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About one-third of the league’s 12,000 former players have joined the litigation since Easterling filed suit in 2011. Some are battling dementia, depression or Alzheimer’s disease, and fault the league for rushing them back on the field after concussions. Others are worried about future problems and want their health monitored.
Brody honed in on whether the collective bargaining agreement specifies that head injuries are workplace safety issues and belong in arbitration.
"It has to be really specific. That’s what I have to wrestle with," she said.
Frederick called the contract "silent" on latent head injuries, and said players therefore have the right to seek damages in court. Brody is not expected to rule for several months.
Players and family members on hand for the hearing included Kevin Turner, a former Philadelphia Eagles running back now battling Lou Gehrig’s disease; Dorsey Levens, a veteran running back who made a 2012 documentary on concussions called "Bell Rung," and Easterling’s widow, Mary Ann.
One wrinkle in the NFL’s argument is what it calls the "gap year" players, who played from 1987 to 1993, when there was no collective bargaining agreement in place. The league, eager to avoid opening up its files in a court case, argues that those players were bound by previous contracts or contracts later in effect when they collected pensions.
"I certainly admit that the gap year players ... are the most difficult cases," said Clement.
However, he said very few people played only those years, and not before or after. For most, "there’s no way to say the only hits that hurt you are the hits from those years," he said.
Tom McHale played in the NFL from 1987 to 1995, before the All-Ivy League athlete died of an accidental overdose in 2008. He was 45 and had battled depression and addiction toward the end of his life.
Lisa McHale, of Tampa, Fla., hardly recognized her once-gregarious husband. After his death, he was also diagnosed with CTE. She believes the player lawsuits, and the willingness of retired players to go public with their problems, will help her three teenage sons understand their father’s illness.
"To know it wasn’t his fault, that there was something neurological going on, it helps," she said.
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