Seeking Basic Benefits With Dignity (Conclusion)

By Ed Miller
Updated: September 1, 2008

VIRGINIA — The NFL offers four types of “total and permanent” disability benefits, two for active players, two for former players. As the Congressional Research Service report states, “While former players may be concerned about several of the different benefits available to them, the T&P disability benefit seems to be particularly contentious.”

To put it mildly.

John Hogan, a disability lawyer with 25 years experience based in Georgia who has worked with NFL players, has called the NFL’s disability system the worst in the country.

“In a nutshell, it’s governed by federal law called ERISA (Employee Retirement Income Security Act), and they don’t follow the rules,” Hogan said. “They don’t really explain to people what the standards are for disability; they are too ambiguous about telling people where their claim fell short. And they typically ignore all evidence from players’ own doctors and send them to their own physicians.”

Claims are initially considered by a two-member committee and can be reconsidered by a six-person retirement board. Half the members of each group are appointed by the NFL, half by the players association.

“The system is really cumbersome; it takes a really long time,” said Jennifer Smith, executive director of the Gridiron Greats Assistance Fund, a private group that helps former players. “Not a lot of people get approved. The threshold seems to be very high.”

Tales abound of players who were turned down multiple times.

Former Patriots receiver Hart Lee Dykes, a Hogan client, was denied four times despite being declared disabled by three doctors. Boyd, a former center whose debilitating headaches were traced to concussions from football, also was turned down for a football-degenerative disability claim, the highest-paying category.

Former Cowboys fullback Daryl Johnston, whose career was ended by a broken neck, was denied the NFL’s “Line of Duty” disability. Webster’s family didn’t receive disability benefits until three years after he died — and only after a protracted court battle.

One of the biggest complaints from former players is over the time limits built into the system. “Football degenerative” disability is the most lucrative available to former players, with a minimum annual payment of $110,000. To qualify, an applicant must prove his disabilities arose from football activities and that the onset of the disability was less than 15 years after his final season.

Former players say that deadline ignores the fact that old injuries can take decades to become disabling.

“You can’t adjudicate this as if it’s a carpenters union or any type of AFL-CIO union,” said Tony Davis, who played from 1976 to 1981. “Professional football is a whole different world and needs to be adjudicated in a whole different fashion.

“If at 55 years old my knees are shot because of football I played, the NFL should be responsible for paying those medical bills.”

NFL commissioner Roger Goodell and the late Gene Upshaw, the longtime NFL Players Association executive director who died on August 20th, acknowledged flaws in the system but have said they are being addressed.

In May 2007, the league, the union, the Pro Football Hall of Fame and the NFL Alumni Association formed the NFL Alliance to address medical and disability needs of ex-players.

Since then, they have announced increases in disability benefits, health screenings, prescription drug discounts and care for former players with dementia.

Other reforms are intended to reduce red tape in the disability application process. The group also announced an agreement with 14 medical centers across the country to provide joint-replacement surgeries and in-patient rehabilitation to qualified former players.

“Our position is our track record speaks for itself in the area of approving all benefits for players,” said NFLPA spokesman Carl Francis. “That area is a work in progress in which we will continue to do what’s in the best interest of all of our players, particularly retired players.”

Goodell has stated that the NFL’s benefits package is the most extensive in sports.

He also has noted that federal courts have upheld 24 of 25 retirement board decisions that have been litigated.

Upshaw had said criticism has been fueled by a small group of disgruntled former players. In a letter to a House committee, he noted that the “vast majority” of players who leave the NFL are “quite healthy” and capable of other employment.

“The NFLPA is proud of the generosity of these plans,” Upshaw wrote in the letter. “An employee of a corporation like IBM or General Motors does not get – and does not expect to get – disability benefits if he or she becomes unable to work decades after leaving the job.”

Upshaw pointed to a 42 percent approval rate for 1,052 players who applied for either line of duty, a partial disability program, or total and permanent disability from 1993 through 2007. It was not clear what the approval rate was for each type of disability. He said the NFL and NFLPA can’t be faulted for not giving benefits to players who never applied.

Critics like Davis aren’t impressed with the changes made by the NFL and the union. Davis says both should be doing more for those who helped build the league.

“They’ve never done one thing ever until they had pressure put on them,” Davis said. “None of these changes happened until somebody started embarrassing the NFL and the NFLPA.”

Roger Anderson is no activist. He said he didn’t know he could apply for disability until he read a newspaper article. A self-described loner, he doesn’t stay in touch with former teammates, joking that many probably don’t know he’s still alive. In Douglas Park, the neighborhood where he has lived for nearly 40 years, Anderson keeps to himself.

Playing in the NFL was one of the highlights of his life, the realization of a childhood dream for a “poor orphan country boy,” as Anderson still calls himself.

How many players like Anderson are out there? The congressional report found that neither the NFL nor the union collect data on the health of the approximately 7,900 former players who are vested.

The issue could receive more congressional scrutiny. Some ex-players have asked for a Government Accountability Office audit of the retirement plan. Sanchez told The Charlotte Observer in late July that she isn’t satisfied the league and the union have done enough for former players.

She added that she might convene more hearings and that she would support threatening to remove the NFL’s antitrust exemption if that’s what it takes to get action.

The congressional report noted that the subject of injuries, disabilities and benefits is a “complex” one with no easy or simple solutions.

Anderson, who hobbled around for weeks tracking down medical and financial records to get his application together, can vouch for that.

“I’m going to go down fighting,” he said. “I know my rights. That Cherokee blood in me don’t believe in crumbling.”