November 23, 2020
On Monday a new federal class-action lawsuit was filed in the Northern District of Illinois, that seeks to recover benefits lost by disabled retired NFL players in the 2020 CBA.
To review, in a series of questionable moves, benefits for disabled retirees were deemed subject to a Social Security offset beginning in January 2021, and then in April 2024, the elimination of approval through Social Security determinations to be replaced solely on determinations by Disability Plan doctors and the Disability Board. In case you’re just now getting up to speed on these events, prior to Congressional Hearings in 2007 addressing the dismal approval rate for NFL Total and Permanent Disability and pressure from Congress, to do better, one had nearly as much of a chance of winning the lottery as being approved for NFL Disability. At the time of the Hearings, the NFL boasted of spending $20 million per year on the disability program. Since then, the majority of approvals have been the result of a favorable Social Security Administration (SSA) determination of disability, and the NFL’s last reported annual expenditure was in excess of $182 million—a number both the NFL and NFLPA wish to reduce—the NFLPA because it lowers the salary cap for active players. While this seems like a lot of money, proportionately speaking, it is still less than the five percent allowed under the CBA for the League’s estimated annual revenue of $14-$16 BILLION. Using the lower figure of $14 billion, the amount paid for disability benefits is less than 0.02% of annual income.
As if this was not enough, by 2026 players who qualified for benefits through SSA determinations will be re-evaluated under the new, retroactively applied terms. Both past and present behavior indicate that hundreds of disabled will then lose their income. New evaluations are already taking place for players who qualified for the Disability Plan through Plan doctors based on neurocognitive impairment and approximately twenty players have been deemed “not disabled” and have lost their disability income as a result. This number would likely be even higher if not for a halt in activities due to COVID-19. It is believed that these determinations were made because “race norming” was applied as it has been in the NFL Concussion Settlement, under the premise that Black Players are less intelligent than whites. While many have felt from the onset of claims processing that it was harder for black players to qualify for settlement claims than white players for Levels 1.5 and 2 Neurocognitive Impairment (dementia), the application of race norming has only recently been brought to light through a lawsuit and appeal of a claim denial to the Third Circuit.
The newly filed lawsuit, brought by disabled retired NFL Players Lance Brown, Amon Gordon, and Charles Grant, represented by Wendy Fleishman and Rachel Geman of Lieff Cabraser Heimann & Bernstein, Teresa Renaker of Renaker Hasselman Scott, and Mark DeBofsky and Marie Casciari of DeBofsky Sherman Reynolds seeks to halt the disability cuts soon to be imposed and prohibit the league and union from imposing reductions of vested benefits in the future.
While this is the second lawsuit to be filed addressing the reduction of benefits, the defendants and legal arguments are much different, and I believe this one has a stronger likelihood of success. The key, in my opinion, is that this suit is based on how benefits that were vested into the NFL’s Retirement Plan were moved to a welfare plan and then reduced in violation of federal ERISA law.
The new lawsuit goes into great detail as to the history of NFL disability benefits from 1962, when they were initiated, on through the present, and states:
Though not implicitly stated in the lawsuit, it appears that the 2020 CBA reductions are the result of a long-term plan agreed to by the NFL and DeMaurice Smith of the NFLPA to cut benefit expenditures and move closer to their pre-2007 numbers, prior to congressional intervention. While it’s possible that Congress will intervene again—currently Senator Cory Booker and others are looking into the Concussion Settlement’s race norming—the affected players do not have the luxury of time on their side to wait for Congress and the possibility that they will act. The Social Security offsets are scheduled to begin in less than two months unless a TRO or injunction freezes the action until the conclusion of the legal battle. If the deductions begin in January, as scheduled, many players and their families will be irreparably harmed, even if they win the lawsuit and get the money back in two or three years. One player I spoke with told me that he just refinanced his home, to prepare for the reduced income, but said that medical expenses and children’s activities will have to be scaled down considerably. And he’s one of the lucky ones in that he was able to refinance.
As noted in the lawsuit:
Many players used these letters to secure mortgages. Banks depended on the plain language of the letter stating the player’s income “for life” and granted mortgages based on that income. Numerous players or their wives have stated that they will lose their homes as a result of the offsets because that’s the money they counted on to pay their mortgages. Some players have put their homes on the market hoping to sell before foreclosure while others pray that the NFL will be stopped before they find themselves homeless.
The letters were also used for alimony and child support determinations. One player I spoke with said that either the mortgage or the child support would have to give since he’d no longer be able to pay both. His Sophie’s choice leaves no good options, but rather severe consequences no matter what decision he makes.
Most players I’ve spoken with state they will have to give up much of their health care because of the offsets. The NFL only provides for COBRA insurance coverage for the first five years of retirement and after that they must either purchase private insurance or gain coverage through an employer—but disabled players, by definitition are unable to work and private insurance premiums run anywhere from $1,200 to more than $2,000 per month because of preexisting conditions and should the Affordable Care Act be terminated, it is unlikely that they would even be able to obtain insurance despite their disabilities. Even the players who are able to retain their insurance coverage tend to have high out of pocket expenses such as expensive medications not covered by the insurance plan and high co-pays for medical care that add up into the thousands and tens of thousands of dollars. A recent article in The Athletic profiled “Majik Man” Don Majkowski, who is a lead plaintiff in the other disability lawsuit, and how he recently underwent his twenty-third surgery since retirement. Sadly this isn’t unusual for a retired NFL player, and that doesn’t even account for the widespread neurological issues affecting potentially thousands of retired NFLers.
The primary legal premise of the suit focuses on how players were shifted from a pension-based disability plan to a welfare plan and explains exactly what took place.
That last statement is very important because it points to the Defendants and perhaps additional parties attempt to skirt the law and acknowledges that they did, in fact, know the law and chose to break it. ERISA Section 203 provides for minimum vesting standards and the non-forfeitability of vested benefits.
In addition to the offsets scheduled for January, the discontinuance of benefits based on SSA determinations should also be viewed as a reduced benefit since players will be evaluated under very different terms and conditions than those they vested under, putting their entire benefit amount in jeopardy.
While pension-based disability plans are somewhat rare, those that do exist have the same rights and protections as retirement benefits.
If successful, and it appears the law is on the Plaintiffs’ side, the lawsuit will stop the offsets and even more importantly restore disability benefits to the pension/retirement plan and prohibit any future reductions as noted in these two very important sections of the Plaintiffs’ prayer for relief.
You can read the complaint in its entirety here.
Note: I’ve kept a low profile and stayed under the radar for a few months because I was aware this suit was in the works and didn’t want to inadvertently say anything that might be detrimental to its success. Additionally, I’ve also done some deep investigation that I’m not yet at liberty to report on but I have been fighting the fight behind the scenes. Along with my diminished public presence, donations also came to a halt and the coffers are getting pretty dry. If you can spare a little, please consider making a donation to help cover our document and legal research costs so that I can continue my work. Thank you!