Dave Pear's Blog

Yesterday, a story made its way across the sports networks about an 11-page letter from attorney and player/agent advisor David Cornwell criticizing NFLPA Executive Director’s performance in general and his handling of the 2011 Collective Bargaining Agreement (CBA) in particular. Interestingly, one of the first posts about this memo actually came from the NFL.
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Some of you may recall that when Gene Upshaw passed away suddenly just before the beginning of the Players Inc. trial and the NFLPA subsequently went through a long search process for a new Executive Director. Among some of the leading candidates were retired player Troy Vincent and attorney David Cornwell. DeMaurice Smith emerged as the winner much to the surprise of many people. Cornwell takes issue with Smith’s version of his successes in running the PA and the CBA negotiations, as well as how he’s kow-towed to the League on player discipline issues. Most retired players could add at least another 11 pages to your letter, Mr. Cornwell!
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Cornwell takes issue with NFLPA leader Smith in 11-page letter

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EDITOR’S NOTE: A copy of NFL Alumni COO Ron George’s Memo to Chapter Presidents arrived in our Inboxes this morning. Here it is in its entirety:
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From: Ronald George
Date: Thu, 26 Jan 2012
To: Chapter Presidents
Cc: George Martin; Joe Pisarcik; Randy Minniear
Subject: FoxSports Article
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Dear Chapter Presidents,
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Below you will find links to two articles written by FoxSports.com that were posted today.
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On January 13, 2012, I called the NFLPA office to inquire about the Legacy benefit. I was instructed to call Cynthia Timpson at the Bert Bell/Pete Rozelle office to discuss the matter. My late husband was a pre-93 player, and from my understanding the 2012 CBA agreement states, “All players who vested under the Bert Bell/Pete Rozell NFL Retirement Plan prior to 1993 would get an increase.” I anticipated her return call and was unprepared for her disrespectful remarks. I have never been so disappointed in the treatment I received that day; however, it should not have surprised me since that seemed to be the status quo whenever I have called seeking information from any of the NFL-related offices.
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We’ve got some news and thoughts that have come in from two of the retirees out there and felt it would be best to share it with everyone here in one post.
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This past year, Larry Kaminski has been going through the California Workers Compensation process to gain access to his disability benefits.
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EDITOR’S NOTE: We just received an update from disability attorney John Hogan on another of his recent disability applications on behalf of another retired football player. He also included a copy of the Disability Board’s short 3-page boilerplate ruling.
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Attached is a recent decision I received from the Bell/Rozelle NFL Player Retirement Plan’s Disability Initial Claims Committee (DICC) finding that a former player was entitled to Inactive Benefits. (It was filed prior to Sept. 1st, so the new CBA rules do not apply and we are seeking Football Degenerative benefits.) continue reading »

Some reading material for your weekend. We have a recent newsletter from Hausfeld LLP and Zelle Hofmann that provides an update on much of what’s been happening with the retired players’ lawsuit as well as recent information and links of interest to football players and fans alike regarding concussions. They also provide some straight-forward analysis of the new CBA and how it will affect retirees’ benefits that you probably won’t be hearing from the NFLPA any time soon.
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And Sports Life Magazine’s Rick Kelsheimer spoke with us last month about Dave’s long battle with the NFL and the NFLPA and was gracious enough to provide us with an advance copy of his story that will appear in the October 2011 edition.
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We uploaded full copies of the newsletter and the Sports Life article to Scribd for easy viewing and to make it downloadable for printing. You can also click the Enlarge icon in the center of the menu at the bottom of the viewing screen to go Full Screen for easier reading (just hit the ESC key to close): continue reading »

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Over the past four and a half decades I have witnessed many, many, many, many acts of injustice, chicanery and dishonesty. Some of these acts occurred on the fields and arenas in sport (as a player, teammate and coach), some in the halls of justice, some in the media and press and others in the avenues of everyday life. But never in all my years of experience and knowledge as an athlete, coach, prosecutor, judge, attorney, teacher, professor, journalist, author and rights advocate, have I ever witnessed such open acts of deliberate manipulations of the truth, excessive greed, conscious indifference, breach of trust, conflicts of interest and cowardice as I have in observing the conduct of Gene Upshaw and DeMaurice Smith and their cronies.
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Mr. Smith’s conduct - which we will call at this time, “legal crimes” – are of a great intensity. That is because he appears to have consciously misrepresented his intentions and the facts to the public, the press and the media and deliberately pulled on the heart strings of those Pre-1993 retired NFL players by promising effort and commitment at a level he never intended to perform.
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Certainly the results of the 2011 version of the Collective Bargaining Agreement, as it pertains to the Pre-1993 retired NFL players, was not within light years of the satisfactory conclusion DeMaurice Smith led the retirees, press, media and public to believe. In fact, it was a smoke screen of a disingenuous effort to placate society and discard the heroes of the game like an old shoe who no longer had a sole/soul to stand on. Since that dismal day, very few press or media or others have sought to inquire with any in-depth scrutiny, the true determination of the so-called efforts that DeMaurice Smith made for Pre-1993 retired NFL players (while allegedly negotiating for benefits on their behalf). Some reporters, oblivious to the reality of the true finding, actually praised the pathetic result.
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Without a doubt, Gene Upshaw was a disgrace as an advocate for pre-1993 retired NFL players. Anyone with half a brain and a conscience knows that. It is an inescapable truth. Jimmy Hoffa could have taken lessons from Upshaw (and his advisors) on how to legally divert millions of dollars into their own greedy hands to the detriment of those who put him in the trusted position as Executive Director. If you will recall, Dick Berthelsen (former interim Executive Director NFLPA and NFLPA General Counsel) said that “whatever Gene is getting paid, it’s not enough.” How much did you get paid to say that, Dick? Remember – at his death, Upshaw left his heirs an estate filled with millions of dollars in real property, luxury cars, extremely valuable personal property and, to our knowledge (at this time), legally diverted funds (from the union marketing company and the NFLPA) easily exceeding $15 million in deferred compensation (according to Washington Post reporter, Tom Jackman, the closer calculation is approximately $19.7 million!). Apparently, the person who was sitting as the Acting Executive Director at that time was… you guessed it: the infamous Dick Berthelsen.
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Although at this juncture, we could assume DeMaurice Smith has yet to legally divert the enormous wealth Upshaw accumulated so slickly, his conduct is – in the full scope of the events at hand – even more despicable and deplorable than Upshaw. However, let’s not forget: DeMaurice Smith has already made millions since starting his position as Executive Director of the NFLPA. Upshaw, despite his many times in promising to help them, made it clear to the pre-1993 retired players who he really worked for and who had the power to fire him (and it wasn’t retired players.). Many retired players believed that Gene Upshaw was an arrogant and untrustworthy individual. Why then is DeMaurice Smith’s conduct even more despicable and more deplorable than Upshaw (however, others may still say that is a debatable question)?
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Here’s why: DeMaurice Smith is a former United States Attorney.
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However, in a broader reality, DeMaurice Smith portrayed himself as much more than just an attorney. DeMaurice Smith emphasized that he was a former Assistant United States Attorney having served under the present Attorney General of the United States. Therefore, it can be assumed, Smith became the Executive Director due to his employment under Attorney General Holder and the sense of integrity and expected “shroud of trust” that position exudes.
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Therefore, let us unequivocally state, as it pertains to pre-1993 retired NFL players, DeMaurice Smith took the position as the Executive Director of the NFLPA under a cloak of hope and trust which we believe he has openly and secretively betrayed.
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That “shroud of trust” has been torn!
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There is nothing more despicable and deplorable than to betray a trust to those individuals whom you, Mr. Smith, are alleging you were empowered to protect. That betrayal becomes metastasized when it is inflicted upon many who are old and virtually defenseless. Do you get that, Mr. Smith?
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DeMaurice Smith’s alleged attempts at negotiating benefits on the behalf of pre-1993 retired NFL Players was more than a sad joke. It appears to have been a calculated deception to avoid turmoil during a time when an appearance of a unified front was a vital element of a plan to achieve the goals he was truly seeking. It appears that Smith’s agenda was to resolve the major issues regarding the active NFL players while simultaneously using the pre-1993 retired players’ concerns of inadequate pensions, inadequate health insurance and virtually unachievable disability benefits as sacrificial bargaining chips. America – in the legal profession, that is a crystal clear example of having the appearance of a conflict of interest. Ask Mr. Smith.
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If DeMaurice Smith had done as he preached – “ONE TEAM” – then all that has happened since he took office would be diametrically different. Presumably, Berthelsen would have been fired the first day Smith took office. Tom Condon’s (Upshaw’s attorney/agent) influence on all matters relating to the marketing company and the union would have been terminated. Furthermore, a new Disability Board would be established (minus the trained seals appointed by the union leadership) with qualified members (that had no ties to the members, their agents, the union leadership and/or the teams) being a prerequisite for service.
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Let us re-examine and re-visit the Tammany Hall-like mentality of Mr. Smith for new readers and the peanut gallery and refresh the memories of the press and media as well as current and retired NFL players:
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As previously reported: “Mr. Smith has swept under the rug a $28 million dollar judgment against his predecessor’s leadership for breaches of conduct and fiduciary duty, $21 million of which was punitive. Yet, Smith approved the settlement agreement on damages and has rewarded those duty-breachers instead of giving them pink slips.”
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A huge problem is the virtual sole-proprietorship manner that the NFLPA marketing company is operated. If you will further recall, the former Assistant Executive Director of the NFLPA, Doug Allen (Upshaw’s sidekick), who also assisted in directing the operation of the NFLPA marketing company, had his gross pay increased from $446,281 in 2006 to $1.9 million in 2007. Allen’s wife saw her pay double to $633,534. Allen’s boss Upshaw had his income increased to $6.7 million. Over the years, how much unjustified self-enriched compensation (due to legal manipulation) has been paid to union leadership and their cronies to the detriment of the union membership (especially those with inadequate pensions and/or physical disabilities)?
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In 1982, that small band of brothers that compelled the ending of the labor strike did so because they had a unified purpose with an impenetrable sense of integrity and resolve. At that time, the union leadership didn’t even have a semblance of a believable strategy or an appearance of being reliable to those they were representing. In fact, they appeared arrogant, unfocused, incompetent and self-serving. Their true place in the end-game negotiations of that year of embattlement became a HUGE inside joke. They became a bigger joke 5 years later during and after the demise of the 1987 strike.
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As in the Dallas Morning News sports editorial dated July 11, 1982 titled “Garvey Garbling Player Issues” the writer specifically and most accurately fore-warned the following: “The union is supposed to protect the players from management; who will protect the players from the union?”
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Now the joke is on all of those individuals who allowed those decertified union leaders of the failed 1987 strike to re-establish themselves in the early 90’s. Since that time, they have finagled their way in to a flow of cash and perks that have virtually remained unbalanced and unchecked for nearly twenty years.
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Presently, a lawsuit is pending in the federal court of Minnesota seeking that unified purpose and a unified goal that existed for that cadre of players in the pivotal altercation of 1982. The same is possible today. However, one must learn from past successes and past blunders.
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In 1944, Allied Supreme Commander Dwight “Ike” Eisenhower had to forge an alliance among many factions and many different cultures and temperaments to achieve victory against the Nazis. It wasn’t easy! Too many people were concerned more with who got credit if they won than for achieving a joint victory. It took a strong leader to voice a firm unified front with little or no compromise.
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Today’s interested parties have an opportunity to pull together behind the efforts of their attorneys and fellow brethren to stop the flow of union monies away from their constituents while seeking and achieving adequate pensions and proper health and disability benefits for ALL.
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Unfortunately, as in 1944, Pre-1993 retired players are immersed in a similar situation. There are too many people concerned on who is going to get us to the goal line rather than getting OVER the goal line. Now is the time to truly unite. Set aside your ego and cease the childish statements of whose lawyers have done this and how many players are backing our group which is more than your group. Enough already!!!
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As of the date of this editorial, I have not met any of the attorneys who are working on behalf of the retired players. However, I have met John V. Hogan several times. He is a brilliant attorney with a sense of integrity and compassion that has no equal. So I would ask him what he believes should be the most effective avenue of pursuit. At this time, I believe that if Michael Hausfeld has matters in place to achieve an aggressive stance of attack, then it is time for the formation of ONE TEAM. But that attack MUST achieve distancing pre-1993 retired players from any control or influence of the NFLPA. Remember: The verdict from the Adderley Lawsuit clearly established that the NFLPA leadership cannot be trusted.
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Additionally, I also believe that this matter is a battle that requires a passionate communicator in the Court of Public Opinion and NOT just in the Court of Law. Based on all of the above and more, that is an issue that must be addressed NOW!
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It is the belief of many that the reason DeMaurice Smith has been dodging questions and laying low, since the apparent resolution of the CBA, is because he knows what he has done, or shall I say, has NOT DONE and he knows that he does not have the guile or knowledge to bear close scrutiny in a public forum. Check him out, he yells when he wishes to show concern for those he has no concern for and leaves, without directly answering a question, when he has no evidence to support his position. At the Santa Clara Law Symposium, when it came to the latter, that is exactly what he did.
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When questioned by Mike Francesa (of The FAN in NYC), Smith made statements that were clearly misleading and flat out inaccurate. But Mike, at no fault of his own, trusted that Smith wouldn’t possibly state something on the air that was blatantly misleading.
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Smith knows that he could not get away with that garbage with someone who could regurgitate the facts and law every time he uttered unsubstantiated remarks. If Smith were to appear in a debate on the issues (where he could not walk away without people knowing he was hiding something) with all the misstatements he has made, it would be like shooting fish in a barrel with a twenty-gauge shotgun with unlimited shells.
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It is time to get behind each other as “ONE TEAM” and leave no soldier (player) behind, no matter what. Show DeMaurice Smith what the term “ONE TEAM” was meant to mean. Only a man who has fought the good fight while standing shoulder-to-shoulder with them could sense that camaraderie.
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I did.
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Only a man with a clear conscience would know that feeling. I guess that leaves DeMaurice Smith out.
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I rest my case.
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Spencer Kopf
Joe DeLamielleure-HOF
Elvin Bethea-HOF
Leroy Kelly-HOF
Lem Barney-HOF
Reggie McKenzie
Billy Joe DuPree
Fred Dean
Art Still
Isaac Curtis
Jim Breech
Jeff Yeates
Chuck Ramsey
Dermontti Dawson
Dave Pear
John V. Hogan
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Spencer Kopf has been a licensed attorney in the state of Texas for 34 years and offers expertise in the areas of corporate law, criminal law, sports and entertainment law, civil litigation, and contract negotiations.
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At the age of 16, Spencer attended the University of Pennsylvania as a superior high school student. He attended Oklahoma City University on an academic and debate scholarship where he earned a B.A. and his Juris Doctorate. In 1982, he was appointed to the bench as a Municipal Court Judge in Collin County, and three years later, elected by his judicial peers to serve as the president of the Texas Municipal Courts Association – the first Municipal Court Judge from North Texas to be so honored. At 35 years old, Spencer was the youngest judge to ever serve in that capacity. He was also unanimously nominated by the Supreme Court of Texas to serve on the Judicial Qualifications Review Commission.
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He has represented more than 100 professional athletes and at one time, represented one-third of the Dallas Cowboys roster as their attorney. He has also served as a guest legal sports analyst for the Dallas Morning News.
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Posted with the express consent of Irv Muchnick:
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NFL Players Boss DeMaurice Smith, Eric Holder’s Pal, Major Bad Guy in National Concussion Saga

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by Irvin Muchnick, 2011-08-12
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And now for a heartwarming anecdote from last weekend’s Pro Football Hall of Fame festivities that you probably didn’t know: The executive director of the National Football League Players Association, DeMaurice Smith, crashed the dinner in Canton, Ohio, which is traditionally reserved for Hall of Famers and new inductees, and started to speak. According to NFL legend Joe DeLamielleure, blogging for Dave Pear’s Independent Football Veterans, around a dozen guys walked out in the middle of Smith’s remarks.
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The NFLPA chief “had no idea that this audience consisted mostly of pre-1993 players,” said DeLamielleure, who estimated that the Hall of Famers in attendance included around 40 guys who receive monthly pension checks of exactly $176 from the $9-billion-a-year NFL. Confronted by the retirees, Smith said the “legacy fund” negotiated in the new collective bargaining agreement would increase them to between $1,000 and $1,500 a month.
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Posted with the express consent of Evan Weiner:

THE BUSINESS AND POLITICS OF SPORTS
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NFL and NFLPA’s labor woes may not be over yet

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Tuesday, 02 August 2011
BY EVAN WEINER
NEWJERSEYNEWSROOM.COM
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The National Football League owners have a labor agreement with the present members of the reconstituted National Football League Players Association but it appears that the league still has problems with the players association’s stance on not helping out former players with their medical needs years after their last game in the league. The league apparently informed Carl Eller’s legal team on Friday that the-then decertified National Football League Players Association decided not to take a $500 million offer over ten-years to get retirees life football medical benefits and an uptick in pensions as part of the recently completed collective bargaining agreement.
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Over the past several days I have been asked by many, many retired NFL players to express to the CURRENT Players, the RETIRED Players, the PRESS, the MEDIA, the FANS and the GOVERNMENT, on why the time will eventually come to rid the great game of professional football, the arguably legally corrupt entity of the NFLPA and its affiliated entities and leadership team. However, NOW IS THE TIME that they should be removed from having any interest or influence over any of the monies and marketing opportunities of retired NFL Players prior to 1993. At the very, very least!
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Based upon the most recent shenanigans employed by the Union leadership and its proven disingenuous and unreliable conduct, it is now evident and crystal clear that their legally manipulative and legally corruptible influence over a trusting group of oblivious and naïve constituents MUST COME TO AN ABRUPT AND DECISIVE END!
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With the Hall of Fame ceremonies coming up once again, we have more stories on the lives of retired players that the League and the Union can no longer hide. And who better to let everyone know about what really goes on behind the scenes in the lives of retired players than to hear it from Hall-of-Famer Joe DeLameilleure? Unfortunately, Joe De’s story is more the norm among retired players than current players like Drew Brees would ever care to acknowledge or challenge:
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Most people seem to think that anyone who played in the NFL is wealthy. In today’s world, that’s probably true – but not for the guys who played before 1993. As one of those pre-’93 guys, I feel passionate about improving pensions and benefits for all retired players.
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In the early 90′s, I had the NFLPA check out somebody that I was thinking of doing business with and they endorsed him as a financial advisor. Ultimately, he ended up going to prison for embezzlement. And my family lost almost $300,000. In the years that have passed – by the grace of God – we were able to pull ourselves out of a deep, dark financial home (but that’s another long, terrible story for another day). Like the rest of you, we deal with mortgages, car payments, medical bills and education loans monthly. So far, we’ve been fortunate not to be dealing with any physical disabilities that prevent us from being able to work. We’re fine living in our middle-class neighborhood and driving 5+ year-old vehicles that we’re still making payments on.
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We don’t need – or have:

• $19 million in deferred compensation
• $2+ million in a checking account
• 8 luxury vehicles
• 1 yacht
• 2+ expensive homes.

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Over the long weekend, attorneys for the Retired Players Class Action lawsuit against the NFL, its owners, the former NFLPA and active players filed another amended 64-page complaint with the US District Court in Minnesota.
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We’ve uploaded a copy of the complaint to Scribd for easy viewing and to make it downloadable. You can also click the Fullscreen button in the menu at the bottom of the viewing screen to enlarge it for easier navigation (just hit the ESC key to close):
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Filed Second Amended Retired Football Players Complaint
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The amended complaint has already had some coverage in the national media:
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 Retired players’ complaint takes aim at Drew Brees

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The recent quote made by DeMaurice Smith regarding NFL Legend, John Mackey, was – and is – consistent with his continuous disingenuous statements over the past two years. It is beyond disheartening. Based upon his conduct he should have remained silent and let someone else deliver the deserved tribute.
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On March 4, 2011, NFLPA Executive Director DeMaurice Smith said that he and his colleagues owe a fiduciary relationship to “protect the players who played, play and will play” professional football. Yet Mr. Smith has kept personnel who were part of the regime that a judge and jury found to have breached that “fiduciary duty.” Furthermore, Mr. Smith has sided with sports agents like Tom Condon. Condon once served as Gene Upshaw’s attorney; he also sat on the disability board for many years with countless conflicts of interest. Notwithstanding, Condon currently advises many of the current NFL players sitting in positions of leadership. The Roman poet Phaedrus warned: “Things are not always what they seem; the first appearance deceives many; the intelligence of a few perceives what has been carefully hidden.” Retired players, in the face of an oblivious majority, have perceived insincerity in Smith’s positions and statements. By siding with the likes of Condon and the duty-breachers, Smith has alienated himself and his leadership from the best interests of both current and retired NFL players. Smith backs the principle of rewarding the agents and their unproven clients. Meanwhile, Smith has effectively ignored the veterans and retired players who have proven their mettle on and off the field.
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Smith damns himself with his own words: In a speech at the University of Maryland on May 19, 2011, he stated, “To anybody who thinks for one minute that passion is something that is cheap and futile, I have two words for them: You suck! And for anybody who would ever think that it is the wrong thing to do to care so much that you’re willing to risk everything because it is right, reserve those two words for them.” However, Mr. Smith has revealed in past statements that Upshaw provided him a “blacklist” of former players who have spoken out against the union leadership’s conduct. In a March 4, 2010 letter, Smith wrote, “I am blessed because Gene [Upshaw] left me a detailed history of those who stood for what was right. He also left me a wealth of information detailing the efforts of those who fought and will fight against our players.” Even a child can see the hypocrisy of Smith’s rhetoric, which has now become pathetic.
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Players asserting displeasure have been “blackballed” by NFL Players Inc. — just ask retired players’ advocate and Hall of Famer Joe DeLamielleure. They are not included in endorsement opportunities, autograph sessions, etc. Players who participated in the strikes of 1968, 1974, 1982 and 1987 did not blindly follow the union. There were many critics then and now. In response to Smith’s blackballing, “those who fought” should quote Mr. Smith’s “two words” right back to his face.
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Mr. Smith has swept under the rug a $28 million judgment against his predecessors’ leadership for breaches of contract and fiduciary duty, $21 million of which was punitive. Yet Smith, who approved the settlement agreement on damages, has rewarded these duty-breachers instead of giving them pink slips. Last year, prominent attorney John V. Hogan wrote to Smith on behalf of several retired players requesting the resignation of Dick Berthelsen, (their key witness during this notorious lawsuit). Mr. Smith never responded. Berthelsen still works with Smith. Phaedrus is right, again!
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The past and current leadership has been sinfully overpaid for years. If those monies were reduced and/or disallowed, there would be plenty of money available to match the owners’ dollar-for-dollar offer for the “Legacy Fund.” The $2,000-per-month proposed increase for pre-1993 retired players is clearly insufficient, but Smith will undoubtedly act as if he has passed landmark legislation if such a low sum is settled for when a new CBA is reached.
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The NFLPA and the marketing company were not created to make their leadership wealthy. But in the probate case of the Gene Upshaw Estate, the Washington Post’s Tom Jackman discovered that Upshaw had siphoned out of the marketing company/NFLPA close to $15 million in deferred compensation (with the apparent approval of Dick Berthelsen). How much did Upshaw really get and where is it now? In an article by reporter Lauren Horwitch, it was revealed that three months after the $28 million judgment lawsuit was filed, Doug Allen’s gross pay increased from $446,281 in 2005-06 to $1.9 million in 2006-07. Allen’s wife saw her pay double to $633,534. Allen’s boss Upshaw had his income increased to $6.7 million. Ms. Horwitch’s investigation further revealed that the marketing company founded and headed by Allen and Upshaw (and now Mr. Smith) is owned in part by the NFLPA. In part?! It is supposed to be owned entirely by the union membership with zero individual ownership.
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A conflict of interest is staring everyone in the face. Where do these leaders come off owning anything if they were – and are – acting on behalf of the players? The books of the marketing company need to be opened now! Even Drew Brees and agent Tom Condon should know that. Mssrs. Brees and Condon: Would you allow money generated for a charitable organization to be used to increase the wealth of those operating the charity?
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Retired players were hopeful when Smith took the job of NFLPA Executive Director. They hoped that a former Assistant United States Attorney (who promised a due diligence of the union) would see the obvious and not become part of the obvious. These hopes have been dashed. After completing their due diligence and realizing how their intelligence has been continuously insulted, current and retired players, the media and the public will find themselves standing together. As Billy Joe DuPree says in his book The Unbroken Line: “All members should join together equal in standing, equal in vision with one purpose and one voice to achieve one goal. We must be an unbroken line.”
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The lawsuit filed by Carl Eller et al was a necessary first step to achieve the basic needs of retired players which historically and continuously have been and are being ignored by a consciously indifferent union (now trade organization) leadership. Smith and his cronies know it. What happened to the “ONE TEAM” game plan Mr. Smith? This suit, if successful, could significantly help retired players in need. However, as it relates to the need of cleaning up the structure of a one dimensional leadership whose main goal is their own personal wealth it is merely a band-aid, when what is needed is reconstructive surgery. Meanwhile, the lawyers will get richer and the hoodwinked players will be left behind. Even if a new CBA is achieved the carnage and legal corruption will remain unless challenged. Why turn a deaf ear and blind eye to all these acts of conscious indifference, atrocious conduct, financial enrichment and disingenuous rhetoric?
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There is a noisome odor of distrust and greed coming from this cabal of “leaders,” as there was in 1982 and 1987, but Mr. Smith refuses to pull the clothespin off his nose. There is indeed a fiduciary duty, Mr. Smith, to “protect the players who played, play and will play” professional football. If this is just more cynical claptrap, we have “two words” to send your way.
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Joe DeLamielleure-HOF
Elvin Bethea-HOF
Leroy Kelly-HOF
Lem Barney-HOF
Reggie McKenzie
Billy Joe DuPree
Fred Dean
Art Still
Isaac Curtis
Jim Breech
Jeff Yeates
Chuck Ramsey
Dermontti Dawson
Dave Pear SuperBowl XV
John V. Hogan
Spencer Kopf
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Spencer Kopf is a criminal defense attorney practicing in Dallas TX and co-author of The Unbroken Line with Billy Joe Dupree.
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Posted with the express consent of Evan Weiner:

THE BUSINESS AND POLITICS OF SPORTS
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Former New York Jets great Marty Lyons says retired players need health benefits now
Thursday, 19 May 2011
BY EVAN WEINER
NEWJERSEYNEWSROOM.COM
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THE BUSINESS AND POLITICS OF SPORTS
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NEW YORK. N.Y. — In October 1987, New York Jets defensive lineman Marty Lyons decided to cross a picket line and play football because he didn’t like the way National Football League Players Association Executive Director Gene Upshaw was conducting the association’s business. The NFLPA went on strike looking for a liberalized form of free agency and more money. The NFLPA didn’t bother asking for after-career lifetime health benefits.
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Lyons has never looked back at his decision to cross the picket line and in hindsight thinks the 1987 four-week strike was a waste of time.
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“I don’t worry about it, I got more important things to do than worry about a labor dispute, worry about a lockout” said Lyons on Tuesday at the announcement that he was elected into the College Football Hall of Fame. “I got four kids, I try to be the best father, best husband that I can to them. Whatever happens in this dispute, they will settle it.
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Posted with the express consent of Matt Chaney:

Critics, Evidence Debunk ‘Concussion Testing’ in Football

By Matt Chaney
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April 25, 2011
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This post is an excerpt preview for a pending analysis on Chaney’s Blog, ‘Brain Trauma Stalks Football Players, Dictates Impact Game Reform,’ which will include independent experts’ recommendations for constructive steps imperative to the sport’s survival at public schools and colleges.
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Today’s official effort against gridiron brain trauma recycles the old “safer football” concept.
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In the NFL and trickling down to colleges, schools and youth leagues, “behavior modification” of players involves teaching “proper contact,” or “form tackling” as known in 1976. Coaches tell football players to hit without using heads, as if hogs might be taught to fly.
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Current purveyors of the theory, led by Chris Nowinski and Dr. Robert Cantu of the Sports Legacy Institute, and NFL commissioner Roger Goodell—who funds the Nowinski nonprofit with $1 million—propose action reminiscent of the plug-in electric football game, with plastic players bumping across the vibrating surface, hooking at shoulders in ring dances.
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And that’s only the beginning of hocus-pocus remedy for rampant head injury in American football.
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While mysteries are daunting for the problem, like positive diagnosis of concussion, mere clinical intuition guides the varied protocols of diagnosis and judgment for when players are fit to compete again. No random clinical trial of legitimacy has been attempted.
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The growing national setup worries Dr. Lester Mayers, concussion researcher of Pace University athletics, who joins experts like Dr. Bennet Omalu in sounding alarm over football’s touting concussion testing as valid, which is parroted by most media..
These critics warn football conducts potentially dangerous “concussion management” based on incomplete research for assessing symptoms, and many brain-injured players are prematurely returning to contact, all ages, typically within days.
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Indeed, radiology techniques are demonstrating holes in concussion testing, notably of studies at Purdue University, where functional MRI reveals that sub-concussive brain injury in prep players is missed by standard external assessments through computer.
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At Purdue, teen football athletes displaying brain injury through diffusion tensor imaging, an fMRI technique, are registering normal state in intuitive-grounded baseline tests and monitoring systems of neuropsychology.
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Last month in Washington, lawmakers heard a military concussion test fails badly, the Website www.nextgov.com reported. The test, Automated Neuropsychological Assessment Metrics, “is insensitive and nonspecific,” said Lt. Gen. Eric Schoomaker, surgeon general of the U.S. Army. “It misses about a quarter to a third of (soldiers) who are concussed and includes about 50 percent of (those) not concussed.”
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Insurance companies inform military officials that the assessments lack scientific vetting for validity and reliability, and carriers have alerted schools in Washington state that concussion testing could raise liability stakes for personnel who administer the tests in error, The New York Times reported.
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Meanwhile, concussion testing takes a thrashing in independent peer review.
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Current Sports Medicine Reports recently published another scathing analysis by Christopher Randolph in Chicago, professor of neurology at Loyola University, who details glaring faults in “baseline” testing of hot-selling ImPACT software employed by youth leagues, schools, colleges and pro sports. “The use of baseline neuropsychological testing in the management of sport-related concussion has gained widespread acceptance, largely in the absence of any evidence suggesting that it modifies risk for athletes,” Randolph observes.
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Since 2005, Randolph is among reviewers for several journals who find unacceptable rates of false-positive and false-negative results for ImPACT, among popular brain assessments developed and marketed by academics and doctors associated with the NFL and benefiting from the league’s pervasive publicity machine.
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“It is a major conflict of interest, scientifically irresponsible,” Randolph told ESPN The Magazine in 2007. “We are trying to get to what the real risks are of sports-related concussion, and you have to wonder why they (NFL experts) are promoting testing. Do they have an agenda to sell more ImPACTS?”
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The marketing succeeds, with sales to a thousand schools and hundreds of colleges thus far, and media only increase exposure of ImPACT in the furor over concussions, especially in football.
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An overwhelming majority of journalists, politicians, educators and football experts ignore the accumulating evidence rebuking concussion testing as invalid and unreliable, choosing instead to endorse the quick-fix notion and push it for mandate by law.
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“With the tools to properly manage concussions and implement safety precautions, parents, coaches and students can change the culture of school sports for the better and keep our students safe on the field and thriving in the classroom,” declared U.S. Rep. George Miller, of California.
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Such rhetoric confounds Mayers. “The response is infantile,” he said. “The ImPACT people have taken over the idea that somehow they can tell you when it’s OK that the athlete goes back.”
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The engineers and marketers of ImPACT, neuropsychologists Mark R. Lovell and Michael W. Collins in Pittsburgh, did not respond to questions about their product recently forwarded them. Lovell is the former NFL director of NP testing, and his consulting for the Steelers franchise spurred development of ImPACT software. Collins is on the Steelers medical staff and consults for other teams. A third partner in the product is Dr. Joseph Maroon, Steelers neurosurgeon who serves on the NFL committee overseeing concussion management.
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“The topic of sport-related concussion has been highly visible in the media over the last few years… and the issue of concussion management in the NFL even has reached the point of Congressional hearings,” Randolph wrote in the January-February edition of Reports. “What consistently is missing from these debates, however, is a rational, empirically-based discussion of the true risks associated with sport-related concussion, the potential for any given management strategy to modify these risks, and the actual evidence that such risk modification can be achieved. In addition, there has been little attention paid to the clinical validity or psychometric characteristics of (computer) baseline tests, despite widespread use of these measures.”
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Randolph, characterizing utility of the tool as “clinical guesswork in most cases,” concluded: “It is clear that, to date, the baseline tests used in sport-related concussion management programs lack sufficient clinical validity and reliability for their intended purpose.”
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Mayers cites lack of specificity and sensitivity for NP tests on the market. “Basically, they’re all unsuitable for clinical work with concussions,” said Mayers, director of sports medicine for Pace University in New York. “They don’t have the reliability, the accuracy or the validity, the three technical terms for the use of neuro-psych work. They’ll miss 20 to 25 percent of athletes who have concussions, and this has been used by the NFL and the National Hockey League, and the NCAA is considering mandating this.”
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Word is that the NCAA will soon require concussion testing of all member schools, with NFL officials and experts behind the push, and Mayers says these factors helped his department adopt computer assessment, posing a dilemma for him.
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Mayers authored a 2008 review published by Archives of Neurology, concluding a concussed athlete should be sidelined at least four to six weeks, but he notes football’s current “standard of practice” for brain trauma includes NP testing and fast return to play, so he conformed at Pace. “I really believe four to six weeks (recovery time) is appropriate, but it’s not the standard of community,” he said. “So I could be sued by an athlete I held out for four weeks, if he chose to do so.”
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A neurology journal has approved publication of a new Mayers review, which denounces computerized concussion assessment, he said.
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More medical voices doubt concussion testing. Dr. Randall Benson, imaging expert and neurologist at Wayne State University, warned Congress last year “that neuropsychology is not an exact science,” a fact echoed by Dr. Jeffrey Kutcher, of Michigan Neurosport, testifying for the same committee. “Relying on protocols is, in my opinion, potentially dangerous, clinical protocols, as they assume that concussions are similar enough to each other to fit a predetermined paradigm,” said Kutcher, who serves on committees for the NFL and American Academy of Neurology.
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Dr. Omalu, practitioner of science and law, says concussion testing amounts to “fraud” in the context of accurate, reliable diagnosis, and it can be harmful during initial days following trauma—when most injured athletes, suffering chemical disruption of brain cells, are subjected to mental strain of the programs. The online ImPACT test lasts 20 to 30 minutes and presents memory challenges involving colors, texts and forms.
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“ImPACT testing is not a diagnosis tool,” said Omalu, chief medical examiner for San Joaquin County, California, and director of autopsy for the independent Brain Injury Research Institute. “It is a forensic follow-up to monitoring a patient, to evaluate the amount of damage. Using (computerized) testing in the acute phase of injury can actually make the symptoms worse.”
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Doctors outside sports medicine would agree, Omalu added, and apparently many who work in athletics, given media reports of concussed youths prescribed isolation with total layoffs ranging from a month to two years.
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Dustin Fink, a certified athletic trainer in Illinois, seconds Omalu. Fink discourages computerized testing until a concussed athlete is free of symptoms such as headaches, memory loss and unsteadiness. “I use the NP tests as a baseline to educate the athlete about what some signs and symptoms could become present and as a true baseline when they think that are ready to return,” said Fink, an injury authority whose popular Website, theconcussionblog.com, serves as information clearinghouse.
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Fink believes “money grab” drives overuse of concussion testing, and he generally supports Omalu’s publicized stance that longer rest is needed for concussed athletes. At Shelbyville High School, where Fink works, “we are seeing recovery times on the average of 24 days,” he said. “More and more evidence suggests that a 28 to 42-day (layoff) period may be necessary.”
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In previous reports on Chaney’s Blog, Omalu has proposed concussed juvenile football players be sidelined at least three months. Omalu says NFL players should rest one to three months with diagnosed concussion, depending on severity and technology for treatment, which he advocates to be functional MRI that isn’t approved by the league.
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Only sports in civilian life will quickly return the brain-injured to activity, and a practice of general medicine calls for strict isolation lasting days and longer, involving no stress mentally and physically.
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In the military, researcher Craig Bryan, a psychologist and professor at the University of Texas Health Science Center, recently concluded that three days of isolation, removed from sunlight, was optimum for beginning treatment of concussed soldiers.
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A neural consultant for the New York Jets once discouraged use of NP testing on a football player until symptoms abated, based on a large NCAA study he’d co-authored, and quickly found himself out of the league.
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During a 2004 conference in New York, neuropsychologist Bill Barr remarked that “the research indicated that the best time to do neuropsychological tests on players with concussions was after their symptoms had completely cleared, usually five to 10 days after the trauma,” Peter Keating reported for ESPN in 2006.
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Jets physician Dr. Elliot Pellman confronted Barr after the conference, and the neuropsychologist ended up losing both his job with the team and his place in league research. “NFL teams, Barr understood, preferred testing players just one to two days after a concussion, allowing for quicker diagnoses and returns to play,” Keating reported.
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Barr, of the Comprehensive Epilepsy Center at NYU, did not respond to a recent interview request.
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