March 9, 2020
Sheilla Dingus
Having covered the NFL’s Disability Plan for going on four years, I’m well accustomed to seeing the litigation mitigation tactics used there, of revising Plan Documents with new language annually to close the “loopholes” in which a player prevails in federal court to overturn the denial of his claim.
When a court awarded Daryl Ashmore’s claim after the Plan denied him without as much as a review of his medical records because he was unable to travel the distance to a Plan doctor for an appointment they’d scheduled and was under the impression that he was being rescheduled closer to his residence, they added language mandating that a player MUST be examined and found disabled by a Plan doctor in order to qualify for benefits.
When Charles Dimry won his disability lawsuit because he was able to demonstrate through form 5500 filings that Plan doctors weren’t really neutral in view of the large sums paid to them by the Plan, they went so far as to start hiding the records of physician payments. The doctor records stayed buried for five years until Advocacy for Fairness in Sports investigated and located them under an unpublished EIN. Dimry is now back in court because the lawyers at Groom Law Group, “strongly disagree with Judge Donato” and having sent Dimry to yet another plan doctor, continue to deny him.
Now the NFL has applied the same principle to the 2020 CBA if it’s adopted by the players. Much of it reflects over a decade of litigation the NFL has faced and now the CBA is encoded with language and provisions that will bar challenges from players in the future.
Oddly this is a departure from other provisions in which the language seems to be left intentionally vague as to invoke the interpretation needed as situations arise.
Assuming this CBA is adopted, here’s a look into the crystal ball.
A Glimpse of the Future
Case Study 1
Players report for OTAs and soon after, an MRSA outbreak occurs with numerous players affected. While most respond to treatment, Maurice, an elite wide receiver who’s beginning his first free agency contract doesn’t and the infection continues to worsen. By the beginning of the regular season, the infection has become so severe that his leg is amputated to save his life, ending his football career. His $20 million unguaranteed contract is voided.
Maurice files a grievance but is told that it’s not timely. He files a worker’s compensation claim that only nets him $150,000. He applies for NFL disability and is denied because the doctors say he can perform sedentary work but he has no training for this. He files a lawsuit in state court but the NFL has it removed to federal court where it’s promptly dismissed. He’s left with nothing to show for his NFL career but a lost limb and a mortgage he can’t pay.
How did this happen?
The NFL’s Liability Defenses are Scattered Throughout the CBA.
The non-injury grievance procedures in Article 43 are the same as in the 2011 CBA, nevertheless, combined with additions elsewhere in the new CBA, the result is a very unfair process in which the NFL holds all the cards leaving players with an empty hand.
Article 43 Section 2
Section 2 of the Non-Injury Grievance procedures require that a grievance is initiated within 50 days of the occurrence or when the player “should have been aware of it.” Maurice, the wide receiver in Case Study 1, who develops an MRSA infection that resulted in amputation misses the 50-day deadline so his grievance is rejected as untimely.
Since he picks up the infection during May OTAs he pursues treatment but as he watches his teammates who were also infected recover, his infection does not improve. He assumes that it’s just taking him a little longer and he’ll also heal in time, after all, the team doctor has never led him to believe his case was that much worse than the others. By mid-August, however, when he’s still unable to participate in preseason practices he starts to wonder if he’s in trouble. He seeks a second opinion and only then learns how severe the infection is. Come September instead of taking the field, he’s looking at surgery that ends in amputation.
The arbitration procedures in Article 43 make it very difficult for a player to file a grievance because of the time limitations that often aren’t sufficient for a player to accurately assess his condition, much less conclude that his career is over. In other words, once a player experiences an infection or another type of injury in which he’s unsure of the outcome or if it will be career-ending, he only has 7 weeks to make that call of whether or not to initiate a grievance.
Ordinarily, a player is more likely to opt for treatment and rehab for a longer period before calling it a career. If he’s unsure of the outcome and files a grievance before he has all the facts, he’ll likely lose and the CBA doesn’t guarantee a lot in the way of discovery and both the NFL and teams are notorious for releasing as little as possible.
If he files a grievance and recovers he risks being viewed as a problem player, potentially adversely impacting his future employment so he’s caught up in a no-win Sophie’s choice scenario.
Unfortunately, Maurice probably wouldn’t fare any better if he filed his grievance by the July deadline even with the same eventual physical outcome. Though players face eight times the risk of acquiring an antibiotic-resistant infection compared to the general population, the CBA undermines all attempts at relief, effectively creating a barrier to the court system while notably absent from Article 43 or elsewhere in the CBA, the kind of settlement he might obtain through a lawsuit in court, although in the past, it was worthwhile to pursue when the grievance process failed to deliver.
The proposed CBA, now instead of erecting a barrier has created a virtual blockade through added language in Article 39.
Article 39 – Section 1(b)
When left without options through Article 43 grievance procedures, our hypothetical player, Maurice filed his case in federal court, but it was dismissed on LMRA §301 preemption. Sections 1(b) and 15 were added to Article 39 of this CBA as the result of the very real player, Lawrence Tynes’ successful lawsuit against the Tampa Bay Buccaneers, brought because of a career-ending MRSA infection. Tynes, by the way, was represented by attorney Brad Sohn, who was first sound-off on this issue within an hour of the CBA’s release.
Because of the muddied waters in adding these provisions in which a court would almost certainly determine to be governed by the CBA, Lawrence Tynes prevailed whereas Maurice will not. Federal courts are not permitted to interpret or interfere with private labor agreements. In the 2011 or prior CBAs no protocols were in place to handle infection—in fact, the word, “infection” didn’t even appear in prior collective bargaining agreements and that is how Lawrence Tynes was able to argue this wasn’t governed by the CBA and successfully sue the Buccaneers for $20 million and secure for himself a very handsome settlement.
One’s day in court is indeed a very large forfeiture to hand the owners while gaining little in return.
In addition to the preemption issue, most players are probably unaware that DICON, the group jointly retained by the NFL and NFLPA does defense based-work for corporate clients like the NFL to defeat players’ claims that arise in litigation. While it’s not a good look for the NFLPA to be working with defense experts, perhaps DeMaurice Smith doesn’t see a problem since he hails from the same background. His background should, however, give him the knowledge to discern that the union’s joint retention of the group makes the union equally liable with the NFL for any flaws in research, protocols, response plans and all other facets of implementation, meaning a player would now need to jointly sue the NFL and NFLPA should he decide to seek accountability.
Could this be why Smith allowed these unfriendly provisions into the CBA without warning players of the consequences?
An important right has been stripped from players in the proposed CBA and the owners will laugh their way to the bank as a player tries to limp through the near-impossible maze of NFL Disability.
Article 60 – Section 6
I wrote about this extensively in the second article of my CBA Series, but the bottom line is this: “Neither the NFL nor the administration of the NFLPA wants you to qualify for disability benefits unless perhaps you’re a quadriplegic who could create a PR nightmare.”
When you apply under the new rules implemented in this CBA, you’ll be forced to get an evaluation from a Plan doctor who is paid very well to find that players are not disabled. He’ll determine that you are able to do sedentary work even though you’ve never had training in that area, just as the hypothetical Maurice.
In the past, players who were denied benefits were eventually approved if they qualified through the Social Security Administration, which is not an easy feat, in and of itself but this is being taken away. I understand it’s being referred to as a loophole by some within NFLPA management, but it’s far from that unless your goal is only to approve a few hand-picked players who could cause PR problems and deny everyone else. If that’s the objective and you have no problem casting disabled players and their families to lives of poverty then I guess you could call it a loophole.
Whatever you choose to call it, acceptance of SSA determinations was adopted by the Plan after congressional hearings in 2007 and the threat of legislation if, in the words of Senator John Kerry, they didn’t “get their act together.”
Article 60 Section 5
There may be folks trying to persuade you that the whole person examinations will take the place of SSA determinations, but if they do, ask yourself, “Why are they spending money for something they’re now getting free of charge?”
Over the past decade the Disability Plan has paid its “neutral” physicians over $42 million to evaluate players on the strictest criteria possible in order to find them not disabled enough.
Read through Section 5 carefully and you’ll see one very important element that’s part of the SSA assessment has been omitted.
404.1566.Work which exists in the national economy.
(a) General. We consider that work exists in the national economy when it exists in significant numbers either in the region where you live or in several other regions of the country. It does not matter whether—
(1) Work exists in the immediate area in which you live;
(2) A specific job vacancy exists for you; or
(3) You would be hired if you applied for work.
(b) How we determine the existence of work. Work exists in the national economy when there is a significant number of jobs (in one or more occupations) having requirements which you are able to meet with your physical or mental abilities and vocational qualifications. Isolated jobs that exist only in very limited numbers in relatively few locations outside of the region where you live are not considered “work which exists in the national economy”. We will not deny you disability benefits on the basis of the existence of these kinds of jobs. If work that you can do does not exist in the national economy, we will determine that you are disabled. However, if work that you can do does exist in the national economy, we will determine that you are not disabled.
Unfortunately, this is something that has never existed in Plan evaluations and doesn’t through this CBA. If they should decide you’re capable of selling pencils on a street corner, you’ll be denied. Many applicants are told that they should be able to “do some kind of work,” without any clues as to what that might be. Acceptance of SSA determinations is a very important benefit and you do not want to lose it. If you do, it will likely take an Act of Congress, quite literally, to bring it back.
If by chance you do manage to beat the odds and qualify, you will not receive what those who qualified under the 2011 CBA were awarded. An Inactive A T & P claim is worth $135,000 per year under the 2011 CBA, but you’ll only receive $48,000 under the one proposed for 2020.
I hope this information is useful to players in making an informed decision on the CBA while casting votes and that the case study helps to visualize how these provisions will impact players during the 10-year term. That’s a long time to live with a mistake, but just as some players have commented regarding 17 games, if they agree to this, the NFL will want 18 games next time. Good luck in convincing the NFL to return the rights detailed here back to players should they ever become ratified. I’ll try to get some additional case studies out looking at other problems the CBA would impose on players. In the meantime, I’ll leave you with a tweet from Eric Reid that confirms what I’ve described along with a reminder to #KnowYourWorth.
I asked my lawyers @meiselasb and @markgeragos to review all 456 pages of the proposed CBA. Attached is their summary. It’s a bigger disaster than we could have imagined pic.twitter.com/sWXJwJw7YA
— Eric Reid (@E_Reid35) March 9, 2020
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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.
