Patrick Hruby: Don’t Settle

18 September 2013

EDITOR’S NOTE: This is one of the more insightful pieces on the proposed settlement offer from NFL to the retired players’ concussion lawsuits. Re-posted from Sports on Earth with permission from Patrick Hruby.
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Don’t Settle
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Settle for Less
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Eleanor Perfetto watched her husband shrivel, and she watched him die. Near the end, Ralph Wenzel was a husk: a once strapping and energetic 225-pound former National Football League lineman, down to 145 pounds, eating mashed-up doughnuts, unable to walk or bathe himself, his mind unraveled by dementia. He was posthumously diagnosed with both Alzheimers and chronic traumatic encephalopathy, the latter neurodegenerative disease linked to repeated blows to the head; a scientist who examined his 69-year-old brain said it had shrunk to the approximate size of an infant’s. Wenzel’s dissolution was slow. Horrific. So Perfetto understands. Understands the pain. Understands the relief over the proposed $765 million settlement of the NFL concussion lawsuits, the eagerness to assist the former players in the most dire need — and their families, too — while calling off a long, draining legal fight.
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Still, Perfetto can’t help but feel torn. Torn that the league is just walking away, cash left on the nightstand. Admitting nothing.
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“This is a positive step, good for the players and families that need help now,” says Perfetto, a senior director at Pfizer and one of the over 4,600 former players and their family members who have sued the NFL. “But I’m very disappointed that the league gets to continue to deny the relationship between head injury and the illnesses that we see. They’re not taking on any culpability. And we will never know the timeline of just how long they have known this and the extent of them blocking it as much as they could. That will be kept secret unless some whistleblower comes forward in the future.”
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When it comes to mixed feelings, Perfetto is hardly alone. Former All-Pro defensive back Bruce Laird worries that the settlement won’t be large enough to cover the brain trauma-related medical needs of all current and future players. Retired linebacker Scott Fujita believes that full NFL disclosure – what, exactly, did the league’s executives and denialist doctors know, and when did they first know it? – is a public health matter. Retired lineman Kevin Mawae likens the pending deal totaking it 99 yards, but not getting that last yard” and taking “a little bit of our milk money back” from a schoolyard bully while getting a “promise that he won’t touch us again.” On the other hand, all three former players — Laird is a plaintiff in the lawsuits; Mawae and Fujita are not — are pleased that peers like former NFL fullback and Amyotrophic Lateral Sclerosis sufferer Kevin Turner will receive concrete financial assistance sooner rather than later. For that matter, so is Turner: in a recent USA Today editorial, he wrote that many of us also feared that a resolution would take years. That this agreement happened so quickly lifts an enormous burden off of our shoulders. We will get the care and security we need now, without being forced to wait for years of litigation to work its course. Indeed, NFL executives, plaintiff’s lawyers and mediator Layn Phillips all have framed the pending settlement as a choice between competing goals: plaintiffs can push for more money and evidence of league wrongdoing via a bruising court battle that could last years, or they can help men like Turner as quickly as possible. They cannot do both.
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Or can they?
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To borrow Mawae’s metaphor, the concussion plaintiffs don’t have to take a knee at the goal line. Nor do they have to abandon their brothers in need. They can help men such as Turner and continue to fight. They don’t need to take a crummy deal. They can demand something better. They should demand something better. They have more potential resources — more potential leverage — than commonly believed.
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Now is not the time to settle.
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Start with the money. Suppose retired players had as much as $493.7 million available to them over the next eight years, earmarked for medical care and financial assistance. Would that change the settlement equation? Guess what: this money isn’t hypothetical. It’s real. Available now. Available since last year. A pot of cash hiding in plain sight, roughly equivalent to the $495 million NFL is scheduled to dole out over the first eight years of the proposed deal.
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Pull up the league’s current collective bargaining agreement. Go to page 78. Look for Section 5: Joint Contribution Amount. You’ll find an annual fiscal carve-out from the players’ share of football revenues, starting at $55 million in 2012 and increasing at compounded rate of five percent annually through 2020. Who controls this money? Where is it going? That’s where things get interesting. And frankly, a bit curious. According to the CBA:.

  • $22 million “shall be dedicated to healthcare or other benefits, funds, or programs for retired players as determined by the NFLPA”;
  • $11 million “shall be dedicated to medical research, as agreed to by the parties”;
  • $22 million “shall be dedicated to charities as determined by the NFL, including NFL Charities and/or Youth Football or successor organizations.”

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beat a dead horse award
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Fellow Former Players:Larry Kaminski at Home
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I was flabbergasted at the announcement made yesterday regarding the settlement decision on the concussion suit. I have been working on a settlement for several years in a CA Workers Comp case that only recently came to a close. I was poked, prodded, analyzed and put under a microscope. The end results were “mental impairment caused by continuous trauma to the head.” The folio of information and exams is about 8 inches thick!
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I had already been denied NFL disability because I filed “too late” and was “too old” to qualify (!), plus their evaluation group said ‘NOT QUALIFIED.’ They basically said if I wasn’t happy with the decision, sue us.
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Yesterday, we posted an update on the NFL concussion coverup with ESPN and mentioned the unintended consequences of The Streisand Effect. (Click HERE to read the entry on Wikipedia.) Well, you know it’s becoming a major embarrassment and a joke when it starts to get attention on the other side of the world where they don’t even watch American football. This morning, the Taiwanese television network that produces those funny NMA animations on YouTube have already done their take on the NFL/ESPN coverup.
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This isn’t going away any time soon – thanks, NFL. We couldn’t have done a better job ourselves!
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We wrapped Friday up with a discussion on Workers Compensation. Workmans Comp may be in for some serious changes shortly with Bill AB 1309 coming up for a vote in the California State capitol later this year. This bill will block professional athletes from filing Workers Compensation claims in the State of California and each of us needs to let your local representatives know that you disapprove of this bill. Many who have been navigating the system for a few years with their applications have already found their pending cases suspended while awaiting the vote. Workers Comp attorney Ron Mix (Chargers & Raiders 1960 – 1971) and George Visger (49ers 1980 – 1981) have been outspoken advocates lobbying against this Bill in Sacramento and discuss the details of what the legislators are trying to do with one more benefit you were actually paying for out of your paychecks. (And in case there of some of you who are unaware, George has already gotten the short end of the stick from the NFL: Even though he’s a pre-’93 player with a Super Bowl ring (49ers in Super Bowl XVI), George doesn’t qualify for any disability benefits from the NFL. Why? Because he didn’t play four full seasons to qualify under the NFL’s Plan rules!
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Don’t think these politicians are only going to target professional athletes – who do you think they’ll target next? Long distance truck drivers? Farm workers? And just how much does the NFL and its insurers think they’ll be saving by quietly supporting this bill? This bill will affect everyone. (You can read all Panelist biographies by clicking HERE.)
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YouTube Hints: You can enlarge the video to Full Screen mode simply by clicking on that Full Screen icon in the lower right hand corner of the video. You can also watch videos in HD (if available) by clicking that gear icon in the lower right and then selecting the highest resolution available. And each YouTube video can actually be paused or stopped at any point and you can also jump to any spot where you may have left earlier so there’s no need to watch through an entire video.
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In the past week, we’ve been flooded with a large-scale press campaign from the long-quiet NFL Alumni about a new drug trial that has an incredible range of claims ranging from antidepressant benefits to new brain stem cell generation. The problem we noticed was that this is a completely new drug in its earliest trial stages. In other words, it’s one more untested new drug in a large new flood of drugs that come into the marketplace on an almost daily basis. With all the players still joining the flood of concussion lawsuits, we decided to consult to some experts who have a background on conducting drug trials as well as with Jason Luckasevic (from Goldberg Persky & White) for some thoughts from a legal perspective. Dr. Xavier Figueroa and Jason Luckasevic rendered some thoughts that all retired players may want to consider before participating in ANY drug trial. (You can read all biographies by clicking HERE.)
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YouTube Hints: You can enlarge the video to Full Screen mode simply by clicking on that Full Screen icon in the lower right hand corner of the video. You can also watch videos in HD (if available) by clicking that gear icon in the lower right and then selecting the highest resolution available. And each YouTube video can actually be paused or stopped at any point and you can also jump to any spot where you may have left earlier so there’s no need to watch through an entire video.
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Dr. Bennet Omalu was the first pathologist to uncover the presence of CTE (chronic traumatic encephalopathy) in the brains of retired football players. It all started when Mike Webster’s body ended up on his examination table in Pittsburgh in 2002. As assistant coroner in Pittsburgh at the time, Dr. Omalu sought permission to examine Webster’s brain. In the years following, several more retired football players bodies arrived in their morgue including Andree Waters. Since then, Dr. Omalu has become the chief coroner in San Joaquin and has continued his work on CTE and advancing the study of brain trauma in society in general and football in particular. The NFL has been trying to discredit Dr. Omalu for over 10 years. Dr. Omalu is probably on the NFL’s Top 10 Most Hated List with the NFL. You can read his biography by clicking HERE.
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YouTube Hints: You can enlarge the video to Full Screen mode simply by clicking on that Full Screen icon in the lower right hand corner of the video. You can also watch videos in HD (if available) by clicking that gear icon in the lower right and then selecting the highest resolution available. And each YouTube video can actually be paused or stopped at any point and you can also jump to any spot where you may have left earlier so there’s no need to watch through an entire video.
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Concussion coverage continues to take center stage in mid-season as ESPN keeps digging deeper into the contradictory position the League continued to take on the long-term damages of brain injuries from a career in football. Mark Fainaru-Wada reports on the findings of a joint ESPN Outside the Lines and PBS Frontline investigation. Dave’s concussion lawsuit attorney Jason Luckasevic was part of a discussion panel with ESPN’s Outside the Lines this past Friday – here’s the audio:
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And here’s an earlier OTL video from back in February 2012 with background on the growing concussion lawsuits being filed:
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Then there’s a very recent clip from ESPN discussing the “smoking gun” that could damage the NFL’s claims of ignorance about concussions even as the Disability Board unanimously approved three disability claims based on concussion injuries suffered by players – all while denying the majority of similar claims by publicly disavowing any connection of long-term damages from concussions and brain injuries. Hall of Famer Mike Webster is the most prominent of those three approved claims with a $1.8 million settlement to his estate after giving the NFL and its Disability Plan a sound beating in the appeals process.
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And the article from Steve Fainaru and Mark Fainaru-Wada at ESPN:
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Mixed messages on brain injuries

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Retired player and attorney Bob Stein first initiated the lawsuits against the NFL and NFL Films for not acknowledging and paying retired football players from the re-sale of their recorded footage of old football games. Unfortunately Bob couldn’t make the Conference, so attorney and retired NFL football player, Shawn Stuckey (with the firm Zelle Hoffman), discussed the details of retired players’ licensing rights to the NFL and the ongoing NFL Films class action lawsuit. As presented at our Second Annual Independent Football Veterans Conference at the South Point Resort in Las Vegas April 20 – 22, 2012.
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All of our footage was recorded in High Definition (Thanks to Jennifer Thibeaux!) and you can enjoy each broadcast at it best by selecting HD quality by clicking on the setup icon (that Gear button) in the lower right of the video screen and then clicking on the Full Screen View button in the bottom right corner of each video.
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As presented at our Second Annual Independent Football Veterans Conference held at the South Point Resort in Las Vegas this past April 2012: After nearly 5 years of research, Jason Luckasevic from Goldberg Persky & White filed one of the first concussion lawsuits on behalf of retired football players. To date, his firm is also one of the few to include Riddell the helmet manufacturer – “Official Helmet of the NFL” – as a responsible party. Richard Lewis from Hausfeld LLP joined Jason on the panel on Saturday morning of our Conference to present their respective firms’ decisions leading up to filing their concussion suits. Be sure to watch the entire episode so you can also hear the questions and comments from the audience at the end.
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Please keep two things in mind: There are many capable and qualified attorneys representing plaintiffs in the concussion litigation. Speak to those you choose to make sure your potential claim is evaluated promptly. The other issue discussed at the Conference was a potential statute of limitation specifically related to this round of concussion lawsuits. This means you may have to sign up with a representative firm soon before the filing period expires. More on this shortly from one of the attorneys involved in this suit.
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Posted with the express consent of Evan Weiner:

THE BUSINESS AND POLITICS OF SPORTS
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Wednesday, 2 May 2011
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BY EVAN WEINER
NEWJERSEYNEWSROOM.COM
COMMENTARY
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I didn’t know Junior Seau although I met him on the day he was drafted into the National Football League in 1990 and probably interviewed him after a football game a few times more. From all accounts, he was a fearsome presence on the football field; a killer who at times could control a game defensively.
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But Junior Seau didn’t live to be a ripe old age and until an autopsy is performed and a police investigation is complete, there is no need to speculate about the circumstances surrounding Seau’s death other than he was found dead of a shotgun wound on the morning of May 2, 2012 about 22 years after the San Diego Chargers football team called his name at the annual National Football League event.
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The gun wound should strike a nerve among former players. It seems that is becoming a way of life and death among NFL alum suffering from life altering injuries that probably came from years and years of absorbing hits on the football field. People do hear about former NFL players but there seems to be no tracking of high school and college players who years after their football careers ended killed themselves.
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March 4, 2012
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De,
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On January 6, 2012, I met with Congresswoman Linda Sanchez at her southern California office with Mr. Mike Greenhaulgh, part owner/operator of the Sacramento Hyperbaric Oxygen Treatment center where I have been receiving treatments for the last two years, and Dr. William Duncan, President of the Hyperbaric Medical Association and Capital lobbyist. My 49ers teammate, Dan Bunz, and I also met with Senator Ted Gaines on December 27 and February 22, 2012. All the meetings were to address the legality of the NFL’s lack of benefits for its injured employees. Both Congresswoman Sanchez and Senator Gaines are looking into additional Congressional hearings on this matter.
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We are trying to gather solid information to ascertain the status of former employees/players of the NFL. For many years, we have been inundated with mixed information regarding the percentage of former employees/players who actually qualify for NFL retirement benefits, the percentage of former employee/players forced to draw SSI and life expectancy of former employee/players. With you being the President of the NFL Players Association, in charge of securing and overseeing the player’s/employee’s benefits, I am requesting data on the following:

  1. What is the average life expectancy of a former NFL employee/player? Many years ago a letter was issued from the NFL encouraging players to take their retirement benefits early as most would not live to retirement age. This was followed up with a recent survey letters asking if we were still alive. I had been told for years that the average life expectancy of a former NFL employee/player was his late 50’s.
  2. What percentage of all pre-93 employees/players who played in the NFL actually played long enough to reach the 4-year vesting threshold? From what I am reading now, the average NFL career is only 3.2 years. The numbers I was given when I played in 1980 and 1981 was 2-½ years. Surely the NFLPA maintains a roster of all players who were on active rosters at one time or another.
  3. What percentage of employee/players have successfully been approved for SSI? After my 3rd evaluation at Dr. Amen’s clinic January, 2012, I was given a referral to file for SSI as Dr. Amen had me rated at 100% disabled due to frontal lobe dementia and damage to my temporal lobes of my brain.
  4. If a player qualifies for SSI disability, how can he be denied NFL disability? How can the NFL’s disability requirements be higher than those of the general public?
  5. What percentage of employee/players have successfully been approved for Medicare?
  6. How many of Tom Condon’s clients were approved for NFL benefits as opposed to the general number of players who were approved (or declined)?
  7. When did NFL employee/players begin filing for Workers Compensation?
  8. What percentage of NFL employee/players have been approved for Workers Compensation?

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EDITOR’S NOTE: George Visger caught up with me on the phone this morning just before arriving at a job site. George is back at work trying hard to help his family recover from losing their home after suffering another near-fatal brain shunt failure last October. George is one of the most remarkably intelligent and resilient guys I’ve ever met and his tenacity comes through in everything he does. I often talk to him about what might have happened with his life had he never played professional football and sustained his life-altering brain damage. He starts off with an answer to John Hogan’s earlier post (click HERE to read John Hogan’s comment).
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From TheUnion.com: George Visger, a Grass Valley resident, shows his 1981 San Francisco 49ers team photo and Super Bowl ring. Visger has undergone nine brain surgeries since he stepped off the football field for the final time.

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Your wonderful Union at work. I received this short update from the Seattle Chapter’s Sam McCullum earlier this morning with a memo attached from Dee Becker in The Washington office. Basically, it’s more nothing. McCullum says that it’s basically all the NFL’s fault because their Alumni and George Martin are still trying to interject themselves as representatives of retired players while Becker is saying, “Gee, we already know what’s best for retired players and we’ve already decided on how to distribute this Legacy Fund money. So you might as well just shut up and take what you get!”
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So I guess the thousands of retired players who have actually spoken up for their own voice and their own vote are chopped liver (or dog food as Gene Upshaw used to say)? Meanwhile, why is it that Disability Attorney John Hogan continues to dig up details just by reading the published CBA? (Click HERE to read John’s post.)
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And for your weekend entertainment, we also added a video of James Brown‘s old classic, Talking Loud and Saying Nothing to the end of this post.
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Thanks again to the good folks at Gridiron Greats for providing a new air conditioning system for Glendora and Gordon Wright who were facing another incredibly hot Summer and Fall in Orlando Florida!
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Left to Right: Danny, Kaleel, Darryl, Kaleb, Grandpa,Deleon, Kareem, Amaya, Luis & Khari!
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We are also in the process of taking all the donations that have come in to our nonprofit, Independent Football Veterans, on behalf of the Wrights and expect to pass along your generosity to the Wrights later this week! But this is just one more reminder of why retired football players need to stick together and fight for a voice to gain control and access to your earned disability and pension benefits. As a pre-’93 player, Gordon doesn’t qualify for any disability or pension benefits since he didn’t play for four seasons. With early onset dementia, Gordon also doesn’t qualify for the NFL’s 88 Plan either.
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If you haven’t already added your name to the growing list of teammates who are demanding a voice of your own, please do it now! And be sure to remind every retired player you know. Thanks!
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Once again, retired players got all excited a couple of months ago when we received a new offer for long-term care insurance from the League through the New NFL Alumni – no strings attached!
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So I spent well over an hour filling out all of their paperwork in great detail, including my medical history, medications, surgeries and everything else they could think to ask for in their questionnaire/application.
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And here’s the reminder card I got from TransAmerica with the expiration date highlighted (click on the image to enlarge):
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After over a month-and-a-half of waiting, this is what I got back in the mail (we’ve posted a copy of the correspondence to Scribd for viewing and to make it downloadable. You can also click the Fullscreen button in the left corner to enlarge it for easier navigation (hit the ESC key to close):
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Dave Pear TransAmerica NFL LTC Rejection Letter
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We started getting calls and e-mails from a lot of other players who had also been rejected. Steve Baack – who lives and works down in Oregon now – sent this in:
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“I just thought it completely laughable what I just went through to get the League’s LTC insurance for myself. I actually completely bought the line that the League was finally going to do something on our behalf by paying for a LTC benefit for us. I figured it would be some limited benefit but at least it was something…
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“Well, after jumping through all the hoops to submit the application I just received a notice in the mail from Transamerica that my application had been rejected due to my medical history. I’m wondering if anyone else had this occur, I’m assuming it’s a likely probability. And to think I could have spent the 45 minutes answering questions about my health doing something productive instead.”
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Steve Baack
Detroit Lions
1984-1989
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Steve Baack TransAmerica NFL LTC Rejection Letter
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We’ve heard from a lot of other guys who have identical rejection slips and, of course, the offer is now expired. We’ve also heard from some disability experts with suggestions:
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“In the law, we might call this an “illusory” benefit – i.e., an illusion that there is an actual benefit there. And I think that has been the game plan for years – create a program here, and a program there, and it looks like we are really doing something for retired players! However, the reality is that without a livable pension – accessible and meaningful health care – and a disability system that meets the needs of those engaged in a collision business for the amusement of the masses and the profit of billionaires, programs like this fall well short of meeting the sustenance needs of retired NFL players.
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“When you get your written denial, please share with us. We might then want to also share it with the Insurance Commissioner for the State of Washington.
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“I know that TransAmerica did NOT have permission to issue such policies in some of the states as of a couple of months ago. It may be because some states think that such policies are a scam!”
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And some remarks from a few other retirees who have also gotten denied:
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“I agree with your assessment of the Long Term Care Insurance offering and its application process. I was suspicious of the offering because of its timing, coming as it did just as the new CBA was being negotiated. To me it felt like a potential PR gimmick from management saying ‘Yes we care about our retired guys and as proof, we are offering this program to them.’
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“Out of curiosity, I arranged for an interview. Because of the nature of our group, I was told, pre-existing conditions were fair game. And then came the withering questions and the actual cognitive tests aimed at ascertaining the slightest mental difficulties. Afterwards, I felt that they were attempting to identify those players least likely to require LTC, if any existed, and then offer the program to them. At the same time, I wondered if the League wouldn’t end up with the data yielded by these tests. What better way to get a handle on the collective underlying condition of retired players and thereby devise new ways of skirting the real costs of playing this game.”
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Pat Toomay
Dallas Cowboys, Buffalo Bills, Tampa Bay Buccaneers, Oakland Raiders
1970 – 1979
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Dave:
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“Thanks for your input. Programs like this are an insult to our intelligence. Do retired NFL Players – who are the foundation of this business – get so little respect that we are expected to accept “phantom” disability plans?”
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As of right now, it appears that this program will likely be withdrawn (if it hasn’t been already) for lack of participation or qualifying applications – several insurance experts have told us that in order to launch, programs like these need to have at least 75% participation of the group. We doubt that 75% of the qualifying retirees applied let alone qualified.
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