PHILADELPHIA (CN) — Less than one week after over one million Eagles fans lined Philadelphia’s streets to celebrate the city’s second Super Bowl victory, a federal appeals court panel based in the city ruled that 18 representatives of retired NFL players cannot receive compensation for potential death by Chronic Traumatic Encephalopathy.
U.S. Circuit Judge Arianna J. Freeman, a Joe Biden appointee, wrote in an opinion filed Thursday that the 18 representatives failed to sufficiently qualify under the NFL’s settlement agreement for concussion-related injuries.
The issue, Freeman said, stemmed from how a neuropathologist never conducted a brain-tissue examination to confirm the 18 deceased players’ CTE diagnoses.
A federal court previously came to a similar conclusion, prompting the appeal, but Freeman — joined on the panel by U.S. Circuit Judge Peter Phipps, a Donald Trump appointee, and U.S. Circuit Judge Cindy Chung, another Biden appointee — affirmed the lower court’s ruling.
“A Death with CTE diagnosis can be made only after examining brain tissue under a microscope. But even if we were to conclude that the settlement agreement is ambiguous, the district court’s reading of the scientific sources was reasonable,” she wrote.
Currently, neuropathologists can only definitively diagnose an individual with CTE at autopsy, by examining samples of brain tissue for a specific abnormal pattern of proteins.
“It can only be diagnosed postmortem,” said Douglas Smith, director of the Center for Brain Injury and Repair at the University of Pennsylvania and former member of the NFL Scientific Advisory Board. “It’s absolutely the only way.”
Behavioral changes, history of concussions or anything other than examination of brain tissue, Smith explained, is insufficient to make a diagnosis.
“I can tell you right now, there is no one who can confidently diagnose somebody with CTE based on symptoms,” he said in an interview with Courthouse News.
The families’ suit against the NFL was previously denied by a claims administrator, whose decision was affirmed by a special master before a federal judge denied the representatives’ objections to the denial.
In a January hearing, the families had argued that they were entitled to their share of the NFL’s concussion settlement agreement, which has sparked more than $1.4 billion in claims so far. The families said that they shouldn’t have to exhume their loved ones to prove CTE and argued that playing in the NFL at all meant almost certainly that they had the injury.
The NFL first acknowledged the dangers of concussions in 1994, forming the Mild Traumatic Brain Injury Committee as a result. In the following years, the committee repeatedly condemned outside studies suggesting connections between concussions and long-term health impacts, minimizing the issue.
Concerns over brain injuries in football reached a head in October 2009, when Congress’ House Judiciary Committee held a hearing on the matter, calling NFL commissioner Roger Goodell to defend his league’s concussion policies.
“It sort of reminds me of the tobacco companies pre-’90s when they kept saying, ‘Oh, there’s no link between smoking and damage to your health,’” then-Representative Linda Sanchez of California told Goodell.
Facing mounting pressure, the NFL acknowledged for the first time in December 2009 that concussions can have lasting consequences.
“It’s quite obvious from the medical research that’s been done that concussions can lead to long-term problems,” then-NFL spokesman Greg Aiello said.
By 2013, a class of more than 4,500 former NFL players and their descendants reached a settlement with the league to compensate those suffering from concussion-related brain injuries and pay for medical exams.
That class has since grown to more than 20,000 members, including the 18 appellants whose claims were denied Thursday. As of February 17, the NFL has paid over $1.4 billion to 1,886 claimants, according to the official settlement website.
However, signs suggest that the league’s implementation of several preventative measures in recent years — from reimagining kickoffs to enforcing mandatory ejections for players who target defenseless players with helmet-to-helmet hits — may be paying off. The 2024 NFL season saw the fewest concussions among players since the league began keeping record in 2015.
“That’s even bigger than you might think,” Smith said. “The diagnosis has been improving — and therefore, increasing — and yet the numbers are decreasing still.”
And despite a strong connection between head blows from contact sports and the eventual development of CTE, Smith suggested football doesn’t need to be outlawed any time soon.
“For me, it’s more of a dinner table, family conversation about, say, your kids playing contact sports and other factors,” Smith added. “I would not advocate getting rid of football per se, because there’s so many other activities that kids could be involved with that could also be prone to concussion… It would really be to help with the education and maintain regulations that will help.”