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V o l u m e I , I ss u e 2 December 2011
An Independent Publication Concerning NFL Retiree Rights & Benefits
INSIDE THIS ISSUE:
I. Legacy Fund, Pension, Disability & Benefits
I. Legacy Fund, Pension, Disability & Benefits
II. Retiree Litigation III. Concussion Litigation
IV. Dryer Litigation V.
11 12 13
In regards to what the NFLPA agreed to in the 2011 CBA for already retired players, on August 11, 2011, the NFLPA through its counsel represented that retired players… [have been pouring in praise and thanks to the NFLPA for the new benefits that have been agreed to.] Not So.
N O N - V E S T E D P L A Y E R S O F T H E N F L PA DALLAS CHAPTER ARE DISAPPOINTED WITH THE PLAYERS ASSOCATION
By: Brian Duncan At our November, 2011 chapter meeting, our non-vested players were very upset and voiced their negative feelings about the decision made by the Players Association to distribute the legacy fund. Many former non-vested players feel betrayed and used by the NFLPA, not only because they are not being included in any monetary distribution of the fund, but that the Players Association advocated so strongly that they would not leave any former player behind. The motto “One Team” was created and circulated at the convention last February and throughout the year. We all received hats, pens, and other materials with the slogan of “One Team”, which we now find out only applies to the former vested players. The pre 1993, three year players felt like they were going to get the same vesting rights as the post 1993 players, only to find out that the Players Association never put that option on the table. When the Legacy Fund was created, the intent was to include all pre- 1993 former players. Only after the Players Association re-certified as a union, was the Legacy Fund tied to the Bert Bell Retirement Plan. The Players Association solely made this decision so that the recents would continue to receive the money, even after the current agreement expires in ten years. However, one of the problems by doing this, is the non-vested players are completely left out of the fund. The Players Association clearly has an issue with conflict of interest. Not only does this conflict exist between the current players and the former players, but between the former vested and non-vested players. The former, nonvested, members of the NFLPA in Dallas, feel their leadership in Washington has once again let them down and are looking for ways to get included in the benefits that are afforded other former players. Brian Duncan Vice President, NFLPA Dallas Chapter (1976-78 Cleveland Browns, Houston Oilers)
EDITOR'S NOTE The Voice is intended to communicate to all retired NFL players, updates concerning key-issues effecting NFL retiree rights and benefits. It will provide an objective independent report of matters of significant interest to those already retired.
See Retiree Sound-off Section on page 12 for more on NFLPA counsel Jeffrey Kessler’s statement regarding the expressions of “praise” by former players for the NFLPA concerning the new 2011 CBA.
I. Legacy Fund, Pension, Disability & Benefits
SOCIAL SECURITY AND NFL DISABILITY
By: John V. Hogan For the past several years, the Bert Bell/Pete Rozelle NFL Player Retirement Plan has accepted a favorable Social Security disability determination as proof that a former player was “totally and permanently” disabled. If the player was otherwise qualified for entitlement to disability benefits under the Plan, (e.g., vested, not already receiving retirement pension) he could be granted either “inactive” or “football degenerative” T&P benefits. Under the terms of the new CBA, for claims filed after September 1, 2011, a player will no longer have to prove that his total disability is related to NFL football to obtain the higher category of disability benefits, as long as his application is filed within 15 years of his last credited season. (“Inactive A” disability effectively replaces “football degenerative”) For players who retired more than 15 years ago, and found entitled to disability, they will receive a lower paying benefit even if their disability is totally football related. In my experience in the past couple of years, the preferred way of qualifying for T&P benefits under the Plan is to first win Social Security disability. While it is never easy to win a Social Security disability case, now that we do not have to be concerned whether the medical conditions are football related, it makes even more sense to go the Social Security route first. No longer will we have to be concerned about trying to down play a former player’s obesity, diabetes, high blood pressure, headaches, depression, etc., in the quest to have his disability granted. (SSA regulations require that they consider the combined effects of all of a person’s medically determinable impairments when determining disability.) In my opinion, going the SSA route first is preferable because they have numerous laws, regulations and rulings which clearly set forth the criteria needed to obtain disability. I know exactly what needs to be done to obtain a favorable decision. On the other hand, dealing with the “neutral physicians” of the Bell/Rozelle Plan has been nothing more than a roll-of-the dice. The new CBA also called for further improvements to the NFL disability system, but at this point we do not know what those might be. Stay tuned! John V. Hogan Law 1-888-259-4249 http://www.johnvhogan.com John V. Hogan Law specializes in the areas of Social Security Disability and NFL Disability law. John has helped many retired NFL players receive benefits from the Bert Bell/Pete Rozelle NFL Retirement Plan. John also sits on the Board of Directors of the national player advocacy organization Fourth and Goal, he is an Associate Member of the NFL Alumni, Inc., and a sponsor of the Buffalo Bills Alumni Association and the NFL Alumni Atlanta Chapter.
For more information about any of the matters contained in The Voice, or if you have any questions, please contact Hausfeld LLP at (202) 540-7200
V o l u m e I , I ss u e 2
I. Legacy Fund, Pension, Disability & Benefits
LEGACY FUND ALLOCATION
By: Robert Dezube, FSA An important benefit in the agreement with the NFL is the “Legacy Fund”. The owners agreed to provide $620 Million ($62 Million per year for 10 years) to fund pension benefit for pre-1993 vested players. The Legacy Fund is not a separate fund, but rather is an additional contribution to the Bell/ Rozelle Plan. The additional contribution is expected to pay the additional benefits. The NFL considered many proposals on how to allocate the Legacy Fund amoung the eligible players. The proposal they adopted was one that the NFLPA recommended. It provides a floor of $500 per month for all players who were vested before 1993. The players will also receive an additional $114 per month for each pre-1993 season played. These additional benefits are payable beginning at age 55, or right away if the player is over age 55. An alternative recommendation was put together by Carl Eller, Ron Mix, Bruce Laird, and Willie Lanier at a meeting in New York on September 15, 2011. The alternative plan would have provided a floor of $750 and an additional per-season credit that depended on the time period and seasons played. The per-season credit would have been higher for credited seasons prior to 1960 and would have decreased slightly for later years. See the chart below (Figure 1) for a comparison of the two recommendations. Rober Dezube is a consulting actuary with Milliman
Figure 1 Allocation Adopted by League Benefit Credit Credited Seasons prior to 1960 Credited Seasons 1960 – 1969 Credited Seasons 1970 – 1979 Credited Seasons 1980-1992 $500 Floor $114 Per Credited Season $114 Per Credited Season $114 Per Credited Season $114 Per Credited Season Alterative Recommendation $750 Floor $127 Per Credited Season $114 Per Credited Season $108 Per Credited Season $102 Per Credited Season
V o l u m e I , I ss u e 2
I. Legacy Fund, Pension, Disability & Benefits
LEGACY FUND CONFUSION
By: NFL Hall of Famer Tom Mack Dear Retirees: Here’s some more news for all of us who don’t quite understand who’s representing us and how we are being represented! It has come to my attention via an official letter from Roger Goodell dated November 11, 2011 and an unsigned letter dated December 8, 2011 from the Bert Bell/Pete Rozelle NFL Player Retirement Plan (BB/PR Plan), that the Plan appears to be intent on using “actuarial” increases on undistributed (deferred) funds over the life of the legacy fund without addressing the passage of time, which inhibits retroactive actuarial increases to older retirees. It also appears, by examples used in other communications that the intent is to use the same actuarial increases that exist in the main plan. While this is fine on the surface, I am confused as to why and or how these actuarial increases may be applied to only parts of the legacy fund while seemingly ignored in other parts of the fund? I question both the legality and the wisdom of treating retired players to yet another bifurcation of their ranks. Specifically I mean that the actuarial multiplier used by the BB/PR Plan is 261.9% for the 10 year period between taking funds at 55 yrs. of age vs. 65 yrs. of age. I can only assume that the reason for splitting planned Legacy funding into two categories (pre & post 1975 season) was to apply funds in retrospect to the most aggrieved retirees, who are older and have less time to participate (actuarially). What is confusing are the “no mention of actuarial increases” and the flat 14.81% across the board increase (pre vs. post 1975) with no further escalators involved. Do they really mean to drive another wedge between older and younger Pre-93 retirees? I am taking the liberty to show you a short example of the problem: A. Player 65yrs old played 10 yrs. from 1969-1978; 6yrs @ $124 + 4yrs @ $108 = $1176/mo. = $14,112/yr. taken immediately (no option). B. Player 55yrs old played 10 yrs. from 1979-1988 10 yrs. @ 108 = $1080/mo. = $12,960/yr. taken immediately or deferred 10 yrs. (at actuarial rate of 2.619) = $2828.52/mo. Or $33,942/yr. @ age 65. Perhaps the answer lies in what has not been said nor explained to date. Is it the intension of the BB/PR Plan implementers to pass actuarial increases back into the plan to permit players who took their pensions at dates later than 55years of age to enjoy the actuarial escalation that it seems they intend for our younger, Pre93 retirees? Seemingly that would address and fix the problem of all legacy funds being treated in a similar manner with actuarial increases applied evenly for all parties. If they want to say that older players got their actuarial increases and that is how we got to $124/mo., it would mean that had you taken the money at 55yrs of age, you would have only gotten $47/yr. applied to your pension while anyone who played after 1975 gets $108/yr. I guess they don’t think we can read numbers and understand what they mean. It is my opinion that the BB/PR Plan needs to be implemented with greater consistency, in a way that covers all retirement plans addressed by the collective bargaining agreement. It’s safe to say that a good number of 65yr and older players are all asking this same question about whether or not the Union and the League have sold out the old players, perhaps this time inadvertently, once again! Tom Mack is a former Guard for the Los Angeles Rams (1966-1978), and was inducted into the Pro Football Hall of Fame in 1999.
II. NFL Retiree Litigation
By: Jim Mitchell On February 4, 2010, the NFLPA held a press conference at the Super Bowl in Miami, Florida. During this event, NFLPA Executive Director DeMaurice Smith acknowledged that, “when it comes to benefits for pre-1993 players, the current system is not working.” Smith also stated that it would be an “immoral decision” for today’s players not to acknowledge the players who came before them. Likewise, NFL ownership indicated in an April 4, 2011 letter to retirees that, “[w]e are committed to making sure that when we do reach a new agreement it better addresses the needs of our retirees. It’s the fair thing to do. It’s the right thing to do and it recognizes and respects [retirees] contributions to the game.” On March 11, 2011, the NFLPA walked away from the bargaining table, leaving behind an offer from the League that would have provided substantial increases to retiree benefits. The NFLPA then relinquished its status as a labor organization and filed suit against the NFL on behalf of a class of current players, free agents, and rookies. The suit became known as the Brady suit and did not include the retired players interests. Eller I On March 28, 2011, four retired NFL players joined Hall of Fame defensive end Carl Eller and filed a class action suit in federal district court in Minnesota against the NFL and its 32 member clubs. (Eller v. NFL – Case No. 11cv648) Eller I sought to cover the void left when the Brady suit chose not to include the interests and rights of retired players. Eller I sought to protect the rights of retirees in any future negotiations with the NFL on a new CBA. Through Eller I, the retirees for the first time had their own voice and were able to speak for themselves in order to demand increases to their pensions, health benefits, medical benefits, and changes to the disability programs which up to this point had not met the needs and rights of the retirees. Additionally, Eller I was necessary because if the owner lockout was successful, and the 2011 season was shutdown, there would not have been sufficient new revenue for the League to meet its monetary commitments to the retiree community. When the lockout ended, the claims in Eller I were mooted and the retiree class voluntarily withdrew the Complaint without prejudice. Eller II For a most of the spring and summer of 2011, the representatives of the Brady plaintiffs negotiated the interests of retired players. Retirees were kept in the dark as to secret meetings held in Chicago, New York, Baltimore, and Washington, DC. When an agreement between the players and the owners was reached, improvements to and increases in retiree benefits were sacrificed in favor of the interest of active players. On September 13, 2011, 28 former players, including 25 Hall of Famers, filed a class action suit on behalf of former NFL players in federal district court in Minnesota against the NFLPA, NFLPA Executive Director DeMaurice Smith, and NFL players Tom Brady, and Mike Vrabel. (Eller v. NFLPA – Case No. 11cv2623) The suit seeks damages for those improvements and increases to retiree benefits that were sacrificed by the Brady plaintiffs and representatives during negotiations. The suit also seeks to establish an independent organization to represent retiree rights, other than the Union. Eller II contends that the defendants could not legally compromise the rights of retirees for the benefit of active players and that retiree rights should never again be jeopardized by an organization that has a history of antagonism towards retirees and outright conflict of interest. Gault On October 13, 2011, former Super Bowl Champion and Chicago Bears great Willie Gault and 18 other former players – including non-vested, vested, and Hall of Famer players alike, joined Carl Eller when they filed a class action suit on behalf of former NFL players against the NFLPA in federal district court in Minnesota. (Gault v. NFLPA – Case No. 11cv3012) The Gault case was consolidated with Eller II, on December 16, 2011, and the combined Eller II action now includes 47 former players, 27 of whom are Hall of Famers, 26 of whom are listed in the NFL’s official encyclopedia, Total Football II, as among 300 of the greatest players in NFL history. Combined, the Plaintiffs in the Eller II suit have made 39 Super Bowl appearances, have been selected to a combined 201 Pro Bowls, and represent every decade of pro
II. NFL Retiree Litigation
Continued from page 4
football since the 1940s. Consolidated Eller II On December 2, 2011, Defendants filed a Motion to Dismiss the Eller II and Gault Complaints. Defendants raise four arguments in support of their Motion. They claim: 1. They only did what they were “compelled” to do by the court; 2. That everything they agreed to in mediation was confidential and judicially immunized from accountability; 3. They owed no fiduciary duty to retirees; and 4. The Brady agreement cannot be subject to any claim for misconduct because it has been incorporated in a Collective Bargaining Agreement and therefore protected under the National Labor Laws. Plaintiffs have until January 9, 2012 to respond to Defendants Motion, and Defendants will have until January 30, 2012 to reply to Plaintiffs’ response. A hearing on the Motion to Dismiss has been scheduled for February 15, 2012, in St. Paul, Minnesota.
The Eller II Complaint can be found at: http://www.hausfeldllp.com/content_documents/9/EllerIIComplaintwithExhibits.pdf
Jim Mitchell is a Paralegal with Hausfeld LLP
Special Thanks to Joe Delamielleure for agreeing to be featured on ESPN’s Outside the Lines. This episode will tackle the concussion issue and focus on helmet manufacturer Riddell.
III. Concussion Litigation
By: Jim Mitchell On October 11, 2011, the NFL filed Notices of Removal in three personal injury concussion cases filed in the Superior Court for California, seeking to have the cases heard in the United States District Court for the Central District of California. On/about November 7, 2011, Plaintiffs filed Motions to Remand the cases back to State Court and at a hearing on the Motions on December 5, 2011, Judge Manuel Real ruled from the bench (without a request to do so) that the negligence claim in the personal injury cases is preempted by the Labor Management Relations Act (LMRA). Because of Judge Real’s adverse ruling regarding the California cases, Hausfeld LLP voluntarily dismissed the claims against the NFL and helmet manufacturers in both the personal injury and medical monitoring cases then-pending in California, and are re-filing the claims in another jurisdiction. On November 15, 2011, the NFL filed a Motion for Transfer and Coordination or Consolidation with the Judicial Panel on Multidistrict Litigation, seeking to have all of the California actions pending in the United States District Court for the Central District of California and the Eastern District of Pennsylvania, coordinated or consolidated in the Eastern District of Pennsylvania. On December 5, 2011, another personal injury suit was filed against the League in the United States District Court for the District of New Jersey. (Finn v. NFL, Case No. 11cv7067) This suit is similar to all previously filed concussion cases against the NFL but adds an additional claim involving the use of a drug called Toradol, a nonsteroidal antiinflammatory drug available extensively in NFL locker rooms as an alternative “pain killer”. According to ¶¶139-147 of the Finn Complaint, Toradol was administered both in oral form or by injection, to players without properly advising the receipient of the risks posed by with the use of Toradol. In 2002 a study was released warning against using Toradol if the drug recipient had suffered a closed head injury, “The bleeding risk of Toradol is an utmost concern in collision sports such as football. Even a small increase in bleeding risk can exacerbate high-risk injuries such as concussions, spinal cord, spleen, and kidney trauma.” Players suffering from concussions while taking Toradol were at increased health risk for multiple reasons: (1) because of the drug’s pain masking feature; and (2) because of the drug’s blood thinning properties. According to a Bloomberg Law article dated December 5, 2011, counsel for the Finn plaintiffs, attorney Seeger Weiss, had been involved in direct “good faith negotiations” with League officials for months prior to filing suit. Reportedly, during these negotiations, Weiss was urged by the League to hold off on filing the concussion claims in an effort to find resolution through a collaborative effort between retirees and the League in forming a “global traumatic brain injury compensation fund that would compensate [retirees] for their injuries.” According to Bloomberg, Weiss met several times with League officials but after the League reached a deal with the former Union on a new CBA that included concussion related benefits “that were far less favorable than the terms discussed with the [retirees]”, Weiss felt he had no choice but to file suit against the League. Said Weiss, “These [retirees] had patiently refrained from litigation based on their good faith understanding that their injuries would be fairly redressed by the League.” Weiss went on to say, “Our clients were assured by the League’s attorneys that senior NFL officials, including the Commissioner, were committed to forming a sizable compensation fund, but despite months of direct negotiations, the League ultimately chose not to honor their commitment.”
Jim Mitchell is a Paralegal with Hausfeld LLP
If you are a former NFL player and are suffering the symptoms of concussions such as headaches, dizziness, loss of memory, impulse control problems, ringing in the ears and/or hearing loss, fatigue, depression, sleep problems, suicidal thoughts, dementia, Alzheimer’s, ALS, CTE, and other like conditions, please contact Hausfeld LLP at
III. Concussion Litigation Return to Play Standards Still a Problem in NFL
By: Jim Mitchell San Diego Charger Offensive Lineman—Kris Dielman On October 23, 2011, San Diego Chargers offensive lineman Kris Dielman suffered an on field concussion during a game against the New York Jets, in New York. The concussion took place at the 12:30 mark in the fourth quarter when Dielman engaged Jets’ linebacker Calvin Pace. After the play Dielman was slow to his feet and was apparently disoriented enough to cause CBS announcer Jim Nantz to point out that Dielman was “a little shaky and wobbly.” Nantz wasn’t the only person to notice, as NFL Umpire Tony Michalek also looked to Dielman after the play and appeared to be considering whether or not to blow his whistle for an injury timeout. Dielman made no effort to leave the field of play, which is often the case with NFL players who suffer concussions but wish to remain in the game. However in today’s concussion climate and according to the memo issued by the NFL prior to the 2011 season, teams are instructed that if there is, “any suspicion about a player being concussed, remove him from the game. Always err on the side of caution.” The decision for a player to remain in a game or return to a game after a head injury is not the player’s to make. The title of section 3 of the memo reads, in all capital letters, “WHEN IN DOUBT LEAVE THEM OUT”. Coincidentally, according to Sports Illustrated, the Chargers were out of offensive lineman at the time due to other injuries. The fact that Dielman was not officially diagnosed with a concussion until after the game is irrelevant. Every NFL team has coaches, assistant coaches and many other team personnel all responsible for watching their group of players: linebacker coaches watch the linebackers, secondary coaches watch the secondary, running backs coaches watch running backs, etc. Nary an on field move can take place without somebody watching. Dielman’s wobbling and disoriented behavior after the play should have raised suspicion, but it did not. On the team flight home after the game, Dielman suffered a concussion related seizure. The Associated Press reported that an ambulance met the team plane when it arrived in San Diego, and that Dielman was admitted to a local hospital where he stayed overnight. Doctors diagnosed Dielman as having suffered a grand mal seizure on the plane, and directly attributed the seizure to the concussion he suffered earlier in the day. Cleveland Browns Quarterback—Colt McCoy The NFL is reportedly investigating the mishandling of a concussion suffered by Cleveland Browns Quarterback Colt McCoy in a game against the Pittsburgh Steelers on December 8, 2011, in a Thursday Night Football game aired on the NFL Network. The incident occurred when Steeler Linebacker James Harrison leveled McCoy with an illegal helmet-to-helmet hit which sent McCoy to the turf for several minutes. Despite the viscous nature of the hit and the aftermath that left their Quarterback on the turf, the Cleveland Browns reportedly not only did not perform the SCAT2 Concussion Test, but did not perform ANY kind of concussion evaluation before sending McCoy back into the game. Browns head coach Pat Shurmur insisted the next day that the team followed the correct protocol on the sidelines when McCoy was evaluated. Shurmur reported that his Quarterback did not exhibit any signs of having a concussion until after the game. The following day McCoy was evaluated and diagnosed as having suffered a concussion. McCoy’s father has reported that his son told him he had no memory of going back into the game.
Jim Mitchell is a Paralegal with Hausfeld LLP
V o l u m e I , I ss u e 2
RETIRED PLAYER SPOTLIGHT
Harry Jacobs, LB—Patriots, Bills, Saints (1959-70)
Harry Jacobs is from the old school, a middle linebacker who played in the very first and the very last AFL games, and called all of the defensive plays during that time. Now age 74, Jacobs’ time spent hitting opposing running backs, quarterbacks and offensive linemen has taken its toll on both his body and brain. In Jacobs’ day on the gridiron, the word concussion held no meaning. “Dingers, stingers, and/or bell-ringers”, were the terms used to describe the vicious hits that caused players to blackout or “see stars”. Today we call these same things concussions or more correctly stated, brain injuries. Many former NFL players will identify with Harry Jacobs’ story and the times they came to the sideline during a game feeling “woozy” or “loopy” after a big hit. Jacobs recalls times when he couldn’t focus on the opposing players “because of wavy lines in [his] eyes”, and other times when “[his] eyes were wide open, but [he] was nowhere around.” It was during these occasions that the standard sideline test was performed, “how many fingers am I holding up?”, was the question that most former players heard after experiencing an on-field concussion. According to Jacobs, “they would always hold up two [fingers]”, and since he never wanted to come out of the game, “[he] always answered ‘two’ so [he] could get back in the game.” After his years spent on the football field playing the game he loved, Jacobs settled down and started his own business. The Jacobs Team (www.thejacobsteam.com), a company designed to help others succeed in business through financial planning, risk management and leadership training. During these years after football, Jacobs began to experience anger management problems, depression, memory loss and other physical difficulties such as joint problems. As Jacobs’ problems worsened, he sought out psychological help and was prescribed medication for his depression. Jacobs recalls an incident years ago when he was “afraid to drive to Buffalo, 14 miles from [his] home”, a route he drove for work the previous 40 years, “because [he] was afraid [he] would not know how to get home.” After seeking help, Jacobs was referred to the Banner Institute in Phoenix, AZ, and diagnosed with “mild” cognitive impairment. When he returned home, Jacobs followed-up with Dent Neurological in Orchard Park, NY, where he was found to have a gene associated with Alzheimer’s disease. After hearing about a new medical treatment called hyperbaric oxygen therapy, he and his wife Kay traveled to California to visit Dr. Amen’s, Amen Clinic. Dr. Amen diagnosed Jacobs’ with CTE and suggested a new diet, exercise, vitamin, supplement and medication regimen, along with hyperbaric treatments. To-date Jacobs has received forty Hyperbaric treatments, twenty in Naples, FL, at Dr. Perlmutter’s clinic, and twenty at Dr. Spiegel’s clinic in Palm Harbor, FL. Jacobs tells The Voice that the time investment in receiving the treatments is significant, but well worth it. His first two weeks of treatment consisted of two treatments per day, five days each week. Each treatment takes about an hour and a half to complete, with a 15 minute period to get the chamber down to the proper barometric pressure, followed by an hour of treatment and then another 15 minute period to bring the barometric pressure back to normal. The results of these treatments have been amazing. Jacobs reports that his brain has begun healing and that he is more vibrant, energized, and mentally capable then he has been in decades. In addition to the medical treatments and strict adherence to his daily diet and exercise program, Jacobs also credits his amazing turnaround to his faith in God and daily prayer. This player profile is the story of Harry Jacobs, as told by him. By telling his story, Jacobs hopes that other former NFL players will become proactive in their own lives and not be afraid to seek out medical treatment. Jacobs hopes that his story will inspire others to get the help they need and the treatment they deserve.
Message from Harry Jacobs: “Any former player who decides they want to start the process of his own journey to health, I would be glad to have them contact me for additional details”
Harry Jacobs 4001 Legion Drive Hamburg, New York 14075 716-649-4460 email@example.com
#64 Harry Jacobs 1964-65 AFL Champion
Volume 1, Issue 2
RETIRED PLAYER SPOTLIGHT
George Visger, DB—Jets, 49ers (1980-81)
Like most former NFL players, George Visger began his football career at a very young age. Also like many other football players, Visger suffered numerous “bellringers” both on the field and during practice and was expected to play through the ensuing mental fog. Like most former players, Visger was never told that the blows to the head he sustained were actually brain injuries referred to as concussions. And like most former players, Visger was never told that concussions could have long term negative effects on his brain. Visger recalls a concussion he suffered in 1980, during his rookie season with the San Francisco 49ers. In a game against the Dallas Cowboys, Visger tells The Voice that he suffered a blow to the head so severe that it required the use of between 25-30 smelling salt tablets throughout the course of the game to keep his head clear. Each time Visger came to the sidelines, the trainers would go through a “handful” of smelling salts so he could remain in the game. Early in the 1981 season, Visger developed hydrocephalus, or water on the brain caused by severe head trauma. The condition was so severe that it required emergency VP Shunt brain surgery to remove spinal fluid that had built-up on his brain. As Visger reports, “they drilled a hole in my skull, ran a perforated tube into the ventricles in the middle of my brain, and ran that tube to a pressure valve in the back of my head. From the pressure valve, a tube was plumbing into my abdomen to permanently drain spinal fluid from my brain.” Visger was 22 when he underwent this procedure. Today George Visger is 53 and has undergone 9 emergency VP Shunt brain surgeries. He has also suffered numerous gran mal seizures, the result of which has left him with major long and short -term memory loss. Visger has been living with Traumatic Brain Injury (TBI) for over 30 years now. Having found no success at improving his shortterm memory, Visger has learned to live his life through countless numbers of little yellow notepads where every detail of his daily life is recorded. As Visger tells it, “I write down my entire days, sometimes with up to 15 - 20 pages of notes in a single day, and have conditioned myself to read through the prior weeks notes every other night. After reading about what I did several days prior three or four times, I know what I did, even if I don’t actually remember doing it. I’ve also leaned to place Post-It sticky notes on my mirror in the bathroom, dashboard of my truck and other areas I will see them at different times of the day to remind me of things on my schedule. Alarms go off on my computer 2 wks, 1 wk, 5,4,3,2 and 1 day prior to appoints. The day of the appointment I have alarms on my computer and phone programmed to beep at 5 hrs, 3 hrs and 1 hr prior to my appointment and at 15-minute increments the final hour, then at 10, 5 and 2 minutes. I’ve learned to do this as even with a reminder 1 hour prior, I will get busy writing reports or on the phone and forget.” In October 2009 Visger underwent 3 days of intensive neuropsychological evaluations, SPECT scans and micro-cog memory tests at Dr. Amen’s clinic in New Port Beach, CA. George recalled, “after 3 days of testing Dr. Amen stated it was a miracle I could even function with the amount of brain damage I had.” Dr. Amen recommended Visger begin Hyperbaric Oxygen treatments. At the same time, Dr. Barry Sears recommended Visger begin taking Omega 3 fish oil and drink antioxidant juice. In December 2009, Visger began receiving Hyperbaric treatments at the Sacramento Hyperbaric Oxygen Treatment Center. According to Visger, “[Hyperbaric Oxygen] treatments for head injuries invl9oves lying in a clear pressurized tube breathing pure oxygen at 1.5 times normal atmospheric pressure for an hour each day.” Visger also indicated that the procedure is painless “other than your ears popping a little as the pressure goes up and down, you don’t feel a thing.” Visger explains how the treatments work, “by infusing all your fluids with concentrated oxygen, delivering massive doses of oxygen to all your cells, even those with poor or no blood circulation.” Treatments also increase, “mitochondrial activity in all your cells, not just your brain cells. Mitochondria are your cells engines supplying energy. When the mitochondria in your brain cells are stimulated, it causes growth of new neurons to areas of your brain not damaged, or not being used.” Treatments combined with mental exercises cause new neurons to grow in areas of the brain not being used. This process is called Neuroplasticity, and was recently discovered. Since beginning hyperbaric treatments in two years ago, Visger’s micro-cognitive memory tests have improved from a low of 56 to an amazing 64 on his last evaluation in September 2011. Visger’s memory has increased a staggering 14.3%, which is a substantial increase for a 53 year old man. In 1986, Visger won a worker’s compensation case against the San Francisco 49ers. All of his hyperbaric treatments have been covered by worker’s comp. Visger encourages other former players to check into a legislation recently passed in California allowing NFL players to file a worker’s compensation claim regardless of where your home team was based. Visger adds, “if you were injured while playing a California team in California, you can file a California Worker’s Compensation claim.”
#74 George Visger Super Bowl XVI Champion
IV. Dryer Litigation
Dryer — Fred Dryer, et al v. NFL
By: Bob Stein In Dryer v. NFL, 0:09-cv-02182 (D. Minn.), a group of retired football players (led by Fred Dryer, Jim Marshall, Elvin Bethea, Joe Senser, Dan Pastorini, and Ed White) allege the NFL, including its NFL Films division, has used retired players’ likenesses without permission in order promote the league and earn substantial revenues (an estimated $6.9 billion in 2008 alone). The complaint alleges that while the league was allowed to use players’ names, images, and likenesses during their playing days, no such usage was allowed after the players’ contracts expired – particularly for those players who were with the league during the “glory days” prior to 1993. For example, the complaint focuses on the fact that the NFL uses extensive film productions to promote the league complete with scripts, music and editing as opposed to re-broadcasts of NFL games - for which it has generally offered no compensation to retired players whose images are used throughout these films. The retired players have brought claims for unjust enrichment, violations of the Lanham Act, and for violations of their rights of publicity due to these unauthorized uses of their likenesses. In January 2010, the court denied the NFL’s motion to dismiss the lawsuit and allowed the plaintiffs to move forward with their claims. The case is now in active litigation. On September 13, 2011, the Court appointed Hausfeld LLP, Bob Stein LLC, and Zimmerman Reed as the 3 co-lead counsel in this matter. The suit continues to progress, with hundreds of thousands of pages of discovery exchanged and reviewed. An Amended Complaint was filed on November 15, 2011, to reflect modifications including consolidation of a number of similar lawsuits, and counsel continue to work closely with our experts to analyze the strongest positions to argue and support. The new CBA, effective August 4, 2011, helps support the view of retired player publicity rights in that it addressed player publicity rights AFTER an individual player contracts end. For the first time, the CBA requires every NFL Player Contract to include language giving the NFL the "right and authority" to use player publicity rights “after the term of the Agreement.” The addition of this language supports the claim in the Dryer case that the NFL did not have these rights in prior CBA's. The Complaint can be found at: http://www.retiredfootballplayerslawsuit.com/pdf/NFL-A-Complaint.pdf Bob Stein is an attorney and former NFL linebacker with the Chiefs, Rams, Chargers, & Vikings (1969-76)
Retirees “seek nothing more than to obtain their fair share of the revenues the NFL has earned, and will earn, by the use of the retired players’ identities “ -Dryer Complaint
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V o l u m e I , I ss u e 2
V. NCAA - How We Can Bring Justice For College Athletes
By: Ramogi Huma (Founder and President of the National College Players Association) Soon after I began playing football for UCLA, I realized that student-athletes are subject to significant financial challenges and lack many basic protections. I started a studentathletes’ advocacy group called the National College Players Association (NCPA) after the NCAA suspended my teammate for accepting a few bags of groceries. An agent left them anonymously on his doorstep after listening to a radio interview during which my teammate mentioned that he didn’t have money to buy enough food during the season. At the time, his jersey was being sold in stores across the nation, but NCAA rules didn’t let him receive one penny of those revenues. Later that year, my teammates and I were told that the NCAA prohibited schools from paying for any sportsrelated medical expenses resulting from injuries suffered during summer workouts since such workouts were deemed “voluntary”. While college football and basketball players generate billions of dollars per year, college athletic programs can choose to leave them with sports-related medical expenses, refuse to renew their scholarships if they are injured, leave them with tens of thousands of dollars in educational-related expenses, and can hold their eligibility and scholarship opportunities hostage when they try to transfer schools. Football and basketball players spend about 40 hours per week in their sport alone at the expense of their graduation rates, which hover around 50%. In addition, the NCAA caps every full scholarship in the nation below the cost of attendance leaving unsuspecting players with about $3000-$4000/ year in out-of-pocket expenses. While the average football and basketball player is worth six figures, about 85% of them live well below the federal poverty line. Meanwhile, NCAA rules violations are rampant and show no signs of slowing down. For reasons such as these, over 14,000 Division I athletes from all sports have joined the NCPA to fight for basic protections. There is much hope for turning this around. New TV deals signed by five of the major conferences and the NCAA are generating approximately $775 million dollars in new annual revenue, and can play a major role in addressing these problems. The NCPA has begun a highprofile campaign to direct a portion of new TV revenues to bring forth the following necessary reforms: Cover players’ sports-related medical expenses. Ensure that injured student-athletes have their scholarships renewed, even if they can no longer participate in their sport. Increase scholarships equal to the full cost of attendance. Re-establish an educational trust fund (the NCAA recently allowed one to expire in August). This educational trust fund or “lockbox” would provide funds to former players who don’t graduate so they can continue their education and to players that earn their degree. Players would only gain access to this fund if they abide by NCAA rules. Graduation rates go up, NCAA violations go down. Prevent schools from holding transferring players’ eligibility hostage. Those of us that have played college football can be the difference of the success or failure of these important reforms. Current and future college athletes need us to speak out because no one else will. Current and former NFL players, in particular, have a powerful voice that can bring forth much needed change. Ramogi Huma is Founder and President of the National College Players Association (NCPA), and a former UCLA football player (1995-99). The NCPA is the only independent voice for college athletes.
To show support for the reform efforts proposed by the National College Players Association (NCPA), please visit the NCPA website at:
www.ncpanow.org You can follow the NCPA on Twitter: @NCPANOW, or on Facebook. For more information please contact the NCPA at: 951-898-0985
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RETIREE SOUND-OFF SECTION:
The NFLPA through its attorney Jeffrey Kessler told Judge Susan Nelson at a hearing on August 10, 2011, that retired players, “have been pouring in praise and thanks to the NFLPA for the new benefits that have been agreed to.”
- Jeffrey Kessler, Attorney for the NFLPA to Judge Susan Nelson at a hearing August 10, 2011. (Transcript of Record at 52-53, Brady v. NFL, No. 11-cv639 (D. Minn. Aug.10, 2011)).
Please Sound-off: We want to know if retirees agree with the NFLPA, that the new benefits agreed to by the NFLPA are “praised” by all retirees.
Do you agree that the new benefits agreed to by the NFLPA for retirees are praiseworthy? YES, the benefits secured by the NFLPA during negotiations of the new CBA are adequate and praiseworthy. NO, the benefits secured by the NFLPA during negotiations of the new CBA are not adequate. I have no opinion on this issue
Team(s) Played For:
To Sound-off & Be Heard: Fax this page to 202-540-7201
Retired Players Association www.nflretiredplayersassociation.com Gridiron Greats www.gridirongreats.org Fourth and Goal
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Please Visit Our Unified NFL Retiree Groups on the Web at:
www.fourthandgoalunites.com Dignity After Football www.dignityafterfootball.org Independent Football Veterans www.davepear.com Jeff Nixon Report http://blog.nflalumniassociation.com
The materials and information within this newsletter are made available by Hausfeld LLP and Zelle Hofmann, LLP for informational purposes only and should not be considered legal advice. The transmission and receipt of information within this newsletter do not form or constitute an attorney-client relationship. Persons receiving the information via this newsletter should not act upon the information provided without seeking professional legal counsel. Some links within this newsletter may lead to other websites. Hausfeld LLP and Zelle Hofmann, LLP do not incorporate any materials appearing in such linked sites by reference, and the firms do not necessarily sponsor, endorse and/or otherwise approve of such linked materials.
Hausfeld LLP 1700 K Street, NW Suite 650 Washington, DC 20006 Phone: (202) 540-7200 Fax: (202) 540-7201 www.hausfeldllp.com
Zelle Hofmann 500 Washington Avenue South Suite 4000 Minneapolis, MN 55415 Phone: (612) 339-2020 Fax: (612) 336-9100 www.zelle.com
* Hausfeld LLP and Zelle Hofmann are legal counsel representing retirees in issues ranging from union misconduct effecting retiree pensions and disability benefits; health consequences of football related concussions; and economic rights of retirees with respect to their names, images and likeness.