October 20, 2019
Sheilla Dingus
New York Jets offensive guard Kelechi Osemele’s ongoing and now public dispute with the New York Jets, highlights a problem anchored deeply within NFL culture. In case you somehow missed it, the Jets threatened to discipline Osemele for “conduct detrimental”—and then on Saturday afternoon followed through with the threat by hitting the player with a fine.
What conduct did the Jets organization deem to be detrimental? Mr. Osemele wants to have surgery to repair a torn labrum in his shoulder and the Jets want him to double down on pain pills and Toradol shots and get back on the field.
Never mind that continuing to aggravative and reaggravate a torn labrum is likely to result in joint looseness and dislocation, and often irreparable and permanent damage to the shoulder. Never mind that overuse of painkillers comes with a host of problems including a serious risk of addiction and overuse of NSAIDs such as the panacea drug Toradol elevate risk of renal failure and other serious organ-system problems. Never mind that African Americans are already at increased risk of kidney failure, comprising 35% of all patients in the U.S. receiving dialysis while only composing 13.2% of the U.S. population. Kelechi Osemele has committed the unpardonable sin, in the league’s eyes of thinking beyond the present and considering his long-term health.
A few months ago I attempted a study on causes of death for NFL players, and while I only had time to examine a year’s worth of data, kidney failure was the fourth highest cause of death, exceeded only by neurocognitive disease (Alzheimer’s, dementia, and Parkinson’s), heart disease, and cancer.
For the general population, heart disease is number one, followed by cancer at number two. While the leading cause of death for NFL players, Alzheimer’s and dementias ranked number 6 for the general population and while number four for retired NFL, kidney failure was ninth among the general population.
| Five Leading Causes of Death NFL (2019 and partial 2018) |
Five Leading Causes of Death General Population (2017 CDC Report) |
||
| 1. | Neurocognitive Impairment (Alzheimer’s dementia, Parkinson’s, ALS) |
1. | Heart Disease |
| 2. | Heart Disease | 2. | Cancer |
| 3. | Cancer | 3. | Accident |
| 4. | Kidney Failure | 4. | Respiratory Disease |
| 5. | Accident | 5. | Stroke |
It seems noteworthy that painkillers and NSAIDs can elevate the risk of not only kidney disease but heart problems and stroke, as well. (Stroke tied at #6 with Diabetes for retired NFL) Toradol can even elevate brain injury risk. According to its manufacturer, Toradol should not be used for more than five days in the treatment of severe pain. Usage warnings indicate against usage in the case of bleeding or possible internal bleeding, or a head injury among other physical conditions. According to the Washington Post, “the drug is considered dangerous enough that some European countries have banned it, while others administer it only in hospitals.” Is it mere coincidence that painkillers are a risk factor in almost 63% of NFL player causes of death?
Two proposed class-action lawsuits were filed against the NFL and its member clubs, detailing the culture on any given Sunday in America’s most popular sport and seeking to hold the NFL accountable for painkiller abuse, however, Judge William Alsup, who was presiding over both, seems intent on letting the league off the hook. The Evans lawsuit against the Clubs was dismissed, as was Dent. The Dent lawsuit was revived through a reversal on preemption by the Ninth Circuit and dismissed again and is currently back at the Ninth on a second appeal.
This year two high-profile players, Indianapolis Colts quarterback Andrew Luck, and New England Patriots tight end Rob Gronkowski made decisions to retire rather than continue subjecting their bodies to the incessant abuse and relentless pain that had become a daily nemesis for them. Luck was rewarded with boos from so-called fans the day news of his retirement became public. Both fans and media—and even Patriots owner Robert Kraft have continued to try to lure Gronkowski back into the game despite an extensive injury history outlined in Sports Illustrated beginning in 2009 at the University of Arizona when a vertebral disk hernia forced him to miss the entire season. His injuries escalated and accumulated during his career with the Patriots, including concussions, a high ankle sprain that he continued to play on that required surgery in the offseason, forearm fracture in 2012 that was refractured in 2013 that required three surgeries to repair, fractured vertebra in 2013 requiring surgery, and refractured in 2016 requiring more surgery, torn ACL and MCL that required surgery, and a host of other knee, ankle, and thigh injuries plus a lung contusion that didn’t necessitate surgery.
As elite stars, Luck and Gronk are fortunate in their ability to walk away from football on their own terms. Most players aren’t so lucky and Osemele seems to be among the larger group. While the league’s highest tier of star players are more able to make demands regarding their health, take charge of their own wellbeing, and are able financially to walk away sooner most others seem to be viewed as disposable commodities. Squeeze every last ounce of productivity and functionality from them before exiling them to the Island of Forgotten Players.
Perhaps, as a 30-year-old veteran with nine NFL seasons under his belt, Osemele sees the writing on the wall. Alex Lewis, a 2016 fourth-round draft pick was traded to the Jets this season and appears to be the Jets’ long-term choice at guard. They just need to squeeze a little more from Osemele while Lewis recovers from an injury before they cast him aside.
Kelechi Osemele, in dealing with his shoulder injury has only asked for the rights that any other American worker has—a right to pursue medical treatment of choice, a right to decline medical treatment (in this case excessive painkillers), and a right to pursue a workers’ compensation claim, which the Jets have illegally blocked.
Imagine an admin assistant who develops carpal tunnel syndrome and her employer refuses to sign off on workers’ comp, slaps a huge bottle of assorted pain pills on her desk, and stabs her with a hypodermic needle, telling her to keep typing or else. Something brown and smelly would soon be hitting the fan, but in the NFL, this is often the rule rather than the exception.
The Jets seem to be big-time offenders. Yesterday I opened my Twitter DMs and got a virtual earful.
🚨🚨🚨Alert Former or Current NFL Players 🚨🚨🚨
If a team doctor and/or trainer has ever lied to you about the extent of a serious injury, pls DM and tell me about it on or off the record. I’m working on a story about this.— Sheilla Dingus (@SheillaDingus) October 19, 2019
Six-year NFL vet Cam Worrell tweeted:
Jets tried to make me do the same thing! Had to have my second right shoulder surgery but they were trying to get me to practice to show I was healthy. Completely dishonest organization. https://t.co/uwkFHsFJyc
— Cam Worrell (@CamWorrell) October 19, 2019
Most contacted me through DM asking anonymity, but each told a similar tale.
Former Jet Erin Henderson currently has a lawsuit filed against his former team for discrimination based on disability. He believes he was fired for suffering from bipolar disorder although he never tried to hide his condition from the team and was in fact treated by the team physician.
In 2013, around the time the painkiller lawsuits were being filed Washington Post surveyed 500 players and what they learned was astounding.
There’s a great deal of documentation to support this. The WaPo article that highlighted the survey noted, “When former Redskin Mark Schlereth, a veteran of 12 seasons and 29 surgeries, underwent a kidney-stone operation on a Sunday night and suited up for a game less than 24 hours later, he drew the strength to do so from a needle and pill bottle.”
Federal court records are filled with dozens if not hundreds of examples.
One of the most troubling aspects of Kelechi Osemele’s claim is that the Jets have refused to sign off on workers’ compensation, minimizing the extent of his injury. Per Connor Hughes of The Athletic:
Andrew Kessler, Osemele’s agent, wrote in text messages with The Athletic that Osemele is dealing with a torn labrum in his shoulder and is unable to play because of his pain level. He said there is no debate regarding his injury, and that the second doctor who evaluated Osemele said the need and timing for surgery is based on his symptoms. Osemele’s symptoms, Kessler said, require surgery.
This surgery/non-surgery question, a second source explained, likely centers around Osemele’s $9.85 million base salary for this year and the unpaid $5.79 million of it remaining. The contract, which the Jets inherited when they traded a fifth-round pick to the Raiders for Osemele during the offseason, no longer has any guaranteed money on it. But if Osemele had season-ending surgery and landed on injured reserve, the Jets would be required to pay him his entire base salary (known as “Paragraph 5” on an NFL contract) — despite the fact that Osemele, according to the source, initially endured the injury for another team and entered this season aware of the ailment.
The Athletic also noted that through fining Osemele for conduct detrimental the Jets would be off the hook for any termination pay should they decided to cut him. A similar financial situation played out when the Jets shocked Erin Henderson by placing him on the non-injured inactive list without explanation. While some people through confidential DMs have indicated that the Jets are especially dirty in this regard, they’re certainly not alone.
It’s disturbing to think that Osemele might not even realize that he has a torn labrum if not for seeing private a physician to find out the extent of damage to his shoulder.
Many players have been pressured to play while the severity of their injuries was misrepresented or withheld from them. Consider Former Bears quarterback Jim McMahon. Per the Second Amended Complaint in the Dent lawsuit:
Or fellow Plaintiff Jeremy Newberry, per the Third Amended Complaint:
How about Marcellus Wiley?
Other athletes reported similarly concealed diagnoses in the Evans painkiller lawsuit.
Moving on to disability claims, 8-year veteran Delvin Williams, had a similarly puzzling experience.
At least the Packers didn’t scheme to withhold his pay. Unable to work but still wishing to contribute Williams became involved in charitable work and established a foundation. There was no physical labor involved and since Williams was also experiencing some cognitive difficulties others handled the operations, basically leaving Williams to make appearances to promote the charity.
In late 1982 Williams was approached by the newly formed USFL and declined their offers due to his health. Oakland Invaders owner Ted Taube and coach John Ralston were persistent and continued to pursue him, however. They finally agreed that he would mostly serve as a role model and mentor for younger players and that he wouldn’t be required to play very much. They also dangled that they’d be more inclined to support his charity if he accepted their proposal. Reluctantly he did.
Despite his history, the Bert Bell – Pete Rozelle Disability Plan refuses to accept his injuries are football related, as that compensates disabled retirees at a higher level than disability from non-football causes. Despite retiring in the early 1980s and a Social Security Disability determination of total and permanent disability due to his football career, Williams is still in federal court seeking proper classification of his benefits. He’s far from alone.
Chris Hudson, who began his career in 1995 with the Jaguars and retired in 2003 due to injuries after a trip to the Super Bowl with the Atlanta Falcons. After being classified at the lower level for benefits and being stonewalled at every attempt to understand the plan, which resulted in his classification for the lower benefit level, he eventually, he filed a proposed class-action lawsuit against the Plan, NFL, and NFLPA for their failures as fiduciaries to retired NFL players. Sadly, the judge ruled that none of the parties had a fiduciary duty and concluded that the Plan language was clear enough that they should be able to understand it. Hudson is appealing the decision.
Never mind that a substantial number of these men are cognitively impaired, but discouraged from hiring lawyers to represent them as they present their claims. Often, as was the case with Hudson, they don’t retain counsel until they’ve been denied several times. Once Hudson did hire a lawyer, even he didn’t find some of the terms such as “changed circumstance” to be clear and as with Hudson, the Plan office declined to clarify the definitions for his attorney. Some suspect this is the case so that they can fluidly adapt them to deny claims without oversight or accountability.
I could go on and on and fill a book instead of an article with examples such as those I’ve shown and some perhaps demonstrating even more detestable behavior by the NFL. I’d made screenshots and notes from at least ten more players’ experiences before I realized that space and readability would force me to omit so I’ll leave the reader with one final example—that of Tyrone Keys.
Keys played seven seasons from 1983-1989 and retired due to injuries to his back, knees, and shoulders. He had signed a contract with the Chargers for 1989-91 but the Chargers terminated his contract due to Keys’ inability to play.
Keys seemed to be one of the fortunate few initially, in that he began receiving Line of Duty Benefits in 1991, and the often not so neutral Plan doctors found him to be completely and permanently disabled, including his annual re-examinations.
Since Line of Duty is a temporary plan for players who are disabled at the time of their retirement but may not be permanently disabled, Keys like the others applied for Football Degenerative Total and Permanent Disability (now known as Active T&P). He was initially denied but reapplied again and was approved.
In addition to questioning his tax return that indicated that he’d been compensated for appearing at some charity functions, someone noticed that he’d been in a fender-bender in 2003, and therefore concluded that it was responsible for his impairment rather than football.
Keys disclosed the accident shortly after it occurred since it left him with some residual pain due to the existence of his prior injuries and that was never questioned until 2011. At that time, they slashed his benefit to a fraction of what it had been at the football causation level. When he appealed that decision, instead of correcting their error, they doubled down and accused him of defrauding them of his prior benefits and demanding repayment of over $800,000 that had been paid to him over the years.
He is now left with only a meager Social Security Disability pension (that was attributed to football) and a league of Billionaires and their henchmen trying to claw back $800,000, a sum that had been rightfully awarded and one they’d never miss. Keys, now affected with latent neurological issues in addition to the orthopedic impairment is currently in federal court hoping to have the NFL Plan’s decision reversed.
As pointed out in the Football Players Health Study by Harvard University, team doctors are just that and inherently conflicted. Unlike a private physician whose sole concern is the patient, a team doctor’s first priority is the team. Sports medicine isn’t necessarily athlete-centric medicine but rather a focus on improving performance and supporting sport. As NFLPA Executive Director DeMaurice Smith has said, in support of the Affordable Care Act, every player will leave the league with a pre-existing condition, but because of the inherent conflicts between divisions of the pie for active and retired players, where only actives have a voice in CBA negotiations, approval rates for players with disabilities are low with extremely high bars for approval. Unlike Social Security Disability which must eventually evaluate the cumulative impairments of an individual and the remaining skills, and then seek to determine if there are sufficient jobs in the economy that would match those diminished abilities, the NFL/NFLPA tend to advise their own conflicted Plan doctors to examine each complaint in a silo; therefore the orthopedist will conclude that the player could handle sedentary work, however, cognitive impairment could easily preclude this. Generally, they tend to say the player should be capable of doing “some type of work” while failing to explain what that might be.
Roger Goodell likes to sound off on how the “integrity” of the game of professional football is his top priority. With $14 billion in annual income and growing, it’s probably safe to say that the financial integrity of the league is in good shape; it’s unfortunate that the same can’t be said about its moral integrity.
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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.
