Duerson Legacy Belongs in a Labor Department Audit, Not in Jock Hagiography

Alan Schwarz of The New York Times has taken the Dave Duerson story exactly where it needs to go: toward no-holds-barred examination of the National Football League disability benefits system, which Duerson himself, with cruel irony, had helped administer and defend.

See “Duerson’s case highlights the limits of the N.F.L.’s disability plan,” http://www.nytimes.com/2011/05/05/sports/football/05duerson.html. The money passage:

Another question beginning to circle among retired players whose claims were denied during Duerson’s tenure is whether they can refile given his admitted impairment. Board votes are not disclosed to applicants or to the public.

John Hogan, a lawyer for dozens of players in disability matters, said that he might request an audit by the United States Department of Labor to see how Duerson voted on claims.

“He had to exercise a high degree of care, skill, prudence and diligence — the C.T.E. findings, coupled with his suicide, certainly raise the question of whether he was capable of properly fulfilling those duties as is required in such an important undertaking,” Hogan said. “It therefore calls into question the possibility that some or all of the decisions he made when passing on disability claims are suspect, and perhaps invalid.”

I welcome attorney Hogan’s assumption of a more aggressive stance than he articulated to me in the immediate aftermath of Duerson’s February suicide. Back then, while not hesitating to brand the entire NFL disability apparatus illegitimate, with or without the Duerson factor, Hogan had added that probing Duerson’s specific cases on the compensation board would be a tough road to hoe because of confidentiality laws and the possibility that he had actually cast his own votes in favor of retired players whose claims were rejected. (See “ALREADY LOCKED OUT: The NFL and NFLPA’s Rejected Disability Claims,” March 15, http://wrestlingbabylon.wordpress.com/2011/03/15/introducing-already-locked-out-the-nfl-and-nflpa%E2%80%99s-rejected-disability-claims/.)

A lawyer for NFL Player Care, Douglas Ell, reinforces this point to The Times, saying “he knew of no case where ‘if Dave’s vote were disregarded, the outcome would have been different.’”

I think the league’s position is spectacularly wrong. The disability committee is not tainted because of Duerson’s individual votes, but because of his overall participation. As one of the three NFL Players Association appointees, Duerson carried an expectation to deliberate and advocate on behalf of a constituency in need. To use a very loose analogy, if a lawyer is found to have provided inadequate representation to an accused criminal, the process is understood to be flawed and a rehearing required. War-gaming the final verdicts of the disability panel to determine whether they would have turned out the same anyway does not remove their procedural cloud.

At Monday’s press conference in Boston, officials at the Center for the Study of Chronic Traumatic Encephelopathy (a partnership of Boston University and the Sports Legacy Institute, recently infused with a $1 million NFL grant) declined to go there. See my coverage at Beyond Chron, the full text of which will be posted shortly here.

But even if the best-known faces of concussion reform are getting unhelpfully cautious in their rhetoric, the sports commentariat and the federal government have the means to take the Duerson narrative all the way home.

Irv Muchnick