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USA TODAY
Brent Schrotenboer, @Schrotenboer, USA TODAY Sports

The injured brain of Merril Hoge keeps giving him problems.

Headaches. Pain from bright lights. Concentration issues.

"I still can't read worth a lick to this day," Hoge told USA TODAY Sports.

His troubles stem from head injuries he suffered in the NFL -- health risks he said he should have been warned about as an NFL player.

So why didn't Hoge join thousands of other former players who are suing the league with similar complaints?

The choice was complicated -- just like it was for numerous ex-NFL players who considered joining lawsuits against the NFL because of long-term health concerns. Hoge is one of several former players who work for ESPN, which has a $15 billion contract with the league to televise NFL games. By suing the league, they would be suing their employer's marquee business partner, creating a possible conflict.

In the proud but small world of professional football, other factors could make the decision even more uncomfortable.

Brian Baldinger, who played on the offensive line for three teams from 1982 to 1993, sued the league even though he promotes it as an analyst for the league's TV network. Marcellus Wiley, a defensive end for four teams from 1997 to 2006, joined a separate lawsuit against the NFL despite two potentially squeamish situations. Like Hoge, Wiley works for ESPN. In the suit, Wiley also blames his troubles on a former San Diego Chargers team doctor, David Chao, who happens to be his friend.

The lawsuits have the potential to bring sweeping consequences, including a proposed class action settlement that could lead to more than $600 million in benefits for nearly 20,000 former players with symptoms related to head injuries. But several big-name former players didn't want to join as plaintiffs because of the risk of being perceived as mentally disabled or greedy, said Craig Mitnick, an attorney who represents about 1,400 former players in the concussion litigation.

Mitnick declined to name them but said they were icons in the sport.

"From the very beginning, the guys who got involved and wouldn't get involved and wouldn't get involved for what reason, it was fascinating," Mitnick said.

TO JOIN OR NOT

The inner conflict was nearly palpable for some former players ever since the concussion litigation started in 2011.

Dan Marino, the Hall of Fame quarterback and former TV analyst, joined the case May30, saying he suffered traumatic head injuries while playing in the NFL that have continued to develop over time. But a few days later, after widespread reporting about his involvement, Marino withdrew his name from the suit, saying he didn't realize he was joining the litigation as a plaintiff. He said he only wanted to ensure medical coverage for himself in case he needed it.

"I am sympathetic to other players who are seeking relief who may have suffered head injuries," he said in a statement then. "I also disclaim any references in the form complaint of current head injuries."

Fortunately for Marino, he didn't need to join the concussion litigation as a plaintiff in order to be eligible for the proposed settlement benefits, which include medical exams for retirees and compensation for those who suffered cognitive impairment. He can still take part in those benefits because the proposed settlement would cover a class of about 20,000 retirees, not just the roughly 5,000 plaintiffs who provided their names and problems to strengthen the case. A hearing on the fairness of the settlement is scheduled for Nov. 19.

But a class-wide outcome was never guaranteed. Retirees who didn't join these cases risked not getting to share in the benefits won by those who did.

Joining the suits as plaintiffs meant attaching your name to the cause, admitting your problems publicly and working with attorneys. Their attorneys' fees and costs were generally covered by the law firms, and if they won or settled the case they stood to recover damages or benefits.

Other issues often far outweighed the financial calculations. Here are how three ex-players handled it.

HOGE: IT'S A CROCK

Hoge, 49, might be the best living embodiment of the concussion controversy. His one-time roommate with the Pittsburgh Steelers was Mike Webster, whose brain injuries, death and autopsy led to a breakthrough in awareness about the dangers involved.

Long before the current wave of litigation, Hoge practically wrote the book on how to win a concussion lawsuit in the NFL. In 1996, the former running back sued the Chicago Bears team doctor, arguing he was kept in the dark about the risks involved with his head injuries. A jury awarded him $1.55 million, and the case later ended with an undisclosed settlement.

Yet when Hoge was approached about joining a similar complaint against the league, he declined. Was it because he thought it might risk his job with ESPN as an NFL analyst?

Hoge says no. For him, he said, it was about "truth and evidence." He said he didn't think the dangers were hidden from players as part of a leaguewide conspiracy. He said the Steelers were proactive in developing cognitive testing to assess risks, unlike his experience with the Bears doctor. By Hoge's assessment, how could it be an NFL conspiracy if at least one team -- the Steelers -- was doing the right thing?

"It was no conspiracy," he said. "That I know is a crock of ...."

His position is nuanced. Despite being critical of the plaintiffs and their argument, Hoge said he was happy about the proposed settlement and planned to partake in the class benefits won by the plaintiffs.

"I want to put myself in that position if I'm entitled to something, sure," he said. "I think that's all Dan (Marino) was doing. ... You're under that umbrella, so you might as well. We're all a part of it now. If your name is in there or not (as a plaintiff), you're a part of it."

WILEY: HEAVY HEART

Wiley also said he didn't join the concussion litigation because it didn't fit his personal experience. But he did join another class action lawsuit filed against the league this year -- a complaint that accused the NFL of hiring substandard medical personnel and illegally distributing painkilling drugs without properly warning players about the long-term risks.

That suit also alleges the Chargers team doctor misdiagnosed Wiley's abdominal injury, causing him lasting pain and a shortened career.

Wiley, 39, confirmed to USA TODAY Sports the doctor was Chao, who has been accused of malpractice by a bevy of non-football patients and recently was placed on probation by the California medical board. Chao stepped down as team doctor last year and has denied the allegations.

"In full disclosure, (Chao) is a friend and to this day is still a friend," Wiley told USA TODAY Sports. "I attacked the system that allowed my friend, Dr. Chao, to still be a team doctor, never fired, despite all the claims, the issues and record, the public record, of all of his issues. That still is a guy who was allowed to participate and work on 53 guys in the NFL. ... I've taken personal responsibility, because I was able to play the game of football beyond that misdiagnosis, but I do have a heavy heart and I do have a deep regret that I was in the position I was in under his care."

Wiley said his goal with this lawsuit was to reform a system he said encouraged short-term pain relief at the expense of long-term risks.

But by doing so, Wiley, an ESPN broadcaster, is suing one of his employer's most important business partners.

"It doesn't make anything awkward with me," Wiley said. "I've never been muzzled on any story, regardless of who the subject was."

BALDINGER: PAYCHECK ISSUES

Like the concussion litigation, the painkiller lawsuit has critics. One of them is Baldinger, who works as a host and analyst with NFL Network.

"I believe we knew what (medications) we were taking and spirit we were taking them in," Baldinger told USA TODAY Sports. "I think we all knew what we were doing regardless of whether the doctors signed off on it or not."

Yet Baldinger, 55, felt differently about the concussion litigation and joined as a plaintiff in 2012.

How can he justify suing the league when he promotes the game for the league's TV network?

"I am not looking to be compensated," Baldinger told USA TODAY Sports. "But when I first signed on I thought if it led to more discussion, more research, more safety, that could make the game better, then I was all for it, regardless of how anybody wanted to look at my name and working for the league."

 

August 6, 2014

 

 
 

 

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