How a Disability Plan SHOULDN’T Work
Earlier this year, Disability Attorney John Hogan filed appeals to the Retirement Board of the Bert Bell/Pete Rozelle NFL Players Retirement Plan on behalf of Dave. Late last week, Dave received a response and it was no surprise that he was once again denied his request to have his Inactive Total & Permanent Disability reclassified to Football Degenerative. It was a perfect example of how an application and appeal process shouldn’t work.
Let’s start first with a re-cap on the major issues: The Plan clearly breached its fiduciary duty in 1995 by not getting input from a vocational specialist (such as Earl Thompson). If they had, Dave’s case likely would have been granted. It’s a violation of the fiduciary duty of care NOT to adjudicate disability claims like others similarly situated would do. Every other disability system typically considers vocational factors. They should have obtained more detailed information from the doctor himself such as how frequent and how long the rest breaks needed to be, the need to lie down, and how many total hours per day.
Dave’s own Union failed to advocate for him when it was clear that he had a very severe disability. Last but not least – the 15-year deadline to qualify for football degenerative is purely arbitrary (you can bet that if an auto worker was going through this, the UAW would be there front and center defending that injured employee, regardless if it was 5 years or 20 years after he retired).
Any of the retired players should be able to work as long as they can tolerate it, but when they can no longer work at all, football degenerative should still be there if there is a clear link to football injuries. (All of these recommendations are in John Hogan’s earlier disability proposal – click HERE to read it). We might understand the fact that when all of this was started over 25 years ago, much of it was developed on the fly. But with the experts now available today along with the depth of experience others have gained since then, it’s difficult to understand why the NFLPA – our Union – would continue to take such an antagonistic take-no-prisoners approach towards its very own membership. With Executive Director Gene Upshaw now gone, many of the players have been hopeful that it would signal the beginning of a new era among all of the players in the Union’s membership.
With that, here are John Hogan’s 3-page appeal letter and all four pages of Retirement Board’s denial (with only personal details omitted for obvious reasons). (As always, click on each page to enlarge for easier reading.)
It was interesting to note the level of detail that they went into in order to disqualify Dave’s application. We’re sure that much of it – especially the details of Dave’s income numbers from 1990 – 2005 – was done with their full expectation that we’d be posting all of this online as soon as we got it back. So for that, we’re always happy to oblige. We’ve deleted the numbers but rest assured that Dave’s not retired on the millions that he made from football. Keep in mind that for most people with a family and growing children, not working is simply never an option. And these numbers were the same ones presented to Social Security in 2004 when Dave was qualified to receive Disability Benefits from them. So it would seem that short of being dead, most benefits from the NFL are unattainable under their terms for qualification. “We’ll tell you when we see it. In the meantime, everything else doesn’t qualify.”
Unfortunately, in Dave’s case, it was a matter of survival rather than simply working. Since being released from Al Davis’ Raiders in 1981, he’s spent in excess of $560,000 of his own money on medical costs for injuries received playing football in the NFL. So you could say he was actually still working for the NFL over the years to pay for the medical expenses THEY should have been paying all along. Furthermore, his monthly prescription costs exceed $1,000 a month. In fact, he has spent more of his own money on medical bills than he made as a football player in the NFL! This type of ongoing medical expenses would deplete anyone’s savings. And he still has 3 more surgeries scheduled over the next 2 years (lower back, total right hip replacement and neck). Dave would ask Sarah Gaunt to kindly refrain from telling a half-truth because a half-truth is still a lie.
Gaunt took great pains to include the quote about “coasting through school.” Just what did that have to do with being disabled? Or is that just her way of making sure to point out that as retired players, they’re all has-beens now? (Click HERE to read her insightful quote from the University of Boston Sports Law Symposium last week.)
Among some of the cryptic gems in this 4-page letter: “The Retirement Board noted that Dr. Anderson does not indicate the date when Mr. Pear, in his opinion, became totally and permanently disabled.” Umm – maybe it was based on your OWN doctor’s opinion from 1995 that Mr. Pear was 80%+ disabled?
(Click HERE to see all of that paperwork.)
To sum it all up: The NFL’s own doctor says Dave is 80%+ disabled and he doesn’t qualify because he’s still able to do “sedentary work.” Therefore he’s automatically disqualified for disability benefits. So what qualifies for benefits? 85%? Nope! How about 90 or 95%? Probably not. Maybe 100%? We can just imagine Sarah Gaunt’s letter to an NFL widow: “The Retirement Board noted that Dr. Anderson does not indicate the date when Mr. Jones, in his opinion, became totally and permanently dead. So therefore you’re disqualified from receiving his death benefit.” Can you imagine the ensuing outcry if Social Security decided to follow the same guidelines to screen disability claims?
So unless you’re actually seriously injured in front of a full stadium and millions of viewers on television like Kevin Everett (he was paralyzed playing in 2007 for the Buffalo Bills against the Denver Broncos), you’re probably going to get denied your benefits that have been supposedly set aside for you. According to the NFL’s own standards, even Everett would likely not have been considered 80% disabled!
Seems like that pretty much sums up how the disability program works with the NFLPA and the NFL.