March 7, 2020
Sheilla Dingus
Injuries are an unfortunate reality in the NFL. Executive Director DeMaurice Smith has been quoted as saying in support of ACA and in opposition to Workers’ Compensation scale-backs that all NFL players will leave the game with preexisting conditions. In view of that, it’s puzzling as to why he finds the proposed CBA that will leave many who wind up disabled acceptable and has even gone so far as to recommend it despite a 7-4 vote by the Executive Committee against.
In Part I of my series on the CBA, I explained how Article 39 will essentially strip players of their right to sue in the same vein as the waiver Colin Kaepernick refused to sign prior to a league arranged workout. As I explain in the article this was mostly done by anticipating just about any conceivable issue that might force a player to sue in order to obtain accountability and compensation and make it subject to LMRA §301 preemption.
Andrew Brandt, having served as an executive for the Green Bay Packers, and then a player agent, while currently and concurrently the Executive Director for Villanova’s sports law program has noted frequently on Twitter that the proposed deal isn’t quite what was represented to players by De Maurice Smith.
We are continuing to find out things advertised about the NFL CBA – such as guaranteed 48.5% revenue share and reductions of Commissioner power – are not what they appeared to be. Need for facts over selling points. #CBA
— Andrew Brandt (@AndrewBrandt) March 6, 2020
Brandt equated the fact sheets distributed by NFLPA to “selling points” an assessment with which I firmly agree, and stated as much before the final language of the CBA was released based on past league behavior and what I could read in between the lines of the pitch. In an article for Sports Illustrated, Brandt pointed out several issues, not the least of which is that players expecting a big raise are going to be disappointed. He notes that they should be aware of how split contracts will be used by clubs to mitigate that “big raise.” He also pointed out how the revenue split isn’t guaranteed and will likely be less than the 48.5% that the summaries lead players to believe.
While many issues have been misrepresented, and pressure to make a deal now has been overstated as emphasized by Andrew Brandt and Arena Football Players Union Executive Director Ivan F. Soto, perhaps nothing in the CBA is as harmful to players as the changes to disability benefits as detailed in Article 60.
Article 60
Section 2
The first change to be noted in the proposed CBA is a reduction in the amount paid in disability benefits.
Contrast this with the increases of the 2011 CBA
I mentioned class warfare in Part I, and this is a prime example. While it appears that those currently approved for T & P Disability will continue to receive the amounts bargains in 2011 minus offsets, this may not be true for all which I’ll explain in a bit, but first it’s important to note that a disabled player’s position in life is now determined, not by his prior earnings or his degree of need, but simply the date his application was approved.
While $48,000 may not look so bad to the casual observer any disabled person will tell you that disability isn’t something that you can control, nor does it relieve you of the financial responsibilities you had prior to disablement. Players accept the risk of playing in the National Football League largely because it has potential for handsome financial rewards, and accordingly, players tend to purchase homes cars and other goods in line with at least a six-figure income. There will probably be a number of home foreclosure when the cuts come to pass if players accept this CBA. In all likelihood, however, this will probably affect players who are currently on rosters more than the retirees somewhat grandfathered in through the previous CBA, so they should ask themselves, “If I should find myself disabled in retirement, would I be able to meet my obligations and care for my family on this? If the answer to that question is “no,” then your vote on the CBA should match it.
Section 4
Section 4 is directly linked with Section 2, and in this way, retired players currently receiving disability will be penalized.
Social Security Disability payments aren’t a lot of money relatively speaking. The average SSDI award is around $1,200 per month with the maximum of around $3,000, however, most people don’t qualify for the maximum due to the complex curve on which SSDI benefits are calculated.
It’s loathsome of the owners who are each worth multiple billions of dollars to take from the most vulnerable of their former employees, amounts that equate to nickels and dimes for them but maybe the difference in paying the heating bill or mortgage for a disabled retiree. I almost hate to use the word retiree because it typically conjures an image of a gray-haired senior citizen when in reality for the NFL, many retirees are men in their 30s, and by 40 almost everyone but kickers and Tom Brady have retired. Sadly there are lots of guys in this age group who rely on disability to survive and support their families.
Section 10
Section 10, the “Circuit Breaker” clause is an addition that didn’t exist in the 2011 CBA, and this is one of the provisions that is likely to further reduce the payment that disabled retirees who are currently qualified for benefits receive.
Note the Inactive A award is currently $165,000 per year or $13,750 per month. Players will soon have the SSDI offset applied which will reduce the income anywhere between $1,200 and $3,000 per month, so I’ll use $2,000 to hit the middle ground leaving them with $11,750 in NFL disability. While $2,000 is virtually nothing to a billionaire owner, it’s a nice chunk of change for a disabled NFL vet to have to eat. Especially every month. The proposed reduction if benefits rise more than 2% will come to $9,583 and with the offset, $7,583.
This is an essential point to be understood: It doesn’t necessarily matter what your income is, people tend to structure their lifestyles around that number. Aside from a few unusually frugal people who tend to hoard, people, purchase homes in accordance with their current income and budget so when that’s reduced, it tends to be painful. Take it from me. After becoming disabled I had to adjust to having only about 20% of my prior earning and that isn’t an easy adjustment to make. At least players will still have their Social Security check to pad things a little, but the bottom line is they’ve just been robbed of about $2,000 –by a cartel of billionaires, no less! Why on earth do the owners feel the need to nickel and dime the most vulnerable of their former employees?
Of course, players who have not yet qualified for disability benefits, including the players who are now active will have to deal with much less from the beginning with checks ranging from $3,333 to $4,000 per month unless a superseding agreement intervenes.
It’s worth noting that Section 10 references the Player Cost Amount. The NFLPA should make 100% owner funding a mandatory provision in the CBA so that the interest of active and retired players isn’t conflicted pitting one group against the other. This should actually be a rather small give by the owners, and its something the union should insist on. Other employers do this so why not the NFL?
It truly seems that Class Warfare is more than the underlying theme of this CBA, but also a tool used by the owners and perhaps even some in the union to distract players and keep them from discovering that this isn’t the CBA they thought it was. In this agreement, the only winners are the owners with the owners who’ve probably had their share of laughs anticipating that players will readily swallow the crumbs they’ve tossed.
Section 6
This is one of the most important benefits players will lose if this CBA is approved and should be a deal-breaker with owners demanding a 17th game and extra playoff games.
Congressional hearings were held in 2007 because so many clearly disabled former players were failing to qualify for their collectively bargained disability benefits while meeting the government’s threshold of SSA disability determinations.
Many of the senators who served on the panel have since retired but a few still remain including Amy Klobuchar and John Kerry, who said in his address:
Senator Kerry went on to urge, “a standardized sort of understanding of the process. And, frankly, a presumption in favor of those who went out on the field and put themselves at risk in the way that they do on a weekly basis.” He closed his remarks with a warning.
This is how Social Security Disability determinations came to be honored by the NFL Disability Plan. It was a last-ditch effort to avoid legislation and is currently the way most players wind up qualifying for benefits since the Plan still uses a near-impossible standard with highly paid doctors at the ready to find that players just aren’t quite disabled enough.
Even more disturbing than the fact that the CBA seeks to eliminate this benefit, is the way NFLPA Executive Director DeMaurice Smith has apparently framed the issue.
Are the current players aware that the owners are planning on taking disability benefits from former and future players that qualified for them through social security? Then ultimately doing away with the automatic qualifier through social security and disability benefit?
— Marcellusrivers (@marcellusrivers) March 5, 2020
When former NFL safety Marcellus Rivers asked current NFL safety Cody Davis if he was aware of this, the response he gave was disturbing to say the least.
Definitely not a loophole…SSA disability just replaced the opinion of the Plan’s neutral physicians. Upshaw and Roger were raked over the coals in 2007 by Congress for denying Players T&P disability despite them already being considered disabled by SSA.
— Benefits Huddle (@BenefitsHuddle) March 6, 2020
It appears that active players are being told this is a loophole for those trying to game the system rather than the reality which comes by way of Paul Scott, founder of Benefits Huddle. As a former Plan Director turned player advocate, he understands the dynamic as well as anyone.
Section 5
Acceptance of Social Security disability determinations will be replaced with the provisions outlined in Section 5.
This doesn’t look all that bad on the surface since currently players are evaluated on one impairment at a time rather than accumulated impairment as in a Social Security evaluation. The optimism goes south quickly, however when the Plan’s current and past physician record is considered. It’s likely an attempt to create as smokescreen should Congress come calling again.
This program isn’t a whole lot different from the way disability appeals are currently decided by MAP physicians jointly agreed to by the NFL and NFLPA. It seems likely that the MAP or other highly paid Plan doctors will be utilized for this role; therefore, we’re looking at,
- The Plan’s Medical Director, orthopedist Aakash Shah, who is known to be extremely difficult to qualify under to the degree there’s no indication that any player has qualified through his examinations. Dr. Shah has earned $935,138 in the 7 years he’s worked for the Plan
- Harlan Selesnick, another MAP Orthopedist who’s earned over $929,009 denying disabled players in his decade working for the Plan.
- Neurologist Silvana Riggio who heads the NFL’s Neurological Program at Mt. Sinai and has collected over $500,000 in her six years with the Plan.
- Neuropsychologist Stephen Macciocchi – who joined the Millionaire Club working for the Plan and is believed to be one of the engineers of the Concussion Settlement’s daunting BAP protocols.
If not these doctors there’s a pool of over 30 physicians who’ve earned between $500,000 and $2 million working for the plan. Most doctors who don’t deny enough players are dismissed and replaced by other doctors who are less patient-oriented so the Plan, which insists on using its own doctors while dismissing the records of a players’ own physician or evaluations by a truly neutral doctor utilized by SSA will almost certainly continue along that path.
Over the past decade, the Benefits/Disability Plan jointly administered by NFL and NFLPA has paid doctors over $42 million to make it difficult for players to qualify for disability and has spent over $50 million with Groom Law Group who makes recommendations for denials to the DICC and Trustees and then reaps another reward battling players who try to recover their benefits in federal court. Oddly, NFLPA also uses Groom Law Group as outside counsel paying them an additional $300,000 as of their last LM-2 filing in 2018.
No player wants to wind up disabled and because guys who’ve made it to the NFL are accustomed to beating the odds, often believe they will again, but from orthopedic issues to brain damage to organ failure from overuse of painkillers, there are hundreds of players who felt the same way but weren’t able to outrun the games physical and/or mental toll. The smart move is to have a safety net waiting in case you need it and count your lucky stars if you don’t because even if you do beat the odds several of your teammates won’t. Why should anyone be left behind in a league as rich as the NFL?
Players have a unique opportunity now with a year left on the current CBA to get behind adopt the No Man Left Behind attitude and let the owners know that players are a lot smarter than they thought. No one ever gives away power–certainly not the billionaires who’ve referred to players as cattle and inmates at various times. The owners will continue to negotiate with players if they’re made to wait because they don’t have any other option if they want to deal with the networks. Furthermore, they’re smart enough to know that they’d be in violation of the law if they pull out of negotiations at this early juncture. It’s up to players to call the bluff, disrupt their comfort zone and assert their needs. There is a lot of maneuvering room right now and it’s up to players to seize and make the most of it. #KnowYourWorth.
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Sheilla Dingus founded Advocacy for Fairness in Sports in October 2016, after a stint with Defenders of the Wall, a New England Patriots based blog where she dived deep into the legal aspects of Deflategate. Along the way, she observed many inequities in sports and felt a need to address some of the under-reported stories in sports law. She draws from her background as a former professional dancer, who like many of the athletes she writes about, took an early retirement due to orthopedic injuries. After a return trip to college she worked for a legal software company, with seven years as a Project Manager and Analyst. She brings her analytical skills to the table in breaking down complex lawsuits, and enjoys pursuing her longtime interest in journalism.
