Dave Pear’s Official Blog

There’s an old saying that the definition of stupid is doing the same thing over and over again thinking that the results are going to be different. You would think that with as many people from inside and outside sources telling him to keep his mouth shut, Gene Upshaw would finally learn to keep his mouth shut. Every time he opens it, his foot seems to have a nasty habit of ending up in there. But after years of running wild with no interference, Upshaw seems to be at a point in his life where he’s above it all; he knows everything and heaven help anyone who disagrees with him. He knows the law, he knows business and he understands how to stay in power at all costs.

In recent weeks, most of the coverage has come out in support of the Commissioner and owners’ opinion that a wage scale for rookies would be a great idea for everyone. Except Gene Upshaw and Company. Seems that some of Upshaw’s best friends are highly-paid player reps who have made millions in fees from the high signing bonuses and contracts that they’ve negotiated for some of these young, untested rookies in the first drafts.

Mike Florio posted a piece of advice on ProFootballTalk entitled, “PLAYER REPS WANT ROOKIE WAGE SCALE” (click HERE to read the entire piece). Even some of the players’ reps have quietly been discussing the possibility of caps. But it’s still all done VERY quietly because - as the article points out - no one wants to get his neck broken.

Still, it seems that the retired players, the player reps, the Commissioner and everyone else seem to be in agreement about two things: rookie salary caps are a good idea and Gene Upshaw needs to zip it up.

Looks like the NFLPA has finally begrudgingly placed a notification about the Class Action lawsuit filed by Herb Adderley, Bernie Parrish and Walter Roberts against the NFLPA and Players, Inc. for nonpayment of royalties from group licensing revenues to retired players, among other claims. They’re obviously going out of their way to make sure that their members are always kept well-informed as you can see from their prominent placement at the very bottom of the NFLPA website: (Click on the picture to enlarge.)

You can visit the wensite set up specifically to inform other retired players of their potential rights to join the suit. Click HERE to visit the site. In case, the NFLPA takes down the link to the PDF Notice, here’s a link directly to the 4-page claim that you can download: click HERE. (You’ll need Adobe Reader to view and print the notice.)

An article by David Elfin in The Washington Times today talks about the ongoing behind-the-scene drama to find a replacement for the NFLPA’s Gene Upshaw. Among the many interesting tidbits:

“The executive committee has proposed hiring an experienced consultant, Phillip Kuehl, father of veteran long-snapper Ryan Kuehl, to manage the search process, including the hiring of a firm that would identify candidates to succeed Upshaw. The rep said the move to find Upshaw’s successor has the support of seven of 10 members of the executive board.

The player rep added that a majority of the committee believes Upshaw violated the constitution by neglecting to stand for election in 2006. Upshaw was re-elected the following March - a year late, according to some representatives - extending his contract until March 2010.

However, the dissenters are suspicious of that history, too. While Upshaw’s supporters say Tennessee’s Chris Brown and Ryan Kuehl nominated and seconded the nomination, neither man remembers doing so, and the representative said no minutes exist from that meeting.

Neither Upshaw nor members of the subcommittee could be reached for comment.”

You can read the entire article by clicking HERE.

Makes you wonder even more about what was shredded this past year, doesn’t it? Let ‘em eat cake, right, Gene?

My Disability Attorney, John Hogan, received a letter dated June 19, 2008 from Paul Scott, the Benefits Coordinator from the NFLPA’s Bert Bell/Pete Rozelle NFL Players Retirement Plan. The letter states that the Committee qualified me to receive Inactive Total & Permanent (T&P) Disability Benefits (which is supposed to amount to $40,000 a year - or $3,333.33 a month - according to the NFLPA’s published retirement benefits program) retroactive to April 1, 2008 (?!!). My request for Football Degenerative Benefits have been tabled and it is clear that all my documentation was not considered. They only looked at my favorable Social Security award in 2004 and disregarded the fact that I was wrongly denied in 1995.

Yet, Paul Scott’s letter states that my monthly benefit will be $2,980.60 with a retroactive payment of $7,123.41 to cover April, May and June which works out to $2,374.47 a month (?!!). Got that? And since they have a standing order not to take any deductions, 3 months should actually amount to $10,000, NOT $7,123.41! Sheesh!

Oh wait! They were going to offset my T&P of $3,333.33 by what they pay me as an “early retirement pension” of $606.13 a month, leaving me with a $2,727.20 in T&P Benefits, But they’ve calculated their payment to me of $2,374.47 a month, leaving me short $352.73 each month for a grand total of $4,232.76 that I’ll be short each year, Somewhere along the way, the math got trashed and I lost another 10% somewhere to the Gene Upshaw Retirement Fund.

(As always, you can click on each of the document images to enlarge them for easy viewing.)

And while we’re at it, retroactive to April 2008? They not only haven’t granted me full disability benefits of $110,000 a year, but instead decided to slot me into a $40,000 a year Inactive T&P Benefit and then added further insult to injury by shortchanging the monthly benefit by a total of $958.86 a month partly by deducting my paltry monthly pension and other deductions (so that’s $11,506 a year short even according to their own plan numbers). And there’s more: My Social Security started back in July 2004, not April 2008 (you can see my documentation by clicking HERE).

If you remember reading that Washington Post article by Michael Leahy on SuperBowl Sunday (read our post by clicking HERE). In fact, here’s a clip from the piece with Gene Upshaw’s now-famous ‘It’s the law‘ quote. But then his own attorney corrects him and goes further in stating that they could in fact “grant both a pension and a right to a disability payment.”

In fact, further on in the same article, Upshaw’s attorney, Lanny Davis, even felt that I should be eligible for the $110,000 Disability Benefit:

So it now looks like Gene Upshaw’s organization, the NFLPA, not only knows the law but they also seem to be following the New Math as well! I can only hope there are some Math geniuses out there who can help us sort out this NFLPA New Math.

If there are any other of you out there who have applied and received something, let us know so we can all compare notes. Drop us a note to let us know if you’ve:

• Filed (or plan to file) your application;
• Had your application approved (and how much you’re going to receive);
• Had your application declined.

If we all compare notes on our cases, perhaps we can ensure that everyone is treated equally and consistently under the rules.

Disability Attorney John Hogan asked us to post a reminder that the deadline for all applications to be re-considered for NFLPA Disability Benefits is coming up fast: July 31, 2008. A lot of guys have been slowly getting their paperwork in and while it may seem like a long shot, it’s worth the effort for as many of us as possible to get those applications in by the deadline. John’s been burning the midnight oil with the new workload but he’s keeping up with the pace.

We can’t think of anyone we’d recommend more highly than John!

To visit John’s website, click HERE.

Dear Larry -

I received your first letter of May 14, 2008 by overnight courier after we posted details of that anonymous comment that originated from within your law firm. Your letter arrived over the weekend just before I went in for my hip replacement surgery. I appreciated your honesty in acknowledging this activity from one of your staff as well as your taking responsibility for this underhanded attempt to threaten our efforts.

While it fell short of making an outright apology, your letter certainly helped to highlight the ongoing range of attitudes and emotions on the different sides in this long-running struggle of disabled retired NFL players and those who vehemently oppose our efforts. If this gives you a small glimpse into the feelings of just a few people, then I can only hope that you and others might begin to understand what it will take to bring everyone to the table to resolve this issue once and for all. While there may be a few who have ulterior motives and agendas, we truly believe that most people understand and empathize with those of us who have sacrificed everything for the game in the past to make football what it is today. Whenever our story gets heard, the general opinion is a resounding ‘Why? Why is this happening to the men who helped to build this sport when the business grosses billions every year even as rookies continue to get signed up for multimillion dollar contracts even before they hit a field?’

I’d also like to remind you that as much as you may want to dismiss my inquiries and requests for information (that should actually be readily available to all players), I never considered you to be my attorney or representative. You were assigned to work with me by Commissioner Roger Goodell to provide me with the Plan documentation that all players are entitled to receive as well as to help oversee my new application for benefits to which I have been entitled for over 25 years. I don’t consider you to be relieved of your duties until Commissioner Goodell informs me that he has officially asked you to stop assisting me.

In any event, I received another letter from you on June 19, 2008 with more details on your employee’s actions and consequences. I’m also grateful to the Commisioner’s office for continuing to make your assistance available.

Regards

Dave Pear

Bernie Parrish has a common-sense proposal that he’s compiled in a simple outline that’s easy to understand. It speaks for itself so hereit is in its entirety:

Guys: I sent this to you a month or so ago and I sent it to many congressional staffers, Representatives and Senators. I’m about to send it again so if you have anything to add or change, please let me know.

I understand you folks (the Congressional Committee staffers) are asking “around” again about what the retired NFL players want other than justice.

Here’s what we want:

1A: Retired players do not want to be represented in any way by Gene Upshaw or the NFLPA. Upshaw states it is illegal for the NFLPA to represent retired players in collective bargaining. We want Upshaw and the NFL owners prosecuted by the Dept. of Labor and Dept. of Justice for violating the labor law that Upshaw and the owners flaunt while making their collective “best effort” benefit increase of $1.63 per day in his dictatorial role empowered by the owners’ promotion of the scam that includes giving Upshaw a $10,000 per day increase in compensation. Just so there’s absolutely NO misunderstanding, the retired players simply want nothing to do with Upshaw OR the NFLPA.

1) Adjust the Bert Bell Pete Rozelle NFL Player Retirement Plan to at least match Major League Baseball’s retirement plan.

[In addition fix the benefits of the 350 players, who on the bad and misleading advice of the NFLPA, took their pensions early.]

2) Completely re-write the disability plan using the input of retired players and the attorneys who have represented them against the Groom Law Group. Our industry has unique problems and the solutions should meet those unique problems; especially those that deal with the injuries sustained by the players who played the game extending into the problems those injuries continue to cause throughout players’ lives.

3) Establish a means for the retired players to protect their interests and control their own Retirement Plan now and in the future, so future corrupt union leaders cannot exploit the active and retired players’ divergent interests. One option is to give the retired players a vote in the union, which gives active players a vote for life in the union, both on a one-man-one-vote basis. A unique industry must have unique solutions. Another solution is to form and operate an independent retired players “organization” without any ties or involvement with the NFLPA or its leadership or the active players.

4) A GAO-type audit of the retirement plan finances and operations, as well as the union’s financial operations, and the operation of the league office and all its legal entities. And a GAO-style audit that shows the true income and true percentages of the benefits and compensation that goes to the active players, the retired players and the owners. This is needed for several reasons, including the establishment of a baseline from which to operate in the future.

5) Award the retired player’s retribution ins retirement benefits and disability benefits owed them as a result of the leadership of the NFLPA acting in collusion with the NFL office and owners. Sever all ties between retired players and Gene Upshaw and the active players and their union as well as give the retired players control over their own Bert Bell Pete Rozelle NFL Player Retirement Plan which owns the disability plan. We want no relationship whatsoever with Groom Law Group or any of those who have administered any part of the fiasco of a retirement or disability plan in the past. Retired players were far better off before NFLPA’s Gene Upshaw arrogantly broke the law after recognizing it and unilaterally began representing retired players in collective bargaining when nobody asked or wanted him to do so (with the exception of the owners).

6) The owners opting out of the CBA means nothing to correcting these problems because any solutions, changes that involve the CBA can be made using the NFLPA’s infamous “side letter” agreements. But the changes can be legislated and need not have anything to do with the CBA since it’s illegal to collectively bargain for retired players anyway.

7) A Sports Commission or Commissioner to oversee the antitrust abuses by NFL franchise owners of the players and the public from employment to stadium construction, TV contracts and franchise location issues seems obvious.

What a great time to jump back into things! With Dave recovering from his hip replacement and Robert down from a viral infection for weeks, we’re finally jumping back in, just as things start getting hot for the summer. REALLY hot! We have a lot of catching up to do so let’s start with today’s hottest topic and work backward from there:

Remember a post from a while back where we mentioned that in Washington DC, it’s often not the crime that gets the criminal but the coverup afterwards? Richard Nixon got nailed for covering up Watergate; during the Reagan years, EPA Chief Rita Lavalle, went to prison for destroying documents about the dioxin coverup; and Enron and Arthur Andersen got busted shredding tons of audit documents, even as the inquiry was already underway by SEC investigators.

Charles Chandler of The Charlotte Observer disclosed the most recent findings culled from the NFLPA’s annual public disclosure documents for this past fiscal year. Among the most interesting tidbits was a line item for $12,000 worth of contracted shredding services! That’s a lot of shredding by any standard. And just exactly how much shredding does $12,000 buy? Apparently, it amounts to a pile of paper over 4,000 feet high (”4.8 times the height of the Bank of America tower, Charlotte’s tallest building at 875 feet” according to experts consulted by the Observer). Or how about, “At that rate, the amount paid by the NFLPA to Office Shredders would equal 124,610 pounds, more than 62 tons.”

This has all started to catch the attention of Congressional leaders who have been digging deeper into the NFLPA and its practices during this past year. Small wonder Upshaw and Co. don’t want to relinquish control. Does this mean we may be expecting bigger annual shredding budgets in the years to come?

Read the rest of this article by clicking HERE.

USA Today ran a story today about Gene Upshaw making his PowerPoint pitch (complete with laser pointer - WOW!) for the CBA (Collective Bargaining Agreement) after the NFL owners voted to opt out of it by 2011. Read the entire article by clicking HERE.

Among significant items that Upshaw demanded was full disclosure from the NFL and its owners. PowerPoint Gene would like to see all of the NFL’s books in the interests of full disclosure. The more we thought about it, the more we liked it! Let’s all start demanding that those nasty owners open their books up so Gene and his boys can see just how much more they can squeeze out of the Golden Goose. We COMPLETELY AGREE with Gene for once!

In fact, it’s such a great idea, we’d like to suggest another good one for the NFL owners to toss back at Gene Upshaw and the NFLPA: We’ll show you ours if you show us yours! We’d ALL love to have transparency from everyone so maybe for once we can see just how things have really been run by Upshaw and gang at the NFLPA for the past 25 years. Is that the reason why you really can’t afford to leave the NFLPA right now, Gene?

So come on, Gene. Show us yours…

As most of you now know, Disability Attorney, John Hogan, has taken charge of preparing and submitting my re-application for my T&P Disability Benefits from the NFLPA. I can’t speak highly enough of him and after receiving the following note from my friend, Tony Davis, we’ve all decided to provide John’s contact information on a post for the benefit of any other players who may be also looking for a great disability attorney. (This is completely unsolicited and based on our collective opinion of John’s work.)

I’ve received hundreds of e-mails from other players inquiring about the disability plan procedures. The best way i can help my fellow retirees is to direct you to an expert in the field of disability. I’m providing contact information for those needing assistance in determining your eligibility for disability. In the coming days, there will be important news to pass on to all of you with regards to our disability plan. I look forward to sharing this news with all of you.

Dave and I would like formally introduce all of you to Disability Attorney John Hogan. John’s role in helping the retired players cannot be measured. John is allowing me to pass his contact information on to all retired players.

Tony Davis

To Retired NFL Players -

I’ve specialized in disability law for over 27 years. Most of my practice is Social Security Disability which I learned by working for SSA as an administrative law judge attorney-advisor. I am currently on the Board of Directors of the National Organization of Social Security Claimants’ Representatives and I speak frequently at national seminars on various disability topics. With the NFLPA now accepting a favorable Social Security decision as proof of total and permanent disability, my expertise is even more important to former players.

I also have about 10 years experience handling ERISA cases and 5 years of handling NFLPA cases already. I’m located in Atlanta but have clients in many states and have represented clients from New York to California, and Washington to Florida. (I haven’t been to Hawaii or Alaska yet though!) I always offer a free, no obligation consultation to potential clients. My attorney fees are almost always contingent upon the success of the claim and agreed upon with the client before I actually start to represent them.

My needs-to-be-updated web site is: www.JohnVHogan.com

My office numbers are: (678) 546-1010 or 1(800) 450-1205 (toll free)

My e-mail is: jvhogan@mindspring.com

Best regards

John Hogan

You sure get to spend a lot of time thinking about a lot of things while you’re lying in a hospital bed recovering from surgery. I have to tell you that the good folks here at the Sunrise Assisted Living facility are making sure that my recovery stay has been absolutely first-class.

A few days ago, my disability attorney John Hogan, sent me a letter from one of his rehabilitation and employment specialists that provided an expert opinion on what being 80%+ disabled and needing accommodation for frequent rest breaks meant for someone’s employment prospects. (In a nutshell: Not good.) The opinion was based on the NFL’s “neutral” doctor’s report that had been generated way back in 1995 - just before the NFLPA’s review panel turned me down… again. Read that post and look at the documents by clicking HERE.

Anyway, John’s methodical approach prompted several discussions with my team about the history and process of my 25-year struggle to receive my full benefits from my union, the NFLPA. We decided it might be a good idea to summarize my case in one post so everyone can see the confusing and subjective process that most players are forced to navigate — before they get turned down. I say this because in most cases, the general result is that you’re ultimately going to get turned down. A scant few hundred players are actually receiving some form of their disability benefits from the NFLPA and the rest of us are left to try and survive on our own. And the few that have gotten in touch with us have all wished us the best of luck in our endeavors while also telling us that they don’t dare rock the boat for fear of incurring Gene Upshaw’s wrath and losing what little in benefits that they get.

I’ll start with my first application in 1983, after leaving football in 1981 with severe injuries. I went before the NFLPA Retirement Board in 1983 to apply for LOD Disability Benefits (Line-of-Duty). At that time, even the NFLPA’s appointed “neutral” physician had declared me to be 50 - 59% disabled and my injuries were a direct result of playing football. This clearly met the requirements to receive my benefits. The Board’s decision? Declined.

In 1992, I went before the California Workers’ Compensation and was declared to be 79% disabled.

So in 1995, I went ahead and re-applied to the NFLPA Retirement Board for T&P Disability Benefits (Total-and-Permanent). And this time, the NFLPA’s appointed “neutral” doctor declared me to be 80%+ disabled - with the need for frequent rest breaks. The Board’s decision? Declined. AGAIN.

Finally in 2004, my wife, Heidi, helped me apply for Social Security Disability, a very difficult qualification process as most people know. Social Security’s decision? Approved!

So here’s a quick overview of the NFLPA Retirement Board: It’s comprised of 6 people - 3 of them are retired players and 3 of them are owners or owners’ reps. The Commissioner is also given a “non-voting” seventh seat at the table. First of all, I know of few Boards - private or public - that have an even number of voting directors as this would create too many opportunities for deadlocked decisions. Unless, of course, the Board always manages to unanimously vote the same way (it’s called rubber-stamping).

But wait - there’s more. Remember the recent post from Jeff Nixon about superagent Tom Condon? (Read his post by clicking HERE.)

Condon retired from the game years ago after playing most of his career with the Kansas City Chiefs before retiring from the game in 1985 with New England. Since then, Condon has had a very successful career as one of the most successful sports agents in any major league sport, representing some of the biggest players and contracts in the NFL, including Peyton and Eli Manning. Jeff Nixon’s commentary talks about the $65 million contract that Condon negotiated for incoming rookie, Jake Long, and what it means for Condon. Aside from the fact that Condon also represents Gene Upshaw, take a guess at what else Tom Condon also happens to cram into his already-busy schedule? He’s one of the three sitting retired players on the Retirement Board who votes on who does or doesn’t receive benefits! (By the way, I recall that an attorney by the name of Larry Lamade from Akin Gump was allowed to sit in on my hearing as an advisor in 1995! And yes, Tom Condon was on the Board at my 1995 hearing just as he still is today, as far as I know.)

It probably won’t surprise most of you to know that there’s very little turnover on the Board. And to this day - in spite of numerous requests - I’ve never received written confirmation and details of my hearings and votes (anything I’ve ever received from The Groom Law Group or Akin Gump is always REDACTED anyway). So I don’t have any idea what their rationale has been for rejecting my application in 1983 and 1995, even with overwhelming documentation from my doctors AND their doctors. In fact, one time, I was told that I had provided them with too much documentation!

Currently, a group of retired players is drafting a set of proposed guidelines as a starting point to clean up the mess that’s been festering for so long. I’ve been told that among the many issues being addressed are processes to put checks and balances in place to avoid the potential - or the appearance - for conflicts of interest and corruption. Several of us have also discussed the need for elected directors and panelists, as well as outside auditors to ensure transparency, fair conduct and accountability. On the field, you’ve got referees on the field but in the boardrooms, it’s more obvious than ever that there’s been little adult supervision over at the NFLPA and its affiliates where it’s needed the most.

Kudos to Tony Davis for his tireless advocacy on behalf of retired players! Tony finally secured a copy of the “Alliance” disability application for players over 55 years of age as of April 1, 2008. Before yesterday, we had only seen the application for early retirees under 55. Now that we have seen both, here’s the skinny:

1) For players under 55 as of April 1, 2008 who took early retirement, there are two ways to qualify for T&P disability. If you are already on Social Security, the Plan will accept this as proof of T&P Disability. If you wish to pursue the higher paying “football degenerative” classification, you will need to separately establish that the disability is football-related and commenced within 15 years of your last credited season.

If you’re not on Social Security disability, you can apply and then go through the normal “neutral physician” exam process.

2)  For retirees who were over 55 as of April 1, 2008, the only way to establish T&P under this “window” is to have been found disabled by Social Security, with the disability onset date prior to your 55th birthday.

In either case, this window for players who have already taken retirement, and thus would normally be prevent for applying for disability, is only open through July 31, 2008.

John Hogan

Recently sent to the NFL Alumni from Jeff Nixon:

Dear Alumni:

The Miami Dolphins used the 1st pick in the NFL draft to sign Jake Long to a $57 Million Dollar Contract.

Jake Long is represented by player agent Tom Condon. If Tom Condon gets the 3% standard player agent fee, he could be raking in $1,710,000.00 over the life of the contract. It could be more or less depending on the agreement.

Jake Long already has $30 Million of that money guarenteed before he sets one foot on the field.

To put this in perspective, the NFL payed a little over $66 Million in retirement benefits to ALL retired Players last year!

As I said in a previous posting…..the top three players drafted will get more in just bonus money than was paid out in retirement benefits alone!

As you all know, Tom Condon also represents Gene Upshaw in his negotiations with the Executive Committee of NFLPA, so it is unlikely that Mr. Upshaw will change the way contracts are negotiated and the way player agents like his good friend Tom Condon are made wealthy. There is no reason why the NFLPA couldn’t negotiate all contracts for incoming rookies based on a pay scale commensurate with their position in the draft. The NFLPA already offers to negotiate contracts on behalf of players. How many rookies or active players actually take advantage of it, and in the process save themselves millions of dollars?

In my opinion, this is one of the biggest scams in all of professional football.

It is amazing to me that the Player Reps don’t do something to control the amount of money that is being siphoned from the CAP that teams have to work with. Don’t they realize that huge payouts like this effect what can be used to increase their own salaries and that quite often a veteran player has to renegotiate their contract downward, or be released to make room for this unproven rookie?

If the Player Reps only knew how much power they really had, they could end this Royal Scam in a heartbeat.

Gene Upshaw used to say that the NFL needed to make sure that NFL rookies got paid top dollar so that no other League could steal them away. Well, that argument died a long time ago.

Now it’s time for these huge bonuses to die!

Who on the Executive Committee has the guts to stand up to Gene Upshaw on this issue?

Jeff Nixon
Buffalo Bills

Yesterday, I got an encouraging letter forwarded to me from my disability attorney, John Hogan. As most of you know, John has taken on the task of reviewing and preparing my new application for my T&P Disability Benefits from the NFLPA. As part of his process, John is gathering more professional support to back up my case. The letter he sent along is from Earl Thompson, of Integrity Rehabilitation & Testing, and it’s based on his interpretation of a letter that Dr. Hugh S. Unger (the doctor assigned by the NFLPA) had submitted during my application for benefits way back in 1995.

You can read Dr. Unger’s original 2-page letter on my earlier post HERE.

Oh - and I’m back up and running with my notebook from the nursing facility where I’m recovering.

On Friday, Dave was transferred from Swedish Medical Center in Seattle to Pacific Regent over in Bellevue to start his post-op recovery one day ahead of schedule. Fortunately, he’s been recovering more quickly than expected so they decided to make the hospital bed available for someone else. Dave has a foot-long scar down his left hip and thigh but despite how it might look, he says he’s actually already feeling a whole lot better than he has for years. Dave hasn’t been able to go online yet from bedside but he sends his regards to all of his family and friends who have sent their warm wishes for a speedy recovery.

I’ve posted a slideshow of the surgery itself directly on his website CLICK HERE. (WARNING: Not for the squeamish - his doctor told him that his arm’s were sore the day after the surgery from having to work so hard at pulling the original bone out of his leg!) It’s still a work in progress and we’ll be adding comments to some of the pictures shortly.