January 29, 2020 (Updated January 31)
Sometimes what you see tells a story. Sometimes what you don’t see tells an even bigger one. Both statements are true when it comes to the NFL’s Bert Bell-Pete Rozelle Retirement/Disability Plan.
Players have a very difficult task in qualifying for disability benefits, especially if their injuries are related to their careers, and the most difficult level of all to qualify for is “Active Football,” which means the player became disabled within six months of the end of his career. Often players leave the game injured and think they’ll get better. Often they try to rehab for more than six months before they give up and decide to apply for disability, but should they wait six months and a day after their last game, they’ll be forever locked into a lower benefit tier without extensive litigation and often even when they litigate.
Recently Delvin Williams’s case was dismissed. He’s been trying for 18 years to explain that he was disabled when he retired but didn’t realize it was permanent at the time. The same holds true for Andre Royal and Chris Hudson. Andre Royal voluntarily dismissed his case when he was for all practical purposes bullied into doing so after a negative ruling from a magistrate judge in Chris Hudson’s case. The NFL is now trying to recover attorney fees (the NFL’s fees for the high priced firm, Akin Gump), and if the judge rules in their favor, Royal will be left worse off than before. The plan will likely freeze the lower tier benefit he was receiving to repay the enormous legal costs. Meanwhile, Hudson struggles before the district court judge to obtain a favorable ruling after the magistrate recommended dismissal, and another player, Tyrone Keys, is fighting to regain his lost benefits when the NFL decided his disablement was caused by a fender bender instead of his NFL career. Never mind that he was already disabled in 2002 when he had the accident.
With all the difficulties players face in obtaining their benefits—a problem reaching back for decades—think Mike Webster and his unsuccessful struggle prior to his premature death that might have been prevented—or Brent Boyd, who coined the often-repeated phrase, “Delay, deny, and hope we die.” It often, unfortunately, appears that Boyd was right.
Whenever a player does prevail in court as Charles Dimry did it seems cause for celebration, but sometimes even that celebration may be premature. Dimry applied for LOD disability in 2014, having been disabled at the time of his retirement. Instead of accepting his ample medical records, the plan denied him and sent him to a series of “neutral” plan doctors with the apparent intent obtaining a finding of “not disabled,” which they succeeded in doing. In his appeal, he claimed the doctors weren’t really “neutral” because they make considerable money to do the Plan’s bidding in eliminating valid claims. That brings us to the crux of this story—the NFL’s “neutral” Plan doctors.
As I stated, Charles Dimry, in his 2014 appeal, pointed to the fact that Dr. Steven Meir had received over $ 188,000 in compensation from the NFL Plan, and this influenced his examination and caused him to render the unfavorable determination, despite the fact that every doctor he’d seen, aside from Meier, including Social Security Disability’s doctors had found him to be disabled, leading a federal judge to rule in his favor in 2018.
As a plan governed by ERISA, the NFL retirement and disability plan is required by both the Internal Revenue Service (IRS) and Department of Labor (DOL) to file a Form 5500 each year, disclosing among other things every party the Plan has paid in excess of $5,000 over the past year. This is how Dimry was able to learn of Meiers’ compensation, as the forms for the past ten years are on file at DOL and are publicly searchable. Each of these forms is embedded and downloadable at the end of this article.
From 2009, the earliest form on file, through 2014, the year when Dimry applied for benefits, there are pages and pages of records of payments to various doctors used by the Plan. Some of the doctors make enough that they wouldn’t even have to practice medicine outside their work for the Plan.
Top Paid NFL Disability Plan Neutral Physicians
|ALL FLORIDA ORTHOPAEDICS||$238,347||$256,678||$299,285||$270,526||$280,915||$199,530||1,545,281|
|DAVID APPLE, MD||$196,492||$173,413||$254,503||$223,461||$296,986||$228,266||1,373,121|
|GREGORY MACK, MD||$54,603||$97,440||$110,148||$96,273||$107,890||$70,539||536,893|
|SAN DIEGO SPORTS MEDICINE||$30,992||$76,480||$134,316||$108,089||$112,600||$70,580||533,057|
|REHABILITATION INSTITUTE OF CHICAGO||$40,774||$59,355||$156,896||$208,288||$22,195||⚫⚫⚫||487,508|
|ORTHOPAEDIC ASSOCIATES OF CHICAGO||⚫⚫⚫||$61,261||$123,200||$78,752||$89,754||$113,945||466,912|
|TERRY THOMPSON, MD||$39,088||$30,000||$80,000||$100,461||$150,500||$66,000||466,049|
|STEPHEN S. HAAS, MD||$142,156||$141,351||$178,525||⚫⚫⚫||⚫⚫⚫||⚫⚫⚫||462,032|
|CAROLINA HEADACHE INSTITUTE||⚫⚫⚫||⚫⚫⚫||$125,000||$134,000||$101,000||$89,500||449,500|
As you can see from the table Dr. Steven Meier, who examined Charles Dimry didn’t even make the Top 10, but he seems well on his way to the top of the list considering he didn’t join the Plan until 2012, making over $78,000 that year and $188,683 in 2013, as noted in Dimry’s complaint.
As you can see, the Plan typically spends between 3 and 4 million dollars per year to compensate the doctors who do their bidding. In addition, Groom Law Group is utilized to both make recommendations to the NFL/NFLPA DICC Board and Trustees regarding a player’s claim, at which point after he’s denied and goes to federal court, Groom will make even more money litigating against the player. Over 5,000 pages of discovery became public during Tyrone Keys’ lawsuit, and the batch of documents included a recommendation from Groom to deny Keys’ quest to receive proper compensation.
But, while those pages became public, the Plan seeks to hide as much as possible from view. Minutes from Board Meetings in which Keys’ claim was discussed were included in the discovery load, however, the minutes were very heavily redacted only showing what we must presume was the full discussion on Keys. I say, presume because there aren’t any checks and balances – Groom is also in charge of the minutes and approving what will and won’t be redacted when they must be produced.
Perhaps you’re wondering why I used data from 2009-2014 when I noted earlier that I’d obtained data through 2018, the Plan’s most recent filing. Well, that’s because doctors have been omitted from all Form 5500 filings since 2015, the year Charles Dimry cited physician pay in his appeal. A few doctors did show up on the 2015 form, to be completely accurate—5 to be exact, showing payments of $40,500. By 2016 only one doctor who was paid $13,000 made it to Form 5500, and in 2017 and 2018 there’s not a doctor to be found anywhere.
So what did they do? We know that they haven’t slowed down in using Plan doctors, and we know the doctors aren’t working for free. We also know that ERISA controlled plans are required to report all expenditures over $5,000. So, how are they hiding the doctors?
That question led me to do an audit of the Form 5500 documents, and the spreadsheet breaking everything down is also available at the bottom of the article. I thought that perhaps something in the other data would give me a clue. I thought perhaps they were using a vendor to pay the doctors instead of doing so directly as to avoid reporting. That may be possible, but I didn’t see anything obvious from the documents.
Money spent on investing stayed pretty consistent between 2014 and 2015, There was an increase of a little over $2 million on information technology and a $354,000 increase in communications expenditures, but aside from that, nothing interesting, and since the money was divided among multiple vendors, my initial theory is pretty much shot.
I’ve been told that retirement and disability are now handled separately, and this also occurred around 2015. Since Form 5500 documents are searchable by the Plan name or EIN, and since the “Retirement Plan” documents, (it’s always been called the Retirement Plan which encompassed disability), 401K Plan documents and Players’ Trust documents can be pulled from the same EIN, it makes me wonder if they incorporated under a separate EIN and not so obvious name to conceal the payouts to disability doctors.
It’s also possible someone’s cooking the books, or they simply aren’t complying with the law, but I find these possibilities more remote than a covert filing that the public and players are unable to locate. In addition to the question, “Where are the doctors?” another relevant question would be, “Whose decision placed them in hiding?” Was it the NFL, or perhaps the NFLPA. Or did Groom decide to do so with no apparent oversight or objection?
They apparently don’t want players and the public to know who’s doing the work, since starting in 2015, instead of referencing employees by their names, they’re now an employee number.
The data doesn’t reveal much else of interest aside from the fact that someone within the plan has a penchant for decorating. Over the last decade, the Plan Office has spent $526,052 on office furniture and equipment for an office that consists of, on average, 16 people and it’s likely the preferred staff size is 13 or 14 people since it was apparent that there was a high turnover of employee for some years, with annual payrolls averaging about $1.34 million, and salaries averaging $83,928.44.
While it’s right that they should pay their staff a living wage, it seems horribly ironic that they seem to have money for everything but disabled players.
Remember Charles Dimry, the player who brought up the doctor salaries? He’s back in court. After a scolding from the judge in deferring to the Plan doctors and finding their decision “arbitrary” the Plan didn’t follow Judge Donato’s mandate to weigh the personal medical evidence and Social Security determination, but instead sent him to another Plan doctor and confirmed their own original denial. In their brief, they stated that they “disagree” with Judge Donato.
Since CBA negotiations are taking place with next year being a CBA year for the NFL, it’s my hope that someone will get a handle on the problem and force some positive change.
UPDATE January 31, 2020:
Since publishing, we’ve learned that Disability is filing under a separate and different EIN. We’ve also learned that Dr. Stephen Haas (shown on the 9th position of the doctor chart) was the Plan’s Medical Director at the time, though his pay was shown in the same manner as the “Neutral Physicians.” On information and belief, Dr. Haas resigned because the NFL and NFLPA were resistant to his proposals to improve disability procedures that would provide transparent and reproducible results. This information explains why his pay drops off abruptly after three years.
Unfortunately, we’ve also learned that a new Medical Director was jointly appointed in May 2019 by the NFL and NFLPA. Dr. Aakash Shah, of Kansas City Sports Medicine, replaced the prior Medical Director, Allan Jackson. I find his appointment curious in that he is one of the shortest tenured orthopaedists on the panel. Aside from that, NFLPA’s approval of Dr. Shah seems problematic in that I’m unaware of any positive outcomes from his evaluations. In his position as Medical Director, his vote is the tie-breaker if the NFL and NFLPA appointed Disability Committee are deadlocked regarding an initial disability decision including brain injury cases. I find it troubling that an orthopedist would be making decisions outside his area of specialization reminiscent of the NFL’s Dr. Elliott Pellman, the rheumatologist who headed the bogus research for the NFL’s Mild Traumatic Brain Injury Committee for a number of years.
Dr. Shah also serves as a MAP orthopedist used on appeals. Though he doesn’t directly examine brain-injured players, with valuations still done by a MAP neurologist (Dr. Silvana Riggio) and MAP neuropsychologist (Dr. William Garmoe), those doctors are under Shah’s supervision and the MAP decision is considered final and binding.
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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.