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John Hogan: ERISA 101

Aug 6, 2011


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EDITOR’S NOTE: On Friday afternoon, NFLPA Disability Board Representative Sam McCullum wrote back to disability attorney John Hogan as part of our heated discussion on retired players’ Disability Benefits and their rights under ERISA law. (Click HERE to go back to that earlier post and be sure to read all the comments that are still coming in on that post.) We’re posting both of their letters here to continue an open review of how disability decisions are currently being made for retired players and how ERISA guidelines are not being applied. This is a must-read for any of you who have applied or plan on applying for your earned Disability Benefits.
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And before a few of you go off on us again for bringing the ghost of Gene Upshaw back into this fray, this is a direct reference to his original quote from an interview with The Washington Post’s Micheal Leahy in 2008. All too many retired players (even the late Johnny Unitas) lost their benefits because of this long-standing misinterpretation of the law. And that, my friends, is NOT bitterness – it’s reciting History. Those who do not follow or understand History are bound to make the same mistakes over and over again.
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From Page 26: The Washington Post Magazine February 3, 2008) – Super Bowl Sunday

Gene Upshaw: “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.”
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Michael Leahy from the Washington Post: I ask if he is certain of that.
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Gene Upshaw, “Yes,” he answers. “It’s not just the NFL; it’s the law.
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But it’s not the law, says the attorney Upshaw himself retained. Lanny Davis, in a separate interview, says the NFL could grant both a pension and a right to a disability payment. “It’s discretionary,” Davis says, “which is the way it is with most corporations.”
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Link to Washington Post article HERE.
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So here’s Sam McCullum’s letter first:
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John Hogan:
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I am one of those players that sits on the benefits board as a trustee. I am surprised that you choose to go after the players association and not quote the laws that govern the plan. The levels and the rules that govern start with the Dept of labor and end at the collective bargaining table. Dave if he wants can sue the plan for what he thinks is a wrong that needs to corrected, as on many cases the decisions that are rendered are governed by the law. We just finished a meeting yesterday where we reviewed over 80 cases of players that are asking for LOD or T&P, or Inactive line of duty or credited seasons. In all of those cases, the decision was determined by independent doctors and their determination of disability, the plan bylaws (filing period), and the D.O.L. rules and regulations. Each of these players have a right to appeal and can go back and be evaluated again, if they so choose. But the decisions were not personal, were not aimed to get back at anyone, just following the rules that are set out.
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The laws that govern these plans are complicated and must be followed carefully. We as trustees have been sued by attorneys and players that feel the rules are being applied incorrectly, and in each case we have the plan appointed attorneys respond, and that response is based on the DOL laws, and the CBA. The decisions in the plan itself is collective bargained, but also must meet the federal guidelines and standards.
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So as an attorney, you can do a lot for your clients, but making sure they are clear what they are seeking and making sure the doctors they see initially and the independent doctors are accurate in their evaluations, because if they are not, their is not anything we as trustees can do to correct those mistakes. You can also make sure the rules that govern the CBA for filing deadlines, for determination for reclassifications are met and adhered to.
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To many times we wait until after the filing period has ended and then get upset when we can’t go back retroactively and correct things. The rules are clear to protect the integrity of the plan.
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I appreciated the work by attorneys like you that take on these type of cases, but due to the rules that govern these cases the time from the start to finish is to long, and that is a negative that needs to be corrected. The DOL has new rules for timely action, and they will help, but not for everyone. The plan and trustees will handle almost 800 cases this year in one form or another, and the plan office and doctors are being expanded and improved, but not as fast as we would like it, but each player will get his case heard. In comparison in 2008, the plan reviewed a little over 200 cases. Why, some rule changes that has happened that has given a number of players who did not meet the requirement a second chance.
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Sam McCullum
Minnesota Vikings, Seattle Seahawks
1974 – 1983 .
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And John Hogan’s response:
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Hi Sam,
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Yes, I know who you are, and I have to say that I am rather surprised that you have written to me directly. I am not sure whether you are defending the Players Association – who appointed you to the Retirement Board – or the Plan, or both. In any event, I am delighted to respond:
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Yes, I am an attorney and it is my understanding that you are not. In fact, I have specialized in disability law for over 30 years. I have probably read the Code of Federal Regulations for ERISA claims more times than you ever read an NFL playbook (and I would assume that was a lot.) I am at home now (great start to the weekend) and I do not have my files with me so what I write is from memory but believe to be accurate.
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It is my considered professional opinion that the Plan – whether the DICC or the full Retirement Board, routinely ignores ERISA claim regulations promulgated by the Department of Labor; and that the DICC and Retirement Board members routinely fail to live up to the fiduciary duty of skill and care which you are required to render under the law and the very terms of the Plan. We (retired players and their attorneys and advocates) can understand that the members appointed by the NFL might intentionally act in such a manner but it is all the more frustrating that the PA members – who should be there to protect the players – often fail miserably to do so. I hope you realize that the fiduciary duty you owe to the Plan is also owed to each and every retired player who may be entitled to benefits under the Plan.
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In that regard, I believe that the Plan failed in their fiduciary to Dave Pear when he applied for T&P benefits in 1995. (Again I don’t have the file in front of me – but can supplement this letter as necessary.) Dave was sent to a “neutral physician” who opined that he had an “…80% or greater impairment to his spine” – which was a result of NFL football – but that he was not disabled because he could do some “sedentary work with frequent rest breaks.” The Plan violated their fiduciary duty to Dave in not seeking further information from this doctor. Someone should have exercised the knowledge, skill and care which the Plan requires, and said “Wow, that is a pretty severe percentage of disability …maybe we should ask the doctor how many hours per day he can work. Maybe we should ask the doctor how long and how frequent the rest breaks need to be. Perhaps a guy with that severe a problem might need to actually lie down during the day? Perhaps with a condition that severe, he might have flare ups of pain which would keep him out of work all together? If so, how likely might this happen?” These are the sort of questions which most other disability adjudicators would ask – or, they might let the claimant’s lawyer ask such questions.
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As for your doctors being independent – if that was the case, the Plan (i.e. – the Groom Law Group) would let me ask such questions of those doctors – but they won’t. Regardless, Sam, the Board shirks their fiduciary duty if they vote solely on what your doctor says.
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I am aware of a number of cases where the Plan has either turned a case down without questioning the medical opinion; or sought additional information from the Plan doctor ONLY where he gave a favorable opinion – as was the fairly recent case of Andrew Stewart. Has the Plan ever asked for further information – as was clearly called for in Dave’s case? Or is this done only where there is an opinion which would lead to a grant of benefits?
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I am currently representing Jimmie Giles in U.S. District Court in his claim for football degenerative benefits. You were not on the Board at the time they considered – and screwed up – his case. Jimmie was one of those who took advantage of the Plan provision which provides that where SSA finds a player disabled, the Plan will accept that he is disabled (absent a vote of at least four Board members that the SSA decision was obtained fraudulently – which certainly is not the case here.) Jimmie had applied for these benefits years earlier and a Plan MAP found that he was not disabled because he was limited to sedentary work – which is the reason many players have been denied over the years. However, it would appear that the Plan is or was unfamiliar with Social Security regulations; Jimmie was found disabled by SSA because he could not perform his past relevant work, and was limited to sedentary work. You see, under SSA’s rules, such a person over the age of 50 – as Jimmie was – is deemed disabled. That is, he was disabled under SSA rules even though he might be capable of performing sedentary work.
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Jimmie was found disabled by SSA within the 15-year deadline applicable to football degenerative benefits; so, when the Plan decided they needed “additional information” and sent him for a “neutral physician” exam, the only relevant issue should have been whether his disabilit(ies) were football related. However, the Plan failed to exercise the required skill and care by not changing or altering the questions they sent to the neutral physician. They sent the same stuff they have been sending for years which is NOT APPLICBLE in a case where the player has been found disabled by SSA. So, the doctor, not knowing the difference, expressed the opinion that Jimmie was not disabled – but that his impairments were the result of NFL football.
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I can’t make this clear enough – as Jimmie was on SSDI – the doctor’s opinion on whether he was disabled or not was totally irrelevant and the only relevant issue was his acknowledged disability(ies) connection to football.
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When the opinion came before the Plan, they denied his claim for football degenerative benefits. Apparently no one had the knowledge, skill or judgment to realize that the only relevant issue was whether it was football related. Jimmie is still getting inactive T&P – because even though the doctor said he was not disabled, they have to accept SSA’s decision. What they ignored was the only relevant issue they needed to consider – the doctor’s opinion that his impairments were, in fact, NFL football-related.
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Because of this failure of the Plan’s fiduciary duty, Jimmie has suffered greatly, subsequently filing bankruptcy and losing his home.
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I have also been a critic of the Plan for failing to consider the vocational factors which are relevant to whether a person dealing with various medical impairments can actually perform any full-time jobs which really exist. All other disability plans having a similar definition of T&P disability to the Bell/Rozelle Plan, do consider those factors. Many group ERISA plans also consider what those jobs might pay in making their determination. In practical terms, the lowest paying category of T&P benefits is a generous $40,000. Should a guy be denied if he might be so limited that he can only make $10K? $15K? ( A full-time job at minimum wage would fall here.) $20K?
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Also, all other disability plans I am aware of, which have a definition of disability similar to the NFL’s Retirement Plan, always seek opinions from the consulting, examining and treating physicians in the context of full-time work – ie., 8 hours per day, 5 days per week. I believe it is a significant fiduciary failure that the Plan does not do this. And, I have to wonder how many guys (certainly Dave) were improperly denied because it was assumed by the Plan that when the doc says that they could work, he meant full-time work, when the doctors might have been thinking part-time work.
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In what I see as yet another failure of the Plan’s fiduciary duty of care, I have two clients who, rather foolishly, put on their applications that they were employed. Rather than calling or writing them to obtain more detailed information, the DICC flat-out denied their cases! What if one of those guys was working sporadically and made say $8K to $10K per year – would that be disqualifying? Are you aware that under Social Security regulations a person CAN be working AND earning up to $12,000 per year and still be found disabled?
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In my guys’ cases, neither was working. One owns a house which he rents out – and receives rental income. This is passive income not work income and not disqualifying under the Plan. The other guy, as a matter of pride, said he was working for a brother – but all evidence shows that he was not. His brother was helping him financially. He proved to the satisfaction of the IRS, the SSA and the State of Georgia that he was not in fact working.
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I could go on for hours and would be happy to at some other time. I would also be happy to provide you with any specific citations, evidence, etc., you would care to see.
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John Hogan
Disability Attorney
Retired Football Players Advocate
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And our friends over at Gridiron Greats just noticed that the NFLPA site is now officially open for business and their official stance on how well they take care of retired players is posted for its members to read. We’ve taken a screenshot for posterity (click on the image to enlarge for reading:
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Which is why you may consider signing the Retired Players’ Declaration of Independence if you haven’t done so already. (And please pass this along to all your teammates!)
(form 'form-1' not found)
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4 Responses so far | Have Your Say!

  1. Lee Folkins
    August 7th, 2011 at 5:45 am #

    Lee Folkins

    Very informative.

    Lee Folkins
    Green Bay Packers, Dallas Cowboys, Pittsburgh Steelers
    1961 – 1965

  2. Bruce Jarvis
    August 7th, 2011 at 9:37 am #

    Bruce Jarvis

    Hi Dave,

    I just clicked on that NFLPA page image posted above to view the enlarged, highlighted portion and read that “the NFLPA provides its players with the most generous retirement package in professional sports…”

    If that is true, why is my $785 monthly pension (which I took at the full retirement age of 55) smaller than ONE of my family’s two car payments? Or why, when a California Agreed Medical Examiner wrote a 46-page report about my physical disabilities did the NFL Disability board take less than one minute to decide that they would not even consider my case of football-related disability because I had committed the sin of taking that pension at full retirement age? But gee, guys, I staved off the pain for 40 years or so with multiple spinal surgeries, etc. until the pain got so great that I came to you for my earned disability (Social Security allows this) and you said to me (no doubt cackling in the background) the equivalent of “Get out of here, punk, and don’t let the door hit you on the way out!”

    As for the rules for disability that John Hogan begins to dissect in his marvelous response to Sam McCullum’s frightening letter, those rules are arbitrarily and capriciously designed to keep the award numbers and amounts low so that huge amounts of more money can go into the pockets of the active players, the post-1992 players and, of course, the NFL owners. Another name for profiting on the literally aching backs of the older pre-1993 retired players is unmitigated G-R-E-E-D!

    Bruce Jarvis
    Buffalo Bills
    1971-1974

  3. Dave Pear
    August 7th, 2011 at 1:38 pm #

    Dave Pear

    Thank you, John,

    I might add that my own out-of-pocket medical bills (so far) have been well over $600,000! This is for injuries I received in the NFL and my medical bills are certainly much greater than I ever made as a nose tackle – Pro Bowl and Super Bowl player.

    However, Medicare has now paid almost an additional $300,000 so far for four surgeries and I need at least three more (total right hip replacement, lower back and neck) so the total will soon exceed $500,000!

    My medical bills grow every day as the NFL continues to earn interest on valid claims they will not honor.

    Maybe one of the reasons Social Security and Medicare are broke (or going broke quickly) is that some big businesses feel they’re entitled to ask the public and the working man to pay their bills. They hire law firms such as the Groom Law group to scheme up ways to not pay benefits. And of course, the lawyers make money on both ends defending all the appeals ad nauseum – if you can afford to sue them. Isn’t that what Bruce Jarvis and the rest of us call GREED?

    A Department of Labor audit of the NFLPA’s books and removing the antitrust exemption from the NFL would force both of them to pay their bills along with retroactive benefits for all the disability claims that have been mishandled or illegally denied in the past.

    This should be another another class action lawsuit for fraud and criminal negligence. The NFLPA has already been convicted of breach of fiduciary duty and breach of contract in the Players Inc. trial so this should come as no surprise. Surely the NFLPA (and the NFL) are guilty of the same offense (crime) over unpaid and illegally denied disability benefits to all retired players and their families they’ve left in a lurch. And then they have the nerve to force our Federal Government programs (Social Security) to pick up their bills.

    Regards,
    Dave & Heidi Pear

  4. Jeff Nixon
    August 8th, 2011 at 6:18 pm #

    Jeff Nixon

    John does a great job – as usual – of explaining in layman’s terms the deficiencies in the current disability plan. Why is it that the NFLPA-appointed members of the Retirement Board/Disability Plan don’t address these issues and advocate internally for changes to be made? Yes, it does require collective bargaining with the owners but they don’t have to wait 10 more years! At any time, they can address these issues with the owners and amend the Plan to fall more in line with other industry standards and practices. The idea that they can only do this when the CBA is being negotiated is ludicrous! You would think that the three (3) former player representatives on the board would want to do everything in their power to make it easier for retired players to obtain benefits.

    I predict that there will eventually be a class action lawsuit against the Plan, especially targeting the issue that John brought up in his response to Sam McCullum about what constitutes “being able to work.”

    Jeff Nixon
    Buffalo Bills
    1979 – 1982

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