The Upshaw Legacy
With Gene Upshaw now gone to a different place, the NFLPA and its management have a unique, once-in-a-lifetime opportunity to bring about a lot of long overdue changes. We can only hope that everyone sees it that way and will take advantage of the short window that’s now open in a vacuum that comes from decades under an unchallenged dictatorship. Without the need to get into mudslinging and finger-pointing, I think everyone will agree that no one can fill Gene Upshaw’s shoes for better or for worse. He takes with him his own way of doing things and – without a well-groomed heir apparent in place – most of us believe that many of the reasons behind the old way of doing things will also be lost forever.
So the opportunity that’s staring us in the face right now is a rare chance to get a lot of the right things done that couldn’t be done before. Especially some of those things that made absolutely no sense other than “because I said so.”
We can only hope that all of us – the NFL and its owners, along with the NFLPA, the current and retired players AND the retired, disabled players – can finally all sit down and have a long, honest discussion that’s been overdue. As the Chairman of the Retirement Board, we hope that Commissioner Goodell will feel emboldened to step forward and right decades of wrongs that have gone on too long.
Unfortunately, even as things are unfolding, the old way of doing things is still rearing its ugly head. My disability attorney, John Hogan, sent a response to Harold Henderson who wrote that the NFL Management Council would not be making any additional changes to the Bert Bell/Pete Rozelle Disability Plan until a new CBA is reached or the current one extended (?!!).
John’s entire 3-page letter is posted below (with John’s approval) and I think it pretty much says it all. (UPDATE: We just decided it would do John Hogan’s suggestions more justice by simply posting his letter directly in the post.).
August 25, 2008
Mr. Harold R. Henderson
Executive Vice President
National Football League
Management Council
New York, New York 10017
Dear Mr. Henderson,
Thank you for your letter of August 5th, responding to the disability proposals submitted by the Retired Football Players Association. We appreciation the consideration you and Commissioner Goodell gave to them.
However, the RFPA, and most retired NFL players are very disappointed that there will be further, and perhaps lengthy, delays until the Bell/Rozelle disability system is reformed. We all understand the ramifications of the CBA, but we were hopeful that the League would champion the cause of the men who helped make NFL football the great game that it is today – not to mention the incredibly profitable enterprise – but who find themselves disabled.
Waiting until the new CBA is reached to reform the disability process will be little comfort for those players and their families who, until then, may face foreclosure, automobile repossession, selling off possessions and bankruptcy as a result of their disabilities and medical costs.
With all due respect, the Commissioner and the NFL do in fact have the power and authority to bring about a significant reform of the Bell/Rozelle NFL disability system without the need for any change to the CBA. The Commissioner, as ex-officio chairman of the Retirement Board, can bring about an immediate substantive change by counseling the Management Council appointed members of the Retirement Board and the Disability Initial Claims Committee (“DICC”) to follow the letter and intent of ERISA disability claim regulations and the Plan itself.
While the NFLPA and their attorneys have taken most of the heat for the failings of the Plan’s disability evaluations, in my experience, it is the members appointed by the NFL Management Council who are most culpable for the problems which ensue.
Plan Section 8.8 requires that every member of the DICC and Retirement Board owes a fiduciary duty of loyalty and care to the Players and their beneficiaries; yet, as a matter of course, they routinely vote to deny and delay claims even in the face of uncontrovertible medical evidence. Routinely, players are denied upon the votes of your members, even after one or more favorable reports from the Plan’s own neutral physicians.
The Plan frequently fails to follow ERISA requirements when a claim is denied by the DICC with little more than a “thumbs down” or a brief, conclusory statement of denial. A deadlocked vote of the DICC is not a sufficient explanation under ERISA to put a player on notice as to the deficiency of his claim.
Disability appeals governed by ERISA are not meant to be a gauntlet of exams or a guessing game by the claimant about what is required to prove his case. Any legitimate deficiency in a player’s initial application needs to be explained to him so that he has the chance to remedy the defect. If he does so, the claim should be granted.
Doug Ell has indicated to Congress and the Supreme Court that ERISA due process requires an additional neutral physician examination on appeal. This is a significant distortion of the requirement that any medical expert used on appeal be independent of any medical expert whose opinion was relied upon for the initial determination. ERISA does not mandate the use of any experts, and they do not need to be examining physicians. More importantly, this regulations presupposes that the medical judgment relied upon at the initial level was unfavorable to the player. The favorable opinion of the Plan’s own carefully chosen expert neutral physicians should only be rejected for significant and legitimate reasons.
At the Retirement Board level, appeals should not be delayed for unnecessary additional neutral physician exams in the hope that an unfavorable opinion might crop up to help defeat the claim. The Board members representing the Management Council should be required to provide specific, legitimate reasons for ordering further neutral exams or a MAP evaluation.
Under the Plan, the MAP is to be an advisor not an examining physician. Only a MAP can decide whether any additional examinations or tests should be administered. (Sec.11.4(b)) It is a perversion of the Plan for the Management Council members of the Board to vote against a claim in the face of fully favorable medical opinions by requesting a MAP examination, in hopes of obtaining an unfavorable determination to deny a claim. Indeed, it may well be an ERISA violation for the Retirement Board to abrogate their duty to give the claim a full and fair review on appeal when they use a MAP’s opinion as binding.
Surely the purpose, under the CBA, of having both the NFL and NFLPA equally represented on the DICC and Retirement Board is to serve as a system of checks and balances.
The Bell/Rozelle NFL disability system should not be a “give away” program for every retired player suffering routine aches and pains. On the other hand, the NFL appointed members cannot be allowed to continue to routinely delay, obfuscate and deny legitimate claims.
You and Commissioner Goodell do not have to wait for a CBA extension to remedy these serious flaws in the adjudication of disability claims under the Bell/Rozelle NFL Retirement Plan. The above defects can be corrected immediately.
Should the retired NFL player community learn that the Commissioner has instructed that such improvement occur, we will be much more optimistic that additional meaningful changes to the disability Plan will be advocated when the CBA is extended or a new agreement reached.
Thank you for your consideration.
Sincerely,
John V. Hogan
JVH/sy
And THIS just in from the PressBox, a Baltimore sports blog (click HERE to read the entire piece):
“WILL UPSHAW DEATH SWAY NFLPA STAND?
It has been a week since Gene Upshaw died suddenly from pancreatic cancer, and as the NFL prepares for the kickoff to another season, there are many questions and controversies lingering in the wake of his death. It all makes for a difficult legacy for the Hall of Fame guard who was both beloved and despised.
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Whatever the case, the union’s new leadership and the NFL owners all would do well to get their acts together for the coming labor wars. Without mutual respect, open communication and resolution, there will be no future golden eggs for them to quarrel over.”
Chris Burford
August 27th, 2008 at 8:04 AM #
Hogan’s letter is clear, direct and not over-reaching. Goodell should give it credence and act. Much could be done to salvage the rapport between the League, the union and the retired players. Hogan’s proposal would be a good first step and one that particularly needs to be addressed soonest….many will not last through another round of CBA strife.
Chris Burford
robert
August 27th, 2008 at 1:00 PM #
John’s points are basic common sense and would serve the Union well in the years to come if the NFLPA would simply adhere to them. I say ‘adhere’ as they don’t really need to be adopted – it’s more just a matter of following them instead of flouting them. It’s been obvious to me that ERISA laws clearly haven’t been followed (let alone acknowledged as rule of law) over the past 20+ years; by simply following them properly, the NFLPA could quickly get on the right track overnight without any changes in policies or rules. So Henderson’s statements should stand as the last words of a dead regime that shouldn’t be given any further respect or dignification.
I’m optimistically hopeful that the majority of the players – ALL players, current and retired – will take notice of this incredible opportunity that’s sitting on a silver platter in front of them. If this Union is to truly survive into the 21st century, it will need to be reminded again of the words printed right on the FRONT of each and every member’s card: Past Present Future.
And while we’re at it, why is there so much discussion and “reporting” on all of the speculation about who will be anointed the new Director of the NFLPA? I wasn’t aware that the position was a coronation or an entitlement. The most deserving candidates should be both qualified and deserving of the support from the entire membership. Just like in every other union or democratic organization. The NFLPA was never intended to be a dictatorship and I defy anyone to show me where in its constitution or charter where it happened.
The best thing all of its members can do right at this moment? Draw up a list of potential Executive Directors and whittle it down to 3 after hearing what each of the nominees promise to do for the members. And then have a real election, with each candidate publicly stating their positions and promises. And rules could be set up to limit the length of the term (4 years sounds like plenty of time to get things done) as well as the number of years anyone can serve (2 terms should be the maximum to prevent another dictatorship). The American Constitution has worked quite well over two centuries for choosing our public leaders and President, so why not follow success? I mean, just exactly how hard would it be to have a real election for Executive Director? They already have every member’s name and address, right? And they sure don’t have any problems sending each of you a reminder to mail in your dues of $100 a year, do they? Heck, Dave and John and I would gladly dig around in our pockets to pay for the printing and mailing of ballots ourselves if need be!
My questions to each of you:
Ting Mintz-Olatinji
September 6th, 2008 at 1:15 PM #
Hope this might be of interest to you…
Blood Equity is a documentary produced by (Discernment Films) retired NFL player Roman Phifer and his partners (Rico McClinton and Joe Ruggiero). The documentary covers issues regarding lack of support for disabled, disadvantaged and disenfranchised retirees of the NFL.
Production for Blood Equity began in June 07’ approximately the same time John Conyers and Linda Sanchez convened their first hearings on the issue in Washington D.C. Prior to its completion, Blood Equity and Roman were the Cover Story of HBO’s Inside the NFL (WK#13) with Bob Costas. Post-production was completed in early January ’08. Blood Equity interviews include Sylvia Mackey, Mike Ditka, Harry Carson and Tony Dorsett, Willie Wood and others. Currently, we’re looking to identify and secure a distribution partner.
Roman attended an NFLPA retiree meeting last year in Atlanta. He was very moved by all that he heard and saw. He decided to take advantage of the opportunity to give back to the “Game” that afforded him with so much in life after playing 15 years and being part of winning 3 Super Bowl championships. Articulating and validating the problem was successfully achieved through the passionate voices and images captured in the documentary. “Being a part of the solution” is the priority of the long-term goals and objectives.
Deep religious and spiritual beliefs and convictions led Roman to roll up his sleeves and humbly accept the call to suit up in a new uniform as an activist, advocate and agent of change.
Blood Equity and the No Forgotten Legends initiative provide the footings for a long overdue bridge for communication and information dissemination to be established. For retired players it could be a platform from which their allegiance, contributions and sacrifices can be acknowledged. For active players, it is the platform they can use to gather together to give back to their fraternal predecessors and acknowledge the benefits and privileges provide to them. Working together as a cohesive united collective exponentially increases the opportunity for positive change for both active and retired players and their families.
2Way Mirror Media joined the project this past July to coordinate, facilitate and manage disseminating, marketing and promoting the project. Part of the multi-tiered strategy for Blood Equity and the No Forgotten Legend initiative includes:
Securing funding to produce 2-3 more video installments of Blood Equity as part of a series;
Secure corporate sponsors and/or underwriters to provide interactive community information and outreach activities;
Coordinating and convening meetings where both active and retired players can speak openly about issues affecting them;
Writing and publishing a book.
I hope that you might be able to find some time in your schedule to speak with me.
Respectfully
Ting Mintz-Olatunji
Office# 310.829.9111
P.S. There is a clip of the documentary at http://www.bloodequity.com. We’re working on updating the website.