Tuesday, March 29, 2011

'Google Books Court Rejection Shows Copyright Litigation Is Exhausted' ... today at Beyond Chron

cross-posted from http://freelancerights.blogsphttp://www.blogger.com/img/blank.gifot.com

by Irvin Muchnick

Time for Congress to Help Pave the Information Highway

In contrast with many fellow writers, I believe Google does much more good than bad. I also think the Mountain View Leviathan’s audacious book-scanning project holds great promise as a public utility and comprehensive literary marketplace. But last week’s decision by a federal judge to torpedo Version 2.0 of the Google Books settlement, negotiated by one publishers’ and one authors’ trade groups, http://www.blogger.com/img/blank.gifhas taken the work of private class action attorneys close to their richly deserved dead end.

The final cul-de-sac may be the long-anticipated ruling by the Second Circuit Court of Appeals in the related freelance journalists’ case against electronic database companies; which was known at the Supreme Court as Reed Elsevier v. Muchnick when the justices kicked it back down to the lower courts last year. (I am the lead objector to that particular hash, whipped together by the Authors Guild, the bad cook of the Google Books fiasco, in collaboration with sous chefs from the National Writers Union and the American Society of Journalists and Authors.)


Wednesday, March 23, 2011

WrestleMania Preview: How Wrestlers Can File Complaints With Government Agencies (Part 2 – Connecticut Labor Department)

[posted 3/22/11 to http://wrestlingbabylon.wordpress.com]

Yesterday: Part 1, Federal Occupational Safety and Health Administration

Last week I asked Glenn Marshall, Connecticut’s new labor commissioner, to explain how interested parties can share information relevant to the state’s investigation of World Wrestling Entertainment independent contractor practices.

As noted previously, Marshall, formerly a Carpenters Union official, had served on the bipartisan commission that drafted a tougher state law cracking down on “misclassification.”

The Labor Department’s response began with the standard disclaimer that it could neither confirm nor deny that WWE was being audited. (WWE itself disclosed the existence of the audit last year, during Linda McMahon’s Senate campaign.)

Staff attorney Heidi Lane said complaints or referrals about employer practices can be filed through the department’s website form, http://www.ctdol.state.ct.us/uitax/FAcomplaint.doc. There is also a new form designed specifically for misclassification referrals, at . http://www.ctdol.state.ct.us/wgwkstnd/JEC/JEC.htm.

The department does accept anonymous tips.

Like the federal government, Connecticut has anti-retaliation laws protecting individuals filing unemployment, safety, and wage complaints. If a worker believes he or she has been “discharged, disciplined, penalized or otherwise discriminated against by any person” in violation of Section 231-226a of the state code, the labor commissioner upon written request will hold a hearing and rule on the matter.

In addition, the commissioner may ask the attorney general to bring an action in state Superior Court “for injunctive relief requiring compliance with any award, decision or judgment” issued by the Labor Department.

The means to help pro wrestlers improve their working conditions exist. People in the industry can do it collectively or they can do it individually. They can do it publicly or they can do it anonymously.

The alternative is to continue to sit around and wait to die young, needlessly, from participation in scripted entertainment.

Irv Muchnick

WrestleMania Preview: How Wrestlers Can File Complaints With Government Agencies (Part 1 – OSHA)

[posted 3/21/11 to http://wrestlingbabylon.wordpress.com]

WrestleMania will take place in Atlanta in 13 days. The following night the World Wrestling Entertainment crew will do a live shoot of Monday Night Raw, setting up all the feuds and plot lines for the next round of touring shows and pay-per-views. Retired wrestler Marc Mero (“Johnny B. Badd” and other handles) likened the process to “playing the Super Bowl one day and turning around and playing the first game of the next season the very next day.”

For reasons explained throughout the history of this blog, pro wrestlers – unlike the pro football players now bargaining their way out of a management lockout – are not unionized. Wrestlers die young at impossible rates, have no employer-supplied vacation or health care or pension benefits, and earn seriously good money pretty much only during the periods, usually fleeting, when they’re fortunate enough to secure top spots with the company commanding near-monopoly power: World Wrestling Entertainment.

WWE and its medical director, Dr. Joseph Maroon (who quadruples as a National Football League concussion consultant, University of Pittsburgh Medical Center research middle man, and supplement huckster), have occupational safety standards, which are followed in the breach, and sometimes even in the observance.

For example, chair shots to the head are banned from the script – except when they’re required. I’d advise readers to ask former WWE performer Lance Cade about all this, but you can’t. Cade died last year, of “heart failure,” at 29 – two years after Shawn Michaels bashed him on the skull with a chair on Raw, which in turn was a year after chair shots to the head were supposedly banned.

And oh yes, don’t miss this year’s WWE Hall of Fame ceremony the night before WrestleMania. The lead inductee? Shawn Michaels.

The question is: If wrestlers aren’t going to organize, then what is an individual wrestler to do? If you love the business and want to succeed at it and maybe even improve it, are there any options to resigning yourself to a short and maximally painful life as a billion-dollar corporation’s human cannon fodder?

One of the answers to that question is in the fallout of ex-WWE chief executive Linda McMahon’s $50 million unsuccessful “self-financed” U.S. Senate campaign last year: an ongoing audit of the Stamford-based company, by the Connecticut Department of Labor, of its alleged abuse of the “independent contractor” classification for its wrestlers. In tomorrow’s installment, I’ll guide interested wrestlers on how to submit tips to Connecticut Labor, either openly or discreetly.

Today let’s talk about a resource that so far is untapped: the federal Occupational Safety and Health Administration (OSHA).

In 2003, OSHA issued and published a fence-straddling “interpretation letter” on the independent contractor question. An insurer representing professional sports organizations had asked OSHA to help resolve a dispute over their legal injury and illness reporting requirements.

Without answering the question, the OSHA letter makes extended references to case law defining independent contractors, concluding with the so-called “common law test”:

the degree of skill required by the hired party; whether the hired or hiring party supplies the tools or equipment; the location of the work; the duration of the relationship between the parties; whether the hiring party has discretion to assign additional work to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hired party is in business; the provision of employee benefits; and the tax treatment of the hired party.

Since the law with respect to wrestling – a sports-tinged entertainment – is disputed and unsettled, it makes sense to direct complaints about workplace safety to OSHA. Full information on how to do so can be viewed at http://osha.gov/as/opa/worker/complain.html. The agency notes, “OSHA will keep your information confidential. We can help.” All the means of contact are listed at http://osha.gov/html/Feed_Back.html.

The federal government also has what is known as a “Whistleblower Protection Program.” Section 11(c) of the Occupational Safety and Health Act “prohibits any person from discharging or in any manner retaliating against any employee because the employee has exercised rights under the Act. These rights include complaining to OSHA and seeking an OSHA inspection, participating in an OSHA inspection, and participating or testifying in any proceeding related to an OSHA inspection.” See http://www.whistleblowers.gov/index.html.

Tomorrow: Guide for sending tips to the Connecticut Department of Labor

Irv Muchnick

‘It’s the Concussion Crisis, Stupid – Fed Probe of Football Helmet Safety Must Not Scratch the Surface’ ... today at Beyond Chron

[posted 3/21/11 to http://wrestlingbabylon.wordpress.com]

Senator Tom Udall’s proposed bill on football helmet safety, announced last week, is a step on the road to national sports concussion reform. An analogy might be the scandal over the quality of the body armor secured for our troops in Asia. Policy questions are rarely about hardware. They’re about software – the human decisions to put our military in harm’s way abroad, or to expose our youth to unacceptable risks in fun and games at home.

We seem headed for helmet hearings in Congress in some form, on either Udall’s initiative or that of Democrats at the House Commerce Committee. What’s important at this point is to make sure these C-SPAN exercises don’t just scapegoat the manufacturers, which are almost certainly producing progressively improved helmets. Nor is the villain of the piece NOCSAE – the National Operating Committee on Standards for Athletic Equipment, an overmatched trade oversight group. The root problem is that there’s no such thing as a concussion-proof football helmet.

Let’s direct the fire where it belongs: at the industry’s upper-echelon custodians in the National Football League. Uncontrolled collisions are what have driven television rights fees and merchandise through the roofs of municipal-financed stadiums, and the league has done as little about the problem as it could get away with. Meanwhile, at great public health cost, concussion syndrome permeated down through amateur sports in frightening dimensions we are just beginning to quantify.



Tuesday, March 22, 2011

WWE’s John Cena Has New Concussion – Or ‘Concussion’

[posted 3/18/11 to http://wrestlingbabylon.wordpress.com]

A story is making the rounds that World Wrestling Entertainment star John Cena suffered a concussion on Monday night’s Raw show. The Concussion Blog even picked it up.

But since the source of the report is Cena’s own Twitter feed, I advise all readers to raise three fingers in front of your eyes and count them, to make sure you’re not seeing double yourselves. When real injuries occur in pro wrestling, they are usually covered up. When injuries are publicized, they’re usually part of the story line – in this case, hype for Cena’s match at WrestleMania against The Miz.

Here’s what Cena tweeted: “Sorry I have been away. Concussion on mon night from either del rio kick or mic shots. Took and passed IMPACT exam, rtg for fri!” and “Folks must take, and pass, post concussion in order to go back 2 work. I’m good and headed to CT.”

James Caldwell of Pro Wrestling Torch had this analysis at http://pwtorch.com/artman2/publish/WWE_News_3/article_48549.shtml: “If the concussion is legit or part of a storyline, at least Cena is drawing attention to and creating awareness for WWE’s concussion testing, which still needs work and more transparency, but is a significant development for the wrestling industry.”

If Dr. Joseph Maroon, WWE’s medical director, is allowing his imPACT concussion diagnostic system to be exploited with no medical basis, I would not be shocked. Maroon is the guy who last year told the Hartford Courant that WWE had “no talent now on steroids.” And in the 1980s, WWE’s Pennsylvania ring doctor, George Zahorian – who later did federal prison time for illegal steroid prescriptions and distribution, mostly to wrestlers – used to participate directly in televised “angles.”

For the record, we’ve been around on this whole subject before on this blog. See “Did He Or Didn’t He? John Cena’s Soap Opera Concussion,” January 11, 2010, http://wrestlingbabylon.wordpress.com/2010/06/11/did-he-or-didnt-he-john-cenas-soap-opera-concussion/. You’d think these people could come up with some new material.

Irv Muchnick

Dear Attorney General Holder: Please Coordinate the Pending 'Google Books' and 'Freelance' Cases

Cross-posted from http://freelancerights.blogspot.com.

Yesterday I used the occasion of The New York Times’ announced new pay service as a pretext to point out again that The Times, along with just about the entire newspaper and magazine industries, is systematically ripping off a generation of freelance journalists, including myself. The legal dispute over these practices is pending at the Second Circuit Court of Appeals after the Supreme Court last year, in a case called Reed Elsevier v. Muchnick, returned it to the lower courts for adjudication of its merits.

But I am not a whiner. There is a solution at hand: a fair and reasonable royalty system, loosely modeled after the music industry’s ASCAP, which will keep the spigot of digital information flowing while making sure independent creators can participate fairly in the resulting revenue streams – rather than allowing corporate publishers to illegally hoard intellectual property and charge users “all the traffic will bear.”

In a September 2009 letter to Attorney General Eric Holder, I argued that a key to this process would be government intervention to coordinate my “Freelance” case with the high-profile Google Books settlement. The Justice Department, supporting objectors to that settlement, had already filed a “Statement of Interest” in Google, which sent the parties back to the drawing board for a revised settlement proposal — still under review by Judge Denny Chin (who, since then, has been promoted to the Second Circuit Court of Appeals himself).

In my view, the Google and Freelance cases involve identical root issues, and a coordinated resolution would be in the public interest.

Below, I reproduce again my letter to Attorney General Holder.

For further background, see my interview in the April 5, 2010, issue of Publishers Weekly: http://www.publishersweekly.com/article/455387-The_Objector.php. PW’s Andrew Albanese calls Freelance “the central rights battle of the digital age.”


September 23, 2009

Attorney General Eric Holder
U.S. Department of Justice
950 Pennsylvania Ave. NW Washington, D.C. 20530

Dear Mr. Attorney General:

As the named respondent in the current Supreme Court case Reed Elsevier v. Muchnick (scheduled for oral argument on October 7), I address the expressed interests of the United States both in that case and in the Google Books settlement (hereinafter “Google”). My purpose is to advance the Government’s appreciation that the two cases are best discussed, prospectively and in the public interest, as a package.

In Reed Elsevier (previously known as In re Literary Works in Electronic Databases Copyright Litigation – hereinafter “Freelance”), the Solicitor General has joined both the settlement parties (the defendants plus the plaintiffs) and the objectors in asking the Court to overturn a sua sponte ruling by the Second Circuit Court of Appeals that the federal courts have no jurisdiction over settlements of copyright disputes including works that were not registered. (I am a respondent-objector.)

In Google, the Antitrust Division and the United States Attorney for the Southern District of New York filed a Statement of Interest with Judge Denny Chin outlining concerns not only in the area of antitrust, but also with the proposed settlement’s fidelity to Rule 23 (class action) and copyright law. The Government brief was the clear impetus for the parties’ subsequent motion to postpone the fairness hearing.

The Google settlement parties have indicated to the District Court their intention to use the period before a November 6 scheduling conference to revise the proposed settlement – based both on the Statement of Interest and, more broadly, on the Government playing a facilitating role in the drafting of revisions. It is in that context that the Freelance respondent-objectors seek your good offices in broadening the scope of the negotiations in both cases. Such a step, we believe, not only would serve judicial efficiency; it also would improve public policy in the evolving copyright architecture of new technologies.

Google and Freelance are at different procedural stages. The two cases, however, have striking and compelling similarities. Most fundamentally, both are copyright class actions involving claims by authors of the unauthorized reuse of their works by new digital publishing products. Beyond that, both cases have controversial settlement mechanisms turning on the deployment of “opt out,” rather than “opt in,” definitions for the granting of future rights to the defendants. This flaw in the Google settlement was particularly and aptly identified in the Government’s Statement of Interest.

Finally, the two cases share a named plaintiff, the Authors Guild, and its counsel.1 (1 In Freelance, the Authors Guild is a co-associational plaintiff. It is worth noting that in Google, the other two co-associational plaintiffs of Freelance – the National Writers Union and the American Society of Journalists and Authors – have filed objections essentially identical to those of the Freelance respondent-objectors over what we termed the settlement’s “license by default” provisions.)

The Government’s Statement of Interest in Google called attention to links between the two cases at p. 25, in the discussion of “Potential Foreclosure of Competition in Digital Distribution.” The brief cited the Order for Final Approval of Settlement and Final Judgment in Freelance, noting that it provided for “numerous companies beyond the named defendants [to be] allowed to obtain benefits of settlement.” In this way, the Government supported the argument that the Google settlement was defective on antitrust grounds.

Respectfully, the Freelance respondent-objectors believe that there are much stronger links between the two cases, as noted above. Further, the ability of a spectrum of publishers to obtain the benefits of settlement is far from the most pertinent set of facts in Freelance. While the antitrust principles propounded in your Google brief are well judged, the real connections between Google and Freelance revolve around Rule 23 and copyright. We are gratified that the Government’s Statement of Interest in Google went out of its way to offer cogent analysis in all three areas.

In Freelance, the settlement granted benefits to “numerous companies” simply as a consequence of the pattern of infringement and the range of entities exposed by it. Google has a single defendant. Freelance has several named defendants, and the universe of infringements encompasses the systematic practices of an entire industry of periodical publishers and their electronic database licensees – collectively identified as the Defense Group. Thus, the sharing of the benefits of settlement was not a function of antitrust sensitivity; it was simply a way to describe the population of defendant-infringers (all of which, due to the unusual and complex nature of the settlement, also stood to “obtain benefits” therefrom).

Even so, the Freelance respondent-objectors are quick to point out that, with this passage, the Government has put its finger on the central solution tying together both cases: the need for comprehensive, industry-wide royalty systems. In their current forms, the Freelance settlement has the comprehensiveness but not the royalty system; Google has the royalty system but not the comprehensiveness.

During the public debate of Google, there has been a great deal of discussion of “compulsory licenses.” The Freelance respondent-objectors are not opposed to such arrangements per se; the main concern on our end is that they not be promulgated for the exclusive benefit of private litigation parties, and it is questionable whether that goal can be achieved by the courts rather than by Congress. In her recent testimony before the House Judiciary Committee, Register of Copyrights Marybeth Peters spoke eloquently on this point, and it has become the nexus of the successful resolution of both Google and Freelance.

The Supreme Court review of Freelance is on other grounds. But certainly one possible outcome of Reed Elsevier v. Muchnick – the one desired by the respondent-objectors – is a remand to the Second Circuit for the express purpose of reviewing the merits. Another possible outcome, of course, is that the Supreme Court will affirm the Second Circuit on the jurisdiction question under review, thus killing the settlement. We may know which path we are on by December or January. In the event the case does return to the Second Circuit, a possible decision there on the compulsory license issue would fundamentally affect Google.

For these reasons, the Freelance respondent-objectors request that the Government use its facilitating role in the renegotiation of the Google settlement, first and foremost, as a platform for broadening those negotiations. They should include the Freelance respondent-objectors, to be sure, but not only us; all stakeholders in the emerging copyright landscape should have their interests heard and incorporated. From a policy perspective, perhaps the most egregious lapse to date has been the disenfranchisement of librarians and information consumers in the rush to tailor litigation settlements. The resulting pastiche of proposed solutions is poorly integrated and has ill-served all parties.

We believe that the Government’s constructive intervention in Google marks a hopeful turning point in this process. Coordination of the Google and Freelance settlements would be the next step.

Thank you for your attention to this proposal.

_s/_ Irvin Muchnick


Department of Justice
Christine A. Varney, Assistant Attorney General for Antitrust
William F. Cavanaugh, Deputy Assistant Attorney General, Antitrust Division
Preet Bharara, United States Attorney for the Southern District of New York
John D. Clopper, Assistant United States Attorney, Southern District of New York

All Google counsel of record

All Freelance counsel of record

Steal This Article: While The New York Times Sells My Copyrighted Work, Allow Me To Give It Away to You!

Cross-posted from http://freelancerights.blogspot.com.

The next generation of copyright scholars still awaits court rulings in two landmark cases. One is the Google Books class-action settlement, engineered by the Authors Guild and the Association of American Publishers; Judge Denny Chin is handling that one even though he has been elevated from U.S. District Court to the Second Circuit Court of Appeals.

Then there’s the global settlement on behalf of freelance journalists against the periodicals industry, which the Authors Guild concocted in collaboration with the National Writers Union and the American Society of Journalists and Authors. After a group of objectors, including your humble blogger, appealed what we consider the most abominable sellout in the history of sellouts, the Supreme Court gave the case the exquisite new handle Reed Elsevier v. Muchnick before sending it back to the Second Circuit for consideration of the merits of our objections.

Now this week The New York Times has announced that there is a new pay wall in front of articles from its online archive. These include a number of my own pieces, the secondary rights to which the Supreme Court, in its 2001 decision Tasini v. Times, confirmed belong to me, not The Times. The 7-to-2 decision by the justices was one of the historical fraction of cases in which Antonin Scalia and Ruth Bader Ginsburg both voted in the majority.

On December 17, 1989, I did the cover story for The New York Times Magazine, about football star Joe Montana. A few days later I impressed the hell out of my father-in-law when he answered a phone call for me from Joe, who was apologizing for having been baited into a quote in a San Francisco Chronicle article that mistakenly accused my Times Magazine story of intruding in his private life.

With the rejiggering of TimesSelect, The Times – which like many other publishers has thumbed its nose at the Supreme Court on the electronic rights issue for the past decade – is selling “Joe Montana: State of the Art,” rather than simply profiting from advertising hits on it. Because, you see, The Times represents the new access; whereas I and other independent writers, photographers, graphic artists, and videographers, who expect our fair share of the revenue in the new digital economy, represent old-fashioned copyright obtuseness.

But why pay for what you can get for free? Just send me an email at info@muchnick.net, and I’ll shoot back to you a lovely PDF file of the Joe Montana article, sans photos.

Or you can mail a check for $19.95 to me, at P.O. Box 9629, Berkeley, CA 94709, and I’ll send you both a free hard copy of the Montana piece and an autographed copy of my book CHRIS & NANCY: The True Story of the Benoit Murder-Suicide and Pro Wrestling’s Cocktail of Death. A bargain at any price!

Monday, March 21, 2011

Blumenthal Joins National Concussion Debate ‘Under Pressure From Muchnick’

[posted 3/17/11 to http://wrestlingbabylon.wordpress.com]

The Hartford Courant‘s Daniela Altimari, at the Capitol Watch blog, notes that Senator Richard Blumenthal has announced he is co-sponsoring Senator Tom Udall’s bill to strengthen football helmet safety standards:

Blumenthal, a freshman Democrat, frequently voiced concern about the impact of concussions on professional wrestlers during his hard-fought campaign against former World Wrestling Entertainment CEO Linda McMahon. He even brought to Hartford the father of a wrestler who killed himself and his family after suffering head injuries during performances.

Blumenthal has been under pressure from one prominent critic of the WWE, California-based writer Irv Muchnick, to take a higher profile role in the debate over how to combat head injuries in sports and professional wrestling.

See “Blumenthal calls for higher safety standards for youth football helmets,” http://blogs.courant.com/capitol_watch/2011/03/blumenthal-calls-for-higher-sa.html.


“Memo to Waxman, Udall, Blumenthal: An Agenda for Hearings on the National Concussion Crisis,” March 11, http://wrestlingbabylon.wordpress.com/2011/03/11/memo-to-waxman-udall-blumenthal-an-agenda-for-hearings-on-the-national-concussion-crisis/

“WWE critic: Blumenthal should repay supporters with involvement in sports concussion controversy” (Manchester Journal Inquirer, March 15), http://wrestlingbabylon.wordpress.com/2011/03/15/wwe-critic-blumenthal-should-repay-supporters-with-involvement-in-sports-concussion-controversy/

Introducing ALREADY LOCKED OUT: The NFL and NFLPA’s Rejected Disability Claims

[posted 3/15/11 to http://wrestlingbabylon.wordpress.com]

Ever since Dave Duerson’s suicide last month, I have been talking – I believe so far all by myself – about his role on the six-person joint management-union NFL Player Care panel reviewing ex-players’ disability claims, which included applications for acute care expense reimbursement for dementia under the John Mackey “88 Plan.”

Though this is a sore point for those who loved or knew or admired Duerson, I don’t see how we can responsibly flinch from it. The generation of broken brains in pro football is a microcosm of a national problem for amateur athletes, their parents, and all of the rest of us who for too long have turned a blind eye to the human toll of our entertainment. There are larger stakes here than Duerson’s bruised feelings, which by definition he no longer has.

The current collective bargaining impasse, which has led the National Football League Players Association to decertify as an AFL-CIO affiliate so that individual players can litigate, and precipitates a lockout threatening the 2011 season, highlights all the issues dividing the two sides. But the one issue the public should most care about is on the back burner of the contract negotiations: the history of the league’s investment in the now ascendant concussion issue.

With that in mind, I am endeavoring to find detailed data on the 11 reported rejections of 88 Plan claim applications. This is not because I necessarily think all or even any of these individual cases deserve to be independently championed; each has a unique set of facts to which none of us is privy. Focusing on the 88 Plan’s rejected 11 further ignores that not all disabled players’ claims are about head injuries, and that not all head injuries lead, or at this point have already culminated in, dementia.

Still, the journalism on this huge subject has to start somewhere. We pretty much know that Duerson was brain-damaged, and we know that he participated in reviewing a cluster of claims by brain-damaged colleagues’ families with negative outcomes. More information on those cases will facilitate “reverse-engineering” the history of the NFL’s response to the concussion crisis.

The league would like everyone to believe that chronic traumatic encephalopathy was invented the day before yesterday, but I don’t think we should let Commissioner Roger Goodell and his employers off so lightly. The narrative goes back at least 15 years, and the players’ union, slow to respond to the constituency of maimed ex-players, has been a league partner in that unfortunate process in measures large and small.

Disclaimer: I’m not sure Duerson participated in all 11 88 Plan claim rejections. The NFL spokesman referred me to the NFLPA, which appointed Duerson, and the NFLPA has not returned my messages.

Nor do we know how Duerson voted (notwithstanding his heated confrontation with ex-player Brent Boyd at a Congressional hearing). I had an illuminating exchange about all this with John Hogan, a leading disability attorney in the Atlanta area who represents many former players.

Hogan said he has explained to several clients that the challenge of the Duerson wild card, in a court of law, would be showing that Duerson had ever sided with the three NFL-appointed members of the review committee. It is believed that the three NFLPA reps almost always voted together. This is all speculation, and under privacy law neither the committee members nor even Hogan can disclose names.

The NFL disability system “is pretty much illegitimate, regardless of the Duerson situation,” Hogan told me. “However, I have no doubt that the many medical reports of brain injured players seeking line of duty, disability, and 88 Plan benefits weighed heavily upon him.”

But all of the above does not mean that the names don’t exist and that their stories shouldn’t be daylighted – here, or even better, at the football helmet safety hearings that are being bruited about on Capitol Hill. Anyone with more information is invited to contact me at tips@muchnick.net.

The lockout is on, but nearly a dozen retired NFLers are already locked out – denied mental disability claims by a panel that included someone who himself should have had a mental disability claim. Let’s find out why.

Irv Muchnick


Dave Duerson NFL Suicide Story You’ll Read Nowhere Else — In Five Parts

Friday, March 18, 2011

‘WWE critic: Blumenthal should repay supporters with involvement in sports concussion controversy’

(Reprinted with permission from the Manchester Journal Inquirer.)

WWE critic: Blumenthal should repay supporters with involvement in sports concussion controversy

By Don Michak
Journal Inquirer

Published: Monday, March 14, 2011

A professional wrestling critic’s call for U.S. Sen. Richard Blumenthal to get involved in proposed hearings about concussions in sports has been met with a less-than-enthusiastic reception.

Irvin Muchnick, an author and blogger from California whose sharp criticism of World Wrestling Entertainment Inc. figured in the Connecticut Democrat’s successful campaign against the WWE’s former chief executive, Republican Linda McMahon, last week urged the former attorney general to use his new job to help resolve “the national concussion crisis.”

Muchnick explained that two other Democrats, Reps. Henry Waxman of California and G.K. Butterfield of North Carolina, had asked a House subcommittee to hold hearings on football helmet safety, but that he wasn’t optimistic about the prospects for such an initiative in the Republican-controlled House.

“Calls for hearings by the minority party are a dime a dozen,” he said.

Muchnick also argued that any hearings should be broad enough to raise questions about the “global problem” of concussions in all contact sports, including the wrestling sponsored by the Stamford-based WWE.

“Concussions in sports are mixed up in the whole cocktail of steroid and painkiller abuse as well as the whole subject of regulation of the profitable and influential” professional wrestling business, he said.

Muchnick said Blumenthal had won his race against McMahon with the help of the director of a steroid-awareness group, Don Hooton, as well as from Michael Benoit, the father of a brain-damaged three-time WWE champion who committed suicide after killing his wife and son.

Blumenthal had brought Benoit from Canada to Hartford, where Benoit accused McMahon of running for the Senate to protect WWE’s profits and fight attempts to regulate the wrestling business.

The McMahon camp responded that it was “outrageous and reprehensible” for Blumenthal’s campaign to suggest that the murders committed by Benoit’s son, Chris, “ought to be excused and instead someone else held accountable.”

Muchnick, meanwhile, said Blumenthal in his first post-election news conference had vowed to take action on steroids and that now was the time for the freshman senator “to punch the ticket on his mandate.”

Asked Friday if Blumenthal agreed with Muchnick and would get personally involved in the helmet/concussion controversy, the senator’s spokeswoman, Kate Hansen, had just a single-sentence response.

“Senator Blumenthal is engaging in efforts to reduce injury and harm to athletes and competitors, and is considering additional measures to make sure law enforcement has the tools and resources they need,” she said.

Blumenthal after two months in his new job has yet to make his maiden speech on the Senate floor, and appears to be hewing to the advice of veterans in the Democrat-controlled Senate that newcomers should keep a low profile.

Connecticut Newspaper Reports Muchnick’s Call to Senator Blumenthal on Concussions

[posted 3/14/11 to http://wrestlingbabylon.wordpress.com]

Reporter Don Michak of the Journal Inquirer in Manchester, Connecticut, today wrote a story headlined “WWE Critic: Blumenthal should repay supporters with involvement in sports concussion controversy.”

The full text of the article, at http://www.journalinquirer.com/articles/2011/03/14/politics_and_government/doc4d7e139052d69548402911.txt, is available to subscribers only. I have put in a request for permission to post the full text at this blog. In the meantime, a few highlights:

* “Irvin Muchnick, an author and blogger from California whose sharp criticism of World Wrestling Entertainment Inc. figured in the Connecticut Democrat’s successful [Senate] campaign against the WWE’s former chief executive, Republican Linda McMahon, last week urged the former attorney general to use his new job to help resolve ‘the national concussion crisis.’ Muchnick explained that two other Democrats, Reps. Henry Waxman of California and G.K. Butterfield of North Carolina, had asked a House subcommittee to hold hearings on football helmet safety, but that he wasn’t optimistic about the prospects for such an initiative in the Republican-controlled House.”

* “Muchnick also argued that any hearings should be broad enough to raise questions about the ‘global problem’ of concussions in all contact sports, including the wrestling sponsored by the Stamford-based WWE. ‘Concussions in sports are mixed up in the whole cocktail of steroid and painkiller abuse as well as the whole subject of regulation of the profitable and influential’ professional wrestling business.”

* The article cites the support last year to the Blumenthal Senate campaign provided by Michael Benoit, the father of Chris Benoit, and Don Hooton, head of the Taylor Hooton Foundation, a steroid-awareness group.

Irv Muchnick

Linda McMahon’s Scarecrow 2012 Senate Campaign

[posted 3/14/11 to http://wrestlingbabylon.wordpress.com]

In the previous post I pointed everyone to Brian Lockhart’s excellent story today for Hearst about the prospects of pro wrestling regulation in the Connecticut legislature.

A more immediate angle, as yet unexplored in state media, is the status of the Labor Department’s audit of World Wrestling Entertainment, begun last year, under a tougher law banning misclassification of regular employees as independent contractors. This is an enormously important occupational health and safety issue, as well as a money issue for one of Connecticut’s preeminent corporations.

Because everything affects everything else, it’s also where I think we all could use some more sophisticated commentary on Linda McMahon’s presumed upcoming second attempt to win a U.S. Senate seat. The consensus feeling is that a Linda 2012 candidacy is a lead-pipe cinch, that her current tease is just a combination of political theater, calibration of her exposure, and conservation of her sexagenarian energy and campaign war chest.

I, personally, am not so sure. I think Linda knows she can’t win and her husband Vince knows she can’t win. More importantly, the shareholders of their publicly traded company know that the fallout of her futile $50 million campaign in 2010 against Richard Blumenthal included the Labor Department investigation and the renewed buzz about both legalizing a key pro wrestling industry demographic competitor, mixed martial arts, and re-regulating wrestling itself. In other words, the price tag of the McMahon family’s vanity has bumped up against its limits.

But even if Linda isn’t running again, the best counterweight to this redoubled scrutiny of WWE is for her to keep ’em guessing about her future electoral intentions. WWE has no meritorious arguments against regulation. It has only its omnipresent threat to rev up its large, though ultimately politically insubstantial, fan base, and turn everything it touches and everything that touches it into a circus. Including the question of what interest the government might have in curtailing the phenomenon of industrial death in junk entertainment.

Keep in mind that a leading Connecticut politico with whom I rehearsed these thoughts scoffed at them. Also keep in mind that insiders from the state that unleashed Vince McMahon on American culture and Linda McMahon on national politics don’t necessarily have the last and smartest word.

Irv Muchnick

WWE Faces Home-State Regulation Heat

Lawmakers wonder why wrestling isn’t regulated like mixed martial arts

Brian Lockhart / Hearst newspapers

One is considered a sport, the other scripted entertainment.

But an effort to regulate mixed martial arts competitions in Connecticut has some state lawmakers wondering why they are not also requiring more oversight of professional wrestling, an industry dominated for years by Stamford-based World Wrestling Entertainment.

“I know some people do want to look at that,” said Sen. Eileen Daily, D-Westbrook, a vice chairman of the Legislature’s Public Safety and Security Committee.

Read more: http://www.ctpost.com/default/article/Lawmakers-wonder-why-wrestling-isn-t-regulated-1115114.php#ixzz1GaGifoXT

TIMEOUT! Flashback to My September 2010 Column, ‘Why an NFL Lockout Would Be the Best Thing for America’

[posted 3/12/11 to http://wrestlingbabylon.wordpress.com]

[originally published on September 20, 2010, at Beyond Chron, http://www.beyondchron.org/news/index.php?itemid=8513]

by Irvin Muchnick

I am rooting for a players’ strike or owners’ lockout to shut down the 2011 National Football League season, and I want to emphasize right away that I am not motivated by cookie-cutter schadenfreude. I’m a sports fan. I do think sports, starting with college football (which is far worse than pro football) and going all the way down to pro wrestling, are completely out of whack in the bread-and-circuses historical spiral of the American empire. But this is no screed about the link between the militarism of football, and the casual carnage of remote wars in Asia fought mostly by our non-draft dead-enders.

I’m talking about the frightening public health issue of brain trauma in sports, which is where the pornography of cartoon violence collides not with cultural decay, but with a real-life decline in the gross national quality of life.

On the first Sunday of the NFL season, Philadelphia Eagles linebacker Stewart Bradley suffered an obvious concussion during a sequence replayed time and again on Fox television. Yet a few minutes later Bradley was right back in the game, in blatant violation of what were supposed to be new concussion-management protocols adopted by the league this year in response to withering criticism last year at hearings of the House Judiciary Committee.

Alan Schwarz, who has taken on the inspired new New York Times beat of following every angle of the sports concussion story, blasted the NFL in a news analysis last week. Schwarz noted that also in Philadelphia, in April, a Penn lineman had hanged himself.

“Owen Thomas was found to have died with the same progressive brain disease found in more than 20 NFL players. Playing since age 9, Thomas never had a reported concussion; his disease silently developed either through injuries he did not report or by thousands of subconcussive blows that accumulated over time. Research suggests that 10 percent to 50 percent of high school football players will sustain a concussion each season, with as many as 75 percent of those injuries going unreported and unnoticed.”

The Times reporter said the league’s efforts to raise national concussion awareness were nullified by the lax follow-through of its own promises of on-field reform: “[W]hen the entire football world saw the Eagles put Bradley at significant safety risk by not properly diagnosing his concussion, it only emphasized the crisis that exists in high school and youth football, where almost no one is watching at all.”

But here’s the thing: does anyone really care? Sports fans understand, intellectually, that football in particular is unsafe, even life-threatening or –shortening. But the game, the TV show, goes on, as does the rest of the NFL season.

That’s why it occurs to me that an enforced year of no pro football – brought on entirely, and ironically, by the market forces of millionaire players and billionaire owners at loggerheads over how to divide the pie – might be a stroke of civic hygiene. (The idea grows out of an astute season preview column by the Chronicle’s Scott Ostler, who was not writing about whether a prolonged labor dispute would be a good thing, but simply observing that 2010 could be the last year of “pro football as we know it.”)

Without games on Sunday, Monday, and Thursday from September through early February, fans would have an indispensable interlude for processing, with full attention, the growing list of studies of brain trauma. Instead of drooling in anticipation over the next exciting match-up, they would be stewing over having been deprived of their scheduled entertainment. It is only with such fresh perspective that we will acquire fresh awareness – plus the political will to do something about it.

Don’t get me wrong. I recognize that some of the brain research is hyped or flawed. And some of it is not: a peer-reviewed medical journal is openly speculating over whether Lou Gehrig himself had “Lou Gehrig’s Disease,” or a brain injury that mimicked the symptoms of amyotrophic lateral sclerosis. Disproportionate clusters of football players’ cases of ALS, including those of a group of former San Francisco 49ers, are caught up in the implications of this finding.

I also know that nothing, including mass entertainment, is cost-free, and that there are limits to how much sports rules and regulations can do in terms of protecting participants from themselves.

But football is where the rubber of American kitsch meets the road of disrespect for life. The path from youth leagues to high school to college to the NFL has become so callous and industrialized that it has skewed, warped, and distorted every other value. Even if people cannot be persuaded to worry about what is happening with their institutions of higher learning or with the tulip-mania of sports apparel and merchandise, they should be able to pause for a moment and consider what is happening to the neurons and cerebra of their children.

So tonight I’ll be watching the 49ers play the Saints on ESPN. I’ll also be hoping that this time next year we all will have nothing similar to watch

Irvin Muchnick, author of CHRIS & NANCY: The True Story of the Benoit Murder-Suicide and Pro Wrestling’s Cocktail of Death, blogs at http://wrestlingbabylon.wordpress.com and is @irvmuch at Twitter.

Tuesday, March 15, 2011

Memo to Waxman, Udall, Blumenthal: An Agenda for Hearings on the National Concussion Crisis

[posted 3/11/11 to http://wrestlingbabylon.wordpress.com]

This week brings welcome news that Congressmen Henry Waxman (California) and G.K. Butterfield (North Carolina) have asked the House Subcommittee on Commerce, Manufacturing and Trade to hold hearings on football helmet safety.

This reinforces the investigation begun by the Federal Trade Commission of the promotional claims of Riddell helmets, the official supplier of the National Football League, which funded the research underpinning those claims. The research was co-authored by Dr. Joseph Maroon, team neurologist for the Pittsburgh Steelers, NFL concussion consultant, medical director for World Wrestling Entertainment, and wide-ranging commercial product owner and shill. The FTC took up the probe on referral from Senator Tom Udall of New Mexico.

The plot on Capitol Hill has definitely thickened.

My analysis begins on a familiar pungent note: Calls for hearings by the minority party are a dime a dozen. Waxman was formerly the chair of the House Commerce Committee, but with the Republican gains in last November’s elections, he is now just the ranking minority member. Whether the Republican leadership will give the Waxman-Butterfield request the time of day remains to be seen.

Democrats do still hold a majority in the Senate. So perhaps the most effective step, if the Republicans at House Commerce rebuff Waxman and Butterfield, would be for Udall to initiate hearings there. That’s my first big observation.

My second is that the questions raised by helmet hearings must be broad enough to serve as a public-education platform for the global problem of concussions in contact sports. I don’t want to watch the CEO’s of Riddell and other helmet manufacturers squirm under questioning over the percentage drop in concussions promised by their products. No one is going to jail over a relatively minor bit of hype, and no one should. The real public-health issue is this:

Where is the federal government on the national concussion crisis? The National Football League, with its $9 billion in annual revenue, has paid an appallingly small share of the bill for the millions of sports concussions sustained annually at all levels – many of them traceable to NFL commerce and its giant footprint on our culture. This is not a problem that can be entrusted to the tender mercies of the league, its oily doctors, their bought-and-paid-for clinical research, and the ingenuity of a few independent entrepreneurs seeking to design a better football helmet.

My third observation takes me to the agenda I’ve been pushing ever since Chris Benoit, a WWE star, murdered his wife and their 7-year-old son, and killed himself, then was found to have chronic traumatic encephalopathy. Concussions in sports are mixed up in the whole cocktail of steroid and painkiller abuse, as well as the whole subject of regulation of the profitable and influential (though, obviously, not NFL-size) pro wrestling industry.

Wrestling must not get swept back under the rug in these investigations just because it’s considered more icky than football. Waxman himself, then as chair of the House Committee on Oversight and Government Reform, supervised an excellent investigation in 2007 of WWE’s leaky “wellness program,” but the probe went nowhere – just transcripts of staff interviews of company executives and contractors, no public hearings, and a critical letter report by Waxman that landed in the slush pile of the White House Office on National Drug Control Policy. As I have pointed out, some of the WWE testimony on its knowledge of and measures to curtail industrial brain injuries was at least as questionable as baseball’s Miguel Tejada’s earlier dissemblings about his “Vitamin B-12” shots, which earned him a humiliating plea bargain.

And as my friend Don Hooton – director of the Taylor Hooton Foundation, a steroid-awareness group – points out, not even public hearings are always the answer. The Waxman Committee’s 2005 sessions, in which baseball steroid abuser Mark McGwire essentially took the Fifth Amendment, baseball steroid abuser Sammy Sosa did a me-no-speak-English shtick, and baseball steroid abuser Rafael Palmeiro wagged his finger and denied, were the most-watched hearings in history.

“Yet what came out of that from the federal government? Nothing,” a disappointed Hooton notes. “Major League Baseball has stepped up to the plate and done a lot more in terms of its testing and its education outreach, but neither Congress nor the executive branch has contributed any significant follow-through.”

Which leads me to Observation No. 4: why I put Senator Richard Blumenthal of Connecticut in the headline along with Waxman and Udall.

Freshman Democrat Blumenthal won his seat over Republican Linda McMahon, the $50 million “self-financed” ex-CEO of WWE. During the campaign, Blumenthal got help not only from Hooton but also from Mike Benoit, Chris’s father. In his first post-election press conference, Blumenthal vowed to take action on “steroids” when he was in Washington.

With the concussion crisis boiling over and the helmet investigation in the air, now is an opportunity for Senator Blumenthal to punch the ticket of his mandate. You can call it “steroids” or you can call it “concussions” or you can call it “pro wrestling regulation.” Just don’t wind up having me label it grandstanding or inaction.

Irv Muchnick

Concussion Research Pioneer Bennet Omalu Returns to ‘Neurosurgery’ Journal

[posted 3/9/11 to http://wrestlingbabylon.wordpress.com]

As first reported on this blog last month, Dr. Bennet Omalu has an important and comprehensive article in an upcoming issue of the journal Neurosurgery. A pre-publication electronic version of the article by Omalu and the team at the West Virginia Brain Injury Institute, “Emerging Histomorphologic Phenotypes of Chronic Traumatic Encephalopathy [CTE] in American Athletes,” is now available. The abstract is at http://journals.lww.com/neurosurgery/Abstract/publishahead/Emerging_Histomorphologic_Phenotypes_of_Chronic.99380.aspx. The full article can be downloaded by journal subscribers, or by non-subscribers for $40.

I purchased my own copy of the article, and the interpretations of it here are my own.

Some highlights:

· It is noteworthy that 74 years elapsed between the first recognition in medical literature of permanent brain damage in boxers (dementia pugilistica or “punch drunk syndrome”) in 1928 and Omalu’s discovery of CTE in 2002.

· The population or “cohort” of postmortem brains studied to date by the Omalu group has turned up evidence of “incipient” CTE in an 18-year-old who had been playing football for six years.

· Omalu et al. say that the absence of portions of the brain for autopsy study does not preclude identifying CTE in available tissue.

· Despite press last year suggesting a link between CTE and Amyotrophic Lateral Sclerosis, or “Lou Gehrig’s Disease” – perhaps even, retrospectively, for Gehrig himself – the Omalu team says the two pathologies are not related (though they can co-exist).

· “Given the limited number of whole brains in our emerging cohort, we strongly recommend that CTE diagnosis and surveillance should no longer be regarded as empirical research requiring family consent. Rather CTE diagnosis and surveillance should become intrinsic components of routine patient care work-ups and routine hospital/medical examiner autopsies in high risk cohorts like athletes.” If implemented, this recommendation would appreciably accelerate public understanding of the CTE phenomenon. Some constituencies – notably retired and disabled National Football League players contemplating legal action – are dissatisfied with the current pace of the release of findings.



Though not identified by name, “case five” of this article refers to Chris Benoit: “acute cerebral parenchymal contusions due to blunt force trauma of the head, as well as sparse to marked perivascular and intramural lymphocytic infiltration of many penetrating parenchymal vessels.” (This according to Mike Benoit, the father, who has read the article.)

That, in turn, leads me to attempt to set to rest the attacks on the Benoit findings by Jerry McDevitt, the lawyer for World Wrestling Entertainment. (The full political background of McDevitt’s innuendos was developed in my February 8 blog post, at http://wrestlingbabylon.wordpress.com/2011/02/08/exclusive-dr-bennet-omalu-barred-from-publishing-chris-benoit-brain-findings-in-neurosurgery-has-a-new-article-scheduled-for-the-journal%E2%80%99s-march-2011-issue/.)

I have had the practice of publishing in full McDevitt’s legal threats to me. I do so in the interest of transparency and fairness. I have said repeatedly that his wild ancillary accusations against Omalu of chain-of-custody abuse with Benoit’s brain are laughable smear tactics. One consequence is that Omalu, who is chief medical examiner of San Joaquin County, California, and widely used as an expert in cases in other jurisdictions, often finds himself subjected to attacks from opposition counsel that are based on out-of-context quotes from McDevitt’s December 16, 2010, letter to me and accompanying exhibits.

Irv Muchnick


‘Never Mind the Lockout – Make NFL Pay Its Fair Share of the National Sports Concussion Tab’ ... today at Beyond Chron

Concussion Inc.: CTE Expert Robert Cantu Has Confused Relationship With Xenith Helmet Company

Saturday, March 12, 2011

Concussion Inc.: CTE Expert Robert Cantu Has Confused Relationship With Xenith Helmet Company

[posted 3/8/11 to http://wrestlingbabylon.wordpress.com]

Having lambasted Dr. Joseph Maroon for his sundry commercial associations, I cannot fail to explore a controversy last week sparked by articles in the Boston business press reporting that Dr. Robert Cantu had some kind of advisory status with the innovative Xenith helmet company.

Cantu of Boston University, the physician who diagnosed Chris Nowinski’s concussions prior to the launch of his Sports Legacy Institute, is one of the leading lights in chronic traumatic encephalopathy research. He was quoted widely in the coverage of the latest Boston U./SLI finding of CTE in a deceased athlete: hockey player Bob Probert. In coming days I’ll try to add a little to the public conversation about the Probert case.

Meanwhile, fasten your chin straps for a complicated tale of hype in the world of venture capital.

I am not alleging here the kind of blatant corruption suggested by the deep-seated symbiosis of Maroon with the Pittsburgh Steelers, the National Football League, World Wrestling Entertainment, the University of Pittsburgh Medical Center, the imPACT testing program, the unregulated supplements Vindure and Sports Brain Guard, and the Riddell “Revolution” helmet. That particular custodian of the Hippocratic Oath has turned himself into a walking infomercial.

On the other hand, do Cantu and Xenith themselves pass the “Caesar’s wife” test of discouraging even the appearance of impropriety? You decide.

Xenith, LLC is a Lowell, Massachusetts-based company started by Vincent Ferrara, who played quarterback at Harvard in the 1990s and, indeed, lost most or all of one season to a concussion. (He happened to be four years ahead of Nowinski at Harvard.) Ferrara then got his M.D. and, upon finding himself most interested in the business side of health care, his MBA at Columbia.

I am not an expert and I have no opinion on the benefits of Xenith’s helmet model. If it has the potential to prevent injuries and save lives, then great. In a phone conversation with me last Thursday, Vin Ferrara said all the right things about the primacy of education – how no piece of head hardware can substitute for safer playing technique and a smarter athletic mindset.

In a 2007 New York Times story on Ferrara’s company – written by concussion beat writer Alan Schwarz – Dr. Cantu said a good bit more.

Schwarz’s article asserted that the Ferrara helmet’s 18 thermoplastic shock absorbers filled with air “can accept a wide range of forces and still moderate the sudden jarring of the head that causes concussion.” In addition, unlike traditional foam helmet lining, the disks do not degrade after hundreds of impacts, according to laboratory tests.

Cantu told The Times this was “the greatest advance in helmet design in at least 30 years.” He was identified as an informal adviser during the helmet’s development with “no financial relationship with the product.”

In September 2010, Xenith issued a press release announcing it had raised $10.5 million in equity financing. The release cited the marketing inroads of the company’s X1 football helmet. Dr. Cantu was nowhere mentioned. (The document can be viewed at http://muchnick.net/xenithpr.pdf.)

However, until very recently – that is, some time past the September round of PR – Cantu was still on the Xenith website (http://xenith.com). Ferrara told me that Cantu had asked for the removal of the references to him several months ago.

By law, Xenith was required to submit paperwork to the Securities and Exchange Commission about its $10 million financing threshold; the filing became public on February 25. Three days later – a week ago Monday – a spate of articles about Xenith appeared in online versions of Boston business magazines. Citybizlist.com, for example, wrote:

Xenith helmets have been recorded to reduce the risk of concussion by as much as 60%, and players have reported a 70% reduction in the incidence of headaches. Xenith advisor Dr. Robert Cantu, co-director of the Center for the Study of Traumatic Encephalopathy at Boston University School of Medicine and one of the nation’s leading experts in concussion management, called it “the greatest advance in helmet design in at least 30 years.”

The Boston Business Journal and its offshoots also erroneously reported (and subsequently retracted) NFL Hall of Fame quarterback Warren Moon’s participation in the Xenith investment group.

Ferrara shared with me his email to the leadership of the National Operating Committee on Standards of Athletic Equipment, in which he said he had “absolutely no idea why anything came out today, and Xenith had no involvement in this whatsoever…. [Xenith’s September press release] in no way mentions concussions, concussion reduction, the NFL, Warren Moon, Bob Cantu, or anything else that is being printed in these recent posts. I have received numerous calls, emails, etc about these releases, and I am truly baffled as to how this transpired. I have already emailed Jeff Pash [NFL attorney] to inform him of this as well.”

I also spoke last Thursday with Cantu, who reinforced that he has never been a paid advisor for Xenith. “Have I talked with people from that company about their products? Yes. I do that with a lot of companies,” Cantu said. “But I have not received money from any of them.”

I’m not sure what to make of all this. In my experience, business journalists don’t ordinarily have the enterprise to research and publish deep backgrounders with short turnarounds – let alone inaccurate ones – every time a company makes a routine SEC filing.

I also think that, while the root 2007 Times article carefully disclaimed Cantu’s equity interest in Xenith, the story as a whole smells of social networking in the old-fashioned sense – the kind involving Ivy League elites well practiced in planting high-toned hype in the Newspaper of Record. Would a startup elsewhere located and with a worse-connected CEO have been able to get this kind of ink?

It was wrong for Riddell Helmets, aided by NFL-funded research conducted by Joseph Maroon, to be making the kinds of statistical safety claims now under investigation by the Federal Trade Commission.

It was also wrong for Robert Cantu and Xenith to have gotten mixed up in their own brand of fledgling and unverifiable braggadocio.

As the public witnesses a statistically significant population of athletes dying young, often by their own hands, leading doctors cautiously emphasize how much is yet to be understood about the scope and magnitude of traumatic brain injury in contact sports. I just wish the same doctors would be correspondingly modest about the commercial products designed to mitigate it.

Tomorrow: My review of the new article for Neurosurgery by Dr. Bennet Omalu, the “conscience of CTE research.”

Irv Muchnick

‘Never Mind the Lockout – Make NFL Pay Its Fair Share of the National Sports Concussion Tab’ … at Beyond Chron

File the National Football League labor negotiations under the heading “game within the game.” My best guess is that since veteran players, in particular, hate offseason minicamps and summer training camp anyway, this sucker remains months away from resolution. Don’t be surprised if the first few games of the 2011 season have to be scrubbed before the owners have made their point; and you’d need more than a feather to knock me over if the immediate upshot were a loaded-up January-February 2012 playoff schedule to prepare the television audience for the new tradition of an 18-game regular season starting the following fall.

It’s an understatement to say that the fate of the next edition of the NFL market-a-thon shouldn’t top our list of collective worries. Last week I saw this astute post on Twitter: “Maybe a country so obsessed with the NFL combine could use a year off from pro football.” I expressed a similar sentiment in this space six months ago (“Why a 2011 NFL Strike or Lockout Would Be the Best Thing for America,” Beyond Chron, Sept. 20, 2010) – except that I wasn’t commenting on priorities willy-nilly. I was, and I still am, talking about the national sports concussion crisis, reflection on which would be aided by an enforced shutdown over the failure of owners and players to peacefully divvy up their $9 billion annual pie.



Friday, March 11, 2011

‘Muchnick on Duerson, CTE Consciousness, And What It Means For Wrestling’ (full text from WrestlingObserver.com)

[originally published on March 2 at http://www.f4wonline.com/content/view/19670/]

Irv Muchnick on football’s Dave Duerson, CTE consciousness, and what it means for wrestling

The other day I got an email from a friend who was following my coverage of the suicide of former National Football League player Dave Duerson. While the mainstream media proceed with predictable tearjerkers, I’ve been talking about this story’s elephant in the closet: the outrage that Duerson, who seems to be yet another case of chronic traumatic encephalopathy (CTE), was serving on a joint union-management panel making wrongheaded rulings on mental disability claims applications of other retired players and their families.

My friend didn’t get into all that. She simply wanted to know this: “So – is football your next big thing?”

My answer is that the CTE trail, wherever it leads, is more of the same big thing. The focus on pro football, rather than pro wrestling, is both good and bad. Good, because the former is at least nine times larger and more influential than the latter, and therefore an easier public-education sell.

But also potentially bad for two reasons. Bad because the NFL is so financially powerful and so engrained in our popular culture that defenders of the indefensible – a paradigm of slow and systematic death trickling down to thousands of youth sports programs across the country – could carry the day with a combination of inane libertarian arguments and profitable denial.

And bad because all this could allow World Wrestling Entertainment, itself a billion-dollar publicly traded company, to lurk back underneath the radar while its almost criminally negligent occupational health and safety lapses – starkly exposed during Linda McMahon’s failed 2010 Connecticut Senate run – go unaddressed.

Understand that my position here has nothing to do with which sport is “legit” and which “worked.” Wrestling is “worse” than football in one main respect: the spectacle is choreographed, and the promotion therefore has more control over what the performers do to others and themselves in the name of glory and riches. In addition, the doctors there who enable bad practices (like WWE medical director Joseph Maroon, also a Pittsburgh Steelers and NFL consultant who is now caught up in a federal investigation of the exaggerated safety claims of Riddell helmets, an official league supplier) are arguably more contemptible, though they would undoubtedly contend that their very presence does more good than harm.

As with steroid and painkiller abuse, working conditions, the flow and accounting of revenues, and other related issues, the intersection of football and wrestling leads to another thought, about the concept of a wrestlers’ talent union. Some wrestlers like to speak out on behalf of one, but always only after their voices are no longer powerful enough to make a difference. Bret Hart is the classic recent example.

But anyone examining the Dave Duerson scenario has to admit that a union itself might not be the answer anyway. Right now the National Football League Players Association is at an impasse with the league in collective bargaining over how to divide the industry’s $9 billion in annual revenues. Player safety is an afterthought. The Players Association leadership consistently, and perhaps accurately, concludes that the vast majority of its members want it that way. How else to explain the disgraceful foot-dragging on outreach to and appropriate compensation for the hundreds of mentally and financially disabled NFL alumni across the country – almost all of them ticking CTE time bombs waiting to happen?

Duerson put a bullet through his heart, and the treacly commentary is that this was a selfless gift to future CTE awareness. Well, maybe, but reining in the excesses of bread-and-circuses American sports will have no single-bullet solution. In the case of wrestling, greater government oversight is part of the answer. I say so not because wrestling is gross, or wrestlers are “role models,” or adult men and women aren’t entitled to make their own career choices (or, in the death-defying euphemism, “pursue their dreams”). It is because the rest of us have an interest in not picking up the tab for a gratuitous industrial body count, and in balancing our thirst for entertainment with deterrence against warped public-health values.

Today is, I believe, the first day in office for Glenn Marshall, Connecticut’s new commissioner of labor. Wrestling fans everywhere should look forward eagerly to the results of the Labor Department’s audit of WWE’s alleged abuse of independent contractor classification for its wrestlers. This is one important step in a long process of saving lives, families, and unconscionable societal costs.

Irvin Muchnick (http://wrestlingbabylon.wordpress.com; http://twitter.com/irvmuch) is author of CHRIS & NANCY: The True Story of the Benoit Murder-Suicide and Pro Wrestling’s Cocktail of Death.

‘Honoring Dave Duerson: Three Things the NFL, Fans, And Sponsors Must Do’ (full text)

[originally published on February 28 at Beyond Chron, http://www.beyondchron.org/articles/Honoring_Dave_Duerson_Three_Things_the_NFL_Fans_And_Sponsors_Must_Do_8939.html]

by Irvin Muchnick

The suicide of Dave Duerson, a long-time National Football League Players Association stalwart, came during a collective bargaining impasse between the union and the owners. The sad truth revealed by the maudlin first round of reaction to the news that Duerson probably had severe brain damage from football concussions – something postmortem study will have to confirm – is that these contract negotiations do not, in the familiar idiom, simply pit greedy billionaires against greedy millionaires. Rather, they pit billionaires who know what they’re doing against millionaires who don’t have a clue.

That’s the only logical conclusion I can draw from the fact that Duerson, while losing his Goliath post-NFL career food distribution business, plunging into personal bankruptcy, seeing his house seized by a bank, and getting arrested for beating his wife – all among the telltale signs of chronic traumatic encephalopathy (CTE) – was being appointed by the Players Association as one of the trustees of a league fund, jointly administered by management and union, to compensate retired players with disability claims. These included since 2007, under the “88 Plan,” claims for reimbursement of acute care expenses for players with dementia.

Who needed a fox guarding the chicken coop when there was a hypermacho-enabling union more focused on the fair division of the NFL’s $9 billion revenue pie than on whether its members worked under conditions that would give them a reasonable expectation of living and functioning past age 50?

No doubt Duerson had the best of intentions for his fellow athletes when he insisted, both on the NFL Player Care panel and in Senate Commerce Committee testimony, that ex-Minnesota Viking lineman Brent Boyd’s mental illness in his forties wasn’t proven to be football-related. Duerson pointed out that his own father had Alzheimer’s disease, in his late seventies or eighties, yet had never played football!

But sincere or not, we now also know more than just that Duerson’s argument was nuts. He was, too. Cognitively impaired. Of diminished capacity. Lacking responsible judgment. All from the very phenomenon on which he was himself instrumental in making crucial administrative-legal rulings – a role for which, in retrospect, he was clearly incompetent.

That’s why I say enough with the media’s Duerson pity party. If his friends and loved ones take comfort that his donated brain will contribute to public awareness of CTE, then by all means give them their soft landing.

But the powers-that-be, in both the NFL and the NFLPA? Not so fast. Duerson was no hero, any more than World Wrestling Entertainment star Chris Benoit, who murdered his family and killed himself, and has been shown to have had CTE, was a hero. There were already dozens of confirmed cases of CTE, and undoubtedly hundreds of other unreported or ill-reported cases, by the time Duerson put a gun to his chest.

If we’re really intent on honoring Dave Duerson, then let’s put some substance on his legacy. I have a three-point plan. We can call it the Double D Three-Point Stance.

The NFL’s Brian McCarthy told me that 11 of 170 ex-players’ claims submitted so far under the 88 Plan were rejected. (Eight applications are pending.) I believe Duerson participated in all of the negative votes of the six-person panel. I’m sure that, even as I write this, lawyers for these players’ families are preparing new litigation arguing that the evidence of Duerson’s incompetence should invalidate the disability plan decisions. Instead of fighting a legal war of attrition over the inevitable, NFL Player Care should concede the morally obvious and order immediate “replay review” of the rejected 11.

DOUBLE 88 PLAN OUTREACH AND BENEFITS. The plan – named for Hall of Fame tight end John Mackey, who wore uniform No. 88 – grants up to $88,000 a year in reimbursement for the medical expenses of dementia victims. At Duerson’s funeral Saturday in Chicago, his son Brock said the family would be setting up a foundation to aid players with mental illness. But hey, let’s cut out the middle man here. To date, NFL Player Care has distributed around $7 million under the 88 Plan. In their contract talks, let the NFL and the NFLPA take off the table enough crumbs from their $9 billion food fight to double the size of the disability fund endowment and benefits.

This is the hardest one for me to talk about in specifics at this point. But nothing will get the league and the players’ union to take meaningful action until fans pull their heads out of their hero-worshipping butts and start taking responsibility for the human and societal costs of their entertainment. One possible idea: There is much promising research on the efficacy of Omega-3 supplements in reversing or at least slowing brain damage. Fan groups could raise money for distributing free supplies to NFL alumni – and also pressure beer companies, which tag “drink responsibly” bromides onto their wall-to-wall football telecast commercials, to pitch in, too.

While I was filing this piece with Beyond Chron on Sunday night, obsessed fans were already turning the page on Duerson and refocusing on the disgusting meat rack that is the NFL pre-draft combine coverage. (Where is Jesse Jackson when you really need him for an observation on how the big-time sports system is just like an antebellum plantation?)

As millions pondered Cam Newton’s flexing pecs and stopwatch reading in the 40-yard dash, a report out of Canada said that former NFL and Canadian Football League defensive back Ricky Bell died ten days ago at age 36. Bell’s girlfriend and mother in South Carolina declined to comment on the cause of death.

Irvin Muchnick (http://muchnick.net; http://wrestlingbabylon.wordpress.com; http://twitter.com/irvmuch) is author of CHRIS & NANCY: The True Story of the Benoit Murder-Suicide and Pro Wrestling’s Cocktail of Death.

Monday, March 7, 2011

‘Muchnick on Duerson, CTE Consciousness, And What It Means For Wrestling’ ... at WrestlingObserver.com

[posted 3/2/11 to http://wrestlingbabylon.wordpress.com]

Irv Muchnick on football’s Dave Duerson, CTE consciousness, and what it means for wrestling


How Many Other Players’ Applications Did Dave Duerson Reject on the NFL Disability Claims Committee?

[posted 3/2/11 to http://wrestlingbabylon.wordpress.com]

I’ve reported that the NFL Player Care panel reviewing claims under the “88 Plan,” covering medical costs associated with dementia, has rejected 11 of the 170 applications received since the plan’s inception in 2007.

What we don’t yet know is how many other disability claims were turned down while the late Dave Duerson served as one of the six joint management-union trustees on that committee.

Last week NFL communications head Brian McCarthy gave me the 88 Plan stats. When I asked for the other Duerson data, McCarthy said he didn’t know Duerson’s precise tenure (I believe it started around 2006), and suggested I contact the NFL Players Association, which appointed him.

But the union’s spokesman, Carl Francis, has not responded to emails sent either before or after my exchange with McCarthy.

Remember why this matters: Duerson, in hindsight, was not competent and the disability claims deliberations in which he participated were tainted. Many of the negative claims decisions were spectacularly controversial. All must be reconsidered.

Irv Muchnick

Wednesday, March 2, 2011

‘Honoring Dave Duerson: Three Things the NFL, Fans, And Sponsors Must Do’ ... today at Beyond Chron

[posted 2/28/11 to http://wrestlingbabylon.wordpress.com]

The suicide of Dave Duerson, a long-time National Football League Players Association stalwart, came during a collective bargaining impasse between the union and the owners. The sad truth revealed by the maudlin first round of reaction to the news that Duerson probably had severe brain damage from football concussions – something postmortem study will have to confirm – is that these contract negotiations do not, in the familiar idiom, simply pit greedy billionaires against greedy millionaires. Rather, they pit billionaires who know what they’re doing against millionaires who don’t have a clue.

That’s the only logical conclusion I can draw from the fact that Duerson, while losing his Goliath post-NFL career food distribution business, plunging into personal bankruptcy, seeing his house seized by a bank, and getting arrested for beating his wife – all among the telltale signs of chronic traumatic encephalopathy (CTE) – was being appointed by the Players Association as one of the trustees of a league fund, jointly administered by management and union, to compensate retired players with disability claims. These included since 2007, under the “88 Plan,” claims for reimbursement of acute care expenses for players with dementia.

Who needed a fox guarding the chicken coop when there was a hypermacho-enabling union more focused on the fair division of the NFL’s $9 billion revenue pie than on whether its members worked under conditions that would give them a reasonable expectation of living and functioning past age 50?



We Interrupt the NFL Combine News to Announce Another Death

[posted 2/27/11 to http://wrestlingbabylon.wordpress.com]

Ricky Bell, 36, a former National Football League and Canadian Football League defensive back, like Dave Duerson, died ten days ago at age 36. His family refused to divulge the cause.

See http://www.theglobeandmail.com/sports/football/former-cfler-ricky-bell-dead/article1922423/?utm_medium=Feeds%3A%20RSS%2FAtom&utm_source=Home&utm_content=1922423.

Now back to the bulletins on Cam Newton’s time in the 40-yard dash.

Irv Muchnick

Dave Duerson NFL Suicide Story You’ll Read Nowhere Else — In Five Parts

[posted 2/26/11 to http://wrestlingbabylon.wordpress.com]

Duerson Suicide Shows NFL Body Count Rising Like WWE’s – But With New Intrigue (full text)


For Dave Duerson, ‘88 Plan’ Wasn’t Enough


‘Dave Duerson Knew Nothing About Concussions and Players’ Best Interests’ – My Exclusive Interview With Ex-Minnesota Viking Brent Boyd


Dave Duerson’s Posthumous ‘Deadspin’ Interview Is More Revealing Than Candid


Out of Respect for Dave Duerson, NFL Must Reopen Rejected Disability Claims

Duerson Suicide Shows NFL Body Count Rising Like WWE’s – But With New Intrigue (full text)

[posted 2/26/11 to http://wrestlingbabylon.wordpress.com]

[originally published on February 22 at Beyond Chron, http://www.beyondchron.org/articles/Duerson_Suicide_Shows_NFL_Body_Count_Rising_Like_WWE_s_But_With_New_Intrigue_8920.html]

by Irvin Muchnick

The gruesome decades-long underground American saga that is the football concussion crisis has never gotten in our faces quite like the story of the suicide last week, at age 50, of one-time National Football League defensive player of the year Dave Duerson.

How many levels are there to the news that Duerson put a gun to himself, but not before texting family that he wanted his brain donated for research on the brain-trauma syndrome now known as chronic traumatic encephalopathy (CTE)? Let us, like Elizabeth Barrett Browning, count them. It begins with the fact that he shot himself in the chest – perhaps with supreme confidence that by avoiding his head and leaving intact his postmortem brain tissue, it will confirm that he is around the 21st diagnosed case of CTE among former football players.

Duerson is the latest casualty of a sport that has evolved, via training technology and industrial design, into a form of gladiatorialism whose future human and economic viability is questionable. The New Yorker and The New York Times have started assessing this cultural phenomenon with their own brands of competence and Ivy League restraint. From the closeted gutter of pro wrestling, where all the same venalities play out with less pretense, I’m here to tell “the rest of the story” – such as how the same corrupt doctors who work for the NFL also shill for World Wrestling Entertainment, and how it’s all part of the same stock exchange of ethics for profits and jock-sniffing privileges.

I would not be hasty to label Duerson a “victim”; for most of his 50 years, he was personally driven to make particular professional choices. But the thing that fans … parents … people … still haven’t wrapped their minds around is the magnitude of the toll of the Dave Duersons at the amateur level, and below the age of consent, via a nationally unhealthy system of dangled glory and riches.

And with Duerson, there’s a wrinkle taking journalistic and governmental investigations of this public health issue into its murkiest waters yet.

Duerson was not just a leader of the record-setting – and skull-crunching – defense of the 1986 Super Bowl champion Chicago Bears. He was also a member of the six-person NFL committee that reviewed the claims of retired players under the league’s disability plan and the so-called “88 Plan,” a special fund to defray the costs of families in caring for players diagnosed with dementia.

Don’t look for this last to be prominent in Duerson retrospectives. We can count on quotes from fellow ex-NFL lions about how scary it all is, and we can count on further details on Duerson’s bankruptcy and collapsed personal life, but we’re not likely to get into the 88 Plan files he was helping process.

When news of Duerson’s death broke, but before the suicide details emerged, the NFL was first out of the gate with a preemptive statement of condolence. It’s in keeping with a strategy of triangulation that has been its hallmark ever since it became apparent that research articles in clinical medical journals such as Neurosurgery – literature largely written by NFL-paid doctors, including the Pittsburgh Steelers’ Joseph Maroon, who is also medical director for WWE – consciously lowballed the evidence on CTE for many years. The Neurosurgery reverse-hype also deftly promoted for-profit diagnostic stopgaps, such Maroon’s “imPACT” concussion management system and the Riddell helmet company’s “Revolution” model. The latter is now the focus of a Federal Trade Commission investigation undertaken at the request of Senator Tom Udall.

If Duerson and other NFL players had been taught to tackle as carefully as the NFL manages its PR, then the annual national concussion total, conservatively estimated at around four million, would have been immediately halved.

The league recently launched a new website, http://nflhealthandsafety.com, with exquisite timing and calculated transparency. The site touts the NFL’s $20 million in funded research, without examining exactly what that $20 million has bought.

The site’s Media Center also links to important stories in the news. As this article was being submitted to Beyond Chron, the top one was “Debate arises concerning use of helmets in girls’ lacrosse” (New York Times, February 17). Well, let’s see how nflhealthandsafety.com covers Dave Duerson’s suicide. Let’s see, for example, if it links to this one.

Irvin Muchnick, author of CHRIS & NANCY: The True Story of the Benoit Murder-Suicide and Pro Wrestling’s Cocktail of Death, is @irvmuch on Twitter and blogs at http://wrestlingbabylon.wordpress.com.

Out of Respect for Dave Duerson, NFL Must Reopen Rejected Disability Claims

[posted 2/25/11 to http://wrestlingbabylon.wordpress.com]

In covering Dave Duerson’s suicide pointedly, I mean no disrespect for the memory of someone who, according to many people who knew him, was a good guy. I never met the man myself. But my research on the murder-suicide of wrestler Chris Benoit and its offshoots has turned me into a lay PhD candidate on the ugly personality changes, loss of emotional control, and sheer cognitive deterioration that are hallmarks of chronic traumatic encephalopathy – from which Duerson, like Benoit and so many others, may be proved to have suffered.

So I have specific reasons for resisting the mawkish sentimentality of much of the Duerson media coverage. That coverage reflects the culture we inhabit. It is also perfectly appropriate for family and friends to be eager to keep his legacy positive. For my money, however, such a legacy must be tied to outcomes.

As we move along, I’ll be discussing several of the outcomes I have in mind. Here’s one for starters: an adjustment of the record created by Duerson’s work for the NFL Player Care Foundation, whose programs include the so-called “88 Plan,” which provides retired players with up to $88,000 per year for medical and custodial care resulting from dementia.

I checked with Brian McCarthy, the National Football League’s communication director, and he told me that since the February 2007 inception of the 88 Plan, the joint labor-management disability claims committee has received 170 applications. All but 19 have been approved. Eight applications are pending. Eleven have been rejected.

I am not sure how many of the 11 rejections came during Duerson’s tenure on the committee – I assume all or almost all. Out of respect for his sacrifice and in acknowledgment of what, in retrospect, was his diminished competence, these 11 files should be reopened and reconsidered at once.

The same should be done for all non-88 Plan claims on which Duerson deliberated. I believe these would include the claims of ex-Minnesota Viking lineman Brent Boyd, the subject of the story on this blog yesterday. (Boyd’s file began in 2000, pre-88 Plan, and may not ever have referred to that part of the disability benefits program; he claimed football-related mental illness, but I don’t believe that included dementia.)

What say you, NFL and your Player Care partner, the NFL Players Association?

You can litigate to death the question of Duerson’s disqualification. Or you can take the high road in at least this narrowly defined area, in return for considerable public good will. On the field, you’ve instituted replay review for the sake of getting the call right. Today, off the field, the lives of disabled NFL veterans and their families require nothing less.

Irv Muchnick