August 16, 2019
Sheilla Dingus
As a result of Judge Brody’s orders restructuring the MAF program, all but eliminating the settlement’s provisions and protections for pre-effective date claims, and narrowing the generally consistent standard to a hair-thin line, the claims administrator has developed new forms that whether or not by design, will lead players into a trap the NFL has long-awaited.
When you look at the forms, keep in mind, they’re asking guys with dementia, who likely don’t remember what they had for breakfast or if they even ate breakfast, to define nearly every life activity they engage in and recall in detail how these activities have changed over the past five years.
Also, recall that the NFL is seeking to permanently disqualify and even in some cases pursue criminal fraud charges against players they determine to have misrepresented their condition in some way. For the entirety of the settlement, the NFL has scoured the internet and social media to find retired players doing something that makes them appear lucid or functional in order to dispute and disqualify their diagnosis. They’ve now upped the ante to having players watched by private investigators after their claims are approved in order to catch them doing something that doesn’t align with activity reported to the doctor or the doctor’s medical assessment.
With the new forms, the claims administrator has provided them a road map for details to dispute. The form begins with employment history, which is fair enough—assuming it’s taken as a general guideline and not a means to nitpick minor details.
Employment
I don’t suffer from dementia but I have a notoriously difficult time remembering dates and will have to admit when filling out a section similar to this on job applications, have guesstimated approximate dates. If players aren’t placed under scrutiny for providing their best recollections even if they’re not quite on the money, then there’s no problem.
But if a player says he worked at XYZ company from January 2016 through June 2016 and it turned out to be July when he left, then the NFL should not be able to use this against a player.
Another issue I see is that some players have businesses for which they are listed as “CEO” or “President” but in reality, they retain their titles largely as a formality and sign of respect while the wife or a child or other party has assumed the actual work.
In one example I’m aware of, the player is still “working” as a youth coach. If asked to fill out this form, he’d likely list typical responsibilities that a coach performs, however, his employer has filed a letter stating that he no longer has the ability to do the job but has been retained in his position because of his past support of the organization as an effort to return the favor.
Another instance where the NFL has tried to use employment data against a player is where they discovered a corporation registered to the player, although no records of financial activity were found. In this instance, the player was scammed by a multi-level marketing company and convinced to incorporate, paying the scammer a large sum of money to use their wealth-building strategies, that resulted in him owning nothing more than a piece of paper. Obviously, since there was never any income, the wealth-building strategies were bogus or he was incapable of putting them to work.
In another instance, a player disclosed to his doctor that he’d recently got a job driving a Uber. Sadly, the job only lasted a couple of weeks because he frequently got lost and was unable to find his riders and/or got lost trying to get them to their destinations.
Omission or discrepancies regarding information such as this is in the NFL’s view, a cardinal sin that should be punished by permanent disqualification from the settlement program and pursuit of criminal fraud charges against the player.
But—it gets worse.
Compare the detailed nature of this request with the prior version of the form and note how these details are designed to trip a player up on a frivolous or insignificant discrepancy.
This header is followed by an extensive list asking players about their participation in various activities starting with driving. (The list has also been re-ordered from its previous version.)
Driving
Driving is probably the single thing used against players more frequently than any other activity. Studies indicate that one-third of all Alzheimer’s patients continue to drive until their conditions become quite advanced, but this doesn’t seem to carry any weight with the NFL. It may be a judgment call as to whether a player should drive or not but the actions of turning an ignition switch and operating the accelerator and brake are primarily actions committed to muscle memory that require little if any cognitive thought, unlike difficulties a player might experience with navigation and reaction time that could impact the safety of his driving but not preclude him from doing so.
Note the details of the information they ask the player to provide:
If used constructively this information would be useful in that most players I’m aware of who do drive tend to stick to short distances in familiar areas, but for every rule, there’s generally an exception to it when it comes to real life. If a player typically stays within his neighborhood and limits his driving to familiar places but deviates from his pattern one time while an NFL investigator is filming or photographing, the player could find his claim in jeopardy, or worse find himself permanently disqualified from participation and possibly find himself looking at criminal fraud charges and potential prison time.
The NFL’s paparazzi-like investigators won’t submit photos showing a player had to go back inside his house three times before he manages to make it past his driveway. It won’t show that he had to go back when he looked down and realized he was still wearing his slippers instead of his sneakers. It won’t show when he went back inside to get the list he forgot, or when he had to go back a third time because he’d left his wallet on the dresser.
And it certainly won’t reflect this experience that was related to me by a player a while back. He went to the store three times one day and bought the same item because he kept forgetting he’d already been to the store and bought it. Instead, the NFL’s photos would indicate that he got behind the wheel and drove three times in a 9-hour period.
Other Machines
This category didn’t exist on the previous form. The instructions say it refers to heavy machinery or boats. What I normally think of as heavy machinery are things like forklifts, bulldozers and backhoes. If a player thinks along the same lines and then uses his lawnmower without specifying that he does, will he be in trouble?
Social Events
This was previously part of a broader category of “social functions.”
The instructions define social events as “Going to or hosting social functions, such as parties, shows, sporting events or other gatherings.”
While this would undoubtedly be useful to a doctor, this section could get players into a hornet’s nest of trouble, in that this is an area the NFL tends to weaponize and frequently uses to discredit claims.
Sporting events are a major item that the NFL focuses and capitalizes on and sometimes even lures players to as an attempt to undermine them later. The NFL seems to feel that impaired players shouldn’t be able to sit in an assigned stadium seat and watch a football game and they appear to take particular issue if a player should interact with any team personnel. I’ve seen dozens of photos of players doing nothing more than talking to someone at a game that the NFL has used to discredit a diagnosis of dementia. The NFL should back off this shameful tactic. Cognitive problems do not generally rob a person of his ability to speak or hear, or even have moments of lucidity. A few wives have informed me that being around a game seems to re-ignite a spark in their husbands that they rarely if ever see at other times. Generally, doctors agree that interactions of this nature are important in slowing down the ravages of dementia and promoting improved mental health. It seems following doctor’s orders and engaging in common sense practices is against the rules.
Let’s say a player used to attend games and hasn’t been to one in a long time so he says on the form that he used to attend but hasn’t in the past five years. If the NFL should find a photo of him attending a game four years ago, they would seek to disqualify him for no other reason than the fact that his memory was inaccurate.
What happens if you have a party at your home? What about a barbeque? The investigators snap some photos of a retired player tossing some meat on a grill. Yes, I’ve actually seen an instance in which the NFL sought to and unfortunately discredited a claim because a man was found to be cooking. Unfortunately, they failed to include photos of the wife adding the seasonings and others checking the meat to make sure it doesn’t burn or get removed from the grill before its done.
Sports
This was also previously part of the broader category. The instructions define this as, “Playing any sort of sport, including golf.” Probably more than any other sport, golf is enjoyed by large numbers of retirees both inside and outside the NFL, and more than a few players have purchased homes in golf communities in order to have convenient access to a golf course. For those who have difficulty driving, living in this setting provides a great opportunity for socializing and exercise. But, apparently, the NFL doesn’t think that players with dementia should be playing golf. I suppose a player might document that his score has gradually exceeded par as his ability to concentrate has decreased, but pray tell how does being on a golf course and hitting or attempting to hit a few balls dispute a diagnosis of dementia? For some wives I’ve spoken with, golf games give the wives a much-needed break from having to constantly monitor and supervise their husbands, as they feel their men are relatively safe in a group and have reported that when they return their husbands often feel “less agitated.” Why should someone with a legitimate diagnosis of Alzheimer’s disease or dementia be robbed of participation in a healthy activity that not only benefits them but also their wives?
What about swimming? While swimming is an Olympic sport, most backyard swimmers don’t really consider their activity to be sports participation. What happens if a player is caught splashing around in the pool in his backyard, but it’s something he neglected to report? Is this an offense worthy of jail time?
Public Speaking
I can see where there could be some gray areas in the public speaking realm, but this should not be concerning unless the player is delivering brilliant and lengthy orations on complex subject matter rather than delivering brief motivational thoughts or recollection from playing-days which is most often the case.
For the majority of dementia patients, long-term memory is sustained well beyond when the person struggles with short-term or recent memories. For retired players, recalling and retelling a certain play or certain game that’s deeply embedded into both the conscious and sub-conscious doesn’t indicate fraud or malicious intent.
Volunteering
This section is defined as, “Volunteering as a coach or in a role in any service organization or charity.” Many retired players began living lives rich with community service when they played in the league. The NFL and its teams urge active players to become engaged in their communities and often they find the act of helping others to be very gratifying and continue their community service during their retirement.
Volunteering takes many forms and encompasses a broad spectrum of skill sets, but the NFL doesn’t think that if a player suffers from dementia he should volunteer for anything. Despite the fact that Pat Summitt, who was arguably one of the greatest coaches in basketball history and certainly one of the most influential figures in women’s basketball, coached for a year after her dementia diagnosis, they don’t believe a football player with an identical diagnosis of early-onset dementia should be able to do this. Of course, we know a diagnosis of dementia doesn’t manifest in a heartbeat but rather, it gradually begins stealing memories and the ability to learn and/or retain new things, as it impedes concentration, etc. It’s difficult to say exactly when Pat Summitt’s onset of dementia began, just as it’s difficult to make that call for retired football players. Eventually, those suffering from dementia begin having enough problems that they or their families express concern and they seek a medical opinion meaning they have already been affected for a time. The NFL settlement offers and encourages participation in its Baseline Assessment Program (BAP) in which players may be diagnosed for the first time.
If you’re familiar with my work over the past couple of years, you’re aware that I’ve been very critical of the BAP protocols because they are more of a rigid legalistic means of assessing a player’s condition as opposed to standard medical practice. If a player qualifies for an award under the BAP, he is unquestionably impaired, yet even when a player has cleared this very high bar, the NFL disputes the diagnosis if the player is listed as coaching anywhere, even if it’s mostly a just show up and be seen role rather than what he was capable of prior to his descent into cognitive decline. The documentary Requiem for a Running Back chronicles former player and Packers coach Lew Carpenter’s descent and how he managed to compensate as his abilities slipped.
Some charities like to recruit former players as a figurehead for their programs. Often players are asked of little more than just showing up at a function and signing autographs because their presence as a recognizable sports figure will help to drive donors to their cause. Even the NFL’s demonic disability plan makes allowances for this and even compensated autograph signings, but cognitively impaired players are given the third degree if they should do the same.
What about volunteering at a local animal shelter as someone who spends time walking and petting dogs? Perhaps he sometimes has to check food and water, or other needs but needs prompting. Is a cognitively impaired person truly able to access whether people are accommodating him and if so, to what degree? I seriously doubt it.
Community Activities
This was previously considered a portion of the social functions category and is now defined as, “Attending or participating in community activities, such as church or government meetings.”
It’s hard to see how anyone could question a player’s desire to attend a community meeting and urge greater safety measures, increased athletic trainers or higher age restrictions for participation in youth football and tell members of his community to protect the youth so that they don’t wind up in his shoes several years into the future, but apparently, even the ability to say, “I’m impaired, please be careful,” is scrutinized. Of course the NFL would like to silence this message so on that note, perhaps it’s to be expected.
But what about church? Churchgoers have been especially targeted, presumably since large numbers of players are men of faith.
If a player honestly responds that he attends church regularly, he’ll find himself questioned because somehow the NFL finds the act of being able to sit on a church pew for an hour inconsistent with a dementia diagnosis.
If a player truthfully says he doesn’t attend church, but after his claim is approved his neighbor invites him to come to his baby’s christening and the NFL’s investigators snap a few photos of him entering and leaving the church they will attempt to discredit his claim because he didn’t disclose an activity he didn’t anticipate.
Shopping
Yes, shopping! On the form, shopping is described as, “Going shopping outside the home for anything.” Uh…some types of shopping, such as grocery shopping and picking up prescription medications is pretty much essential to life unless you have someone who can perform this task for you each time you find yourself in need of something. While it’s true that some grocery stores offer online shopping, it takes more cognitive skill to locate all the items you need online and put them in your electronic cart and proceed through checkout than it does to wander the aisles of a grocery store looking for things you need.
In the driving section, I’ve already related the story of the player who once went to the grocery store three times in the same day for precisely the same item because he kept forgetting he’d already been to the store and purchased it.
Often wives tell me that they send their husbands to the store with a list of three items and they’re lucky if he brings back one of them. Often, I’ve been told, it’s not unusual for a player suffering from dementia to return home with bags full of stuff they don’t need while neglecting to find anything on his wife’s list. Why do they let their husbands shop, then, instead of doing it themselves? I’m told this is a way for their husbands to contribute and feel useful at home. It probably stands to reason that if a wife sends her husband shopping with this in mind, she’s not going to yell at him if he messes up on the list or brings home 10 bags full of junk food.
This brings me to the informant’s form.
The informant’s form is supposed to be filled out by a knowledgeable third party and unlike the sworn statement can be completed by a spouse or other family member.
When a wife fills out a form her description of her husband’s shopping trip is likely to differ from that of her husband. For example:
Hopefully, the claims administrator and other evaluators will view the wife’s version as most accurate and not allow the NFL to use minor discrepancies against them, but sometimes that happens.
Suppose in the driving category the husband says he takes his daughter to soccer practice even though he hasn’t done so in several years as indicated by the wife, but unfortunately, his perception of time is impaired, and he doesn’t realize that he isn’t doing it anymore. To the NFL, this would be viewed as a misrepresentation worth denying the claim, disqualifying the player from participation in the program and eligibility for an award, and perhaps even criminal prosecution for attempted fraud.
Visiting with friends or family
Since the new form has asked for so many additional details and has separated categories that were previously lumped into social functions it seems odd that “Visiting with Friends or Family” was included on the old form but not the new.
Was it an accidental omission? Has the claims administrator decided that the information is no longer relevant? Or has it been omitted in order to trip up unsuspecting players and their informants causing them to leave out information of this nature making it easier for the NFL investigators to catch a player doing something he didn’t report? I don’t know.
Withdrawal from interactions with others is generally associated more closely with depression than dementia. If a player visits his daughter each year or at other intervals, why should this be held against him? Is he not supposed to remember he has a daughter? That degree of memory loss only typically presents in very advanced stages of dementia and Alzheimer’s.
My father suffers from what I’d describe as mild to moderate dementia, but we have meaningful and enjoyable visits. Sometimes his wife drives him to my home and at other times I visit him at his residence. Often I’m saddened upon discovering in the course of our conversations, events that he’s lost all recollection of and sometimes I’m thrilled when something in our conversation seems to revive a memory that he’d almost lost. My father is in his mid-eighties so this is to be expected, I suppose but it’s frightening to know that many former NFL players experience this in their thirties and forties and it’s very common for men in their fifties and sixties. Retired players should not be robbed of the bonds that make life meaningful because the NFL feels they should be capable of little more than staring off in space or drooling in a cup, but often pressing financial needs prohibit a player from the participation in life activities that he is capable of because he and his wife understand that just about anything the player might do will likely be held against them when submitting their claim.
NFL: “Want our money? Forfeit your life.”
Essentially this is what the NFL is telling the men who built the league. The skills and activities players are asked to elaborate on aren’t all or nothing. Dementia doesn’t occur suddenly like a broken bone, where one minute you’re fine and the next you have a fractured arm, but that seems to be the way the NFL looks at things to a large degree.
For Level 2 Neurocognitive Impairment, the settlement requires that there is no pretense of independent function outside the home whereas the neurological assessment may indicate severe impairment in areas of learning and memory, but this is largely invisible to the onlooker. Doctors are trained to ask the right questions and make determinations based on years of practical experience but often they are accused of fraud or quackery if they proceed with their best medical judgment.
Level 1.5 Neurocognitive impairment looks less demanding on paper but in reality, the NFL often tries to force the issue, attempting to push the higher bar for a lower diagnosis. On the flip-side, I’ve known players who drive, play golf, and travel with family to be approved whereas the same activities are held against other players with the same diagnosis.
Is it a racial bias? Many African American players and their families think so but there is no demographic data available to evaluate to confirm or deny the hypothesis. Both players of color and white players have been approved and have been denied, but there’s no demographic of this to examine to see if white players are approved in greater ratios than black players.
Is there an arbitrary judgment in play in which the NFL feels that certain players will cause them more trouble if denied, either because they are considered more “high profile” than others, or perhaps have been identified as “noisy” and “likely to cause trouble” or go to the press. Again, there’s no real data to confirm or deny, but as someone who’s had access to numerous claim files of players represented by various firms and also some pro se’s, it’s extremely difficult to make an accurate evaluation as to who should qualify and who shouldn’t. Why are certain activities allowable in some instances and not others?
I asked Claims Administrator Orran Brown to more clearly define who does and who doesn’t qualify for a claim when I attended a hearing in May. He told me he “goes by the book,” and when I asked for greater elaboration in layperson’s terms, he opened the book and pointed to the CDR scale.
Once again. We’re back at the beginning with no greater clarity than before.
Meanwhile, the NFL continues to up its game seeking more and more ways to trap players into appearing unimpaired and/or dishonest.
As noted in Lead Counsel Christopher Seeger’s brief arguing against the punitive measures the NFL seeks to impose on players found to in their view have misrepresented some aspect of their claim, this is merely the nature of the disease. Each of the players caught up in the NFL’s objection seeking to not only deny players but severely punish them were examined and found to be cognitively impaired in line with settlement protocols. Not even generally consistent with BAP requirements but textbook. The NFL doesn’t dispute the diagnosis. How can they? Every testing requirement was met. Unlike with many other claims, they haven’t even attempted to blame the player’s impairment on factors like substance abuse, medications, or sleep disorders.
Pure and simple, they’ve played on the fragilities of the players’ impairment to find discrepancies in the player’s report or his wife’s or their investigator managed to take an isolated photo or a brief isolated video showing apparent functioning while omitting the struggles experienced the other 1,400 minutes of their day.
Somehow the NFL must be stopped, but I’m not sure who’s capable at this point since the judge’s prior decisions seem to be completely in alignment with the league. In the past, Seeger has appeared willing to compromise in many instances. I hope for this scenario and the grave consequences it presents, that his resolve to fight is as strong as his brief.
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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.
