracuse, New York 13057
315.687.6993
November 12, 2014
Objections and concerns regarding the proposed NFL Concussion Settlement
1. The length of the proposed settlement may be difficult for
numerous players, and especially brain-injured players, to
accurately read and comprehend. Thus there is a need for
representing attorneys to provide a clear and easy to
understand outline of all the settlements core components.
When I prepare psychological reports for clients I am dutybound to produce readable and comprehendible documents.
Attorneys, representing the NFL players, should also be
required to provide a clear and concise outline of the important
elements. This outline should be written in plain English, without
legalese, and should clearly define all core terms to avoid
misinterpretation.
Attorneys should also be required to discuss the particulars of
the settlement, along with options for accepting or rejecting the
settlement with each client/client-appointed representative. The
attorneys are reportedly receiving over $1,000,000 for services
rendered plus a 5 % fee for compensation monies awarded to
each NFL player. These proposed fees should easily cover the
necessary time to produce such an outline and engage in a duly
informed dialogue with each represented player.

2. The proposed NFL settlement SHOULD NOT be construed as

a concussion / brain injury settlement since many significant
concussion / brain injury symptoms have been excluded from
this proposal.
The uniqueness of each concussion often results in multiple
and complex symptoms (Collins et al., 1999; Reitan & Wolfson,
2000).
A concussion is a brain injury that may adversely impact
cognition, emotions/personality, physical abilities, the quality of
all senses (vision, hearing, taste, touch, smell) speech and
language, the abilities to conduct daily living activities, body
part awareness and sense of balance. Lezak (1995) pointed out
that brain damage rarely affects just one of these systems as the
disruptive effects of most brain lesions usually involve multiple
brain functions.
It should also be noted that these brain injury symptoms may be
permanent or displayed on an intermittent basis.
Prior concussions / brain injuries have been strongly linked to
strokes / CVAs, depression, Parkinsons Disease, Alzheimers
Disease, and Chronic Taumatic Encephalophy. Chronic
Traumatic Encephalophy (CTE) is a degenerative disease that
affects the brain and is believed to be caused by repeated head
trauma.
This settlement does not allow for the inclusion of all these
adverse effects. Thus through excluding numerous significant
symptoms, it fails to identify and represent all possible
concussion / brain injury symptoms.
3. Standard care for brain-injured patients requires that the
assessment and management of these patients be formulated
and conducted by a mTBI knowledgeable multidisciplinary team.
Input from family members and significant others is also
essential for this data gathering process.

The proposed settlement utilizes ONLY several disciplines

within the assessment and management process. This severe
limitation grossly interferes with the collecting appropriate and
global data necessary for documenting and diagnosing all
symptoms associated with an mTBI and corresponding post
concussion symptoms.
Furthermore, limiting assessments and management of
concussions to a few disciplines demonstrates an extremely
narrow selection bias that creates fertile ground for unreliable,
invalid and under-reported symptom data.
Suggested members of a multidisciplinary health care team
would include the following professionals: physician,
neurologist, neurosurgeon, psychologist, neuropsychologist,
optometrist, ophthalmologist, athletic trainer, audiologist,
speech pathologist, occupational therapist, and physical
therapist. Equally important in the concussion data gathering
process is the obtaining of input from close family members and
significant others.
4. Extensive and comprehensive evaluations should be
conducted by each respective multidiscipline member.
In an extensive review of research pertaining to mild brain
injury, Reitan & Wolfson (2000) strongly cautioned that many
researchers who have examined mild brain injury have typically
not employed comprehensive neuropsychological test batteries
in their methodology. The authors perceive this as a major flaw
in evaluating the impact of mild brain injury, because they firmly
believe that standard neuropsychological test batteries have
frequently been shown to be sensitive to both focal and diffuse
brain damage.
They also pointed out that researchers typically have limited
their assessment and focus due to a premature presumption
that neuropsychological impairment is limited to a rather narrow
range of deficits, and that a restricted range of tests is all that is
required for adequate neuropsychological assessment. Our

clinical experience suggests that mild brain injury produces

diversified and even widespread neuropsychological losses in
some patients (p. 97) .
Gronwall (1991) also emphasized the neuropsychologist has a
responsibility to make sure that appropriate tests for
assessment are selected (p. 257). Likewise, ALL disciplines
have the same responsibility to employ appropriate assessment
instruments.
Furthermore, the uniqueness and subtleties of each concussion
warrants an exploratory process that analyzes presenting
concussion symptoms with an investigative clinical judgment.
An investigative process requires the inclusion of approaches
that utilize the science and art of medicine (A. Joachimpillai,
personal communication, September 15, 2003; Meeuiwisse,
2002). The utilization of a logical and investigative clinical
judgment process is a core component of the concussion
evaluation and management process since it has been clearly
pointed out that many of the current neurocognitive and
neuroimaging instrumentations and evaluation techniques are
generally not sensitive enough in assessing and detecting mild
brain injury (Bleiburg et al., 1998; Damasio,1994; Lovell, 1998).
This lack of sensitive test instrumentation also acknowledges
the limitations of a scientific methodology that only utilizes
concrete, and thus observable, data as the sole valid and
reliable data for drawing conclusions.
Gronwalls (1991) clinical perspective reinforces this
perspective: Failure to show a deficit does not prove that no
deficit exists (p. 257)

5. The drafters of the proposed settlement should provide to

the court a brain injury-related empirical basis for the proposed
assessment, management and financial & medical benefits
process. ...

It appears that an inequitable, unfair and exclusionary

compensation and benefits determination approach has been
chosen. The proposed approach appears skewed towards
disqualifying numerous players suffering from various
debilitating concussion symptoms.
To better evaluate the fairness of the proposed determination
process, the drafters should provide evidence based research
for the following settlement components:
a) the baseline assessment program
b) exclusion of any CTE cases.
The link between concussions, subconcussive blows and CTE
has been long established, as CTE was formerly known as
Punch Drunk (Martland, 1928). Furthermore, boxing-related
research originated the concept of punch drunk, and eventually
concluded that boxing causes traumatic brain injury via the
cumulative effect of concussive and subconcussive blows to the
head (Martland, 1928; Jordan, 1998; Corsellis, 1989; Charnas &
Pyeritz, 1986).
In addition, the more recent CTE related research of Omalu,
McKee, and Stern further support that CTE be included within
presenting symptoms related to concussions.
c) the algorithm chosen to establish Neurocognitve categories
utilized for determination of financial benefits.
d) the use of the Test of Premorbid Functioning (TOPF) for
predicting premorbid functioning.
e) the use of limited disciplines within the assessment,
management and financial determination process.
6. The settlement does not consider the debilitating effects of
concussion related mental fatigue. These multifocal effects may
vary on daily basis and are different between individuals.
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Mental fatigue is defined by Birgitta Johansson and Lars

Rnnbck (2012) as the pronounced mental fatigue that occurs
after mental activity and is a common long-term consequence
after brain injury.
Mental fatigue characteristics include: Rapid mental exhaustion
after ordinary activities; Extended time needed for recovery of
mental energy; Distinct 24 hour variation; more productive early
in day than later.
Common symptoms which often accompany mental fatigue
include: Poor concentration; Slowness of thinking and slow
information processing speed; Impaired memory; Emotional
lability and irritability; Sleeping problems; Noise and light
sensitivity; Impaired ability to take initiative; Headache; General
stress from all of the above.
7. Monetary awards should not be reduced by the presence of a
stroke nor be reduced by age or length of employment.
A review of stroke / CVA literature strongly links suffering an mTBI
to an increased stroke risk for both children and adults.
Compensation should be directly influenced by the presenting
brain injury symptoms and corresponding diagnoses.
8. Monetary awards should be determined by an independent and
brain injury knowledgeable multidisciplinary committee.

It is imperative that an accurate, unbiased, and in-depth

knowledge of player concussion symptoms be gathered from an
independent multidisciplinary team of health care professionals
who are adequately trained and free from conflicts of interest
(COIs).
Apparent COIs re the assessment and management of players
health and welfare have reportedly existed within the NFL for
decades. Some RTP guidelines were also influenced and biased
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by apparent COIs such as financial gain, prestige, and multiple

relationships (Brady, 2004; Goldberg, 2009; Huizenga, 1994;
Kelly & OShanick, 2003).
My 2004 dissertation entitled A Preliminary Investigation of Active and
Retired NFL Players Knowledge of Concussions includes a section
regarding COIs. This section spotlights the existence of apparent NFL
related COIs pertaining to the management of concussions. A copy of
my Dissertation has been included in this mailing for the courts review.
Examples of COIs adveresely impacting concussion related return to
play decisions and concussion related research findings are found in
my dissertation research. Two of these exerpts will be briefly shared.

A) Recent support for the existence of sports-related clinician

bias may be found in Kelly and OShanicks (2003) discussion of
the formulation of the 1997 AAN concussion management
guidelines. The presenters shared that the Quality Standards
Subcommittee of the American Academy of Neurology--which
devised these concussion management guidelines--included
NFL team physicians. These team physicians reportedly
influenced the committees decision that determined that a
timeframe of 15 minutes was ample time for an athlete to sit
out after sustaining an initial concussion. This recommended
timeframe was reportedly not based on empirical evidence but
was arbitrarily and directly related to the 15 minute quarter of a
football game, so that an athlete would be able to return to play
in the same game he sustained the initial concussion, if the
symptoms resolved (Kelly & O Shanick, 2003).
B) Recently published NFL-sponsored research on concussion
by Pellman et al (2004) may easily be construed as an example
of perceived or potentially compromised and biased research.
The glaring omission and failure to disclose various research
members roles as NFL team physicians or other health care
consultants, arguably may violate the public trust and
subsequent credibility of the investigators (DeAngelis,
Fontanarosa, & Flanagin, p. 89). The full and transparent
disclosure of multiple relationships is considered essential for

maintaining the credibility of the researchers, along with

effectively addressing potential bias (DeAngelis et al., 2004).
8. No fees should be charged to a player requesting compensation
benefits and the NFL should not be allowed unlimited appeals.
Charging players $1,000 to appeal determination rulings and
allowing the NFL unlimited appeals of monetary awards to players
appear to be arbitrarily determined and skewed in favor of the NFL.
9. Athletes and the general public have been denied their Right to
Discovery

As NFL teams have received public monies over the years for
construction of stadiums it would seem that the public, in
addition to NFL athletes, have a vested right to be duly informed
via Discovery of the concussion / brain injury knowledge
possessed by the NFL and support staff.
Furthermore, a strong argument may be made that the NFL
neglected to warn players re the dangers of concussions.
As a graduate student and clinician with limited resources I was
able to uncover significant data regarding the adverse effects of
concussions contained within the 1800s and 1900s
professional literature. Thus it seems that a large organization
like the NFL could easily access this same information.
It also seems reasonable that NFL players should have been
timely informed of the existence these relevant and significant
concussions issues after the articles were published in various
well respected professional journals.
A review of my Dissertation Reference section reveals the
significant amount of concussion information available within
the professional literature.

10. Discovery: Some historical citations / references that I have

discovered via conducting my PhD research and through my
clinical experiences follow.
A 1975 statement written almost 40 years ago, imploring both
the exercise of responsible concussion health care delivery and
reasonable caution, remains pertinent to sports-related
concussions:
Doctors [and other health care providers] do have a duty to
convince the controlling bodies and participants in sports
where concussion is frequent that the effects are
cumulative and that the acceptance of concussion injury,
though gallant, may be very dangerous (Gronwall &
Wrightson, 1975, p. 997).
Citations listed in chronological order:
129 AD circa 199

Galen

Galen spent 5 years as a surgeon to gladiators and was aware of the

behavioral consequences of brain damage
(p. 4) Kolb & Whishaw (1996)
1835 Gama
fibres as delicate as those of which the organ of the mind is composed are
liable to break as a result of violence to the head (cited by Strich 1961)
1928 Marland, H. S.: Punch Drunk , JAMA 91: 1103 ( (Oct. 13)
Brain injury as a result of concussions
1934...Strauss and Savitsky are credited with coining the phrase
postconcussion syndrome (Evans, 1994), and they posited that not only
may a concussion occur without a loss of consciousness, but that it has an
organic basis. In their extensive 63-page review of the topic, they
emphasized the importance of documenting clinical observations and of
not quickly attributing vague or unusual findings to
functional/psychological origins.

1935 C P Symonds, MD - Disturbance of Cerebral Function in

Concussion - The Lancet
[Concussion] symptoms will need to be estimated on their own merits.
They may reasonably be regarded as evidence of structural damage
(cerebral contusion), and, as Trotter (1923) was the first to emphasize, they
quite commonly develop after a head injury without concussion.
In every case of head injury with or without concussion, therefore, such
symptoms should be watched for, and it should be remembered that a
latent interval, often of some days, may precede their development.
1938... Dr. A. Thorndike New England Journal of Medicine... Father of
Sports Medicine
Thorndike exclaimed that The ignorance of the laity of the serious
complications that may follow a simple concussion of the brain is to be
deplored. (p. 464)

1941... Denny-Brown and Russell (1941) created several animal research

models for evaluating the impact of a cerebral concussion. These authors
were the first researchers to differentiate acceleration and compression
related concussions (Shetter & Demakas, 1979). Concussions caused by
acceleration involve a free-moving head, whereas concussions caused by
compression involve a relatively stationary or fixed head. Using cats as
subjects, it was demonstrated that less force was required to cause a
concussion when the head is free-moving than when it is fixed. These
classic concussion-related findings served to spawn the recommendation
that athletes who participate in contact sports engage in physical exercises
designed to strengthen their neck muscles.
1943... Holbourns paradigm provides the essential foundation for
comprehending human brain injury (Giza, 2004; Johnston et al, 2001). This
perspective adheres to the belief that shear-strain injury to the brain effects
neuronal cell shape change, which in turn is directly related to most
mechanically induced TBI. Holbourn (1943), a physicist, applied
contemporary knowledge of the brain and Newtons laws of motion to
describe the mechanics of head [brain] injury. He postulated that shear
strains coupled with rotational acceleration forces were a major cause of
brain injury. As a more detailed explanation of Holbourns findings are
beyond the scope of this paper, the reader is requested to review the
original article for more precise information.
1952: A study appearing in the New England Journal of Medicine urges
players who suffer three concussions to leave football forever for their own

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safety. Concern was also voiced that concussions sustained in sports

endeavors did not receive adequate medical attention (Thorndike, 1951).
Father of Sports Medicine
1950's & 60's Strich: Diffuse severe degeneration of white mater of the
brain may follow closed and apparently uncompliated head injury
[concussion], leaving the patient permanently incapacitated, or more or
less demented
Strichs historical research, conducted in the 1950s and early 1960s,
pointed out that severe brain injury resulted in axon damage while also
supporting previous studies pertaining to nerve cell damage occurring in
the brainstem and white matter and related shearing forces (Eldon & Ward,
1994). More specifically, the results of microscopic examination found
clinical evidence of shearing of nerve fibers along with diffuse
degeneration of white matter during postmortem assessments of persons
who had been diagnosed as having a brain injury (Strich, 1961)
1961 Strich (both 1961 info re from same article)
....pathologists have been content to study the brain damage visable to the
naked eye --- such as lacerations or coup and countre coup leisons
because only a few brains from acute head injuries or post raumatic
neurological signs reach the hands of neuropayhologists and those that do
are often difficult to study as they have been manhandled.
1962 - Symonds while discussing the effects resulting from any grade of
concussion, asserted: It is questionable whether the effects of
concussion, however slight, are reversible (p. 1).
The author also pointed out that since the 1940s clinical evidence has
existed for supporting the view that not only does neuron damage occur
after a person sustains a concussion, but that repeated minor injury could
result in progressive and permanent neuron loss.
1967 Postmortem examination of 37 patients who sustained significant
brain injury revealed microscopic documentation of axonal and small
vessel injury in all subjects (Peerless & Rewcastle, 1967). The authors
professed that it was probable that axonal changes were the primary lesion
found in all brain injury. They also advocated for a concussion definition
that acknowledged that a small number of neurons may have died or
become disconnected due to this brain injury. These researchers also
concluded the effects of this type of injury may be cumulative, irreversible,
and thus clinically significant if a person experienced another brain injury
(Peerless & Rewcastle, 1967).

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1968 - Further support for axonal damage findings was revealed by

Oppenheimer (1968), who discovered microscopic lesions during
postmortem examinations of persons who had experienced mild brain
injury and subsequently died from other causes. Reitan and Wolfson
(2000) reviewed Oppenheimers (1968) study, noting that the findings were
comparable to Strichs earlier research. Among important findings
gathered through the use of staining techniques was the notion that these
brain lesions found in white matter were caused by several factors: (a)
surface shearing and contusion; (b) stretching and tearing of groups of
nerve fibers; (c) tearing of nerve fibers via a crossing blood vessel; and (d)
stretching and tearing of small blood vessels (Reitan & Wolfson, 2000).
1970's and forward...
Since the 1970s there has been a growing body of medical and
neuropsychological evidence that concussions result in permanent
irreversible brain injury.
Through the use of animal studies, along with the evaluation of
neuropsychological testing and neuroimaging techniques of the magnetic
residents imaging (MRI) and computer aided tomography (CAT Scan),
researchers have been assisted in providing some substantiation and
measurement of brain damage which has been attributed to previously
sustained concussions (Barth et al., 1996).
1973: The condition later named Second Impact Syndrome is first
identified. It occurs when an athlete receives a concussion while still
suffering the effects of a previous one, and according to a 2013 study in the
Journal of Neurosurgery it carries a 90 percent mortality rate. "Those who
do survive second impact syndrome are neurologically devastated,"
reports the director of the Sports Concussion Clinic at Children's Hospital
Boston.

1974, 1975, 1989 Gronwall (1989) also pointed out that inferential evidence
supporting that the brain becomes compromised due to a concussion may
be found in concussion research that emerged in the 1970s.
This research documented the reduction of information-processing skills
along with evidence of damage to brain structure. These findings were
subsequently interpreted as supporting the long-term, cumulative and
permanent effects of sustaining a concussion (Gronwall & Wrightson,
1974; Gronwall & Wrightson, 1975).

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1982 Levin, Benton and Grossman as cited in Reitan and Wolfson (1986),
pointed out that current available evidence regarding postconcussive
syndrome favors the view of concussion as a severity continuum of diffuse
injury (Reitan & Wolfson, 1986, p. 15).

1987 Ryan, A. J. (1987). Brain injuries in football. The Physician and

Sports Medicine, 15(6), 39.
Thus, a cerebral concussion is a serious event that is indicative of an
injury to the brain, and it should be taken very seriously.
We must be alert to the occurrence of concussion in a football player.
( p. 39)

---------------------------------------------------------11. Selected references. Please refer to my enclosed

Dissertation for an extensive list of references.

Anderson, D. (1992). The NFLs quiet career killer. The New York Times. Retrieved May
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Brady, D. (2004). A preliminary investigation of active and retired NFL players
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Brady, D. (1989). Should individuals who possess only one brain be allowed to box?
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Brady, D. (1999, October). Soccer participation: Athletes at risk for sustaining a
concussion. Paper presented at the New York State Counseling Associations 33rd
convention, Albany, NY.
Brady, D. (2001, March). The need for baseline data and follow-up assessment for
sports-related concussion management. Invited speaker at the Upstate Medical Center
health system 2001 Sports Medicine Symposium, Syracuse, NY.
Brady, D. (2002, July). A preliminary investigation of Active and Retired NFL Players
knowledge of concussions: Final report. Paper and poster presented at the University of
Pittsburgh Medical Center Health System Centers International Conference on new
developments in sports-related concussions. Pittsburgh, PA..

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Cantu, R. C. (1996). Head injuries in sport. British Journal of Sports Medicine, 30, 289
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Evans, R. W. (1994). The postconcussive syndrome: 130 years of controversy. Seminars
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Gavett, B.E., Stern, R.A., & McKee, A.C. (2011). Chronic Traumatic Encephalopathy: A
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Sports Medicine, 30, 179-188
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Goldstein, M. (1990). Traumatic brain injury: A silent epidemic. Annals of Neurology,
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Gronwall, D., & Wrightson, P. (1974). Delayed recovery of intellectual function after
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Gronwall, D. (1989). Cumulative and persisting effects of concussion on attention and
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Gronwall, D., (1991). Minor head injury. Neuropsychology, 5, 253265.
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Holbourn, A. H. (1943, October 9). Mechanics of head injuries. The Lancet, 438441.
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(1995). The neurochemical and metabolic cascade following brain injury: Moving from
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Huizenga, R. (1994). Youre okay, its just a bruise. New York, NY: St. Martins Press.
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King, N. S., Crawford, S., Wenden, F. J., Moss, N., & Wade, D. T. (1995). Rivermead
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Levin, H. S., Benton, A. L., & Grossman, R.G. (1982). Neurobehavioral consequences
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McKee A, Cantu R, Nowinski C, et al. Chronic traumatic encephalopathy in athletes:
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Saunders, R. L., & Harbaugh, R. E. (1984). The second impact in catastrophic contactsports head trauma. The Journal of the American Medical Association, 252, 538-539.
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Respectfully submitted,
Don Brady, PhD, PsyD, NCSP, LMFT
Licensed Clinical Psychologist
Nationally and NY State Certified School Psychologist
Licensed Marriage and Family Therapist
don@donbrady.com

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