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The NFL has recently acknowledged the long term damage caused by recurrent traumatic brain injury and has been forced to adopt rule changes to protect active players. For aging former NFL players the damage has already been done, resulting in a greater focus on the need for disability and health benefits for those whose suicides and mental degeneration brought attention to this dire problem. This paper will discuss the litigated disability claims of former NFL players Mike Webster and Brent Boyd and attempt to discern why one was granted and the other denied. In both cases, fights ensued with the Bert Bell/Pete Rozelle NFL Players Retirement Plan over the appropriate category of disability benefits awarded, with both claims focusing on disability as the result of concussions. We will briefly discuss the recent history of tragic deaths of former NFL players whose autopsies revealed that they suffered from Chronic Traumatic Encephalopathy (“CTE”) (2) as well as some of the basics of the science which the NFL can no longer ignore. Last, we will look at the medical evidence of several retired NFL players who have been found to be disabled by both the Bell/Rozelle Plan and the Social Security Administration. II. Tragic Deaths.
Organized football originated at the college level. Alarmed by 18 deaths in 1905, President Theodore Roosevelt summoned representatives from Harvard, Yale and Princeton to the White House to encourage them to adopt rules eliminating the foul play and brutality of the game as it then existed. Many football historians credit Roosevelt with saving the game. While everyone knows that professional football is a violent and brutal sport, with the risk of injury likely, it would appear that most players considered debilitating injuries – such as those to Darryl Stingley and Mike Utley to be very rare. Stingley fractured his fourth and fifth cervical vertebrae in a 1978 pre-season game collision with Jack Tatum, and became a quadriplegic. (3) Utley became a paraplegic after fracturing his sixth and seventh cervical vertebrae in a 1991 game. In the past several years, the brain autopsies of several relatively young former NFL players who had committed suicide, including Andre Waters (2006 – age 44) and Shane Dronett (2009 – age 38) revealed CTE and an impossible to ignore link to repeated head trauma during their football careers.
A gathering of NFL veterans was held in the spring of 2010 in Fort Lauderdale by the Gay Culverhouse Players’ Outreach Program, a program to help retired players apply for medical and pension benefits. When the discussion that day turned to the 88 Plan – the program for retired NFL players with dementia – some veterans’ minds wandered, some appearing as if the topic of mental decline did not apply to them. It was then that a former player walked to the front of the room and addressed the players, “I am Dave Duerson, pay attention to what this guy’s telling you. Because it’s stuff you are going to need to know.” (4) Duerson’s warning proved tragically prophetic when, on February 17, 2011, he shot himself in the chest, leaving instructions that his brain be studied for evidence of CTE. His actions were all the more stunning in light of the fact that he served as one of the three Bell/Rozelle Retirement Board members appointed by the NFL Players’ Association to decide disability appeals. (5) III. NFL Total and Permanent Disability under the Bell/Rozelle Plan.
The NFL Player Retirement Plan finds total and permanent disability when an eligible player “has become totally disabled to the extent that he is substantially prevented from or substantially unable to engage in any occupation or employment for remuneration or profit, but expressly excluding any disability suffered while in the military service of any country. A player will not be considered to be able to engage in any occupation or employment for remuneration or profit with the meaning of this section…merely because such person is employed by the League or an Employer, manages personal or family investments, is employed by or associated with a charitable organization, or is employed out of benevolence.” (6) Effective April 1, 2007, the Plan recognized that a player who was found to be disabled by the Social Security Administration would be deemed disabled under the NFL Plan, unless four voting members of the Retirement Board determined that such player was receiving the benefits fraudulently as was not totally and permanently disabled. (7) The four categories of total and permanent disability benefits under the NFL Retirement Plan are as follows: (a) Active Football. Available where the disability results from League football activities while the player is an active player and does cause the player to be totally and permanently disabled “shortly after” the disability first arises. (8) This category pays $224,000 per year; (b) Active non-football. Available where the disability arises while the player is an active player, but does not result from League football activities, and causes the player to be totally and permanently disabled “shortly after” the disability first arises. (8) This category of benefit pays $134,000 per year;
(c) Football Degenerative. Available where the disability arises out of League football activities and results in total and permanent disability before fifteen (15) years after the end of the player’s last credited season. This category of T&P benefit pays $110,00 per year (9)(10); (d) Inactive. This category applies if the disability arises from other than League football activities; or if out of League football activities, but more than fifteen (15) years after the last credited season. This benefit currently plays the player $40,000 per year. (9)(10) These benefits are payable as long as the player remains disabled and through his lifetime. The NFL Player Retirement Plan also provides for a partial disability benefit, regardless of the player’s ability to work, known as Line of Duty. This benefit is awarded to those who have suffered a “substantial disablement” according to certain percentages of disability, as is based upon the number of credited seasons the player has earned in the NFL. The maximum duration of this benefit is ninety (90) months. The NFLPA and the NFL Management Council also provide a benefit known as the 88 Plan (11) which provides reimbursement or payment of certainly medical and custodial expenses related to eligible player’s dementia. Generally, those players receiving the first three categories of total and permanent disability benefits listed above would be financially ineligible for 88 Plan benefits. (12) IV. Chronic Traumatic Encephalopathy (CTE)
The reports on head injury trauma began long before the discovery of CTE. Initially researchers studied the repetitive brain trauma experienced by boxers resulting in neurological and cognitive degeneration that they identified as “dementia pugilistica”. (“DP”) DP was first described in 1928 by a forensic pathologist Dr. Harrison Stanford Martland in a Journal of the American Medical Association article. In this article he noted tremors, slowed movements, confusion, and speech problems typical of the condition. CTE is a unique neurodegenerative condition; the markers of CTE in the brain are different from those of Alzheimer’s disease and Dementia. In CTE a certain kind of protein (tau) builds up in individual nerve cells in the brain and prevents them from making normal connections with other nerve cells, eventually killing the cells. This abnormal build-up of tau is believed to be the result of repetitive head trauma. CTE has many of the same manifestations as Alzheimer’s including behavioral and personality changes and decrease in cognitive function. A definitive distinction between the two diseases can only be made during an autopsy; it is only in an autopsy that tau protein can be seen. One of the country’s leading brain researchers, Ann C. McKee, M.D., Associate Professor of Neurology and Pathology at the Boston University School of Medicine and Co-
Director of the Center for the Study of Traumatic Encephalopathy provided significant insight into this condition and its causes in her 2009 testimony before the House Judiciary Committee. (13) She described finding CTE in the brain autopsies of several boxers, and in the first retired professional football player – John Grimsley – in 2008. Grimsley, a former linebacker for the Houston Oilers, had died of an accidental gunshot would while cleaning his gun at the age of 45. According to his wife he was concussed 3 times during his college football years, and at least 8 times during his NFL career, however, only one “cerebral concussion” was medically confirmed. There was no history of ever losing consciousness for more than a few seconds and he never required being carried off the field or hospitalization. According to his wife and close friends, he began showing changes in his behavior and cognitive decline at age 40. He developed difficulties in short-term memory, attention, concentration, organization, planning, problem-solving, judgment, and the ability to juggle more than one task at a time. He also developed a “shorter and shorter fuse: and would become angry and verbally abusive over seemingly trivial issues. When the slides of his brain were examined they showed the exact same pattern of changes that Dr. McKee had found in the brains of boxers with CTE. As a side note, Dr. McKee notes that the boxers whose brains exhibited the signs of CTE were some 30 years older than John Grimsley. While showing the images of the linebacker’s brain to the Committee, Dr. McKee testified, “In a normal 45 year old, absolutely none of these changes would be found. Indeed these changes would not be found in a normal 65 year old, 85 year old, or 110 year old.” At the time of her testimony before the Judiciary Committee, Dr. McKee had examined the brains of 16 ex-athletes, including two boxers and 14 football players, and they all showed abnormal tau protein, indicative of CTE. After performing an autopsy of Dave Duerson’s brain in April, 2011, Dr. McKee reported that he had a “moderately advanced case of the degenerative disease caused by repeated head trauma.” (14) Another of the leading brain injury researchers is Bennett Omalu, M.D., M.B.A., M.P.H., a forensic pathologist and epidemiologist who serves as Co-Director of the Brain Injury Research Institute at West Virginia University. He offered testimony on concussions and CTE before the House Judiciary Committee in 2010 (15) Dr. Omalu performed the autopsy of Football Hall of Famer Mike Webster in 2002 which was the first time he had seen CTE in a former football player. However, his remark made it clear that this was not a new phenomenon: “We have known about concussions and the effects of concussions in football for over a century. Every blow to the head is dangerous. Repeated concussions and subconcussions both have the capacity to cause permanent brain damage.” (15) In an article Dr. Omalu co-authored for the American Journal of Forensic Medical Pathology in 2010 (16) he discussed the study conducted on five former athletes – four football players and one wrestler – who were diagnosed as suffering from CTE. It notes
that while CTE may result from a single episode of severe traumatic brain injury, it is more commonly found in repeated episodes of mild traumatic brain injury. Common to each of the five men studied, were diagnoses of major depression, neuropsychiatric and cognitive impairment. Perhaps most interesting to former NFL players seeking disability benefits, the report found a long latent period between draft into the NFL and manifestation of the symptoms which included: progressive deterioration in social and cognitive functioning, loss of memory, loss of executive functioning; dismal business/investment performance; dismal money management; paranoia; bouts of anger; insomnia; breakdown of intimate family relationships; headaches and generalized body aches and pains; and alcohol and drug abuse. (16) Yet another prominent head injury researcher, Kevin Guskiewicz, Ph.D., Professor and Director of the Sports Medicine Research Laboratory, University of North Carolina at Chapel Hill, has provided significant insight to the effects of repeated head trauma in football players. For the past five seasons, Guskiewicz and his team have tracked every one of the Tar Heels’ practices and games using sensors place inside the helmets of every player. His research has revealed that it is often a relatively minor appearing hit to the head which might cause a player to suffer a concussion - as a result of the prior accumulation of repetitive hits and repetitive subconcussive trauma. (17) V. Damage without a “Lights Out” Concussion. Does a Helmet Protect?
All of the aforementioned researchers are quite clear that significant brain damage is just as likely to result from repeated brain trauma, even without loss of consciousness. Dr. Guskiewicz’s research at Chapel Hill suggests that for an average NFL season, a lineman could get struck in the head a thousand times – with hits in practice being every bit as damaging to the brain as those suffered in a game. Multiply that times the number of years in the NFL, as well as seven, eight or more from high school and college. Many players, and certainly most fans, think that the purpose of the football helmet is to protect a player from concussions. However, this is not necessarily the case, as the primary purposes are to protect the skull and parts of the head from fractures, as well as some measure of protection for the eyes, ears, nose and mouth. Certainly helmets may reduce the incidence of concussions, but “There’s no such thing as a concussion-proof helmet” according to neuropsychologist Micky Collins, who conducted a three year study at the University of Pittsburg Medical Center. (18) It would appear that the reason that there is no “concussion-proof” helmet is that the brain – which is composed of 70% to 80% water, and is described as having the consistency of soft tofu, follows the laws of physics when smashing into the interior of a skull. Unlike the skull’s smooth exterior, the inside of the skull contains sharp ridges. As set forth in the 1990 edition of Current Therapy in Neurologic Disease-3” (19) neurologist Barry Gordon, M.D., Ph.D., explained that postconcussional syndrome frequently occurs after minor closed head injury or other causes of head accelerationdeceleration. In other words, when two football players are running towards each other,
their brains are along for the ride. When they collide – usually a great rate of impact – physics propels the rather fragile brain into the hard and rigid skull. Concussion activist Chris Nowinski, a former Harvard football player and professional wrestler, is director of the Sports Legacy Institute in Boston, and a colleague of Dr. McKee’s. He has noted that helmet improvements have helped to better absorb the shock from a hit to the head, but “The better helmets have become-and the more invulnerable they have made the player seem- the more athletes have been inclined to play recklessly.” Hall of Famer Joe DeLamielleure has told me that that the sense of invulnerability of which Nowinski refers is attributed more to the face masks on modern football helmets. He would like to see face masks removed, and replaced with eye goggles and mouth pieces. He feels that this would help players return to proper tackling techniques and avoid leading with the head, which would hopefully reduce the incidence of brain injury. VI. Litigated NFL disability concussion cases: Webster and Boyd.
There are many reasons that more former NFL players have not been involved in litigation with the Bert Bell/Pete Rozelle NFL Player Retirement Plan for denial of disability benefits due to concussions. From a legal perspective, under ERISA (21) case law (which governs the NFL Plan’s disability adjudication) it is very difficult to overturn the decision of a Plan Administrator where it is supported by substantial evidence and is not made in an arbitrary and capricious manner. As I explain to my clients, this means that if four doctors examine you, and three say that you are disabled, but the one says you are not, this is usually sufficient to sustain the Plan’s decision. This has also led the NFL Plan to send players for numerous medical examinations, even after their own carefully chosen “neutral” physicians render an opinion favorable to the player, as will be seen below. Also, one generous feature of the Plan is that players may file repeated disability applications, with certain limitations. For the average private industry employee seeking disability benefits under a group plan, it would be “one and done”. Other players may have chosen to simply take their pension benefits, rather than fighting for the more lucrative disability benefits under the Plan. Most retired players have been able to take an early pension, at a reduced rate, as of 45 years of age. Once they have taken their retirement pension, they cannot then file for disability benefits. (22) Two former players who have chosen to sue the Plan in U.S. District Court are the late Mike Webster, and former Minnesota Viking, Brent Boyd.
(a) Mike Webster. (23) Hall of Fame center Mike Webster developed brain damage as a result of the multiple head injuries he suffered as a player. He was awarded Football Degenerative benefits by the NFL Plan’s Retirement Board which acknowledged that injuries sustained during his football career caused Webster to suffer total and permanent disability in September 1995, four years after his retirement. However, Webster’s estate ( he died in 2002) brought suit as the Board denied him the higher level Active Football benefits reserved for players whose disabilities begin “shortly after “they cease playing NFL football. (8) (The difference in these two payment amounts could be as much as $114,000 per year.) Webster’s estate claimed that the Board abused its discretion in setting Webster’s total disability date at September 1995. The district court ruled that the Board first abused its discretion by ignoring the unanimous medical evidence that established March 1991 (His retirement date) as the onset date for Webster’s total and permanent disability; and second, for refusing to toll the Plan’s limitations period for filing a claim for disability. (24) After the District Court found in favor of Webster on both counts, the Plan appealed to the Fourth Circuit Court of Appeals. That Court affirmed the lower Court’s holding that the Board lacked substantial evidence to justify its denial of Active Football disability benefits; and that Webster’s mental incapacity should have tolled the limitations period, as provided in the Plan document. The Retirement Board had denied Webster’s claim for Active Football disability for two reasons, 1) they believed he was working after his retirement and before he was awarded Football Degenerative benefits beginning in 1995; and 2) he failed to submit his benefits application within the 42 month time frame required from when his disability allegedly began. Both of these reasons were found invalid by the Courts. Although Webster was employed briefly after his retirement as a strength and conditioning coach for the Kansas City Chiefs, the evidence showed that he was employed as a favor because he had fallen on hard times. The Court noted that neither employment by the League (or in this case, League team) nor benevolent employment situations were disqualifying factors under the Plan. Webster had also made a number of representations about being employed in 1993 and 1994, yet none of these business ventures generated income; as was verified by tax records, social security records, and the Board’s own investigator. With regard to the second claim, the Court determined Webster had contacted the Plan office on five occasions in 1995 and 1996, sometimes only days apart, each time seeking an application for filing a disability claim. Not one of these applications was ever completed. The court held that because the unanimous medical opinions, including that of the Plan’s own doctor, showed that Webster had been incapacitated by brain damage since 1991 the Plan’s limitations period does not apply to his disability claim. The Court went on to further affirm the District Court’s decision because there was nothing in the record on which to uphold the Board’s denial of Webster’s application for Active Football benefits.
(b) Brent Boyd. (First Case – Ninth Circuit, 2005) (25) In March 1997, Boyd filed his first application for football degenerative disability benefits under the Plan based on orthopedic joint problems. The application claimed only physical impairments that resulted from NFL injuries and neither noted nor alleged any brain injuries or head trauma. The claim was denied by the Board based on the medical opinion that Boyd could work so long as it did not involve certain physical elements. In 2000 Boyd again applied for disability benefits, this time alleging organic brain problems as the result of alleged head trauma. He complained of: “a general constant flu-like feeling, fatigue, headaches, queasiness, forgetfulness, intermittent blurred vision, difficulty reading, lack of concentration, learning difficulty, memory loss, and light-headedness.” The Retirement Board determined that Boyd was totally and permanently disabled but voted to grant him the lowest paying disability category, Inactive. The Board deferred consideration of his claim for Football Degenerative benefits, and subsequently sent him for several medical evaluations: The first, conducted by a neurologist, reported that Boyd’s symptoms “raise the question of possible organic brain injury” and checked “yes” on their standard disability questionnaire under “whether the injury resulted from football related activities.” Not satisfied with opinion, the Board sent Boyd to see a psychologist who concluded that Boyd was disabled as a result of “emotional liability depression due to post traumatic organic brain disorder.” He too, checked “yes” on the standard disability questionnaire under “whether the injury resulted from football related activities.” Deadlocked in a three-to-three vote, the Retirement Board then sent Boyd to a tiebreaking, and binding medical evaluation by Plan Medical Advisory Physician (“MAP”) Barry Gordon, M.D., Ph.D. After two days of examination and neuropsychological testing, Dr. Gordon concluded “The alleged head injury of August, 1980 could not be organically responsible for all or even a major portion of the neurological and/or neuropsychological problems that Mr. Boyd is experiencing now…” Dr. Gordon surmised that Boyd’s disability instead was the result of chronic pain, depression, hypertension, or physical deconditioning. The Retirement Board then denied Boyd’s claim for football degenerative benefits, finding that his disability did not arise out of League football activities. Boyd’s suit against the Plan in U.S. District Court was dismissed upon Motion for Summary Judgment, and he filed an appeal to the Ninth Circuit Court of Appeals. The Court of Appeals noted that the legal standard which Boyd had to overcome was to show that “An ERISA administrator abuses its discretion only if it (1) renders a decision without explanation, (2) construes provisions of the plan in a way that conflicts with the plain language of the plan, or (3) relies on clearly erroneous findings of fact.”
In denying Boyd’s appeal, the Court stated: “What is transparent from the record is that the cause of Boyd‟s disability is far from clear. That is, the evidence can reasonably be interpreted to conclude that Boyd‟s disability either is or is not linked to his football career. The Retirement Board reasonably concluded that Boyd‟s disability did not arise from his League football activities.” “The court is unable to conclude that the Board abused its discretion in making this decision. “A merely a tally of experts is insufficient to demonstrate that an ERISA fiduciary has abused its discretion, for even a single persuasive medical opinion may constitute substantial evidence upon which a plan administrator may rely in adjudicating a claim.” The Court went on to note that even those experts, who checked “yes” on the Retirement Board form, indicating that Boyd’s disability arose from his football career, were less than absolute stating that “Boyd‟s problems may have been the result of a head injury” and that „…Boyd‟s decreased brain activity is consistent with head trauma” but failed to identify a specific cause. (c) Brent Boyd (Second case – U.S.D.C. Maryland, 2011)(26) The Bell/Rozelle Plan includes a reclassification provision available where the player can show “…by evidence found…to be clear and convincing that, because of changed circumstances, the player satisfies the conditions of eligibility for a benefit under a different category of total and permanent disability benefits.” (27) Having obtained numerous additional supportive medical opinions that his disability was in fact due to football related head trauma; and realizing that all of the (aforementioned) research by Drs. Omalu, McKee, Guskiewicz, et al., showed an indisputable link between football and cognitive impairment, Boyd filed for reclassification to football degenerative benefits in 2008. The Disability Initial Claims Committee denied Boyd’s application because they felt that he had failed to establish changed circumstances: “ The Committee regrets that it was forced to conclude that you have presented absolutely no evidence of any „changed circumstances,‟…(a)ll you have done is reargue the causation of the original circumstances.” Boyd appealed this determination to the full Retirement Board, which requested he undergo additional evaluations, which he refused. Subsequently the Board also denied the reclassification request because he violated the Plan’s provisions regarding mandatory cooperation with any evaluations they deem necessary; (28) and that they concurred with the determination of the DICC that there had been no changed circumstances.
Boyd subsequently filed suit against the Plan in U.S. District Court in Maryland (where the administrative offices of the Plan are located.) The Court granted Summary Judgment for the Defendant Plan. In the only argument Boyd won before the Court, it was determined that his present action was not barred by the doctrine of res judicata, as Boyd’s cause of action in the present case did not arise until after his previous claim was resolved. Regardless, the Court upheld the Plan’s denial as reasonable, as Boyd did not present any new evidence of a change in his medical condition, but rather, only new evidence on the causation of his existing disability. Upon deciding the case upon that basis, the Court did not consider the Board’s other contention that Boyd’s claim must fail because he refused to undergo a medical examination while his appeal was pending. (d) Why did Webster win and Boyd lose? Without being cute, or sarcastic, and in all seriousness; and having handled a good number of disability claims before the NFL Player Retirement Plan, the answer is that Webster died. Had he lived, I have no doubt that the Retirement Board would have requested he attend any number of additional medical examinations until they found one which they were “happy” with. At that point, success in the Federal Courts would have been elusive for Webster (or his estate) as under ERISA law, there would be some substantial evidence to support the Board’s denial. Perhaps if Boyd had filed suit in U.S. District Court prior to the examination by Dr. Gordon, he may have prevailed. While it is crucial that a plaintiff exhaust the administrative process of an ERISA-based plan’s adjudicative process, federal regulations also require that disability applications and appeals be processed in a rather short time frame. (29) In my experience, these regulatory time-frames are casually disregarded by the Plan in the adjudication of disability claims. Not adhering to these decisional time-frames gives the player/plaintiff the option of saying that his claim has been deemed denied which can negate the normal administrative finality requirement before filing suit in Federal Court. Not that Boyd would have been able to do anything about it, but it would appear that the DICC and the Retirement Board violated the fiduciary duty owed to him when they simply disregard apparently favorable medical opinions from one their own doctors without any explanation. It would seem that rather than simply reject an opinion they deem incomplete, inconclusive, or insufficient, that they recontact these physicians to obtain additional information. I do not know whether it was ever argued (it is not discussed in the decision) but I think that the opinion of MAP Gordon was rather “artful” in that he indicated that a single concussion 20 years earlier could not have been the cause of Boyd’s disability. It would seem that the more appropriate question which should have been propounded to him was whether all of the hits he took in his NFL career as a lineman might reasonably have been expected to result in his mental and cognitive disability. Moreover, Gordon’s own
published tome on Post Concussion Syndrome would appear to fully corroborate Boyd’s claims, and call Gordon’s MAP opinion in this case into question. One of the primary reasons the Board had cited in denying Boyd’s 2000 application for football degenerative disability benefits was that in his 1997 application – based upon physical impairments – he affirmatively stated that he had no mental or cognitive impairments. However, as all of the research since that time clearly shows that the cognitive disability which results from thousands of hits to the head (or more appropriately, the brain) frequently takes years to manifest, it was essentially irrelevant that Boyd was not manifesting and claiming mental and cognitive impairment at the time of his very first application. Indeed, the very name and criteria of the benefit Boyd sought – football degenerative benefits/ becoming disabled due to football injuries up to 15 years after retirement – surely contemplates that total disability frequently occurs in former NFL players years later. Also, while I cannot find legal fault with the Maryland District Court’s opinion in Boyd’s recent case, it certainly highlights an incredibly harsh, if not vindictive, exercise of the Plan’s discretion in defining “changed circumstances.” V. Medical Evidence of the Effects of Head Trauma to NFL Players.
Perhaps a dozen or so of the clients I have represented in NFL disability and/or Social Security disability claims have become disabled wholly, or in large part, due to the mental and cognitive impairment they have developed as a result of concussions. While all of these proud men realized that they played a violent game where they risked serious injury, few, if any, envisioned themselves totally disabled at relatively young ages as a result of the game they loved. I can say unequivocally that none of them anticipated the mental and cognitive decline they have suffered. From my own files, I will briefly discuss the medical evidence of several of these former players: (30) (1) Player graduated from a top-tier college, and played more than 6 years in the NFL. After retirement, he worked as an assistant coach on the college level, but was asked to resign because the head coach felt that his physical and cognitive impairments kept him from being effective. He admitted to depression, sleep disturbance, impaired attention and concentration and blurred vision. He is 35 years old. Upon neuropsychological evaluation revealed him to have a current Scale IQ of 76 and suffering from a Major Depressive Disorder. The doctor opined: “Clearly client has sustained some serious cognitive damage from his long history of playing football. For a college educated man to have a Full Scale IQ in the Borderline range is clearly irregular.”
(2) Player also graduated from college after a 5 year NFL career. After leaving the League he was a very successful businessman for approximately 10 years. He filed for disability based upon both physical (orthopedic) impairments and major depression with several hospitalizations for suicidal ideation. Psychological testing in 2009 showed that his IQ had deteriorated to 80Which is in the Borderline Range. He complained of sleep disorder, severe headaches, dizziness and problems concentrating. A second psychological examination conducted two years later revealed further cognitive decline (despite on-going mental health treatment) to a Full Scale IQ score of 65 – which is in the Mildly Mentally Retarded Range. (3) Player with a 12 year NFL career complained of repeating himself, memory problems and double vision. His wife noted that he was impulsive and had poor decision making abilities recently. Player admitted to numerous known concussions, but lost very little playing time. Neuropsychological evaluation at age 42 diagnosed Organic Mental Disorder with dementia due to multiple head traumas with executive dysfunction, memory disturbance, and visual motor disturbance. Situational depression was also diagnosed. Each of these former NFL players told strikingly similar stories, as do my other retired NFL clients. They had multiple severe hits where they became dizzy and confused, but did not report any loss of consciousness. None report missing any significant game or practice time after these events. George Visger, a former San Francisco 49er, who has had nine emergency brain surgeries, and carries notebooks to document every moment of his days – lest he forget – recently spoke of being given smelling salts over 20 times during the course of one game. Former Buffalo Bill safety Mark Kelso – who wore an additional protective shell over his helmet to help protect him from debilitating headaches, has told of being asked by a trainer on the sidelines how many fingers he was holding up after a dizzying hit. “Three” was Kelso’s response to the two fingers the trainer held up before his eyes. “Good” the trainer said. “Now go back in there and aim to tackle the one in the middle.” Hall of Famer Lem Barney told a similar story about what went on after a player suffered a “stinger, dinger or bell ringer.” After his retirement, he was diagnosed as having suffered at least six or seven concussions during his career, but he was unaware of ever “getting knocked out.” The criteria for being allowed back into the game after one of these “dingers” consisted of the team physicians asking three questions: 1) What jersey are you wearing? 2) What day is it? 3) What team are you playing? If the player could answer two out of the three he was back in the game.
VI. Heightened Awareness Forces the NFL to Adopt New Rules. Perhaps the single person who has done the most to bring the problems resulting from concussions to the attention of the public, Congress, and the NFL, is New York Times reporter Alan Schwarz. He has written over 200 articles on concussions in the past few years. During three hearings on the issue of sports-related brain injuries, the House Judiciary Committee repeatedly cited his work. His analytical reporting has been responsible for bringing the crucial research and reports of brain researchers like Dr. McKee, Omalu and Guskiewicz to the forefront. His award winning reporting is responsible, in no small measure for the new rules the NFL adopted in 2009. In the standard adopted in 2007, the League prohibited a player returning to play only if he lost consciousness. The new rules set forth by NFL Commissioner Roger Goodell in the middle of the 2009 season provide that a player shall not return to action on the same day if he shows certain signs or symptoms. "Once removed for the duration of a practice or game, the player should not be considered for return-to-football activities until he is fully asymptomatic, both at rest and after exertion, has a normal neurological examination, normal neuropsychological testing and has been cleared to return by both his team physician(s) and the independent neurological consultant." Teams were also required to each find an outside neurologist who could be consulted on concussions. (31) The League has also adopted rules of play to try to eliminate hits to the head, and in October of 2010 distributed videos to the NFL’s 32 teams to demonstrate illegal vs. clean hits. Despite the rules, warnings and educational videos, a few weeks later, 16 NFL players were fined $15,000 each for illegal hits to the head. Surely the new rules will be of significant benefit to reducing the incidence of severe acute brain trauma; but as the research clearly suggests, the damage from thousands of completely legal hits to the head/helmet/brain may be as culpable, if not more, in the development of CTE. VII. End Game. New rules of the game, and other safety measures including reducing helmet contacts in practices, may go a long way to protect today’s NFL players from suffering some of the mental and cognitive impairments suffered by those who went before them. Indeed, the current state of knowledge of head trauma will hopefully make it safer for youth in sports, and particularly high school and college football players. Even the Department of Defense and the Veterans’ Administration are conducting billions of dollars of research in the area of head injuries as many recent veterans have also experienced concussions and head trauma in service.
For former NFL players, more still needs to be done to assure that they have the disability and health benefits they deserve for the injuries – particularly to their brains. They need a revised disability system which seeks not to avoid paying them the benefits they have earned, but one which assists them in obtaining the benefits they have earned and deserve. Critics of retired players seeking additional benefits often have little sympathy for their medical problems and disabilities stemming from their NFL careers. Yes, they knew it was a violent game. Yes, they knew they could get hurt. Perhaps most young men who have the tremendous opportunity to play football in the NFL cannot properly appreciate the risk. Surely they have healed from the various sprains, strains, torn muscles, fractures; and even concussions, they experienced in high school and college. To such critics, former Green Bay Packer Greg Koch –now a practicing attorney – replies as follows: “Broken bones and torn ligaments, I signed up for that, but I did not sign up for early dementia and I did not sign up for Parkinson’s and if the NFL kept putting me out there when they know they shouldn’t have; that is on them and that is what I am asking they take care of.” (32) _____________________________ Footnotes:
1. John V. Hogan is a member of the Georgia Bar who has specialized in representing disabled individuals for over 30 years. B.A., St. John Fisher College, 1973; J.D., John Marshall Law School, 1977. Ashton E. Vetas is a 2009 graduate of the University of South Carolina and a 2013 J.D. Candidate at Charleston School of Law. CTE, or Chronic Traumatic Encephalopathy, is a progressive degenerative disease of the brain in people subjected to multiple brain trauma. It is characterized by a buildup of tau protein which builds up in nerve cells and prevents them from making normal connections with other never cells, eventually killing the cells. Stingley died in 2007 at the age of 55 as a result of heart disease and pneumonia complicated by quadriplegia. N.F.L. Players Shaken by Duerson‟s Suicide Message by Alan Schwarz; NY Time, Feb. 20, 2011. The six voting members of the Bell/Rozelle NFL Player Retirement Board also include three members appointed by the NFL Management Council. The NFl Commissioner, or his delegate, serves as the non-voting chair. Bert Bell/Pete Rozelle NFL Player Retirement Plan Sec. 5.2(a). Bert Bell/Pete Rozelle NFL Player Retirement Plan Sec. 5.2(b). A player who becomes totally and permanently disabled not later than six months after a disability first arises will be conclusively deemed to have become totally and permanently disabled “shortly after”; …if it is more than 12 months, it is conclusively deemed not to be “shortly after”. For disabilities arising between six and twelve months, the DICC or Retirement Board have the right and duty to determine whether the standard is satisfied. Plan Sec. 5.1(f). A one-time early payment benefit (draw) from the player’s pension prior to receipt of disability benefits will reduce the monthly payment by 25%. Plan Sec. 4.5.
3. 4. 5. 6. 7. 8.
10. To receive this category of disability benefits, the player must be vested. 11. The 88 Plan is named in honor of Hall of Fame tight end John Mackey, who was diagnosed with dementia in his late 50’s.
12. 88 Plan Summary Plan Description, 2007, page 7. 13. Hearing Before House Judiciary Committee, October 28, 2009, Legal Issues Relating to Football Head Injuries.
14. Bostonglobe.com May 3, 2011, Ex-NFL Safety Had Brain Damage. 15. Judiciary Forum, House Judiciary Committee, February 1, 2010, Head and Other Injuries in Youth, High School, College and Professional Football.
16. American Journal of Forensic Medical Pathology, Vol. 31, No. 1, March 2010, Chronic Traumatic Encephalopathy, Suicides and Parasuicides in Professional American Athletes, Omalu, Bales, Hammers and Fitzsimmons. 17. The New Yorker, Annals of Medicine OFFENSIVE PLAY How different are dogfighting and football?, by Malcom Gladwell, October 19, 2009.
18. Neurosurgery, February 2006. 19. Current Therapy in Neurological Disease-3, 1990, Richard T. Johnson, M.D., editor. 20. (same as 17.) 21. Employment Retirement Income Security Act of 1974. 22. Bert Bell/Pete Rozelle NFL Player Retirement Plan Sec. 5.1 23. Sunni Jani, Administrator of the Estate of Michael L. Webster, deceased v. The Bert Bell/Pete Rozelle NFL Player Retirement Plan; The NFL Player Supplemental Disability Plan; U.S. Court of Appeals for the Fourth Circuit, No. 05-2386, decided December 13, 2006. (unpublished). 24. Plan Sec. 5.6(c) provides that benefits can be paid retroactively 42 months from the date of application where the player is found to be physically or mentally incapacitated in a manner that substantially interferes with the filing of such claim. 25. Brent Boyd v. Bert Bell/Pete Rozelle NFL Players Retirement Plan, et al., U.S. Court of Appeals, Ninth Circuit, No.0356514; 410F.3d 1173. 26. Brent V. Boyd v. Bert Bell/Pete Rozelle NFL Player Retirement Plan, U.S.D.C., Maryland, case 1:10-cv-00360-JFM decided May 24, 2011. 27. Bert Bell/Pete Rozelle NFL Player Retirement Plan Sec. 5.5 (b). 28. Bert Bell/Pete Rozelle NFL Player Retirement Plan Sec. 5.2 (c). 29. 29 CFR Part 2560 et seq. See particularly the Department of Labor’s comments in this regard when new ERISA claim regulations were promulgated in 2000: Federal Register, Vol. 65, No. 225, Tuesday November 21, 2000. 30. The names and biographical information of these former NFL players is eliminated or changed to protect their privacy. The medical information is accurate. 31. At the time Goodell issued the new rules, 11 players were listed as having concussions of the League’s weekly injury report, with an additional eight lists as suffering from “head injuries.” 32. NFL Retirees Press Conference, Washington, D.C., June 20, 2011
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