On Sunday, the Denver Post published an article and interview I did last week with sports journalist, Terry Frei. Over the course of our conversation which mostly covered the issues of injuries and concussions and the subsequent consequences of the League’s general attitude of denial at all levels. (A link to that article is at the bottom of this post.) At one point in our conversation, I told Terry, “The concussion issue, if not handled right, has the potential to end football.” (My emphasis.) What I did NOT say was that the concussion issue would end football. No sooner than Terry’s article was posted, then the other media and bloggers immediately re-wrote the story and started to misquote me. The worst misquote? NFL.com with this headline: Ex-player Dave Pear says concussion issue could end NFL. Not really what I said at all. . Most of our readers know that my long battle has always been about legal and open access to OUR earned pension and disability benefits. And any resolution on concussions will need to address three separate groups of players: Past, Present and Future. (By the way, you might remember that this slogan used to be on all our NFLPA membership cards.) Each of the retired players who played will need to have direct access to their benefits that should include testing and treatments from their football-related concussions and brain damage, as well as access to assisted care and monitoring in later years. There is no doubt that most of the earlier players from the 50′s and 60′s were not given the safest equipment during their playing careers. It was even more about the money back then than it is today – just ask the men who played on the original hard surfaces of Astro Turf about the toll it took on their bodies and their heads. All for the savings the owners made from not having to maintain real turf. And they went on strike in the late 50′s and early 60′s not for more money but to make the owners pay for their uniforms and equipment. . For the present-day players, the addition of independent neurologists on the sidelines certainly helps, along with better-defined rules to ensure that concussed players don’t return to the game unless cleared by experts (no more Dr. No’s). Many of the new rules are a good step in the right direction. Newer treatments such as hyperbaric oxygen therapy (HBOT) are being shown to shorten recovery while helping with healing to the damage that concussions leave behind. Even if owners are more concerned about profits, the ROI on getting a million-dollar-a-year asset back on the field in half the normal time makes pure business sense. And while the League is at it, a great PR move would be to allow retired players free access to these hyperbaric chambers when they’re not being used by the team. . For future players, any improvements in the rules and knowledge gained from players past and present can only serve to provide them with a much safer game while still preserving the game of football as we know and love it. But if we’re going to save football, players from the past, present and future will need to work together in order to help protect each other first. Current and future players owe the retired players a priceless debt for the sacrifices they paid with their bodies and brains – as well as the long years of denial – to get to this point where there is finally a serious discussion on something that affects us all. The players of the future will surely also benefit from the way the game is shaped for today’s players. . .
Ex-NFL player Dave Pear seeks to change league policy on concussions
EDITOR’S NOTE:Some of you may remember Andrew Stewart’s long battle to access his earned Disability Benefits from the Bert Bell/Pete Rozelle Plan. He ended up taking them to court. You can read the earlier posts by clickingHERE, HERE, HEREandHERE. All from 2010! .
Hi Dave, .
Here is an update along with some shocking comments from my court case with the NFLPA in Federal Court. .
After many years and delays, we finally reached our court date which was last Monday. My lawyer was there and the Plan sent several lawyers AND their secretaries. .
Their whole argument was not that they were right but that they are and should be afforded discretion under the law. They stated before the judge that Dr. Bach was on “Their Team” and the judge questioned whether they really wanted to say that. Even though Dr. Bach had never examined me, never treated me and didn’t even bother to see any of the X-rays of my injuries, he still decided that in his medical opinion, “It was not even close” as to whether I was disabled or not held more weight than any detailed medical evaluation that their neutral examining doctor could give. . “Not even close.” Would you trust your doctor if he chose to only write that as his evaluation to any illness or injury you personally suffered? They also stated that they basically did me a favour by putting me on the lower amount and that I should grateful. (!) .
Doug Ell, the lawyer for the Plan, stated in court that one of the reasons they couldn’t pay every player the higher amount was that the Plan has to watch its bottom line since they have to make sure there’s enough money for players such as Brett Favre. It is important to state that during testimony, it was also disclosed that the Plan currently has over a billion dollars in assets. So apparently, we’re valued differently by the NFL: Not for your vested seasons or your injuries but maybe by how many more jerseys you can sell and your commercial appeal! .
In the end, the judge decided that he wanted briefs filed by the end of March and he would then rule. . Although the NFLPA’s lawyers felt that this judge is not what they call “a plan-friendly judge” as they have stated to my lawyer, I feel that the judge is very fair and is taking this case very seriously because there are just too many instances where they are not following their own rules as laid out by the Plan and – depending on the case – they’re prepared to change them accordingly. .
Sincerely,
Andrew Stewart . . . ADDENDUM FROM IRV MUCHNICK MARCH 7th:
First the serious stuff: One more helmet concussion lawsuit filed in California by Hausfeld LLP and Pearson Simon Warshaw & Penny LLP, on behalf of Cedrick Hardman and Tommy Mason against the NFL, Riddell and Easton-Bell. The two Exhibits include proposals for medical monitoring and benefits after a career in football. . . And we’re not letting the NFLPA off the hook today either: Here’s another good reason for retired players to manage and administer their own benefits: Be sure to read about the Gene Upshaw NFL Player Health Reimburse lobby at the end of this post! Oh well – Another day, another $100,000! .continue reading »
Duerson Apparently Did Not Review Andrew Stewart NFL Disability Claim
Posted with the express consent of Irv Muchnick: .
Published September 10th, 2011 . On August 16, FoxSports.com’s Alex Marvez broke the story of a lawsuit against the National Football League’s Bert Bell/Pete Rozelle Retirement Plan, in federal court in Maryland, by retired player Andrew Stewart. I discussed the case on my Concussion Blog – click HERE. .
The premise of Marvez’s piece aligned with an important investigative angle of this blog: that the Stewart suit might reveal more about the work on the disability claims review board of Dave Duerson. But it turns out that, while Stewart’s attorneys have made a lot of progress in getting scrutiny in open court of the board’s inner workings – a very good thing – Duerson himself did not participate in the deliberations of Stewart’s particular case in August of last year. .
The three NFL Players Association representatives on the board for Stewart’s review were Andre Collins, Robert Smith, and Jeff Van Note. “I do not know why Duerson was not on the Board that day,” Stewart attorney Michael Rosenthal e-mailed me. .
According to John Hogan, who represents many retired players from his disability law practice in Georgia, retirement board members occasionally designate others as proxies, and that is probably what happened here. The whole process is mysterious and secretive, which is why we need the drip-drip-drip of additional cases to break down the NFL and NFLPA’s limestone wall. (The judge in the Stewart case has set a trial date, though he has not yet ruled on whether to permit live testimony. But the court seems to be leaning that way.) .
As I’ve said many times, perhaps the most tumultuous litigation for the football-concussion system isn’t by professionals. Rather, it involves youth athletes and the financial exposure of public schools for disabling injury and wrongful death. Without tackle football mania at the grassroots, the $10-billion-a-year NFL cannot recruit, inculcate, and thrive. We already know of one lawsuit in New Jersey by the family of a kid who died from a second concussion after being cleared to return to play – with the help of NFL and World Wrestling Entertainment witch doctor Joseph Maroon’s “ImPACT concussion management” software. . Irvin Muchnick is author of CHRIS & NANCY: The True Story of the Benoit Murder-Suicide and Pro Wrestling’s Cocktail of Death (2009) and WRESTLING BABYLON: Piledriving Tales of Drugs, Sex, Death, and Scandal (2007). He is a widely published magazine journalist and has appeared on forums as diverse as Fox News’ “O’Reilly Factor,” National Public Radio’s “Fresh Air with Terry Gross,” and ESPN’s “Up Close.” Muchnick is lead respondent in the landmark U.S. Supreme Court case for freelance writers’ rights, Reed Elsevier v. Muchnick. . BeyondChron contributor Irvin Muchnick has launched his new website and blog “Concussion Inc.”. You can also find Irv on Twitter at http://twitter.com/irvmuch. .
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The new CBA contains a provision that on its face appears to be of benefit to some retired NFL players receiving Total and Permanent disability benefits under the Bert Bell/Pete Rozelle NFL Player Retirement Plan. Article 61, Section 2 (a) (i) provides that a player will be permitted to receive up to $30,000 per year of earned (i.e. “work”) income without affecting his disability benefits. Presumably this was enacted to allow guys to be paid some appearance fees or earnings from card signings and other events without jeopardizing their “total disability” eligibility. .
. 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. .
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. .
Over the long weekend, attorneys for the Retired Players Class Action lawsuit against the NFL, its owners, the former NFLPA and active players filed another amended 64-page complaint with the US District Court in Minnesota. . We’ve uploaded a copy of the complaint to Scribd for easy viewing and to make it downloadable. You can also click the Fullscreen button in the menu at the bottom of the viewing screen to enlarge it for easier navigation (just hit the ESC key to close): . Filed Second Amended Retired Football Players Complaint .
The amended complaint has already had some coverage in the national media: .
Retired players’ complaint takes aim at Drew Brees
Disability attorney John Hogan went through one more go-round with the NFL Disability Program for another older retired player recently (his name has been removed to protect the innocent). We’re posting the correspondence online so everyone can see the kind of insanity most of the older players end up going through. (And that’s only after you manage to navigate into their system.) . You just can’t make this stuff up! . We’ve posted a copy of the correspondence to Scribd for viewing and to make it downloadable. You can also click the Fullscreen button to enlarge it for easier navigation (hit the ESC key to close). . . This is the NFL Disability Plan .
. Well, the floodgates are opening wider and wider. Sports Legacy Institute and Boston University held a press conference this past Monday to announce their findings on the late Dave Duerson’s brain examination. To no one’s surprise, they discovered the presence of Chronic Traumatic Encephalopathy (CTE) in his brain. .
Former NFL player Dave Duerson found to have had brain damage
By now, many of you have now been receiving your letters about another new “joint-venture” program between the NFL and the NFLPA from their Player Care Foundation. This one’s for a “Neurological Care Program Benefit.” We’ve already been receiving a lot of comments (putting it mildly) from our readers.
After posting up Andrew Stewart’s story earlier this week, we decided that this is a perfect time to post another personal experience that Dave has recently had. Late last year, Dave quietly approached NFLPA Executive Director DeMaurice Smith about his disability case. While there were no expectations of favorable outcomes, we all felt that with nearly a year into his job, certainly an Executive Director asking the Disability Board to extend the courtesy of a fresh review of an older case might encourage some new found objectivity. .
Here’s the initial exchange of e-mails (Once again, we’ve posted everything on Scribd for easier reading. Click on the FULL SCREEN button to enlarge it for easier navigation – hit the ESC key to close. You can also click the DOWNLOAD button to save a PDF copy for printing and reading): . De Smith & Teri Patterson E-mails . De Smith Response e-mails .
Then after several months, the responses and the “Dear Dave” letter: a very formal 4-page legalese way of saying, “Too bad. See you later.” . De Smith Letter to Dave .
We left it alone until now, hoping to at least wait and see if any real change would come from the NFLPA leadership for the retired players. But now after we’ve seen the NFLPA Building and the Dire Need Fund re-named after Gene Upshaw – who was probably the single-most destructive factor in methodically destroying retired players rights and benefits in any professional sport (or industry for that matter) – it certainly doesn’t look like any real change is coming soon. What we have seen is a lot of PR with new video channels and heck – we’ve even seen some slick new slogans about One Locker Room One Team (looks like the retired players got the toilet!) But aside from all that, retired players have seen less than nothing for their indisputable contributions to making football the richest professional sport in history. Then we read Andrew Stewart’s denial and… .
We finally made the decision to make this exchange public out of sheer frustration as well as to once again encourage other retirees to come forward and compare notes on your personal experiences with being denied your earned benefits. There are still a lot of players who are only realizing that they’re not alone after being denied their fair disability benefits. It doesn’t seem to matter what you do or don’t do in applying for your disability benefits: You applied BEFORE your 15-year window was closed or AFTER it passed. DENIED. You have visible physical injuries or you have brain injuries: DENIED. You’re an old retired player or just a freshly injured retired player: DENIED. You use the best doctors to build an airtight case that would even withstand the scrutiny of Social Security Disability standards: DENIED. The smell of a massive class action lawsuit is getting stronger by the day. .
Disability Attorney John Hogan took the time to write a professional response to DeMaurice Smith’s letter from January of this year: . John Hogan Sept 9 Letter to DeSmith .
And an extra document from vocational specialist Earl Thompson – a REAL vocation and rehab professional – who had added clarification on the real extent of Dave’s disabilities earlier: . Thompson Letter .
EDITOR’S NOTE: Attorneys John Hogan and Ron Katz will be on a discussion panel with NFLPA Executive Director DeMaurice Smith on sports concussions at the Santa Clara Sports Law Symposium next Thursday, Sept. 16th (click HERE to visit the site) – more on that later.
Like George Visger, Brent Boyd recently had another near-miss with concussion-related issues over this past weekend. Many of you may have been wondering why you haven’t heard much from Brent recently. He’s had not one – but five! – close brushes with death since knee surgery in 2006. Brent is now quietly recovering at home from his latest close call. And still no full disability benefits for Brent from the NFL! We finally heard from him this morning:
(The Official NFL Concussion Poster is on the left and on the right, what it might have looked like when Dr. No was still chair of the “Mild” Traumatic Brain Injury Committee. Click on the posters to enlarge for viewing and printing.)
On Sunday, the Denver Post published an article and interview I did last week with sports journalist, Terry Frei. Over the course of our conversation which mostly covered the issues of injuries and concussions and the subsequent consequences of the League’s general attitude of denial at all levels. (A link to that article is at the bottom of this post.) At one point in our conversation, I told Terry, “The concussion issue, if not handled right, has the potential to end football.” (My emphasis.) What I did NOT say was that the concussion issue would end football. No sooner than Terry’s article was posted, then the other media and bloggers immediately re-wrote the story and started to misquote me. The worst misquote? NFL.com with this headline: Ex-player Dave Pear says concussion issue could end NFL. Not really what I said at all.
Although the NFLPA’s lawyers felt that this judge is not what they call “a plan-friendly judge” as they have stated to my lawyer, I feel that the judge is very fair and is taking this case very seriously because there are just too many instances where they are not following their own rules as laid out by the Plan and – depending on the case – they’re prepared to change them accordingly.
On August 16, FoxSports.com’s Alex Marvez broke the story of a lawsuit against the National Football League’s Bert Bell/Pete Rozelle Retirement Plan, in federal court in Maryland, by retired player Andrew Stewart. I discussed the case on my Concussion Blog – 
After posting up Andrew Stewart’s story earlier this week, we decided that this is a perfect time to post another personal experience that Dave has recently had. Late last year, Dave quietly approached NFLPA Executive Director DeMaurice Smith about his disability case. While there were no expectations of favorable outcomes, we all felt that with nearly a year into his job, certainly an Executive Director asking the Disability Board to extend the courtesy of a fresh review of an older case might encourage some new found objectivity.
