Today, after months of complaints from retired players, the House Judiciary Subcommittee on Commercial and Administrative Law will hold a hearing to look into the league’s pension and disability plans and the way they have been managed. Among those testifying will be former Minnesota Vikings guard Brent Boyd, who was turned down countless times despite a head injury that has left him unable to work, and Cyril Smith, the lawyer who helped represent Hall of Fame center Mike Webster’s family in a protracted battle against the plan that they finally won in 2005, three years after Webster’s death.
But perhaps more significant to the retirees will be Congress’s interest in their own union, the NFL Players Association, which – as a part manager of the plan – they believe is to blame for their ordeals. “The way I see it, they’re all tied in together,” Hart Lee Dykes, a former New England Patriots wide receiver and client of John Hogan, a lawyer who specializes in disability and social Security law, who has been turned down four times despite being sent to eight doctors, three of whom declared him disabled, said to The Washington Post. “The players association is supposed to be for the players, right? The players are suffering. What is the point?”
Players and their attorneys are complaining that claims are not only drawn out but they are often turned down with little or no explanation. This, along with the extended time for ruling on benefits requests, could be considered violations of the Employee Retirement Income Security Act, the guidelines used in most retirement and disability programs. Hogan and Smith both say this is highly unusual for disability plans. Normally, when dealing with insurance companies or big corporations, the notice of denial will include a list of missing documents the applicant needs to be reconsidered.
They point the finger for this confusion at the NFLPA in part because the players association has one representative on a two-person panel that makes the initial determination of disability. The union also chooses three members for the six-member board that decides on the fates of the players who have made it past the first panel. “It’s typical in collective bargaining for a corporation to take its cue from the union,” Smith said. “When you have [NFLPA executive director Gene] Upshaw say he is going to break [former player Joe] DeLamielleure’s neck, that shows his interest in the issue since DeLamielleure was a critic of the disability process and Upshaw picks the guys on the board.”
Hogan said he is shocked that the union does not provide legal advice to the players who are trying to get benefits and wonders why the players don’t have a shop steward. The NFLPA bristles at the implication it doesn’t support its members. Union spokesman Carl Francis said that any player looking for help in getting disability payments would be directed to the benefits department and would be given the proper forms to fill out. They would also be told how to file the application. The NFLPA concedes there are problems with the disability process. It rejects the demands of retired players who want the football pension to match baseball’s, which is significantly higher. Yet the union’s executives say disability must be improved.
Last week, the NFL and the NFLPA agreed to use Social Security guidelines to determine eligibility for the NFL’s disability plan. The reason, the union explained, is to streamline the process, making it simpler for a player to get his payments. If a player has been awarded Social Security disability benefits he can apply to the NFL’s retirement plan and get a disability benefit. The biggest advantage for the players is that Social Security heavily relies on an applicant’s primary physician in determining eligibility. This would appear to eliminate the need for players to travel around the country to be examined.
But unfortunately, the agreement is short on details. For instance, would all Social Security rules apply? If so, the plan and the lawyer it shares with the players association, the Groom Law Group, could be bogged down in mountains of paperwork. Also, in order to be eligible for Social Security an employee usually has to file within five years of leaving the job. Most NFL players who file often don’t do so until they have been out of the league closer to 10 years, when old injuries begin to manifest themselves. Even worse, Social Security has a backlog of cases. Many are taking two to three years to get through the system. The wait with Social Security might even be longer.
“Perhaps [Commissioner Roger] Goodell and Mr. Upshaw are unaware of this fact,” Hogan wrote in a letter to the House committee. “As the NFLPA has long taken a stance that Social Security standards should not be applied to their plan, I am all the more skeptical that this may be some sort of ruse to take the heat off of them.”