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IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA FRANK V. SANDERS, JOHN R. LEAKE, and ERIC HIPPLE Plaintiffs, v. NATIONAL FOOTBALL LEAGUE; and NFL PROPERTIES, LLC, Defendants. COMPLAINT FOR DAMAGES The Plaintiffs hereby file this Complaint for Damages and Jury Trial Demand against the above-named Defendants, respectfully showing this Court as follows: INTRODUCTION 1. This action is brought against Defendants the National Football League and NFL Properties, LLC (collectively, Defendants or NFL) to seek damages related to Defendants negligence, fraud, and other misconduct regarding the serious health effects of repeated head impacts, and the injuries suffered by the Plaintiff players as a result of playing professional football in the NFL. Plaintiffs injuries, and the significant ongoing health consequences resulting from them, include neurodegenerative disorders and diseases.
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CIVIL ACTION FILE NO. ______________ JURY TRIAL DEMANDED

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2. Until very recently, Defendants actively sought to suppress and obscure the truth about the long-term effects of concussions and head trauma suffered while practicing and playing football for the National Football League. Defendants efforts to obscure the truth about the cause, treatment, and consequences of football-related concussions and head trauma caused players who suffered concussions or head trauma to be misdiagnosed, to not receive proper treatment, and to continue practicing and playing with these severe injuries, and to be fraudulently directed back on the field in spite of the severe detrimental consequences of the same. 3. As a result of Defendants misconduct as described herein, Plaintiffs suffered substantial injury, including economic loss. Plaintiffs hereby allege as follows: PARTIES 4. Plaintiff Frank Sanders resides in the State of Arizona, in Phoenix, Maricopa County. 5. Plaintiff John Leake resides in the State of Texas, in Plano, Collin County.

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6. Plaintiff Eric Hipple resides in the State of Michigan, in Fenton, Livingstone County. 7. Defendant NFL is a nonprofit, non-incorporated entity organized and existing under the laws of the State of New York, with its principal place of business at 280 Park Ave., 15th Fl., New York, NY 10017. The NFL is not, and has not been, the employer of Plaintiffs, who were employed by independent team clubs during their career in professional football. The NFL regularly conducts business in, and derives substantial revenues from, Georgia. 8. Defendant NFL Properties, LLC, as the successor-in-interest to National Football League Properties, Inc. (NFL Properties) is a limited liability company organized under the laws of the State of Delaware with its principal place of business in the State of New York. NFL Properties is engaged in, among other activities, approving, licensing and promoting equipment by all the NFL teams. The NFL regularly conducts business in, and derives substantial revenues from, Georgia.

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9. The NFL caused or contributed to the injuries alleged herein through its voluntary undertaking, including its acts and omissions in misrepresenting the true risks of repeated traumatic brain and head impacts, and failing to take appropriate steps to prevent and mitigate repeated traumatic brain and head impacts and the latent neurodegenerative disorders and diseases caused by such impacts. JURISDICTION AND VENUE 10. This Court has jurisdiction over this action pursuant to 28 U.S.C. 1332(a), as there is diversity of citizenship and the amount in controversy exceeds $75,000.00, exclusive of interests and costs. 11. This Court has personal jurisdiction over Defendants as they regularly conduct business in Georgia, have a franchise that plays in Georgia, and derive substantial revenue from their contacts with Georgia. 12. Venue properly lies in this district pursuant to 28 U.S.C. 1391(a)(2) and 1391(b)(2) as a substantial part of the events and/or omissions giving rise to the claims emanated from activities within this jurisdiction and the Defendants conduct substantial business in this jurisdiction.

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NATURE OF THE ACTION 13. The NFL acts as a trade association for thirty-two franchise owners, and consists of two conferences, the AFC and the NFC comprised of thirty-two teams. 14. The NFL is a separate entity from each of its teams. American Needle, Inc. v. NFL, et al., 130 S. Ct. 2201 (U.S. 2010). 15. Each team functions as a separate business but operates under shared revenue generated through broadcasting, merchandising and licensing. 16. The NFL governs and promotes the game of American football, sets and enforces rules and league policies, and regulates team ownership. It generates revenue mostly through marketing sponsorships, licensing merchandise and by selling national broadcasting rights to the games. The teams share a percentage of the NFLs overall revenue. 17. Owing in part to its immense financial power and status, the NFL has assumed enormous influence over the research and education of football injuries to physicians, trainers, coaches, and amateur football players at all levels of the game.

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18. The NFLs website www.nflhealthandsafety.com states that USA Football, the sports national governing body, is the Official Youth Football Development Partner of the NFL and the NFL Players Association. The independent non-profit organization leads the development of youth, high school and international amateur football. In addition, USA Football operates programs and builds resources to address key health and safety issues in partnership with leading medical organizations. The organization was endowed by the NFL and NFLPA through the NFL Youth Football Fund in 2002. USA Football stands among the leaders in youth sports concussion education, particularly for football. THE NFL AND THE CBA 19. Until March, 2011, all NFL players were members of a union called the National Football League Players Association (NFLPA). The NFLPA negotiates the general minimum contract for all players in the NFL with the National Football League Management Council (NFLMC). This contract is called the Collective Bargaining Agreement (CBA) and it is the central document that governs the negotiation of individual player contracts for all of the NFLs players. However, the NFL retired players have not been the subject of, or a party to, the CBA.

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20. Plaintiffs are retirees and not signatories to the CBA, nor are they the subject of or a party to an agreement between the NFL and the NFLPA. Plaintiffs claims are not preempted by federal labor law since the CBA does not apply to their claims. THE NATURE OF HEAD INJURIES SUFFERED BY NFL PLAYERS 21. The American Association of Neurological Surgeons defines a concussion as a clinical syndrome characterized by an immediate and transient alteration in brain function, including an alteration of mental status and level of consciousness, resulting from mechanical force or trauma. The injury generally occurs when the head either accelerates rapidly and then is stopped, or is spun suddenly. The results frequently include confusion, blurred vision, memory loss, nausea and, sometimes, unconsciousness. 22. Others have used more illustrative ways of describing a concussion. Picture your brain as a hunk of Jell-O floating in a bowl your cranium. When you get hit in the head, the bowl suddenly shifts and the Jell-O bangs against the side, and then rebounds and then bangs against the other side. At the same time, the Jell-O is twisted and wrenched. This smashing, jiggling and torquing of the brain causes
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strains and tears, snapping blood vessels, killing brain cells (neurons) and shearing the delicate connections (axons) that link this incredibly complex cerebral telephone system. 23. However you describe it, the effects of concussions are serious. A player does not have to be knocked unconscious in order to have suffered a concussion. Getting your bell rung, suffering a stinger, and seeing stars are all signs of a concussion. And there is no such thing as a mild concussion. A concussion is a brain injury that can result in permanent brain damage, especially when a person suffers more than one concussion, which is often the case because a person that suffers one concussion is more likely to suffer additional concussions. Each subsequent concussion causes more severe injuries. In fact, if a person suffers one concussion and a second concussion occurs before the brain has healed from the first, the consequences can be fatal or materially hazardous. This is known as second-impact syndrome. Enough damage to the brain and a person can develop chronic traumatic encephalopathy (CTE), which is a progressive degenerative disease of the brain. The effects of this disease include depression, substantial memory loss, and the early onset of dementia.

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24. In addition to repetitive concussive trauma, players also deal with repetitive subconcussive trauma. Its not just the handful of big hits that matter. Its lots of little hits, too. A NFL player could well have been hit in the head eighteen thousand times: thats thousands of jarring blows that shake the brain from front to back and side to side, stretching and weakening and tearing the connections among nerve cells, and making the brain increasingly vulnerable to long-term damage. During these hits, the brain is slammed into the bony protrusions of the skull. The cumulative effect of these hits is often permanent brain damage. 25. Medical evidence has shown that symptoms of a concussion can reappear hours or days after the injury, indicating that the injured party had not healed from the injury. 26. According to neurologists, once a person suffers a concussion, he is as much as four times more likely to sustain a second concussion. Additionally, after several concussions, a lesser impact may cause the injury, and the injured player requires more time to recover.

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27. Clinical and neuropathological studies by some of the nations foremost experts show that multiple concussions sustained during an NFL players career can cause severe cognitive problems such as depression and early onset dementia. 28. CTE is a progressive degenerative disease of the brain found in athletes (and others) with a history of repetitive concussions. Conclusive studies have shown this condition to be prevalent in retired professional football players who have a history of head injury. 29. Head trauma, which includes multiple concussions, triggers progressive degeneration of the brain tissue. These changes in the brain can begin months, years, or even decades after the last concussion or end of active athletic involvement. The brain degeneration is associated with memory loss, confusion, impaired judgment, paranoia, impulse control problems, aggression, depression, and eventually, progressive dementia. 30. To date, neuroanatomists have performed autopsies on 13 former NFL players who died after exhibiting signs of degenerative brain disease. Twelve of these players were found to have suffered from CTE.

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31. Until very recently, CTE could only be diagnosed by autopsy. BRIEF BACKGROUND OF CONCUSSION RESEARCH 32. From as early as the 1920s, medical research in the worlds most preeminent medical journals discussed the serious problem of concussions. 33. In October 1928, Dr. Harrison Martland published an article in The Journal of the American Medical Association, in which he coined the term punch drunk. His findings were based on autopsies of more than 300 people who had died of head injuries. He issued an unequivocal warning regarding concussions: There is a very definite brain injury due to single or repeated blows on the head or jaw which cause multiple concussion hemorrhages. . . . The condition can no longer be ignored by the medical profession or the public. 34. In 1937, at the 17th Annual Meeting of the American Football Coaches Association, the Association has been quoted as concluding that, [d]uring the past 7 years the practice has been too prevalent of allowing players to continue playing after a concussion.

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35. In October 1952, Dr. Augustus Thorndike published an article in the New England Journal of Medicine. The title of the article is Serious Recurrent Injuries of Athletes, and it recommended a three strike rule for concussions: three concussions and a player should retire from football. A number of other articles around this time period discussed the serious concerns associated with head injuries in boxing, including discussion of dementia pugilistica. 36. In November 1975, Dr. Dorothy Gronwall and Dr. Philip Wrightson published an article in The Lancet. The title of the article is Cumulative Effect of Concussion, and, based on a study of young adults following second concussions, the authors conclude that [t]he effects of concussion seem to be cumulative, and this has important implications for sports where concussion injury is common. In recognition of the serious problem of concussions, the National Collegiate Athletic Association (NCAA) and National High School Football Federations (NHSFF) adopted rules in the late 1970s requiring that all helmets comply with certain national standards. The NCAA and NHSFF also prohibited initial contact of the head in blocking and tackling.

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37. In 1997, the American Academy of Neurology published a special article in Neurology. The title of the article is Practice Parameter: The Management of Concussion in Sports. In the article, the American Academy of Neurology concluded that [r]epeated concussions can cause cumulative brain injury in an individual injured over months or years. This conclusion was not based on any new research, but instead was based on a review of seventy-one articles published from 1966 to 1996. NFLS DUTY TO PLAYERS AND THE PUBLIC 38. The NFL undertook a duty to study concussions on behalf of NFL players. 39. The NFL owed the following duties to players, including Plaintiffs: (a) It owed a duty of reasonable care to protect Plaintiffs on the playing field; (b) It owed a duty of reasonable care to Plaintiffs to educate them and other players in the NFL about CTE and/or concussion injury; (c) It owed a duty of reasonable care to Plaintiffs to educate trainers, physicians, and coaches about CTE and/or concussion injury;

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(d)

It owed a duty of reasonable care to Plaintiffs to enact policies and guidelines and provide other guidance that would protect players, rather than cause them injury or harm;

(e)

It owed a duty of reasonable care to Plaintiffs to have in place strict return-to-play guidelines to prevent CTE and/or concussion injury;

(f)

It owed a duty of reasonable care to Plaintiffs to promote a whistleblower system where teammates would bring to the attention of a trainer, physician, or coach that another player had sustained concussion injury;

(g)

It owed a duty of reasonable care to Plaintiffs to design rules and penalties for players who use their head or upper body to hit or tackle;

(h)

It owed a duty of reasonable care to Plaintiffs to design rules to eliminate the risk of concussion during games and/or practices and implement a program where independent medical evaluations were conducted before players were released to play;

(i)

It owed a duty of reasonable care to Plaintiffs to promote research into a cure for CTE and the effects of concussion injury over a period of time; and

(j)

It owed a duty of reasonable care to State governments, local sports organizations, all American Rules Football leagues and players, and

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the public at large to protect against the long-term effects of CTE and/or concussion injury. 40. The NFL knew as early as the 1920s of the potential harmful effects on players who suffer concussions; however, until June of 2010, they concealed these facts from coaches, trainers, players, and the public. 41. Plaintiffs did not know, nor did they have reason to know, the long-term effects of concussions and relied on the Defendants to provide reasonable warnings, rules, regulations and studies. NFLS KNOWLEDGE OF THE RISK OF CONCUSSIONS 42. For decades, Defendants have known that multiple blows to the head can lead to long-term brain injury, including memory loss, dementia, depression, and CTE and its related symptoms. 43. This action arises from Defendants failure to warn and protect NFL players, such as Plaintiffs, against long-term brain injury risks associated with footballrelated concussions.

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44. While Defendants undertook to investigate, research, and promulgate multiple safety rules, Defendants were negligent and fraudulent in failing to act reasonably and exercise their duty to enact reasonable league-wide guidelines and mandatory rules regulating post-concussion medical treatment and return-to-play standards for players who had suffered a concussion and/or multiple concussions. 45. Defendants affirmatively assumed a duty to use reasonable care in the study of post-concussion syndrome, and to use reasonable care in the publication of data from the MTBI Committees work. 46. Rather than exercising reasonable care in these duties, Defendants immediately engaged in a long-running course of negligent conduct. 47. By failing to exercise their duty to enact reasonable and prudent rules to better protect players against the risks associated with repeated brain trauma, Defendants failure to exercise their independent duty has led to the deaths of some, and brain injuries of many other former players, including Plaintiffs.

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48. Defendants ongoing undertaking to protect the health and safety of the players is evidenced by the NFLs enactment of at least the following nonexhaustive list of rules pertaining to players health and safety: (a) In 1956, the NFL enacted a rule that prohibited the grabbing of any players facemask, other than the ball carrier; (b) In 1962, the NFL enacted a rule that prohibited players from grabbing any players facemask; (c) In 1976, the NFL enacted a rule that prohibited players from grabbing the facemask of an opponent. The penalty for an incidental grasp of the facemask was 5 yards. The penalty for twisting, turning, or pulling the facemask was 15 yards. A player could be ejected from the game if the foul is judged to be vicious and/or flagrant; (d) In 1977, the NFL enacted a rule that prohibited players from slapping the head of another player during play. This rule was referred to as the Deacon Jones Rule, named after the Rams defensive end who frequently used this technique; (e) In 1977, the NFL enacted a rule that prohibited Offensive Lineman from thrusting their hands into a defenders neck, face, or head;

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(f)

In 1979, the NFL enacted a rule that prohibited players from using their helmets to butt, spear, or ram an opponent. Pursuant to this rule, any player who used the crown or top of his helmet unnecessarily will be called for unnecessary roughness;

(g)

In 1980, the NFL enacted rule changes that provided greater restrictions on contact in the area of the head, neck, and face;

(h)

In 1980, the NFL enacted rule changes that prohibited players from directly striking, swinging, or clubbing the head, neck, or face (personal foul). Beginning in 1980, such contact was penalized whether or not the initial contact was made below the neck area;

(i)

In 1982, the NFL enacted a rule change by which the penalty for incidental grabbing of a facemask by a defensive team was changed from 5 yards to an automatic first down plus a 5 yard penalty;

(j)

In 1983, the NFL enacted a rule that prohibited players from using a helmet as a weapon to strike or hit an opponent;

(k)

In 1988, the NFL enacted a rule that prohibited defensive players from hitting quarterbacks below the waist while they are still in the pocket. (The rule was unofficially called the Andre Waters Rule based upon a hit that Waters placed on Los Angeles Rams quarterback Jim Everett in 1988); and

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(l)

Following the 2004-2005 season, the NFLs Competition Committee reviewed video of the entire season and concluded that the horsecollar tackle resulted in six serious injuries. On May 23, 2005, the NFL owners voted 27-5 to ban such tackles. The ban states that a horse-collar tackle is an open-field tackle in which a defender uses the shoulder pads to immediately bring a ball carrier down. 49.

However, despite their knowledge of the harmful effects of concussions and other brain trauma, Defendants failed to enact reasonable rules and regulations for the prevention of traumatic brain injuries. NFL FRAUDULENTLY CONCEALED THE LONG-TERM EFFECTS OF CONCUSSIONS 50. Despite the mounting scientific evidence on concussion and subsequent brain disease, the NFLs response to the issue of brain injuries suffered by retired NFL players as a result of concussions or head impacts received during their playing in the NFL has been one of deception and denial. Indeed, the NFL and several of the scientists it employed actively tried to conceal the extent of the problem until recently. Since finally acknowledging the issue, the NFLs response has been inadequate.

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51. Instead of taking measures to actually protect its players from suffering brain injuries, the NFL created the MTBI Committee in 1994 to ostensibly study the effects of concussions on NFL players. 52. The MTBI Committee was chaired by Dr. Elliot Pellman, the New York Jets team trainer. Dr. Pellman is not certified as a brain injury and/or concussion specialist. Instead, he was a rheumatologist with training in the treatment of joints and muscles. The brain is unique. It cannot be understood by analogy to any other part of the body. As a neurosurgeon described it, I would hear [Dr. Pellman] say things in speeches like, I dont know much about concussions, I learn from my players, and [w]e as a field dont know much about concussions, and it used to bother me. We knew what to do about concussions, but he was acting like it was new ground. 53. Dr. Pellman has also been accused of fraudulently exaggerating his credentials. Dr. Pellman has identified himself as an Associate Clinical Professor at Albert Einstein College of Medicine. But he was actually an Assistant Clinical Professor, which is a lower-ranking and honorary position that involves no teaching duties. Six years after he lost his title of Fellow of the American College

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of Physicians, Dr. Pellman continued to list that title on his resume. Dr. Pellman has also stated that he has a medical degree from the State University of New York at Stony Brook. But he actually attended medical school in Guadalajara, Mexico, and he only completed a one-year residency at SUNY-Stony Brook. Although Dr. Pellman has described these as minor discrepancies, others disagree. As Dr. Dan Brock, director of Harvard Medical Schools Division of Medical Ethics, has explained, [i]f I told you I graduated from medical school in the United States, and I went to Guadalajara, then I think I would have deliberately misled you, so I would say that was unethical. 54. During the same time period that he served on the MTBI Committee, Dr. Pellman was also a team doctor for the New York Jets. One incident from his tenure as a Jets team doctor illustrates Dr. Pellmans views on concussions. On November 2, 2003, Jets wide receiver Wayne Chrebet suffered a concussion after receiving a knee to the back of his head. He was knocked unconscious by the hit. Only one quarter later, Dr. Pellman cleared him to return to play. It was reported that Dr. Pellman told Chrebet that this is very important for you, this is very important for your career.

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55. Two years later, Wayne Chrebet was forced to retire because of brain damage. The effects of brain damage have changed Chrebets life. As Chrebet has explained, I have good days and bad days. A bad day is when you cant get out of bed and theres this dark cloud hanging over your head. A good day is anything else. Chrebet would like to meditate or read, but he cant concentrate enough. He cant make the drive from his home in Colts Neck, N.J., to Hempstead [where he owns a restaurant] or anywhere, without a navigational system. He remembers the time, after one of his final games, when he drove from the stadium to a house where he no longer lived. His wife directed him home. 56. Dr. Pellman worked with two other scientists on the MTBI Committee - Dr. Ira Casson (Casson), a neurologist, and Dr. David Viano (Viano), a biomechanical engineer - to attempt to discredit many scientific studies that linked head impacts and concussions received by NFL players to brain injuries. 57. On November 30, 1994, Steve Jacobson published a column in Newsday titled Concussion Issue Must Be Tackled. In that article, which discussed the growing concern over concussions, Dr. Pellman was quoted as saying [p]ostconcussion syndrome in football is the rare exception.

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58. In May 2000, Dr. Barry Jordan, who is now the Chief Medical Officer for the New York State Athletic Commission, presented findings from a survey of over 1,000 former NFL players to the American Academy of Neurology. The title of the presentation is Concussions Come Back to Haunt Football Players. The findings of the survey included the following: (a) more than 61% had suffered at least one concussion, with 30% having three or more and 15% having five or more; (b) 51% had been knocked unconscious more than once; (c) 73% were not required to sit out any plays after the head trauma; (d) 49% experience current numbness or tingling; (e) 28% had neck or cervical spine arthritis; (f) 31% had difficulty with memory; (g) 16% were unable to dress themselves; and (h)11% were unable to feed themselves. Dr. Jordan concluded that there was a [a] statistically significant association . . . between a self-reported history of concussion and complaint of memory changes, confusion, speech difficulties, problems remembering short lists, and difficulty recalling recent events. Over the next few years, a number of other studies supported the link between concussions and cognitive problems such as memory loss, depression, and early on-set of dementia. 59. A 2000 University of North Carolina (UNC) study found that in the period between 1977 and 1998, an annual average of 13 athletes had suffered catastrophic

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injuries (primarily permanent paralysis) as the direct result of participation in football. The study also found that between 1977 and 1998, 200 football players received a permanent cervical cord injury, and 66 sustained a permanent cerebral injury. As reported in Science Daily: The study, published in the September-October issue of the American Journal of Sports Medicine, suggests that the brain is more susceptible to injury when it has not had enough time to recover from a first injury. Researchers say the finding is important because concussions can lead to permanent brain damage, vision impairment or even death if not managed properly. We believe recurrences are more likely because injured players are returning to practice and to games too quickly after blows to the head, said Dr. Kevin M. Guskiewicz, assistant professor of exercise and sport science at UNC-CH and study leader. Many clinicians are not following the medical guidelines that players should be symptom-free for several days before returning. (Emphases added). 60. On April 22, 2001, Jonathan Rand of Knight Ridder Newspapers published an article titled No Brainers After Several Concussions, which discussed the retirement of Hall of Fame quarterback Troy Aikman due to concussions. Dr. Pellman downplayed the significance of Troy Aikmans retirement. He was quoted as saying [t]he vast majority of athletes quickly recover from concussions. He suggested that Troy Aikmans case was an anomaly that did not affect the rest of the league: You say to yourself: Hey, other guys are getting that all the time and

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theyre OK. Why are these individuals more susceptible to post-concussion syndrome? Dr. Pellman indicated that other players did not need to worry about the long-term problems of concussions. You can look at them and there is no long-term damage. Theres no scientific evidence that can tell you they shouldnt go back and play. He referred to concerns about concussions as relying on intuit[ion] as opposed to scientific evidence. THE NFL ENGAGES IN A DISINFORMATION CAMPAIGN AND WORKS TO DISCREDIT EXTERNAL SCIENTIFIC WORK 61. A series of clinical and neuropathological studies performed by independent scientists and physicians demonstrated that multiple NFL-induced concussions cause cognitive problems such as depression, early on-set dementia and CTE. 62. In response to these studies, Defendants, to further a scheme of fraud and deceit, had members of the NFLs MTBI Committee deny knowledge of a link between concussion and cognitive decline. When the NFLs MTBI Committee anticipated studies that would show causal links between concussion and cognitive degeneration, the Committee promptly published articles producing contrary findings, as part of Defendants scheme to deceive Congress, the players, and the public at large. On top of publishing research that was not supported by the medical literature and that was not based on adequate data, the MTBI Committee
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went after anyone who disagreed with them. 63. A 2003 study partially authored by Dr. Kevin Guskiewicz (Guskiewicz) of UNC analyzed data from almost 2,500 retired NFL players and found that 263 of the retired players suffered from depression. The study found that having three or four concussions meant twice the risk of depression as never-concussed players, and five or more concussions meant nearly a threefold risk. Dr. Mark Lovell (Lovell) of the NFLs MTBI Committee promptly attacked the article. 64. In November 2003, Guskiewicz was scheduled to appear on HBOs Inside the NFL to discuss his research. Pellman, who was also going to be on the show, called Guskiewicz. I had never spoken with him before, and he attacked me from the get-go, Guskiewicz said. He questioned whether it was in my best interest to do the show. He was a bull in a china shop. On the program, Pellman said unequivocally, [w]hen I look at that study [by Guskiewicz], I dont believe it. 65. In October 2004, members of the MTBI Committee published an article in Neurosurgery that concluded that there was no risk of repeat concussions in players with previous concussions and that there was no 7- to 10-day window of increased susceptibility to sustaining another concussion.

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66. In January 2005, members of the MTBI Committee published another article in Neurosurgery that concluded that returning to play after a concussion does not involve significant risk of a second injury either in the same game or during the season. The article also concluded that there was no evidence of worsening injury or chronic cumulative effects of multiple MTBIs in NFL players. 67. In response to those conclusions, Dr. Kevin Guskiewicz stated that [w]e found th[at] at the high school level, the college level and the professional level, that once you had a concussion or two you are at increased risk of future concussions, but the MTBI Committee continued to say on the record thats not what they find and theres no truth to it. 68. In 2005, Guskiewicz did a follow-up to his 2003 study and found that retired NFL players who sustained three or more concussions were five times as likely to suffer Mild Cognitive Impairment (MCI) than retired NFL players who had no history of concussions. Guskiewicz based his conclusions on a survey of over 2,550 former NFL players. Lovell asserted that Guskiewiczs study lacked scientific rigor and that one could not tell anything from a survey.

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69. Between 2005 and 2007, Dr. Bennet Omalu and Dr. Robert Cantu (Cantu), Co-Director for the Center for the Study of Traumatic Encephalopathy (CSTE) at the Boston University School of Medicine (BUSM), examined the brain tissue of three deceased NFL players: (a) Mike Webster (Webster) of the Pittsburgh Steelers, who died of heart failure at the age of 50; (b) Terry Long (Long) of the Pittsburgh Steelers, who died at 45 after drinking antifreeze; and (c) Andre Waters (Waters) of the Philadelphia Eagles and Arizona Cardinals, who committed suicide at the age of 44. All three of these individuals suffered multiple concussions during their respective NFL careers and exhibited symptoms of sharply deteriorated cognitive functions, paranoia, panic attacks and depression. In articles published in Neurosurgery in 2005 and 2006, Omalu found that Websters and Longs respective deaths were partially caused by CTE, related to multiple NFL concussions suffered during their professional playing years. Cantu reached a similar conclusion as to Waters in an article published in Neurosurgery in 2007. 70. In response to Omalus article on Webster, Casson of the NFLs MTBI Committee wrote a letter to the editor of Neurosurgery in July 2005, asking that Omalus article be retracted.

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71. In 2006, Dr. William Barr gave a lecture at a Brain Injury Association of New York conference. Dr. Barr was a neuropsychologist who was doing some work for the New York Jets. At the conference, Dr. Barr discussed the risks associated with concussions and how the best time to test players with concussions was after their symptoms had completely cleared, which was contrary to the MTBI Committees policy. Dr. Barr says that a week or so later, Dr. Pellman called Dr. Barr and said I understand youre badmouthing the league. In the future, if you have anything to present or publish about sports concussions, you will have to put it through me. When Dr. Barr protested, Dr. Pellman said your time with the Jets is over. 72. The NFLs MTBI Committee decided to respond to these studies by presenting biased research derived from its ongoing survey of retired NFL players. ESPN The Magazine described the circumstances under which the MTBI Committee issued its response: In October 2003, Pellman and members of his committee published the first of a long-running series on concussions in Neurosurgery, a scholarly journal edited by Mike Apuzzo, the New York Giants neurosurgical consultant. The committees earliest studies used crash test dummies to reenact helmet blows. Later, the group decided to explore the ill effects of multiple concussions, and Pellman charged one of its members, Mark Lovell, head of the University of Pittsburgh Medical
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Centers Sports Medicine Concussion Program, to oversee the collection and analysis of league wide data. Pellman chose Lovell because he had conducted neuropsychological tests for the Steelers as early as 1993. And in 1995, Lovell began to run the NFLs neuropsychology program, which encouraged teams to gather data to help decide when to return players to games. Using the information they would obtain, Pellman, Lovell and the committee planned to look at baseline results and identify a normal range of scores for uninjured NFL players. Then, comparing post injury scores to baseline data would show the effects of concussions. Comparing data from players with multiple concussions to that of all injured players would show whether concussive effects changed as injuries accumulated. A lot was riding on the analysis. The committee had never imposed recommendations on team medical staffs. But this was the first study ever to analyze the brain function of NFL athletes. If it showed that concussions were significantly impairing players, the league might be forced to institute new rules for evaluating and treating head injuries. Pellman and Lovell both say they invited all teams to participate in the research (Lovell says 11 teams elected to join the study) and tried to collect as many results as they could. As Lovell puts it, More data is always better. Several of the doctors involved, however, tell a different story. [William] Barr [a neuropsychologist at Long Island Jewish Hospital], for example, conducted 217 baseline tests from 1996 to 2001. Periodically, he forwarded results to the league, but at the time Barr learned the committee was planning to publish its results, he had sent only 149. Barr remembers finding Pellman in the Jets training room in 2003 and saying, Elliot, I havent sent data for a year. According to Barr, Pellman didnt want the additional tests. I dont want the data to be biased because Im with the Jets, Barr recalls him saying, suggesting that additional results would skew the data because the Jets would be overrepresented in the sample. That made no sense to Barr. A scientific study should include, or at least address, all available data.

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Pellman denies this conversation ever took place. Bill Barr was a consultant for the Jets who tested individual players to help us make decisions, he says. I did not discuss the committees research with him. Whoever is right, the fact is the group didnt have all of Barrs data for its paper. Barrs wasnt the only research that didnt make the cut. Over the period covered by the committees research, Christopher Randolph, a Chicago neuropsychologist, collected baselines for 287 Bears players. He says Lovell never asked for his data, either. Nor did the committee seek complete data from John Woodard, neuropsychologist for the [Atlanta] Falcons and associate psychology professor at the Rosalind Franklin University of Medicine and Science in North Chicago. According to Woodard, in December 2003, Lovell said the league was pressuring him to compile team results. I was asked to provide data on only concussed players, Woodard says. I had data for slightly more than 200 baseline evaluations. I dont know why I was not asked for them. In 2004, Lovell also asked Richard Naugle, consultant to the Browns and head neuropsychologist at the Cleveland Clinic, for data on just the players who had already suffered concussions, according to an e-mail Naugle wrote to a colleague in March 2005. Naugle declined to comment for this story, citing a confidentiality deal between his medical group and the NFL, but The Magazine has obtained a copy of that message. I dont have that sorted out from the results of other testing, Naugle wrote of the request. I explained that and added that if he could name players, I could send data on those individuals. I recall sending him data on two or three players . . . I have a few hundred baselines. This means Pellman, Lovell and their colleagues didnt include at least 850 baseline test results in their research more than the 655 that ultimately made it into their 2004 Neurosurgery paper. At best, their numbers were incomplete. At worst, they were biased.
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.... Pellman, Lovell and their colleagues published their sixth paper in Neurosurgery in December 2004. It examined baseline data on 655 players and results for 95 players who had undergone both baseline testing and post-concussion testing. It concluded that NFL players did not show a decline in brain function after suffering concussions. Further analysis found no ill effects among those who had three or more concussions or who took hits to the head that kept them out for a week or more. The paper didnt explain where the players in the groups came from specifically or why certain players were included and hundreds of others were not. Neither Pellman nor Lovell has provided those details since. (Emphases added). 73. Guskiewicz was also quoted as saying, [t]he data that hasnt shown up makes their work questionable industry-funded research. 74. Scientists concurred with this assessment. As an article in ESPN The Magazine noted: The decision to publish the paper was controversial. I highly doubt this study would have seen the light of day at this journal were it not for the subject matter of NFL players, says Robert Cantu, chief of neurosurgery and director of sports medicine at Emerson Hospital in Concord, Mass., and a senior editor at Neurosurgery. The extremely small sample size and voluntary participation suggest there was bias in choosing the sample. The findings are extremely preliminary at best, and no conclusions should be drawn from them at this time.

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One of the scientists who reviewed the committees work is equally blunt. Theyre basically trying to prepare a defense for when one of these players sues, he says. They are trying to say that whats done in the NFL is okay because in their studies, it doesnt look like bad things are happening from concussions. But the studies are flawed beyond belief. (Emphases added). 75. Thus, in October 2006 members of the MTBI Committee published an article in Neurosurgical Focus that reported over 12 years of data collection by the NFL. The article concluded that [b]ecause a significant percentage of players returned to play in the same game [after suffering a mild traumatic brain injury] and the overwhelming majority of players with concussions were kept out of football-related activities for less than 1 week, it can be concluded that mild TBIs in professional football are not serious injuries. See Concussion in professional football: Summary of the research conducted by the National Football Leagues Committee on Mild Traumatic Brain Injury. Neurosurg Focus 21 (4): E12; 2006, RI. Pellman and D.C. Viano. 76. According to Defendants own studies, the speedy return to play after suffering a concussion demonstrates that such players were at no greater risk of suffering long-term brain injury.

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77. In response, one scientist asserted that, Theyre basically trying to prepare a defense for when one of these players sues. They are trying to say whats done in the NFL is okay because in their studies, it doesnt look like bad things are happening from concussions. But the studies are flawed beyond belief. 78. The NFL-funded study is completely devoid of logic and science. More importantly, it is contrary to their Health and Safety Rules as well as years of published medical literature on concussions, a fact that the members of the MTBI Committee well knew. 79. The NFLs conclusion was also based on biased data collection techniques. As ESPN reported in February 2007 (Emphasis added): Last fall, ESPN The Magazine reported that Pellman was selective in his use of injury reports in reaching his conclusions and omitted large numbers of players from the leagues concussion study. His findings also contradicted other scientific studies into the effects of concussions: In January 2005, Pellman and his colleagues wrote that returning to play after a concussion does not involve significant risk of a second injury either in the same game or during the season. But a 2003 NCAA study of 2,905 college football players found just the opposite: Those who have suffered concussions are more susceptible to further head trauma for seven to 10 days after the injury.

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Pellman, a rheumatologist, and his group have also stated repeatedly that their work shows no evidence of worsening injury or chronic cumulative effects of multiple [mild traumatic brain injury] in NFL players. But a 2003 report by the Center for the Study of Retired Athletes at the University of North Carolina found a link between multiple concussions and depression among former pro players with histories of concussions. And a 2005 follow-up study at the Center showed a connection between concussions and both brain impairment and Alzheimers disease among retired NFL players. 80. In June 2007, Dr. Pellman resigned as chair of the MTBI Committee amid reports questioning his qualifications. Dr. Pellman was replaced by co-chairs Dr. Ira Casson and Dr. David Viano. Both continued Dr. Pellmans denial of the risks associated with concussions and suppression of the truth. Dr. Pellman also continued to remain a member of the MTBI Committee. 81. In 2008, Dr. David Weir of the University of Michigans Institute for Social Research conducted a study of over 1,000 former NFL players, which the NFL commissioned and funded. Released in 2009, the study reported that Alzheimers disease or similar memory-related diseases appear to have been diagnosed in the leagues former players vastly more often than in the national population including a rate of 19 times the normal rate for men ages 30 through 49.

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82. The increasing controversy surrounding this issue drew the attention of Congress. On June 23, 2007, the Commercial and Administrative Law Subcommittee of the Judiciary Committee of the U.S. House of Representatives (C&A Subcommittee) held hearings on the NFLs compensation of retired players. NFL Commissioner Goodell testified. In follow-up responses that Goodell submitted to the C&A Committee in November 2007, he continued to rely on the discredited survey research being undertaken by the NFLs MTBI Committee. 83. In response to these hearings and associated media reports, the NFL scheduled a Concussion Summit in June 2007. Independent scientists, including Omalu, Cantu and Guskiewicz, presented their research to the NFL and to representatives of the National Football League Players Association (NFLPA). As one contemporaneous news article reported: Im not even sure we athletes know what a concussion is, said safety Troy Vincent, who also is president of the NFL Players Association. Outside of being knocked out, I stayed in the game. After a player suffers a concussion, his teams medical staff determines when he is fit to return to play. Studies vary on whether a quick return puts the player at risk of more severe injury.

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The NFL commission, after reviewing five years of on-field concussions, found no evidence for an increase in secondary brain injuries after a concussion, a conclusion that has met with skepticism. Science is very clear that returning guys to play in the same game, or quickly within a few days, contributes to neuron loss and long-term problems, said former pro wrestler Christopher Nowinski, who retired after repeated concussions and has written a book on the controversy. With the NFL being both the only and most prominent voice to say it doesnt exist, it slows down acceptance and adoption of policies to reduce risk. While the NFL commission has focused on short-term effects of concussions, recent findings suggest players may suffer depression, dementia and other symptoms later in life. (Emphases added). 84. The NFLs Concussion Summit resulted in a complete whitewash of the problem by the NFL. On August 14, 2007, the NFL issued a press release and pamphlet to players, stating that: Current research with professional athletes has not shown that having more than one or two concussions leads to permanent problems. . . . It is important to understand that there is no magic number for how many concussions is too many. (Emphases added). 85. Sometime in 2007, Dr. Casson appeared on HBOs Real Sports and denied the link between concussions and long-term injuries:

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Interviewer: Is there any evidence, as far as youre concerned, that links multiple head injuries among pro football players with depression? Casson: No. Interviewer: With dementia? Casson: No. Interviewer: With early onset of Alzheimers? Casson: No. Interviewer: Is there any evidence as of today that links multiple head injuries with any long-term problem like that? Casson: In NFL players? Interviewer: Yeah. Casson: No. 86. This act of continued denial and deception by the NFL was consistent with the positions taken by Pellman, Casson, Lovell, and Viano as described above. 87. In November 2008, Greg Aiello (Aiello), an NFL spokesman, sounded a similar theme, saying to the press that [h]undreds of thousands of people have played football and other sports without experiencing any problem of this type and there continues to be considerable debate within the medical community on the precise long-term effects of concussions and how they relate to other risk factors. Aiello neglected to mention that the debate was principally between the scientists paid by the NFL and scientists operating independently of the NFL.

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88. In 2008, Dr. Ann McKee (McKee) of the CSTE at BUSM examined the brain tissue of two other deceased NFL players: (a) John Grimsley (Grimsley) of the Houston Oilers, who died of a gunshot wound at the age of 45; and (b) and Tom McHale (McHale) of the Tampa Bay Buccaneers, Philadelphia Eagles and Miami Dolphins, who died of a drug overdose at the age of 45. McKee found that Grimsley and McHales brain tissue exhibited indications of CTE. As she stated, the easiest way to decrease the incidence of CTE [in contact sport athletes] is to decrease the number of concussions. She further noted that [t]here is overwhelming evidence that [CTE] is the result of repeated sublethal brain trauma. An article in the Washington Post, published in early 2009, reported the following comments by McKee with respect to her analysis of McHales brain: Is this something that happened by chance? asked Ann McKee, a neuropathologist at Boston University pointing to pictures of McHales brain that she said resembled that of a 72year-old boxer. I can tell you Ive been looking at brains for 22 years, and this is not a normal part of aging. This is not a normal part of the brain. 89. In response to McKees studies, Casson continued his campaign of NFLsponsored disinformation by characterizing each injury as an isolated incident from which no conclusion could be drawn and said he would wait to comment further until McKees research was published in a peer-reviewed journal. When McKees
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research was published in 2009, Casson asserted that there is not enough valid, reliable or objective scientific evidence at present to determine whether . . . repeat head impacts in professional football result in long[-]term brain damage. 90. The NFL MTBI Committee has been on direct notice of multiple NFL head injuries contributing to cognitive decline in later life, yet it has never amended the 2007 NFLs MTBI Committee statement: Current research with professional athletes has not shown that having more than one or two concussions leads to permanent problems. . . . It is important to understand that there is no magic number for how many concussions is too many. 91. Defendants have yet to amend these inaccurate and misleading statements. DEFENDANTS ACKNOWLEDGE THEIR DUTY TO PROTECT AGAINST THE LONG-TERM RISK OF CONCUSSIONS 92. On August 14, 2007, Defendants acknowledged their duty to players by enacting rules to protect them against the risk of repeated brain trauma. 93. The NFLs 2007 concussion guidelines, many of which stemmed from an NFL conference in June of 2007 involving team trainers and doctors, were sent to all current players and other team personnel.
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94. The NFLs 2007 guidelines on concussion management include a whistleblower provision for individuals to report concussions with the NFL so that a player with a head injury is not forced to practice or play against medical advice. 95. The NFLs 2007 concussion guidelines also include an informational pamphlet provided to all current NFL players to aid in identifying symptoms of a concussion. This information was later withdrawn by outside counsel of the NFL in a separate letter to its disability plan, as well as the NFLs August 14, 2007 press release denying that more than one or two concussion leads to permanent problems. 96. In a statement issued by the NFL on August 14, 2007, Roger Goodell, the Commissioner of the NFL, introduced the NFLs 2007 concussion guidelines by saying, We want to make sure all NFL players, coaches and staff members are fully informed and take advantage for the most up-to-date information and resources as we continue to study the long-term impact of concussions. 97. The NFLs Commissioner also stated, [b]ecause of the unique and complex nature of the brain, our goal is to continue to have concussions managed

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conservatively by outstanding medical personnel in a way that clearly emphasized player safety over competitive concerns. 98. The NFLs 2007 concussion guidelines indicate when a player with a concussion can return to a game or practice. 99. The NFLs 2007 concussion guidelines specifically mandate that a player should have normal neurological test results and no concussion symptoms before returning to play. 100. Defendants acknowledged that said guidelines were inadequate and insufficient. As a result, the NFL enacted more strict regulations to handle concussions starting in the 2009 season. Specifically, the NFL announced new rules requiring players who exhibit any significant signs of concussion to be removed from a game or practice and be barred from returning the same day. 101. Nevertheless, it was not until June of 2010 that the NFL warned any player of the long-term risks associated with multiple concussions, including dementia, memory loss, CTE and its related symptoms.

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102. As of today, Defendants have not warned retired players of the long-term health effects of concussions. DEFENDANTS CONDUCT WAS DELIBERATE, WILLFUL AND WANTON 103. The aforementioned acts and omissions of Defendants demonstrate that they acted deliberately, willfully, and wantonly with indifference to the rights and duties owed and consequences to Plaintiffs. 104. Defendants knew that a substantial risk of physical and mental harm to the NFL players existed in connection with repeated concussive blows to the head, to wit: the danger of irreversible brain-damage and/or dementia. Defendants willfully and deliberately disregarded the safety of others in continually undertaking to establish and promulgate safety rules for the NFL that failed to reasonably address or disclose substantial risk of head injury. PLAINTIFF FRANK SANDERS 105. Plaintiff Frank Sanders played nine NFL seasons from 1995 through 2003 for the Arizona Cardinals and the Baltimore Ravens.

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106. Throughout his career as a professional football player, Plaintiff Sanders suffered multiple concussive hits and blows to the head in multiple venues. 107. Notwithstanding the seriousness of his head injury status, Plaintiff Sanders was cleared by team staff on various occasions and directed to return to play even though he was clearly medically ineligible and continuous participation in contact exposed him to significant risk of further and more serious injury. 108. Plaintiff Sanders was not warned by Defendants of the risk of long-term injury due to football-related concussions or that the League-managed equipment did not protect him from such injury. This was a substantial factor in causing his current injuries. 109. Plaintiff Sanders suffers from multiple past traumatic brain injuries with symptoms including but not limited to, memory loss, headaches, difficulty concentrating, and sleeplessness.

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PLAINTIFF JOHN LEAKE 110. Plaintiff Leake played two NFL seasons from 2005 through 2006 for the Atlanta Falcons and Green Bay Packers. 111. Throughout his career as a professional football player, Plaintiff Leake suffered multiple concussive hits and blows to the head in multiple venues. 112. Notwithstanding the seriousness of his head injury status, Plaintiff Sanders was cleared by team staff on various occasions and directed to return to play even though he was clearly medically ineligible and continuous participation in contact exposed him to significant risk of further and more serious injury. 113. Plaintiff Leake was not warned by Defendants of the risk of long-term injury due to football-related concussions or that the League-managed equipment did not protect him from such injury. This was a substantial factor in causing his current injuries. 114. Plaintiff Leake suffers from multiple past traumatic brain injuries with symptoms including but not limited to, memory loss, difficulty concentrating,

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headaches, and difficulty sleeping. PLAINTIFF ERIC HIPPLE 115. Plaintiff Eric Hipple played nine NFL seasons from 1980 through 1989 for the Detroit Lions. 116. Throughout his career as a professional football player, Plaintiff Hipple suffered multiple concussive hits and blows to the head in multiple venues. 117. Notwithstanding the seriousness of his head injury status, Plaintiff Sanders was cleared by team staff on various occasions and directed to return to play even though he was clearly medically ineligible and continuous participation in contact exposed him to significant risk of further and more serious injury. 118. Plaintiff Hipple was not warned by Defendants of the risk of long-term injury due to football-related concussions or that the League-managed equipment did not protect him from such injury. This was a substantial factor in causing his current injuries.

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119. Plaintiff Hipple suffers from multiple past traumatic brain injuries with symptoms including but not limited to, memory loss, headaches, depression, and sleeplessness. COUNT I NEGLIGENCE 120. Plaintiffs incorporate by reference all facts set forth in the preceding paragraphs and further allege on information and belief as follows. 121. Defendants, as purveyors of safety rules for the NFL, owed Plaintiffs a duty to use reasonable care in researching, studying and/or examining the dangers and risks of head injuries and/or concussions to NFL players; to inform and warn them of such risks and to effectuate reasonable league policies; and/or take other reasonable action to minimize the risks of head injuries. 122. At all times relevant hereto, Defendants negligently performed such duties by failing to adequately study, warn and/or implement reasonable rules and regulations to minimize traumatic brain injuries to its players, including Plaintiffs herein.

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123. Defendants knew or should have known that its policies, rules and regulations in place were not reasonably sufficient to minimize traumatic brain injuries and that Plaintiffs injuries were foreseeable. 124. Defendants affirmatively and voluntarily established the MTBI Committee, ostensibly to examine the dangers and consequences of head injuries to NFL players, to report on its findings, to provide information and guidance from its research and studies concerning concussions to teams and players, and to make recommendations to lessen the risks of concussions. Defendants are responsible for the staffing and conduct of the MTBI Committee. 125. Defendants failed to use reasonable care when creating the MTBI Committee and failed to appoint qualified physicians to head the Committee. 126. Defendants, failed to use reasonable care in researching, studying and/or examining the risks of head injuries and/or concussions in professional football. Defendants downplayed and in many cases denied both the severity of head injuries and the clear link between concussions and brain damage, thereby breaching its duty to its players, including Plaintiffs herein.

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127. Defendants failed to inform, warn and/or advise its players, and/or misinformed them of the risks and complications inherent in sustaining concussions, thereby breaching its duty to its players, including Plaintiffs herein. 128. Defendants were further negligent in the following respects: In failing to use reasonable care in overseeing, controlling and/or regulating policies and procedures of the NFL so as to minimize the risk of head injuries and/or concussions; In failing to use reasonable care in the research and/or investigation of the concussion issue; In failing to appoint a qualified physician or panel of physicians to head Defendants MTBI committee; In placing a physician in charge of the committee whose primary motive was to appease the NFL rather than to report accurately; In disregarding independent scientific studies which showed the risks of head injuries and/or concussions to NFL players health; In failing to acknowledge, either publicly or to their players, the clear link between concussions and brain injuries;

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In failing to acknowledge, either publically or to their players, the linkage between playing football and long-term brain injuries; In failing to make and/or timely make necessary NFL policy changes as it pertains to intentional hits to the head, hits to the head of a defenseless player, helmet to helmet hits, and concussions in general; In publishing misleading and erroneous findings regarding hits to the head and NFL head injuries; In failing to issue a timely warning, through a concussion pamphlet or other means, to the players concerning the causal link between concussions and later life cognitive decline; In issuing misinformation and purposefully attempting to mislead their players through the concussion pamphlet issued in August 2007; In collecting and reporting upon data that was infected and/or not reliable; In causing, by and through their negligent conduct and omissions, an increased risk of harm to their players; In breaching their duty to ensure that the equipment it licensed and approved was of the highest possible quality and sufficient to protect the NFL players, including Plaintiffs, from the risk of concussive brain injuries;

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In failing to provide competent information to its teams, players, coaches, trainers and medical personnel with respect to the significance of head injuries and/or concussions, their symptoms and necessary and/or proper treatment of same; and In creating a culture within the NFL in which concussions and their devastating effects would run rampant. 129. Defendants failed to inform, warn and/or advise its players, and/or misinformed them of the risks and complications inherent in sustaining concussions, thereby breaching its duty to its players, including Plaintiffs herein. 130. As a direct and proximate result of the Defendants negligent acts and omissions as previously mentioned, Plaintiffs suffered serious injury, including but not limited to brain damage, with a resultant loss therefrom. 131. That by reason of the foregoing negligence on the part of Defendants, Plaintiffs believe that their aforesaid injuries are permanent and that he will continue to suffer from the effects of their aforesaid injuries, including but not limited to continuous pain and suffering and severe emotional distress.

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132. That by reason of the foregoing, Plaintiffs have and will be required in the future to obtain medical aid and attention, with a resultant cost therefrom. 133. That by reason of the foregoing, Plaintiffs may suffer a loss of employment opportunity in the future with a resultant loss therefrom. 134. As a direct and proximate result of Defendants negligent acts and omissions, Plaintiffs suffered and will continue to suffer substantial injuries, and economic and non-economic damages. COUNT II FRAUD 135. Plaintiffs incorporate by reference all facts set forth in the preceding paragraphs and further allege on information and belief as follows. 136. Defendants failed to inform, warn and/or advise its players, and/or misinformed them of the risks and complications inherent in sustaining concussions, thereby breaching its duty to its players, including Plaintiffs herein.

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137. The NFL materially misrepresented the risks faced by Plaintiffs related to head injuries. Defendants MTBI Committee, through misleading public statements, published articles and the concussion pamphlet issued to the players, downplayed known long-term risks of concussions to NFL players. 138. Material misrepresentations were made by members of Defendants Committee on multiple occasions, including but not limited to testimony given at congressional hearings and the informational pamphlet which they issued to players. 139. The material misrepresentations include the NFLs remarks that Plaintiffs and other players were not at an increased risk of head injury if they returned too soon to an NFL game or training session after suffering a head injury. 140. Defendants material misrepresentations also included the NFLs criticism of legitimate scientific studies which illustrated the dangers and risks of head injuries and the long term effects of concussions.

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141. Defendants material misrepresentations, through its MTBI Committee, denied a link between concussions and CTE. 142. Defendants had actual knowledge of the misleading nature of these statements when they were made. 143. Defendants had actual knowledge that Plaintiffs and others would rely on these misrepresentations. 144. Plaintiffs relied on these misrepresentations when playing in the NFL and when returning to play per the medical clearance of the team physician and team management notwithstanding the fact that participation in such contact or physical activity would expose Plaintiffs to serious consequences including additional head injuries, ongoing symptoms, and health conditions. 145. Had Plaintiffs known the risks to their health, they would not have agreed to jeopardize their health.

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146. As a direct and proximate result of Defendants fraudulent conduct, Plaintiffs have suffered physical injury, including, but not limited to, memory and cognitive problems, and economic losses. 147. As a direct and proximate result of the Defendants fraudulent conduct, Plaintiffs have suffered and will continue to suffer substantial injuries, and economic and non-economic damages. COUNT III FRAUDULENT CONCEALMENT 148. Plaintiffs incorporate by reference all facts set forth in the preceding paragraphs and further allege on information and belief as follows. 149. Defendants failed to inform, warn and/or advise its players, and/or misinformed them of the risks and complications inherent in sustaining concussions, thereby breaching its duty to its players, including Plaintiffs herein. 150. Defendants MTBI Committee knowingly and fraudulently concealed the risks of head injuries to Plaintiffs, and the risk to them if they returned to the playing field before making a proper recovery from their head injuries.
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151. Defendants MTBI Committee published articles and the concussion pamphlet issued to players, therein affirmatively concealed and downplaying known long-term risks of concussions to NFL players. 152. The concussion pamphlet created player reliance. The NFL stated that [w]e want to make sure all N.F.L. players . . . are fully informed and take advantage of the most up to date information and resources as we continue to study the longterm impact on concussions. 153. Further concealment of material information occurred in January 2010. Dr. Casson provided oral and written testimony at the January 2010 congressional hearings. He continued to deny the validity of other studies. 154. Defendants failed to acknowledge, either publicly or to its players, the clear link between concussions and brain injuries being suffered by NFL players. 155. Defendants failed to acknowledge, either publicly or to its players, the linkage between playing football and long-term brain injuries.

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156. Defendants willfully concealed this information from Plaintiffs in order to prevent negative publicity and increased scrutiny of their medical practices. 157. Defendants knew that Plaintiffs and other NFL players would rely on the inaccurate information provided by the NFL. 158. Plaintiffs relied on this inaccurate information during their NFL career when playing in the NFL and when returning to play per the medical clearance of the team physician and team management notwithstanding the fact that participation in such contact or physical activity would expose Plaintiffs to serious consequences including additional head injuries, ongoing symptoms, and health conditions. 159. As a direct and proximate result of Defendants fraudulent conduct, Plaintiffs have suffered physical injury, including, but not limited to, memory and cognitive problems, and economic losses. 160. As a direct and proximate result of the Defendants willful concealment, Plaintiffs have suffered and will continue to suffer substantial injuries, and economic and non-economic damages.

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COUNT IV NEGLIGENT MISREPRESENTATION 161. Plaintiffs incorporate by reference all facts set forth in the preceding paragraphs and further allege on information and belief as follows. 162. Defendants failed to inform, warn and/or advise its players, and/or misinformed them of the risks and complications inherent in sustaining concussions, thereby breaching its duty to its players, including Plaintiffs herein. 163. The NFL misrepresented the dangers that NFL players faced in returning to play too quickly after sustaining a head injury. Defendants MTBI Committee, through public statements which it knew or should have known were misleading, published articles and issued the concussion pamphlet to its players, and downplayed the long-term risks of concussions to NFL players. 164. Material misrepresentations were made by members of the NFLs committee on multiple occasions, including but not limited to testimony at congressional hearings and the informational pamphlet issued to players.

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165. The misrepresentations included the NFLs remarks that Plaintiffs and other NFL players were not at an increased risk of head injury if they returned too soon to play or training session after suffering a head injury. 166. Defendants material misrepresentations also include the NFLs criticism of legitimate scientific studies that illustrated the dangers and risks of head injuries. 167. Defendants made these misrepresentations and actively concealed adverse information at a time when they knew, or should have known, because of their superior position of knowledge, that Plaintiffs faced health problems if he were to return to a game too soon after suffering brain trauma. 168. Defendants knew or should have known the misleading nature of these statements when they were made. 169. Defendants made misrepresentations and actively concealed information with the intention that Plaintiffs and other NFL players would rely on the misrepresentations or omissions in selecting their course of action.

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170. As a direct and proximate result of the Defendants fraudulent conduct, Plaintiffs have suffered physical injury, including, but not limited to, memory and cognitive problems, and economic losses. 171. As a direct and proximate result of the Defendants willful concealment, Plaintiffs have suffered and will continue to suffer substantial injuries, and economic and non-economic damages. COUNT V NEGLIGENT HIRING, RETENTION, AND SUPERVISION 172. Plaintiffs incorporate by reference all facts set forth in the preceding paragraphs and further allege on information and belief as follows. 173. The NFL negligently hired, retained, and supervised members of the MTBI Committee from 1994 to 2010. 174. The NFL had a duty to exercise reasonable care in hiring, retaining, and supervising members of the MTBI Committee.

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175. As set forth in the first three claims for relief, members of the MTBI Committee engaged in tortious conduct towards the Plaintiffs. 176. The NFL knew or should have known that Drs. Pellman, Casson, Viano, and other members of the MTBI Committee were not suited to serve on the MTBI Committee or otherwise influence the NFLs concussion policy. Many members of the MTBI Committee were not medically qualified to evaluate the risks of concussions, publish articles about concussions, and make recommendations to the NFL and its players regarding treatment of concussions. The NFL also permitted members of the MTBI Committee to serve even though doing so presented material conflicts of interest. Therefore, the NFL breached its duty of reasonable care in hiring, retaining, and supervising members of the MTBI Committee. 177. The NFL knew or should have known of the tendency of members of the MTBI Committee to make fraudulent or negligent misrepresentations about the nature of concussions and the long-term health problems associated with concussions. The NFL also knew or should have known of the failure of members of the MTBI Committee to use reasonable care in their research of concussions and recommendations to the NFL.

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178. As a result of the NFLs failure to use reasonable care in hiring, retaining, and supervising members of the MTBI Committee and the tortious conduct of those members, the Plaintiffs suffer from physical and mental injuries, including severe headaches, dizziness, memory loss, emotional lability, depression, loss of executive functioning, and economic harm. 179. Because of their injuries, the Plaintiffs are entitled to compensatory damages in an amount to be proven at trial. 180. Because of the NFLs willful misconduct or conscious indifference to the consequences of its actions, the Plaintiffs are also entitled to punitive damages in an amount to be proven at trial. COUNT VI MEDICAL MONITORING 181. The NFLs tortious conduct has increased the risk that the Plaintiffs will develop neurodegenerative disorders and diseases later in life, if they have not done so already.

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182. As a result of the NFLs tortious conduct, the Plaintiffs suffered traumatic brain injuries while playing in the NFL. The Plaintiffs continue to suffer harm from those injuries, including severe headaches, dizziness, memory loss, emotional lability, depression, loss of executive functioning, and economic harm. 183. Because they suffered traumatic brain injuries, the Plaintiffs have an increased risk of developing neurodegenerative disorders and diseases, including CTE, Alzheimers disease, dementia, or similar conditions affecting executive functioning. 184. There are monitoring procedures that (a) are supported by contemporary scientific principles, (b) are not routinely used by the general public, and (c) make early detection of cognitive impairment possible. These monitoring procedures will help detect, prevent, or mitigate the symptoms of neurodegenerative diseases and disorders. 185. Therefore, the Plaintiffs ask the Court to order and supervise an NFL-funded medical monitoring regime for the Plaintiffs. The objectives of the medical monitoring regime include the following:

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A.

Monitoring, detection, and diagnosis of brain damage or other related conditions that have arisen from the traumatic brain injuries suffered by the Plaintiffs while playing in the NFL; and

B.

Provision of adequate treatment in the event a neurodegenerative disorder or disease is diagnosed. 186.

The Plaintiffs ask the Court to create a regime that will allow for the detection of currently latent injuries and the treatment of such injuries. The Plaintiffs do not seek compensation for the increased risk of harm or for the increased apprehension of such harm. 187. The Plaintiffs do not have an adequate remedy at law for their increased risk of developing additional neurodegenerative disorders and diseases. Without a medical monitoring regime, the Plaintiffs will continue to face an unreasonable risk of suffering further injury and disability caused by the NFLs tortious conduct. PRAYER FOR RELIEF 188. Plaintiffs ask the Court for the following relief: A. A jury trial on all issues so triable;

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B.

That the Court enter judgment against the Defendant for all general and compensatory damages allowable to Plaintiffs, in an amount to be proven at trial together with interest and costs;

C.

That the Court enter judgment against the Defendant for all special damages allowable to Plaintiffs;

D. E.

Punitive damages in an amount to be proven at trial; That the Court award Plaintiffs pre-judgment interest on all damages;

F.

Any other relief the Court deems is appropriate.

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DEMAND FOR JURY TRIAL Plaintiffs hereby request a trial by jury of all issues triable by jury. Respectfully submitted this 1st day of June, 2012. CRUSER & MITCHELL, LLP Meridian II, Suite 2000 275 Scientific Drive Norcross, Georgia 30092 (404) 881-2622 /s William T. Mitchell William T. Mitchell Georgia Bar No. 513810 Michael D. Hoffer Georgia Bar No. 359493 Andrew S. Ashby Georgia Bar No. 455020 Chris Conway Georgia Bar No. 823011

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