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Congressional Report Identifies Serious Health Concerns Not Addressed by NFL and Players Union
Congressional
Report Identifies Serious Health Concerns
Not Addressed by NFL and Players
House Judiciary Committee to
Hold Further Hearings;
Examine Possible
Legislative Remedy
(
Initiated
by a bipartisan request, the CRS report examined the types and severity of
health problems suffered by current and former National Football League (NFL)
players focusing on the disability benefit programs and the health and safety
initiatives of the NFL and NFL Players Association (NFLPA).
“I
commend the NFL and NFLPA for having taken some affirmative steps since our
last hearing, but in my view they still fall short of the goal line,” said
Conyers. “This report identifies major concerns about the long-term health of
NFL players that demand further attention. The Committee intends to hold
hearings and explore possible legislation to address this matter.”
“This
report clearly demonstrates that the NFL and NFLPA need to make serious efforts
to collect data on player injuries and eliminate the conflict of interest by
team doctors who place the financial interests of their teams ahead of players'
health. The NFL cannot expect to simultaneously be team owner and referee,” said
Sánchez. “After further reviewing the proposals suggested by CRS, I plan to
work with my colleagues on legislation addressing several of the issues raised
in the report.”
The
report concluded that:
- The
injury rate for NFL players was nearly eight times higher than that of any
other commercial sports league, including hockey and auto racing.1
- Neither
the NFL nor the NFLPA maintain data on the number or percentage of players
who retire because of injury.2
- Former
players find access to health benefits very difficult.3
- The
current system is subject to a variety of conflicts of interest which
appear to be detrimental to players -- Medical care provided by the team
for its players raises serious conflict of interest concerns as a team
physician must balance the players’ health concerns with those of the
coaches and owners who expect players to play injured.4
- The
NFLPA has very limited authority and capabilities regarding health and
safety issues, devoting only a part-time advisor to attend to these
matters.5
The
Committee requested the CRS report and documents in response to the testimony
at the Commercial and Administrative Law Subcommittee’s June 26, 2007 hearing,
“The National
Football League’s System for Compensating Retired Players: An Uneven Playing
Field?” In that hearing, former players Mike Ditka, Harry Carson, Curt
Marsh, and Brent Boyd detailed injuries sustained during their playing days
that continue to hamper them today. They also recounted the complex process
that deters many former players from receiving disability benefits.
The full text of the CRS Report may be found here.
The Committee
has posted on its website the full text of the NFL and NFLPA responses to
the Committee’s questions as well as supplemental documents from the NFL and
the NFLPA.
1.
“Reportedly, the 2003 NFL injury rate was nearly eight times higher than that
of any other commercial sports league, according to the U.S. Department of
Labor — and that includes the National Hockey League, the National Basketball
Association, and professional auto racing.” CRS Report p. 8; Carl Prine,
“Bloody Sundays,” Pittsburgh Tribune-Review, Jan. 9, 2005, available at [http://www.pittsburghlive.com/x/pittsburghtrib/news/
specialreports/specialnfl/s_291033.html].
2.
“Comprehensive data about the health of former players apparently are not
collected and maintained, either by the NFLPA or the NFL, or by a third party.
Neither the players association nor the league collects data on number or
percentage of players who retire because of an injury or injuries.” CRS Report
p. 4.
3. “Overall,
from July 1, 1993, through June 26, 2007, 1,052 individuals applied for LOD
[Line-of-Duty] or T&P [Total and Permanent] disability benefits: 428
applications were approved; 576 were denied; and 48 are pending. The approval
rate, which does not include the cases that are pending, is 42%.” CRS Report p.
82.
4. CRS Report p.
115. The NFL has also consistently selected individuals and organizations that
are affiliated, either directly or indirectly, with the NFL to conduct research
on subjects and issues related to player health. CRS Report p. 123.
5. “The extent of the NFLPA’s authority and
capabilities regarding health and safety issues, and its position on such
issues are, at times, unclear. For example, the NFL has a number of committees
that deal with injuries, safety, and health. Apparently, the NFLPA does not
have any similar committees or entities, although, along with the NFL, it is
part of the joint committee on player safety and welfare. The NFLPA has a
medical advisor; but, apparently, this is not a full-time position.” CRS Report
pp. 111-112.
Baltimore Ravens NFLPA Player Representative Says Union "Must Begin to Prepare for a Change in Leadership Immediately"
ESPN.com reports Baltimore Ravens union representative, Matt Stover, sent an e-mail to other NFLPA player representatives on Monday which outlined a plan to have a new union Executive Director in place by March of 2009. The following is a copy of the e-mail sent by Stover:
In response to Stover's email, Upshaw told ESPN, "Matt Stover has no clue. Whoever is pulling his chain is doing a disservice to the union. I could understand the idea that they need to get rid of me if I wasn't doing a good job but, shoot, the owners are mad because they think I've done too good of a job."
It is promising to see these words from Stover. Players should be encouraged to think independently about their labor situation. Upshaw obviously thinks Stover is unable to think for himself and believes someone is "pulling his chain."
Based upon a seven day account of CBA negotiations in 2006 by the SportsBusiness Journal, no active players were involved in the negotiation process between the union and the NFL management council. Not even the NFLPA President attended the negotiation meetings. Many union representatives, including members of the NFLPA Executive Committee and then-NFLPA President Troy Vincent, were attending the NFL Business Management and Entrepreneurial Programs held at the Stanford Graduate School of Business and the Kellogg School of Management while an agreement on the latest CBA was reached.
Executive committee and reps,
After the conference call on Wednesday, April 4th, I believe that the
NFLPA is ready to begin a national search process to find a new
Executive Director. As you are completely aware of our election
process, Gene's contractual situation, and our looming battles against
the owners in the coming years, I feel that the Board must begin to
prepare for a change in leadership immediately. I believe we have the
proper environment with our teammates and leadership within the board
to execute the process of this selection. To be "Open and Transparent"
is critical for the body to back our possible selection, as well as our
outside critics.
I want to make this clear: I have no personal agenda as I would hope everyone else would as well. I only want what is best for the Union and our teammates and my intentions are to establish a healthy leadership for years to come. I believe that whoever the candidate would end up being has the opportunity to gain valuable insight and experience to lead future generations of players.
With that being said, I would suggest to the Executive Committee to:
1. Form a sub-committee (3-5 members) to lead the process. The members should have the time and resources to fully commit to this all-important process.
2. Use Board Designated Funds to hire an outside consultant, Executive Head Hunter or Search Firm to aid in the collection of candidates from both the outside and within the NFL world.
3. Form a list of 8-10 candidates by no later than the start of training camp.
I want to make this clear: I have no personal agenda as I would hope everyone else would as well. I only want what is best for the Union and our teammates and my intentions are to establish a healthy leadership for years to come. I believe that whoever the candidate would end up being has the opportunity to gain valuable insight and experience to lead future generations of players.
With that being said, I would suggest to the Executive Committee to:
1. Form a sub-committee (3-5 members) to lead the process. The members should have the time and resources to fully commit to this all-important process.
2. Use Board Designated Funds to hire an outside consultant, Executive Head Hunter or Search Firm to aid in the collection of candidates from both the outside and within the NFL world.
3. Form a list of 8-10 candidates by no later than the start of training camp.
4. Use any means necessary (personal meetings in home cities or another city or teleconference) to interview candidates, with completion by the end of the 2008 football season.
5. Form a final list of 3 candidates by Jan. 1, 2009 that
will be interviewed by the entire Executive Board from Jan. 1-Feb. 15
(6 weeks to interview 3 candidates again, by any means).
6. The entire Executive Committee select 1 candidate to be recommended to the Board of Reps. at the 2009 March NFLPA meeting.
As I recommend this process, I fully realize this is just 1 man. However, I was on that conference call and I am not the only Rep. who listened and felt that it is time for a change. As I make this suggestion, I will only hope that every one of us will put any personal agenda aside and remember who each of us represent. Both the old and young players in our locker rooms have voted us in because they trust our judgment. This is about the future of our organization. Not now ... not 1 or 2 years from now, but 5, 10, 15 years from now. Thanks.
-- Matt Stover
6. The entire Executive Committee select 1 candidate to be recommended to the Board of Reps. at the 2009 March NFLPA meeting.
As I recommend this process, I fully realize this is just 1 man. However, I was on that conference call and I am not the only Rep. who listened and felt that it is time for a change. As I make this suggestion, I will only hope that every one of us will put any personal agenda aside and remember who each of us represent. Both the old and young players in our locker rooms have voted us in because they trust our judgment. This is about the future of our organization. Not now ... not 1 or 2 years from now, but 5, 10, 15 years from now. Thanks.
-- Matt Stover
In response to Stover's email, Upshaw told ESPN, "Matt Stover has no clue. Whoever is pulling his chain is doing a disservice to the union. I could understand the idea that they need to get rid of me if I wasn't doing a good job but, shoot, the owners are mad because they think I've done too good of a job."
It is promising to see these words from Stover. Players should be encouraged to think independently about their labor situation. Upshaw obviously thinks Stover is unable to think for himself and believes someone is "pulling his chain."
Based upon a seven day account of CBA negotiations in 2006 by the SportsBusiness Journal, no active players were involved in the negotiation process between the union and the NFL management council. Not even the NFLPA President attended the negotiation meetings. Many union representatives, including members of the NFLPA Executive Committee and then-NFLPA President Troy Vincent, were attending the NFL Business Management and Entrepreneurial Programs held at the Stanford Graduate School of Business and the Kellogg School of Management while an agreement on the latest CBA was reached.
- Just days after NFLPA Executive Director Gene Upshaw told the SportsBusiness Journal there would not be a second in command at the NFLPA, Upshaw announced the promotion of Clark Gaines to Assistant Executive Director, the number two position within the NFLPA. Gaines has been an employee of the NFLPA for 22 years.
While vacationing with his family in Hawaii following the NFLPA annual meeting, Upshaw stated in an e-mail to the SportsBusiness Journal, “There is only a No. 1 and there will not be a No. 2. Number 2 is always trying to become No.1 and never wants to wait. They can always do it better, they are like backup [quarterbacks]. There is a reason they are backups."
NFL Retirement Plan Amendment Reduces Pension Payout to Participants
An amendment made to the Bert Bell/Pete Rozelle NFL Player Retirement Plan, which was made effective April 1, 2007, reduces the monthly pension benefit of plan participants who elect the Qualified Joint and Survivor Annuity Option or the Life and Contingent Annuitant Pension Option. The reduction can be as large as an 8% decrease of the monthly benefit.
A vested player may elect to receive his benefit in one of the following five forms as described in the official retirement plan document:
The amendment effects players who have elected either the Qualified joint and survivor annuity or the Life and contingent annuitant pension with their spouse named as their beneficiary and began drawing a pension after April 1, 2007. This group includes players who have yet to begin drawing a pension, including all active players.
The qualified joint and survivor annuity and the life and contingent annuitant pension are popular forms of payment for married players. Under these two forms of payment, if the player dies before his spouse, the spouse will continue to receive a benefit for the remainder of the spouse's life. When choosing either of these two options, the benefit amount received during the player's lifetime is reduced actuarially to account for the continued survivor benefit after the player's death.
With the April 1, 2007, amendment, the NFL Retirement Plan implemented a "pop-up" provision. What is a "pop-up" provision? The pop-up provision affects those players who have elected a qualified joint and survivor annuity or a life and contingent annuitant pension, which is the majority of retirees married at the time of payout election. If the player's spouse dies before the player, the pop-up provision allows the retiree to go back and reclaim his "life only pension" benefit amount.
The pop-up provision seems like an improvement at first glance. However, monthly benefits for players electing a qualified joint and survivor annuity or a life and contingent annuitant pension after April 1, 2007, have decreased. If you began drawing your pension after April 1, 2007, or you have yet to draw your NFL pension, you can see how the pop-up provision has affected your benefit amount by comparing the pre-pop-up provision table with the new pop-up provision table.
By comparing the two tables it is clear that players who begin drawing their pension after April 1, 2007, receive lower monthly payments and are essentially subsidizing the pop-up provision for all retirees that began drawing their pension before that date. While union officials have recently preached the virtue of waiting as long as possible to draw your NFL pension, it is those who have waited longest that are being penalized the most. Furthermore, assuming the player predeceases his wife, she will continue to draw the lesser amount for her lifetime.
NFLPA Executive Director Gene Upshaw recently told ESPN.com, "We are not going to take a pension from guys that have one coming and give it to someone else."
However, with this amendment, that is exactly what is being done.
How many players will ever utilize this pop-up benefit? On average, women live approximately 5 years longer than men in the United States. How many NFL wives will die before their husbands? Statistically, not many spouses will predecease their husbands. It seems the majority of players will never utilize the pop-up provision. The reduction in benefits being paid out to most players seems to be a windfall to the NFL Retirement Plan and the owners funding it.
If you have any questions regarding any of your NFL benefits you should contact the NFLPA Benefits Department. According to the NFLPA website, "The mission of the Benefits Department is to empower past, present and future NFL Players with the knowledge of their Benefits in order to make informed life stage decisions."
NFLPA Director of Player Benefits Miki Yaras-Davis is the NFLPA representative who signed the pop-up provision amendment into effect. All questions regarding the amendment and its' effects should be directed to her. She may be reached at (800) 372-2000.
Edit: In an earlier version of this post the reduction in benefits was incorrectly listed to be 6.3 percent. The actual reduction in monthly benefits can be as large as 8 percent.
A vested player may elect to receive his benefit in one of the following five forms as described in the official retirement plan document:
Life only pension - Equal monthly pension payments payable during the Player's lifetime only.
Qualified joint and survivor annuity - A monthly annuity for the life of the Player with a monthly survivor annuity for the life of the Spouse equal to 50% of the amount of the monthly annuity payable during the life of the Player, which will be the Actuarial Equivalent of the life only pension form of the benefit.
Life only pension with Social Security adjustment - Monthly pension payments payable during the Player's lifetime adjusted such that the sum of the pension payment plus the Player's expected Social Security benefit beginning at age 62 is the same before and after age 62, and further adjusted such that the Player's monthly pension from the Plan will not be less than $50. This option may only be elected by a Player who has at least one Credited Season prior to the 1993 Plan Year. This option is not available with respect to Benefit Credits for Credited Seasons prior to 1959.
Life and contingent annuitant pension - Equal monthly pension payments payable to the Player during his lifetime, and if the Player predeceases the person designated by him as his contingent annuitant, all or a fraction of his monthly pension, as designated in writing by the Player, will continue for the life of the contingent annuitant. The contingent annuitant must be the Player's Spouse, parent, child, brother, sister, or Dependent.
Life and 10-year certain pension - Equal monthly pension payments payable for the greater of 120 months or the Player's lifetime, with any remaining guaranteed payments being continued after the Player's death to his designated beneficiary or, if none, the Player's estate.
Qualified joint and survivor annuity - A monthly annuity for the life of the Player with a monthly survivor annuity for the life of the Spouse equal to 50% of the amount of the monthly annuity payable during the life of the Player, which will be the Actuarial Equivalent of the life only pension form of the benefit.
Life only pension with Social Security adjustment - Monthly pension payments payable during the Player's lifetime adjusted such that the sum of the pension payment plus the Player's expected Social Security benefit beginning at age 62 is the same before and after age 62, and further adjusted such that the Player's monthly pension from the Plan will not be less than $50. This option may only be elected by a Player who has at least one Credited Season prior to the 1993 Plan Year. This option is not available with respect to Benefit Credits for Credited Seasons prior to 1959.
Life and contingent annuitant pension - Equal monthly pension payments payable to the Player during his lifetime, and if the Player predeceases the person designated by him as his contingent annuitant, all or a fraction of his monthly pension, as designated in writing by the Player, will continue for the life of the contingent annuitant. The contingent annuitant must be the Player's Spouse, parent, child, brother, sister, or Dependent.
Life and 10-year certain pension - Equal monthly pension payments payable for the greater of 120 months or the Player's lifetime, with any remaining guaranteed payments being continued after the Player's death to his designated beneficiary or, if none, the Player's estate.
The amendment effects players who have elected either the Qualified joint and survivor annuity or the Life and contingent annuitant pension with their spouse named as their beneficiary and began drawing a pension after April 1, 2007. This group includes players who have yet to begin drawing a pension, including all active players.
The qualified joint and survivor annuity and the life and contingent annuitant pension are popular forms of payment for married players. Under these two forms of payment, if the player dies before his spouse, the spouse will continue to receive a benefit for the remainder of the spouse's life. When choosing either of these two options, the benefit amount received during the player's lifetime is reduced actuarially to account for the continued survivor benefit after the player's death.
With the April 1, 2007, amendment, the NFL Retirement Plan implemented a "pop-up" provision. What is a "pop-up" provision? The pop-up provision affects those players who have elected a qualified joint and survivor annuity or a life and contingent annuitant pension, which is the majority of retirees married at the time of payout election. If the player's spouse dies before the player, the pop-up provision allows the retiree to go back and reclaim his "life only pension" benefit amount.
The pop-up provision seems like an improvement at first glance. However, monthly benefits for players electing a qualified joint and survivor annuity or a life and contingent annuitant pension after April 1, 2007, have decreased. If you began drawing your pension after April 1, 2007, or you have yet to draw your NFL pension, you can see how the pop-up provision has affected your benefit amount by comparing the pre-pop-up provision table with the new pop-up provision table.
By comparing the two tables it is clear that players who begin drawing their pension after April 1, 2007, receive lower monthly payments and are essentially subsidizing the pop-up provision for all retirees that began drawing their pension before that date. While union officials have recently preached the virtue of waiting as long as possible to draw your NFL pension, it is those who have waited longest that are being penalized the most. Furthermore, assuming the player predeceases his wife, she will continue to draw the lesser amount for her lifetime.
NFLPA Executive Director Gene Upshaw recently told ESPN.com, "We are not going to take a pension from guys that have one coming and give it to someone else."
However, with this amendment, that is exactly what is being done.
How many players will ever utilize this pop-up benefit? On average, women live approximately 5 years longer than men in the United States. How many NFL wives will die before their husbands? Statistically, not many spouses will predecease their husbands. It seems the majority of players will never utilize the pop-up provision. The reduction in benefits being paid out to most players seems to be a windfall to the NFL Retirement Plan and the owners funding it.
If you have any questions regarding any of your NFL benefits you should contact the NFLPA Benefits Department. According to the NFLPA website, "The mission of the Benefits Department is to empower past, present and future NFL Players with the knowledge of their Benefits in order to make informed life stage decisions."
NFLPA Director of Player Benefits Miki Yaras-Davis is the NFLPA representative who signed the pop-up provision amendment into effect. All questions regarding the amendment and its' effects should be directed to her. She may be reached at (800) 372-2000.
- Chiefs' offensive tackle Kyle Turley, who donated an entire NFL game check to aid the needs of retired NFL players, was a guest on The Morning After Show on March 27, 2008. The show is broadcast on 1380 AM in St. Louis. Host Tim McKernan remarked that Turley should be the Executive Director of the NFLPA. Turley replied, “Anyone could do better than Gene Upshaw.”
Edit: In an earlier version of this post the reduction in benefits was incorrectly listed to be 6.3 percent. The actual reduction in monthly benefits can be as large as 8 percent.
NFL and NFLPA Announce Expanded Disability Benefits Program for Retired Players
The National Football League and National Football League Players Association announced an "expanded disability benefits program" through a press release on February 29, 2008. A copy of the release may be viewed by clicking HERE.
The changes to the disability plan were reviewed at a downtown Washington law office during a meeting of the NFL Alliance on Thursday, February 28, 2008. Ten "former players" attended the meeting, according to the press release, including Troy Vincent, who currently serves active players as NFLPA President. Other attendees included Roger Goodell, Gene Upshaw, NFL Alumni President Frank Krauser, and Pro Football Hall of Fame President and Executive Director Steve Perry.
Through the press release, the NFL and union announced four agreements which they claim would "significantly expand eligibility for disability benefits and increase the amount of the benefit paid to certain recipients."
Here are the four agreements listed in the press release along with analysis:
This increase will double the benefit to former players collecting total and permanent disability benefits for "post-career, non-football" disabilities. It only applies to players who become disabled outside of the game of football. This change does nothing to address the needs of players who become disabled due to their NFL related injuries.
During a recent interview, NFLPA Executive Director Gene Upshaw gave incorrect information telling The Washington Post that such an agreement would be illegal. "Once he took that pension, that was it: He can't get a disability [benefit]. That's not only the rule of the retirement plan -- it's the law," Upshaw stated referring to former NFL player Dave Pear. If Upshaw is not aware of what can be negotiated at the bargaining table it puts all players, active and retired, at a disadvantage during negotiations.
The press release states that "players who were denied benefits under the NFL plan but have subsequently been found disabled by Social Security may have their NFL cases reconsidered." Reconsidered does not mean "to immediately grant". Is this third agreement consistent with the congressional testimony given?
Current NFL Plan rules allow up to 42 months of retroactive benefits. Will the NFL plan pay up to 42 months of retroactive benefits to former players who have been approved for Social Security disability benefits in the past, but denied their NFL disability benefits? Will players who qualify for Social Security disability benefits be awarded "football degenerative" benefits or will these players be awarded the lowest paying "inactive" benefit?
It can often take years to be approved for Social Security disability benefits. Under the Employee Retirement Income Security Act of 1974, the NFL Plan must make determinations on disability applications and appeals in a far shorter time period than decisions are usually made on Social Security Disability applications. How will the NFL Disability Plan address the difference in the length of time in which they are mandated to reach a decision on an NFL disability application versus the often longer period of time it can take to receive a decision on Social Security disability?
Les Carpenter of The Washington Post penned an article on June 21, 2007, which describes how the NFL Disability Plan spent more than $140,000 of plan assets to prevent the Social Security standard from being applied to NFL disability claims.
The Retirement Board could use this expanded time frame to the detriment of disabled players. The "line of duty" benefit is a partial disability benefit. In the past, the NFL plan could only award the partial disability benefit if the application was filed within 48 months. Now, depending on the length of an NFL player's career, there is a potentially longer period of time in which the partial disability benefit could be awarded. The minimum partial disability award for the "line of duty" benefit is $12,000 per year.
Prior to the announcement of these four agreements, the only disability benefit a former player under age 45 could receive after 48 months of ceasing to be an active player for injuries arising "out of League football activities" was the "degenerative" benefit. This benefit pays $110,000 per year. Instead of awarding the larger "degenerative" benefit to a player who applies for disability benefits after 48 months with football related injuries, the Retirement Board could now award a former player the lower paying "line of duty" disability benefit, which lasts a maximum ninety months. This agreement gives the NFL Disability Plan more opportunities to award a partial disability benefit when the possibility exists that an award for the higher paying "degenerative" benefit would be more fitting.
It is hoped that these four changes will provide some aid to retired players. There are many questions left to be answered before a true assessment can be made on these changes. Currently, only 2% of retired players receive any type of NFL disability benefit, partial or permanent. This is a major area of concern. There is speculation that these changes are being made to create the appearance that no legislative action is needed for the NFL Retirement Plan to operate in an equitable fashion. The House Judiciary Committee has requested a Congressional Research Service report which is due to be completed soon. Any legislative action to be taken will likely be based on the results of this report.
The four changes to the disability plan should be some source of inspiration for players who have voiced opinions of the current NFL Retirement Plan. The changes indicate that players voicing their opinions can initiate change. However, the problems will not be corrected merely with amendments to the Plan document. The administration of the plan must be addressed as well.
Also:
The changes to the disability plan were reviewed at a downtown Washington law office during a meeting of the NFL Alliance on Thursday, February 28, 2008. Ten "former players" attended the meeting, according to the press release, including Troy Vincent, who currently serves active players as NFLPA President. Other attendees included Roger Goodell, Gene Upshaw, NFL Alumni President Frank Krauser, and Pro Football Hall of Fame President and Executive Director Steve Perry.
Through the press release, the NFL and union announced four agreements which they claim would "significantly expand eligibility for disability benefits and increase the amount of the benefit paid to certain recipients."
Here are the four agreements listed in the press release along with analysis:
- Agreement #1: A doubling of the minimum benefit post-career, non-football “total and permanent” disability from $20,000 to $40,000 per year for retired players who become disabled unrelated to football. Players would otherwise receive the full amount of their pension, if greater.
This increase will double the benefit to former players collecting total and permanent disability benefits for "post-career, non-football" disabilities. It only applies to players who become disabled outside of the game of football. This change does nothing to address the needs of players who become disabled due to their NFL related injuries.
- Agreement #2: Players who took their NFL pension early, and are therefore ineligible to apply for and receive disability benefits, will be offered a new one-time opportunity to apply for total and permanent disability benefits. These players may establish their disability through either a medical examination or by a total and permanent disability determination from Social Security. The opportunity to apply for benefits will begin on April 1, 2008. Applications will be accepted through July 31, 2008.
During a recent interview, NFLPA Executive Director Gene Upshaw gave incorrect information telling The Washington Post that such an agreement would be illegal. "Once he took that pension, that was it: He can't get a disability [benefit]. That's not only the rule of the retirement plan -- it's the law," Upshaw stated referring to former NFL player Dave Pear. If Upshaw is not aware of what can be negotiated at the bargaining table it puts all players, active and retired, at a disadvantage during negotiations.
- Agreement #3: Players who have received a total and permanent disability determination from Social Security will not need to separately establish disability under the NFL plan. Players who were denied benefits under the NFL plan but have subsequently been found disabled by Social Security may have their NFL cases reconsidered. The other good news for retired NFL players is that NFL disability awards are not offset by the amount of any award paid by Social Security.
The press release states that "players who were denied benefits under the NFL plan but have subsequently been found disabled by Social Security may have their NFL cases reconsidered." Reconsidered does not mean "to immediately grant". Is this third agreement consistent with the congressional testimony given?
Current NFL Plan rules allow up to 42 months of retroactive benefits. Will the NFL plan pay up to 42 months of retroactive benefits to former players who have been approved for Social Security disability benefits in the past, but denied their NFL disability benefits? Will players who qualify for Social Security disability benefits be awarded "football degenerative" benefits or will these players be awarded the lowest paying "inactive" benefit?
It can often take years to be approved for Social Security disability benefits. Under the Employee Retirement Income Security Act of 1974, the NFL Plan must make determinations on disability applications and appeals in a far shorter time period than decisions are usually made on Social Security Disability applications. How will the NFL Disability Plan address the difference in the length of time in which they are mandated to reach a decision on an NFL disability application versus the often longer period of time it can take to receive a decision on Social Security disability?
Les Carpenter of The Washington Post penned an article on June 21, 2007, which describes how the NFL Disability Plan spent more than $140,000 of plan assets to prevent the Social Security standard from being applied to NFL disability claims.
- Agreement #4: The time within which to apply for line of duty disability benefits has been lengthened from the current 48-month period to 48 months or the player’s actual number of credited seasons. For example, a 10-year veteran would have 10, rather than, as previously, four years, to apply for this benefit.
The Retirement Board could use this expanded time frame to the detriment of disabled players. The "line of duty" benefit is a partial disability benefit. In the past, the NFL plan could only award the partial disability benefit if the application was filed within 48 months. Now, depending on the length of an NFL player's career, there is a potentially longer period of time in which the partial disability benefit could be awarded. The minimum partial disability award for the "line of duty" benefit is $12,000 per year.
Prior to the announcement of these four agreements, the only disability benefit a former player under age 45 could receive after 48 months of ceasing to be an active player for injuries arising "out of League football activities" was the "degenerative" benefit. This benefit pays $110,000 per year. Instead of awarding the larger "degenerative" benefit to a player who applies for disability benefits after 48 months with football related injuries, the Retirement Board could now award a former player the lower paying "line of duty" disability benefit, which lasts a maximum ninety months. This agreement gives the NFL Disability Plan more opportunities to award a partial disability benefit when the possibility exists that an award for the higher paying "degenerative" benefit would be more fitting.
It is hoped that these four changes will provide some aid to retired players. There are many questions left to be answered before a true assessment can be made on these changes. Currently, only 2% of retired players receive any type of NFL disability benefit, partial or permanent. This is a major area of concern. There is speculation that these changes are being made to create the appearance that no legislative action is needed for the NFL Retirement Plan to operate in an equitable fashion. The House Judiciary Committee has requested a Congressional Research Service report which is due to be completed soon. Any legislative action to be taken will likely be based on the results of this report.
The four changes to the disability plan should be some source of inspiration for players who have voiced opinions of the current NFL Retirement Plan. The changes indicate that players voicing their opinions can initiate change. However, the problems will not be corrected merely with amendments to the Plan document. The administration of the plan must be addressed as well.
Also:
- In his new book, Dr. Bennet Omalu, a forensic pathologist, states "about one in every 1,500 Americans between 60 and 69 suffers from dementia. In contrast, approximately one in every 170 of the nearly 10,000 living retired players are registered with the NFL's '88 Plan,' which contributes up to $88,000 per year to veterans suffering from dementia."
Attorney Questions Integrity of Testimony Given By NFL Commissioner
RetiredPlayers.Org recently received the following message via email:
Gentlemen,
As you are aware, the NFL management council and NFLPA announced last June – just before the Congressional hearing that the Bell/Rozelle Plan agreed to adopt “Social Security disability standards” to help streamline disability applications. Dennis Curran and Doug Ell then testified to that effect; and at the Senate hearing in September, Roger Goodell testified that these standards had been applied in applicable cases.
It’s just another scam.
They have not yet adopted or applied any Social Security standards, and heaven only knows if and when they might.
I have written numerous letters requesting information on this issue to everyone from the NFL’s media guy, to Curran, Ell and Sarah Gaunt. No replies.
Today, one of the former NFL players I am advising – who is currently on Social Security disability – told me that Paul Scott told him yesterday that no Social Security standards have yet been adopted, and he doesn’t know what they are doing in that regard, nor when any such guidelines may be adopted. He was told that perhaps there would be some news after the next full retirement board meeting in April. (Probably just to put him off.) This former player’s claim is on hold in the meantime, and Scott told him that “…his desk was piling up with other cases (in the same situation)…”
These guys should be cited for contempt of Congress!
In any event, I wanted to pass this along for you to disseminate if and as you see fit.
Best regards,
John Hogan
Disability Law Attorney
The relevant testimony of NFL Commissioner Roger Goodell, NFL Senior Vice President Dennis Curran, and Bert Bell/Pete Rozelle NFL Player Retirement Plan Counsel Doug Ell regarding the application of the Social Security standard to NFL disability claims may be viewed by clicking on each of their names.
Gentlemen,
As you are aware, the NFL management council and NFLPA announced last June – just before the Congressional hearing that the Bell/Rozelle Plan agreed to adopt “Social Security disability standards” to help streamline disability applications. Dennis Curran and Doug Ell then testified to that effect; and at the Senate hearing in September, Roger Goodell testified that these standards had been applied in applicable cases.
It’s just another scam.
They have not yet adopted or applied any Social Security standards, and heaven only knows if and when they might.
I have written numerous letters requesting information on this issue to everyone from the NFL’s media guy, to Curran, Ell and Sarah Gaunt. No replies.
Today, one of the former NFL players I am advising – who is currently on Social Security disability – told me that Paul Scott told him yesterday that no Social Security standards have yet been adopted, and he doesn’t know what they are doing in that regard, nor when any such guidelines may be adopted. He was told that perhaps there would be some news after the next full retirement board meeting in April. (Probably just to put him off.) This former player’s claim is on hold in the meantime, and Scott told him that “…his desk was piling up with other cases (in the same situation)…”
These guys should be cited for contempt of Congress!
In any event, I wanted to pass this along for you to disseminate if and as you see fit.
Best regards,
John Hogan
Disability Law Attorney
The relevant testimony of NFL Commissioner Roger Goodell, NFL Senior Vice President Dennis Curran, and Bert Bell/Pete Rozelle NFL Player Retirement Plan Counsel Doug Ell regarding the application of the Social Security standard to NFL disability claims may be viewed by clicking on each of their names.
Marshall Victorious Against NFL Disability Plan in Fourth Circuit Court
On January 14, 2008, the United States Court of Appeals for the Fourth Circuit awarded former NFL linebacker Wilber Marshall approximately $72,000 in disability benefits, plus attorney fees and court costs. Marshall filed suit against the Bert Bell/Pete Rozelle NFL Player Retirement Plan after the NFL Retirement Board denied him benefits for eight months in 2001. The Fourth Circuit found that when benefits were finally reinstated "the Board abused its discretion in selecting the onset date."
Marshall first applied for disability benefits in 1997. His initial application for benefits was denied. Upon appeal, Marshall was awarded benefits retroactive to April 1, 1997. In 2000, Marshall was examined by Medical Advisory Physician, Dr. Bernard Bach, who reported that Marshall did not meet the requirements for his existing disability benefits. The NFL Retirement Board terminated Marshall's benefits as of April 27, 2001. Marshall's appeal of the termination of benefits was denied by the Board on August 2, 2001.
On November 13, 2001, Marshall reapplied for disability benefits through the NFL. He was examined by Dr. Walter Doren on December 7, 2001. According to court documents, Dr. Doren reported "that Marshall was unable to work and that based on a review of Marshall’s medical records, his symptoms had remained consistent since his initial evaluation in 1997." The Retirement Board then referred Marshall to Medical Advisory Physician, Dr. Alfred Tria. On February 21, 2002, Tria reported Marshall was totally and permanently disabled. The Retirement Board eventually reinstated benefits retroactive to January 1, 2002.
Marshall disputed the effective date of the reinstatement of benefits. Dr. Doren reported "his symptoms had remained consistent since his initial evaluation in 1997." The Retirement Board terminated Marshall's disability benefits from May to December, 2001. This dispute led to Marshall's lawsuit and, ultimately, a victory in the Court of Appeals for the Fourth Circuit.
A copy of the opinion may be viewed by clicking HERE.
Articles of Interest:
Marshall first applied for disability benefits in 1997. His initial application for benefits was denied. Upon appeal, Marshall was awarded benefits retroactive to April 1, 1997. In 2000, Marshall was examined by Medical Advisory Physician, Dr. Bernard Bach, who reported that Marshall did not meet the requirements for his existing disability benefits. The NFL Retirement Board terminated Marshall's benefits as of April 27, 2001. Marshall's appeal of the termination of benefits was denied by the Board on August 2, 2001.
On November 13, 2001, Marshall reapplied for disability benefits through the NFL. He was examined by Dr. Walter Doren on December 7, 2001. According to court documents, Dr. Doren reported "that Marshall was unable to work and that based on a review of Marshall’s medical records, his symptoms had remained consistent since his initial evaluation in 1997." The Retirement Board then referred Marshall to Medical Advisory Physician, Dr. Alfred Tria. On February 21, 2002, Tria reported Marshall was totally and permanently disabled. The Retirement Board eventually reinstated benefits retroactive to January 1, 2002.
Marshall disputed the effective date of the reinstatement of benefits. Dr. Doren reported "his symptoms had remained consistent since his initial evaluation in 1997." The Retirement Board terminated Marshall's disability benefits from May to December, 2001. This dispute led to Marshall's lawsuit and, ultimately, a victory in the Court of Appeals for the Fourth Circuit.
A copy of the opinion may be viewed by clicking HERE.
Articles of Interest:
NFLPA's Upshaw Paid More Than 96 Percent of Current NFL Players
According to the
National Football League Players Association's latest tax filing with
the Department of Labor, Executive Director Gene Upshaw was paid at least $6,664,577 for his union related activity for the time period from March 1, 2006, to February 28, 2007. The union's tax filing shows that
Upshaw received a Gross Salary Disbursement of $4,264,577, which
includes a bonus of $3,600,000. Upshaw also received a bonus of
$2,400,000 from Players Inc, for a total of $6,664,577.
The USA Today NFL Salary Database shows only 83 of the 2,486 current NFL players the NFLPA reportedly represents had "total salaries" more than Upshaw's $6,664,577 during the 2006 season. A list of the total salaries of those 83 players as listed in the USA Today salary database can be viewed by clicking here. Upshaw's union related compensation was greater than 96 percent of current NFL players total salaries for the 2006 season. Information for the 2007 NFL season is not yet available.
Donald Fehr, Executive Director of the Major League Baseball Players Association, was paid $1,000,000 for the time period from January 1, 2006, to December 31, 2006, according to tax filings. Billy Hunter, Executive Director of the National Basketball Players Association, was paid $2,318,259 for the period from July 1, 2006, to June 30, 2007. Both Fehr and Hunter's pay was greater than the salaries of roughly 50 percent of the players they represent in their respective unions. About half of the players in Major League Baseball and the National Basketball Association made more than their union Executive Directors. Major League Baseball and National Basketball Association salary information is available on the USA Today salary database.
RetiredPlayers.Org has spoken to several current NFL players, including former union represenatatives, who did not know Upshaw made at least $6,664,577 during the 2006 season. If today's players do not know what they are paying Upshaw, there is not enough transparency in his compensation package. For instance, there is no way to determine the amount of Upshaw's salary from Players Inc by looking at the NFLPA's tax filings. According to the union's latest LM-2 filing, Upshaw's Players Inc salary is some unknown portion of $14 million of deferred compensation.
NFL player salary and contract information is available to the general public through publications such as USA Today; shouldn't the players who employ Upshaw be informed of the exact amount he is paid?
Please check out:
The USA Today NFL Salary Database shows only 83 of the 2,486 current NFL players the NFLPA reportedly represents had "total salaries" more than Upshaw's $6,664,577 during the 2006 season. A list of the total salaries of those 83 players as listed in the USA Today salary database can be viewed by clicking here. Upshaw's union related compensation was greater than 96 percent of current NFL players total salaries for the 2006 season. Information for the 2007 NFL season is not yet available.Donald Fehr, Executive Director of the Major League Baseball Players Association, was paid $1,000,000 for the time period from January 1, 2006, to December 31, 2006, according to tax filings. Billy Hunter, Executive Director of the National Basketball Players Association, was paid $2,318,259 for the period from July 1, 2006, to June 30, 2007. Both Fehr and Hunter's pay was greater than the salaries of roughly 50 percent of the players they represent in their respective unions. About half of the players in Major League Baseball and the National Basketball Association made more than their union Executive Directors. Major League Baseball and National Basketball Association salary information is available on the USA Today salary database.
RetiredPlayers.Org has spoken to several current NFL players, including former union represenatatives, who did not know Upshaw made at least $6,664,577 during the 2006 season. If today's players do not know what they are paying Upshaw, there is not enough transparency in his compensation package. For instance, there is no way to determine the amount of Upshaw's salary from Players Inc by looking at the NFLPA's tax filings. According to the union's latest LM-2 filing, Upshaw's Players Inc salary is some unknown portion of $14 million of deferred compensation.
NFL player salary and contract information is available to the general public through publications such as USA Today; shouldn't the players who employ Upshaw be informed of the exact amount he is paid?
Please check out:
- An article from August 20, 2007, in which Yahoo Sports' Mike Silver discusses the potentially deadly conditions of NFL training camps.
- Joe Henderson of The Tampa Tribune penned two articles regarding the use of drugs to cope with pain. One article focuses on current NFL players using painkillers to play through injury and the other focuses on the methods retired NFL players use to cope with chronic pain.
- Retired player advocate Bruce Laird named Stan's Man of the Year.
Hundreds of Current NFL Players to Participate in Gridiron Guardian Sunday
According to a press release from the Gridiron Greats organization, hundreds of current NFL players will donate a portion of their December 23, 2007, game checks in conjunction with Gridiron Guardian Sunday. The donations will be used to fund financial aid and social services for retired NFL players in need. One hundred percent of the players' donations will be used to aid retired NFL players.
Offensive tackle Kyle Turley of the Kansas City Chiefs created Gridiron Guardian Sunday and has pledged to donate his $25,000 game check from the Chiefs-Detroit Lions game on December 23. Turley wanted a way for current NFL players to give back to the players that came before them.
“When I launched this project I had no idea what kind of participation it would get. I am humbled and proud that so many of my colleagues around the league have reached out to help,” said Kyle Turley. “I coordinated this effort to help provide medicine, medical care, clothing, food and shelter to retired NFL players who are in dire need. I felt I had to do something to help. I am so appreciative of the support this project has gotten. In this holiday season of giving, it is heartwarming to know that we will be able to impact the lives of so many of our brothers in need.”
Many players from around the NFL have signed up to participate in the effort including: Matt Birk, Steve Hutchinson, Anthony Herrera, Ryan Cook, Marcus Johnson, and Ben Leber, of the Minnesota Vikings; Larry Johnson, Jared Allen, Tony Gonzales, Ty Law, John Welbourn, Eddie Kennison, John Carney, and Donnie Edwards of the Kansas City Chiefs; Ephraim Salaam of the Houston Texans; Kawika Mitchell of the New York Giants; Darwin Walker of the Chicago Bears; Jacob Bell and Rich Scanlon of the Tennessee Titans; and Marques Douglas of the San Francisco 49ers. Hundreds of others have also committed but choose to remain anonymous.
“I feel like this is the right thing to do; players and owners today all prosper because of the men that came before them. Many are suffering through no fault of their own,” said Matt Birk of the Minnesota Vikings. “This is an epidemic that is affecting retired players and their families, from all eras; I see this as a humanitarian issue. When I came into the league I was told that the NFL is a brotherhood and we would always be part of that brotherhood, so it’s only right for us to help our brothers.”
Offensive tackle Kyle Turley of the Kansas City Chiefs created Gridiron Guardian Sunday and has pledged to donate his $25,000 game check from the Chiefs-Detroit Lions game on December 23. Turley wanted a way for current NFL players to give back to the players that came before them.
“When I launched this project I had no idea what kind of participation it would get. I am humbled and proud that so many of my colleagues around the league have reached out to help,” said Kyle Turley. “I coordinated this effort to help provide medicine, medical care, clothing, food and shelter to retired NFL players who are in dire need. I felt I had to do something to help. I am so appreciative of the support this project has gotten. In this holiday season of giving, it is heartwarming to know that we will be able to impact the lives of so many of our brothers in need.”
Many players from around the NFL have signed up to participate in the effort including: Matt Birk, Steve Hutchinson, Anthony Herrera, Ryan Cook, Marcus Johnson, and Ben Leber, of the Minnesota Vikings; Larry Johnson, Jared Allen, Tony Gonzales, Ty Law, John Welbourn, Eddie Kennison, John Carney, and Donnie Edwards of the Kansas City Chiefs; Ephraim Salaam of the Houston Texans; Kawika Mitchell of the New York Giants; Darwin Walker of the Chicago Bears; Jacob Bell and Rich Scanlon of the Tennessee Titans; and Marques Douglas of the San Francisco 49ers. Hundreds of others have also committed but choose to remain anonymous.
“I feel like this is the right thing to do; players and owners today all prosper because of the men that came before them. Many are suffering through no fault of their own,” said Matt Birk of the Minnesota Vikings. “This is an epidemic that is affecting retired players and their families, from all eras; I see this as a humanitarian issue. When I came into the league I was told that the NFL is a brotherhood and we would always be part of that brotherhood, so it’s only right for us to help our brothers.”
Are the NFL Disability Plan's "Neutral Physicians" Truly Neutral?
The NFL and NFLPA announced changes to the disability plan that they claim will streamline the process for players seeking disability benefits. In a December 12, 2007, article in The New York Times, Gene Upshaw outlined six changes to the disability plan as a result of a review conducted by an outside company. The union and league claim the intent of the changes is to speed up both the application and appeal process of the NFL's disability plan. None of the six changes address the fact that only two percent of former players currently receive any type of NFL disability benefit even though the NFL is widely considered the most brutal major American professional sports league.
Once a player has submitted an application for disability benefits, he is sent for an "Initial Medical Examination". The player is then examined by a "neutral physician" who provides a written report on the players condition. According to page 10 of the NFLPA "White Paper", "These physicians are called neutral physicians because they are appointed jointly by the Retirement Board members appointed by the Players Association and the NFL." The "neutral physician's" report is then reviewed by a two person Disability Initial Claims Committee who then make a decision on the applicant's claim.
If an applicant is dissatisified with the decision of the Disability Initial Claims Committee, he can then appeal the decision to the six member Retirement Board. Upon appeal, the applicant is sent to at least one more doctor for examination before the appeal is presented for a vote by the Retirement Board. If there is a deadlock vote of three Retirement Board members voting to award a disability benefit and three voting against awarding the benefit, the decision is "almost always" decided by the review of a Medical Advisory Physician.
According to pages 11 and 12 of the NFLPA "White Paper", "If the dispute is over a medical issue, such as whether a player medically is substantially unable to work, either side (the player-appointed trustees or the management-appointed trustees) can send the player to one of the Plan’s top, pre-approved, neutral three doctors. These doctors are called “Medical Advisory Physicians(“MAPs”), and their medical decisions are binding on the Retirement Board. This final review will almost always resolve any deadlock between voting trustees."
Are these physicians truly neutral toward the applicant merely because the members of the Retirement Board have appointed a doctor to be a "neutral physician"?
Dr. Bernard Bach is one of three "Medical Advisory Physicians" for the NFL disability plan. According to page 12 of Dr. Bach's curriculum vitae, he once worked as a team physician for the New York Giants. Team physicians are employees of team owners. Why would the three union trustees appointed by Gene Upshaw allow a doctor, who was once employed by an NFL team owner, to make a "binding" decision on a player's application for disability benefits? Can this doctor truly be considered "neutral" toward a player applicant if he was once employed by a team owner? Wouldn't it be prudent to appoint a doctor without this potential conflict of interest to serve as a "Medical Advisory Physician"?
Page 39 of Dr. Bach's résumé states that he made presentations at NFL Disability Training Program's. Is there any special training needed to rate the level of disability of a former NFL player, as opposed to a disabled employee in another industry? What type of training creates a system where only 2 percent of all retired players are able to qualify for any type of NFL disability benefit? We are hoping these are questions that Congress will want answered.
While changes to the NFL disability plan are a vital step toward correcting the existing problems, it is even more important to have the proper people in place to implement and administer the plan. These are additional issues that must be addressed.
Once a player has submitted an application for disability benefits, he is sent for an "Initial Medical Examination". The player is then examined by a "neutral physician" who provides a written report on the players condition. According to page 10 of the NFLPA "White Paper", "These physicians are called neutral physicians because they are appointed jointly by the Retirement Board members appointed by the Players Association and the NFL." The "neutral physician's" report is then reviewed by a two person Disability Initial Claims Committee who then make a decision on the applicant's claim.
If an applicant is dissatisified with the decision of the Disability Initial Claims Committee, he can then appeal the decision to the six member Retirement Board. Upon appeal, the applicant is sent to at least one more doctor for examination before the appeal is presented for a vote by the Retirement Board. If there is a deadlock vote of three Retirement Board members voting to award a disability benefit and three voting against awarding the benefit, the decision is "almost always" decided by the review of a Medical Advisory Physician.
According to pages 11 and 12 of the NFLPA "White Paper", "If the dispute is over a medical issue, such as whether a player medically is substantially unable to work, either side (the player-appointed trustees or the management-appointed trustees) can send the player to one of the Plan’s top, pre-approved, neutral three doctors. These doctors are called “Medical Advisory Physicians(“MAPs”), and their medical decisions are binding on the Retirement Board. This final review will almost always resolve any deadlock between voting trustees."
Are these physicians truly neutral toward the applicant merely because the members of the Retirement Board have appointed a doctor to be a "neutral physician"?
Dr. Bernard Bach is one of three "Medical Advisory Physicians" for the NFL disability plan. According to page 12 of Dr. Bach's curriculum vitae, he once worked as a team physician for the New York Giants. Team physicians are employees of team owners. Why would the three union trustees appointed by Gene Upshaw allow a doctor, who was once employed by an NFL team owner, to make a "binding" decision on a player's application for disability benefits? Can this doctor truly be considered "neutral" toward a player applicant if he was once employed by a team owner? Wouldn't it be prudent to appoint a doctor without this potential conflict of interest to serve as a "Medical Advisory Physician"?Page 39 of Dr. Bach's résumé states that he made presentations at NFL Disability Training Program's. Is there any special training needed to rate the level of disability of a former NFL player, as opposed to a disabled employee in another industry? What type of training creates a system where only 2 percent of all retired players are able to qualify for any type of NFL disability benefit? We are hoping these are questions that Congress will want answered.
While changes to the NFL disability plan are a vital step toward correcting the existing problems, it is even more important to have the proper people in place to implement and administer the plan. These are additional issues that must be addressed.
- While appearing on the HBO show CostasNow, tennis legend John McEnroe said he was inspired by Kansas City Chief Kyle Turley's Gridiron Guardian Sunday initiative and will donate $25,000 toward the cause. McEnroe's action prompted former NBA player Charles Barkley, who was also appearing on the show, and show host Bob Costas to match the donation.
- Several former and current Minnesota Vikings players held a press conference on December 11, 2007, to discuss the issues that retired NFL players face. More active players, including Minnesota Vikings players Matt Birk, Steve Hutchinson, Anthony Herrera, Ryan Cook, Marcus Johnson and Ben Leber, announced plans to donate a portion of their game checks in support of Gridiron Guardian Sunday. Others on the list of NFL players who will donate include Chiefs guard John Welbourn, Houston Texans offensive tackle Ephraim Salaam and New York Giants linebacker Kawika Mitchell. Earlier, Kyle Turley said that San Diego Chargers running back LaDainian Tomlinson, Chiefs running back Larry Johnson and Chiefs tight end Tony Gonzales also were going to take part.
What Percentage of Retired Players Receive NFL Disability Benefits?
An earlier post addressed the number of retired NFL players eligible to apply for NFL disability benefits, we now move on to address the number of retired NFL players actually receiving NFL disability benefits. The Honorable Linda Sanchez is the Chairwoman of the House Judiciary Subcommittee on Commercial and Administrative Law. On June 26, 2007, in her opening statement for the oversight hearing on the National Football League's system for compensating retired NFL players, Chairwoman Sanchez noted "half of all players retire because of injury, sixty percent of players suffer a concussion, at least one quarter of players suffer multiple concussions, and nearly two-thirds suffer an injury serious enough to sideline them for at least half of a football season." Chairwoman Sanchez also added, "The NFL is considered to be the most brutal major American professional sports league."
With the NFL considered "the most brutal major American professional sports league", there seems to be a remarkably low number of players receiving NFL disability benefits. According to page six of the NFLPA "White Paper", only 317 players currently receive any type of NFL disability benefit. NFLPA Executive Director Gene Upshaw states "there are over 13,000 retired NFL players alive today." Using these two numbers we can calculate that only 2 percent of retired NFL players receive any type of NFL disability benefit.
- On December 4, 2007, ESPN reporter Peter Keating penned an article titled, "Congress questions NFL record-keeping on disabled players". The article updates the progress of the Congressional Research Service report. "Neither the NFL nor the NFLPA keeps data on players who retire due to injury, a simple fact that I find amazing," Rep. Linda Sanchez, D-Calif., who chairs the House Subcommittee on Commercial and Administrative Law, told ESPN.com. "Sometimes you don't keep track of something when you don't want to know what the answers are."
NFL MVP and Two Pro Bowl Players Support Turley on Retired Players' Issues
Current Kansas City Chiefs offensive lineman Kyle Turley was a guest on The Jim Rome Show today, December 4, 2007. Turley spoke about his participation in "Gridiron Guardian Sunday", when he will donate his entire game check from the December 23, 2007, Chiefs - Lions game to the Gridiron Greats Assistance Fund. The assistance fund provides financial assistance and coordination of social services to retired NFL players.
In a letter to be distributed within all NFL locker rooms, Turley has asked other players to join him in donating a portion of their game checks on "Gridiron Guardian Sunday". On The Jim Rome Show, Turley revealed a trio of high profile current NFL players he has spoken with who will join him in support of retired players' issues. The players he named are 2006 NFL Most Valuable Player LaDainian Tomlinson, Chicago Bears six-time Pro Bowl center Olin Kreutz, and Minnesota Vikings five-time Pro Bowl center Matt Birk.
"I've got a tremendous response from guys around the league, guys I've contacted, personal friends. They are all in support of this issue. We just played the Chargers over the weekend, LaDainian and a bunch of the linemen came up to me and they are going to be in support of this issue. Many guys feel strongly about this, Matt Birk in Minnesota, Olin Kreutz in Chicago. The names are starting to come out," Turley told host Jim Rome.
Both Turley and Birk have been outspoken critics of current NFLPA Executive Director Gene Upshaw.
Turley added, "This is an issue the NFL needs to fix."
Turley to Donate Game Check
Kansas City Chiefs offensive lineman Kyle Turley has announced he will donate his entire game check from the Chiefs - Lions game on December 23, 2007 to the Gridiron Greats. The pre-tax amount of Turley's game check is roughly $42,000. Gridiron Greats is a non-profit organization which provides financial assistance and social services to retired NFL players in dire need. In a press conference on Tuesday, November 27, 2007, Turley called upon other current players to join him in donating a portion of their game checks to the cause. The initiative is being called "Gridiron Guardian Sunday".Turley, a nine-year NFL veteran, said 15 to 20 players have already pledged part or all of their December 23 game checks in conjunction with Gridiron Guardian Sunday.
"They are the leaders of their teams, and I hope they stand up when their local media asks question about this," Turley says. "I hope they educate the younger guys about why we are doing this."
Turley has written a letter explaining the issues that will be distributed to every team's locker room prior to December 23. A copy of the letter can be viewed by clicking HERE.
There has been much attention focused on the NFL disability plan this year as the dispute between retired players, the NFL, and NFLPA made it's way before Congress. Turley has been surprised by the lack of action from Gene Upshaw and the union. "Gene just seems to be hoping that these [old players] simply fade away," Turley said.
The NFL disability issue is nothing new to Turley. Three years ago, after major back surgery and being released by the St. Louis Rams, he applied for NFL disability benefits and was promptly denied. Turley said there was solid medical evidence in support of his claim for NFL disability benefits.
While the amount of money Turley is donating is significant, his speaking out on the issue is even more significant. With active players having the ability to elect union leadership, today's players have the ability to make a strong statement about the current union leadership's handling of both active and retired players' health issues.
Compensation for Retired Players is NFL's Biggest Challenge
In the third annual SportsBusiness Journal/SportsBusiness Daily Reader Survey, readers voted compensation for retired players as the biggest challenge facing the National Football League in the coming year. Twenty-three and a half percent of the readers participating in the survey felt retired players issues posed a larger challenge to the league than revenue sharing and even maintaining labor peace. Results of the survey were published November 26, 2007. The wide margin of victory shows the need for the NFL and NFLPA to address the pension and disability issues facing retired players. The league also has other very significant issues to tend with in the coming year. Survey participants felt those issues were less important than compensation for retired players. Owners have the ability to opt out of the current Collective Bargaining Agreement by sending a letter of termination by November 8, 2008.
Street & Smith's SportsBusiness Journal is a periodical that is published forty-nine times a year. The magazine caters to business executives across the sports industry. The participants in the survey were not casual sports fans; they were primarily executives who are very familiar with the business side of the sports industry.
Current NFL Players to Speak Regarding the Treatment of Retired Players
It was announced today that a group of current NFL players will announce a "ground breaking initiative" during a press conference hosted by former NFL great Mike Ditka and the Gridiron Greats Assistance Fund. The press conference is set to take place on Tuesday, November 27, 2007, at 10:00 a.m. at a restaurant owned by Mike Ditka in Chicago.
The Gridiron Greats press release states, "The event marks the first time an organized group of NFL players will speak out about and take action regarding the catastrophic conditions facing many retired NFL players due to the inadequate disability and benefits program provided by the National Football League Players Association (NFLPA).
The initiative being announced was created by an active, nine-year-veteran of the NFL."
It appears the increased attention being placed on the NFL and NFLPA's treatment of retired players has opened the eyes of some active players. Hopefully, many more current players will join the ranks of the players speaking at the press conference on November 27th.
The Gridiron Greats press release states, "The event marks the first time an organized group of NFL players will speak out about and take action regarding the catastrophic conditions facing many retired NFL players due to the inadequate disability and benefits program provided by the National Football League Players Association (NFLPA).
The initiative being announced was created by an active, nine-year-veteran of the NFL."
It appears the increased attention being placed on the NFL and NFLPA's treatment of retired players has opened the eyes of some active players. Hopefully, many more current players will join the ranks of the players speaking at the press conference on November 27th.
Parrish et al v. National Football League Players Incorporated to Proceed
In February of 2007, former NFL players, Bernie Parrish and Herb Adderley, filed a lawsuit against Players Inc., the licensing arm of the NFLPA, alleging that retired players have been denied millions of dollars from marketing and licensing deals.
In September of this year, Judge William Alsup dismissed the complaint but gave the plaintiffs permission to file a motion for leave to file an amended complaint. The Washington Post reports, "the players' attorney, Ron Katz, said they needed documents from Players Inc. to buttress the charges. Once those documents were handed over, the request to refile was made."
A November 14, 2007, opinion from Judge Alsup states, “In their proposed pleading, plaintiffs have successfully alleged the existence of a contract between Adderley and defendants, that defendants breached the contract, and that Adderley was damaged as a result."
The November 14, 2007 opinion was based upon the amended complaint.
A settlement conference is scheduled for February 6, 2008, in San Francisco.
In September of this year, Judge William Alsup dismissed the complaint but gave the plaintiffs permission to file a motion for leave to file an amended complaint. The Washington Post reports, "the players' attorney, Ron Katz, said they needed documents from Players Inc. to buttress the charges. Once those documents were handed over, the request to refile was made."
A November 14, 2007, opinion from Judge Alsup states, “In their proposed pleading, plaintiffs have successfully alleged the existence of a contract between Adderley and defendants, that defendants breached the contract, and that Adderley was damaged as a result."
The November 14, 2007 opinion was based upon the amended complaint.
A settlement conference is scheduled for February 6, 2008, in San Francisco.
Only 37.6% of Retired NFL Players are Eligible to Apply for NFL Disability Benefits
According to page six of Gene Upshaw's "White Paper", "there are 4,900 vested (3 seasons or more) former players who are eligible to apply for disability benefits under the NFL/NFLPA plan, not 10,000, as has been reported in some media outlets." On May 16, 2007, Upshaw provided a written declaration to a Federal Court which states "there are over 13,000 retired NFL players alive today." Based on the information provided by Upshaw, just 4,900 of 13,000 former players are covered by the NFL/NFLPA disability plan. Only 37.6% of retired NFL players are eligible to even apply for NFL disability benefits. There is no guarantee a player will be awarded benefits. According to the "White Paper", 62.4% of former players are ineligible for NFL disability benefits. If any of the remaining 62.4% of retired NFL players are in need of disability benefits due to their NFL related injuries, they must rely on other means, such as the taxpayer funded Social Security disability system. Many former players have qualified for Social Security disability benefits but have been denied NFL disability benefits.
The NFL Disability Plan Spares No Expense
Christophine Smith is the assistant director of the NFLPA benefits department and the NFLPA's representative on the Disability Initial Claims Committee for the Bert Bell/Pete Rozelle NFL Player Retirement Plan. Disability claims are decided at the first level by the Disability Initial Claims Committee. Every disability application is reviewed and voted on by Christophine Smith, a union employee. With only 317 of over 13,000 retired players receiving disability benefits, it seems the Disability Initial Claims Committee and the Retirement Board are very concerned about expenditures of the plan's assets.They must not be too concerned. During a Retirement Board meeting on February 23 and 24, 2004, Christophine Smith had the following expenditures:
| 2/23/2004 | $39 | Breakfast |
| 2/23/2004 | $58 | Lunch |
| 2/24/2004 | $1,049 | Hotel Room - Loew's Hotel Miami, Florida |
| 2/24/2004 | $39 | Breakfast |
| 2/24/2004 | $64 | Lunch |
| TOTAL | $1,249 |
Christophine Smith spent $1,249 in slightly over a 24 hour period. Her expenses were paid directly from the NFL Players Retirement and Disability Fund. Money which could have been used to pay pension or disability benefits to former NFL players.
It should be noted that during the same year Christophine Smith spent $1,249 of the retirement plan's assets for an overnight stay; twelve year NFL veteran and Hall of Fame player, Herb Adderley, who played in four Super Bowls and five Pro Bowls, received a pension of $1,522.20 for the entire year. Adderley received $126.85 per month for his twelve years of NFL service.
A copy of Ms. Smith's 2004 Department of Labor filing can be viewed by clicking HERE. See the third page for the list of her expenditures. Smith did not list any expenses for her travel to and from Miami.
Goodell Makes Timely Contribution to Chairman of the Judiciary Committee
Although
NFL Commissioner Roger Goodell did not find the time to attend the June 26,
2007, House Judiciary Hearing regarding retired NFL players benefits, that doesn't
mean the Judiciary Committee wasn't on Goodell's mind that day. The same day the United States Congress was looking into the National Football League's treatment of retired players, Commissioner Goodell made a $500 campaign contribution to House Judiciary Chairman John Conyers. The June 26, 2007, donation appears to be Goodell's first campaign contribution to
Senator Conyers.NFL and NFLPA Fail to Meet Congressional Deadline
Stemming from the June 26, 2007, House Judiciary Committee hearing on the National Football League's treatment of retired players, Roger Goodell and Gene Upshaw received letters from the Committee posing questions which were to be answered by the NFL and NFLPA. The Committee asked the Commissioner and Union Executive Director to provide responses to the letters by October 26, 2007, at 10:00 a.m. More than a week has passed since the deadline and the House Judiciary Committee still has not received responses from either party.Many retired players have complained about long delays in the processing of NFL disability claims. Since the NFL and NFLPA have failed to respond to the United States Congress in a timely manner, how can players applying for disability benefits expect any better treatment?
Update: As of November 5, 2007, 1:15 p.m. EST, the Judiciary Committee reported they had recently received a response from the NFL, but had not received a response to the letter addressed to Gene Upshaw.
Update: As of November 7, 2007, 9:30 a.m. EST, the Judiciary Committee reports they have finally received a response to from the NFLPA. The Committee also received approximately 2,000 pages of documents from the NFL and NFLPA.
Gene Upshaw Advertisement in Ebony Magazine
The information included in the image to the left appeared on the NFLPA website on October 18, 2007. The NFLPA website was promoting a four page spread which appeared in the October 2007 issue of Ebony Magazine. The union's website states, "Ebony Magazine features Gene Upshaw and all of the successes he has brought to the union throughout his tenure." The NFLPA fails to mention that the "feature" is actually a paid advertisement funded by the union. A copy of the "spread" is available in PDF format by clicking HERE. While the NFLPA website appears to indicate the piece is an unbiased story from the author, Melanie D.G. Kaplan; it is actually a paid advertisement promoting Gene Upshaw.
According to Johnson Publishing, publisher of Ebony Magazine, the NFLPA paid for the advertisement to appear in the October 2007 edition of their magazine. The cost of a single issue four page color advertisement in Ebony Magazine is $222,872.
Incorrect Plan Documents or Misleading Testimony?
In NFLPA Executive Director Gene Upshaw's testimony to the United States Senate, Upshaw testified that current players pay for all benefits and improvements for NFL players, both active and retired. Upshaw submitted a "White Paper" to the Senate as part of his testimony. Page four of Upshaw's "White Paper" is dedicated to explaining how active players pay for all retired players benefits. However, both the Summary Plan Description of the Bert Bell/Pete Rozelle NFL Player Retirement Plan and the Supplemental Disability Plan state that contibutions are made by "member Clubs"("teams"). The Summary Plan Description of the Supplemental Disability Plan cleary states, "You (players) do not make contibutions in support of the Disability Plan."Which information is correct? The information from Upshaw or the language within the Summary Plan Descriptions?
Model of Efficiency?
Former Los Angeles Rams player Bill Bain appeared as a witness at the United States Senate Hearing on the NFL retirement system. Bain stated he was testifying in support of the NFLPA. The NFLPA expected his testimony to highlight the efficiency of the NFL Disabilty Plan. Instead, Bain's testimony told a story of extraordinary delays and careless, plan chosen doctors.
Below is a time line based upon Bill Bain's testimony:
Below is a time line based upon Bill Bain's testimony:
- 1987: Bill Bain retires from the National Football League.
- January 1993: Bain receives two letters from the NFL Player Benefits office advising him of two funds created to pay benefits to disabled players. The funds were created as a result of the latest Collective Bargaining Agreement. Bain's health had deteriorated to the point he felt he could qualify for disability benefits through the National Football League. After learning of the two funds, Bain contacts Miki Yaras-Davis at the NFLPA and is sent an application for disability benefits. After returning the application, an appointment is scheduled for Bain to see a doctor chosen by the Disability Plan. When Bain arrives at his appointment with the plan chosen doctor he is told he needs to pay a $300 fee before the examination can take place. Bain did not have the money to spend on the exam. The doctor refused to evaluate Bain without the $300 payment.
- September 15, 1996: Two years and nine months after receiving the letters notifying him of the two funds created to pay disability benefits, Bain finally saves the $300 payment necessary to be examined by the Disability Plan's doctor. The Plan doctor, Dr. Schultz, writes a report and submits it to the Retirement Board.
- January 16, 1997: The Retirement Board meets and makes a decision taking into account the medical report submitted by Dr. Schultz.
- January 18, 1997: Bain receives a letter from the Retirement Board notifying him that his application for disability benefits has been denied.
- January 19, 1997 to March 15, 1997: Bain begins the appeal process to dispute the Retirement Board's denial. While reviewing the medical report written by Dr. Schultz, Bain and his attorney notice that Dr. Schultz incorrectly noted a surgical scar on Bain's right knee. The surgical scar was actually on Mr. Bain's left knee. Further, Dr. Schultz made no reference to venous insufficiency of the legs, which Bain claimed was his primary ailment. Bain stated Dr. Schultz never asked him to remove his socks to fully examine his legs.
- April 24, 1997: Bain submits his appeal to the Retirement Board. He also submits a letter which addresses the errors in the report Dr. Schultz submitted to the Board. On appeal, the Retirement Board is deadlocked at a 3-3 tie vote on Bain's application. Since the vote is deadlocked, Bain is sent to see a Medical Advisory Physician (MAP) for additional medical evaluation.
- May 28, 1997: Bain is sent to see Medical Advisory Physician, Dr. James Tibone. Dr. Tibone is also a Plan chosen doctor. During the examination, like Dr. Schultz, Dr. Tibone does not examine the venous insufficiency in Bain's legs. It isn't until Bain's wife, a registered nurse, requests that her husband remove his socks that Dr. Tibone examines the venous insufficiency present in Bain's lower legs. Dr. Tibone prepares a medical report for review by the Retirement Board based upon the examination.
- July 23, 1997: The Retirement Board grants Bain disability benefits.
- August 15, 1997: Four and a half years after receiving the two letters informing him of the availability of disability benefits, Bain finally receives his first disability payment.
Video of Bill Bain's testimony can be viewed by clicking HERE. Bain's testimony begins 49 minutes and 35 seconds into the webcast. His testimony concludes at the 55 minute and 35 second mark. Unfortunately, there is no indication on the Senate Committee website that Mr. Bain submitted any written testimony.
2008 NFLPA Retired Players Convention
The NFLPA has announced that the 2008 NFLPA Retired Players Convention will be held at the Ritz-Carlton Hotel in San Juan, Puerto Rico. The Convention will take place May 28 - June 1, 2008. If the NFLPA were truly interested in a dialogue with retired players it seems a more central location, perhaps in the midwestern United States, would be a more suitable location for a convention.
Judiciary Committee to Expand Investigation into NFL Player Injuries and Benefits
The House Judicary Committee announced it has requested a Congressional Research Service report on the health problems both active and retired NFL players face. Although neither NFL Commissioner Roger Goodell nor NFLPA Executive Director Gene Upshaw chose to attend the June 26, 2007 hearing conducted by the Judiciary Committee, the Committee felt it necessary to address both Goodell and Upshaw. In separate letters dated October 12, 2007, to Goodell and Upshaw, the Committee poses 43 questions for the NFL and the NFLPA to answer. The letters also request numerous documents to assist in the preparation of the Congressional Research Service report. Responses from the NFL and NFLPA are due October 26, 2007, at 10:00 a.m.
Senate Hearing
On September 18, 2007, the United States Senate Committee on Commerce, Science, & Transportation held an oversight hearing on the National Football League retirement system. Witnesses included Hall of Famer Mike Ditka, sports broadcaster and former Dallas Cowboy Daryl Johnston, former Minnesota Viking Brent Boyd, former Rams player Bill Bain, retirement board trustee and former Chicago Bear Dave Duerson, Hall of Fame player Gale Sayers, NFL Commissioner Roger Goodell, and NFLPA Executive Director Gene Upshaw.
A webcast of the hearing can be viewed by clicking HERE. The written testimony submitted by the witnesses can be viewed by clicking HERE. Click on a name to view that person's written testimony.
A webcast of the hearing can be viewed by clicking HERE. The written testimony submitted by the witnesses can be viewed by clicking HERE. Click on a name to view that person's written testimony.
Congressional Hearing
On June 26, 2007, the House Judiciary Committee held a hearing titled, "The National Football League's System for Compensating Retired Players: An Uneven Playing Field?" The hearing focused on the disability benefits program for retired NFL players. Click HERE to view the webcast of the hearing. The written testimony of the eight witnesses is available HERE. Click on a name to view that person's written testimony.