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.)
Mercury Morris has recently been discussing an investigation into the NFL and its handling of the retired players’ disability and pension benefits. Here’s his synopsis of what he’s made available to select members of the media so far:
Last week, we received a couple of copies of the current Bert Bell/Pete Rozelle NFL Players Retirement Plan(released in April 2009) from different sources. After reviewing and comparing them, we’ve confirmed that we have an accurate copy of the plan and we’re posting it here for everyone.
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.
