John Hogan on Fiduciary Responsibility
Disability Attorney John Hogan has gone above and beyond in his efforts to help the retired disabled players. John has recently helped several players with their re-applications under this year’s disability plan. (You can read more about John by visiting his website by clicking HERE.) In case anyone doesn’t understand fiduciary responsibility and the legal and moral responsibility it carries with it:
The jury in the retired players’ class action lawsuit found that the NFLPA and Players, Inc. violated their duty of loyalty and care to the retired players with regard to licensing and marketing their GLAs. Judge Alsup repeatedly reminded the attorneys out of the presence of the jury, that the class action did not involve other areas of contention between the parties such as disability and pension benefits. Have the NFLPA and the NFL violated similar fiduciary duties to retired players seeking benefits under the Bell/Rozelle Retirement Plan?
Section 8.8 of the Plan provides “The Retirement Board and the Disability Initial Claims Committee will discharge their duties with respect to the Plan and Trust solely and exclusively in the interest of the Players and their beneficiaries, and with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matter would use in the conduct of an enterprise of like character and with like aims. …” While the late Gene Upshaw and the NFLPA have taken most of the heat for the failings of the disability system under the Plan, it should be noted that the Bell/Rozelle Retirement Plan is a joint venture with the NFL Management Council, and the ex-officio Chair of the Retirement Board is the NFL Commissioner. (Plan section 8.1 (c)) Furthermore, it appears that it may well be the NFL Management Council-appointed members of the DICC and Retirement Board who routinely vote to deny claims, often without any substantive justification. Last year Congress heard many stories of players’ claims which were denied even after several favorable opinions from the Plan’s own neutral physicians. If this is in fact the case, it would seem apparent that those deciding disability claims are violating their duty of loyalty and care – not to the NFL – but to the Players and their beneficiaries.
Furthermore, their fiduciary responsibilities charge them with the duty of skill, care and prudence to act like others operating a similar enterprise (i.e. – adjudicating disability claims). Here there is a significant failing, as the Plan asks examining physicians to determine whether players meet their definition of disability, which in a nutshell, is whether “…he is substantially prevented from or substantially unable to engage in any occupation or employment for remuneration or profit…” (Plan section 5.2). I have been specializing in disability law for well over 25 years, handling claims in many forums, including Social Security, the VA, the Railroad Retirement Board and with most major insurance carriers. In each of those forums, a physician cannot make the determination of whether someone can work. Rather, they set forth the physical and mental restrictions which a claimant possesses, and then a qualified vocational specialist considers such factors as age, education, work experience, past earnings, etc,. (depending upon the specific requirements) to determine whether a person with the claimant’s medical limitations is in fact capable of working. The vocational factors of whether a retired player meets the Plan’s definition of disability are completely missing from their disability determinations and thus, the Plan is failing in their fiduciary duty to act with the skill, care, prudence and diligence they are required to exercise.
Only a complete audit of the Plan will be able to properly uncover all of its shortcomings.