June 8, 2019
Sheilla Dingus
The NFL is inconsistent in many ways—player discipline, domestic violence, concussion protocols, and even enforcement of their on-field rules. Has anyone figured out what a catch is yet? The one area in which the NFL is the epitome of consistency is how they battle former players who seek to collect for disabilities resulting from their NFL careers. In both, the CBA bargained disability plan and the concussion settlement, damaged players face an uphill battle to find recompense. “Delay, deny, and hope they die,” should be engraved on the cornerstone of every tax-payer subsidized NFL stadium.
Such is the story of Andre Royal, as documented in a recently filed lawsuit against the NFL, the NFLPA and the Bert Bell/Pete Rozelle Retirement Plan. Royal began his career in 1995 when he was drafted by the Carolina Panthers, with whom he remained as a linebacker for three seasons. He then signed with the New Orleans Saints and was traded to the Indianapolis Colts just prior to the first game of his 4-year contract. On May 11, 2000, he officially retired from the NFL, after only five seasons due to violent seizures and other brain damage exacted by his playing career.
Because of his cognitive impairment, Royal didn’t understand the various levels of disability covered under the collectively bargained plan and inadvertently applied at the wrong level, receiving no guidance from the union that purportedly represents the interest of players. Documents he needed were withheld and he was confused by the documents he was provided that discouraged hiring an attorney. As a result, he tried to pursue his case on his own. When he realized that he had been misclassified, he applied to the board to be reclassified at the higher level but was bombarded with legal jargon, stonewalled on documents, and denied. Per the lawsuit:
“A man suffering from a debilitating brain conditions manifesting in severe grand mal seizures, was taken advantage of by the defendants and not provided the very important and relevant information needed to apply for disability benefits to ensure that the disabilities he received while being an active NFL player were compensated for.”
Sadly, Andre Royal has joined a very long line of players who have been callously deceived, manipulated and denied benefits earned through their vested careers. Through his attorneys, Robert Hilliard and Ben Crump, the narrative begins to unfold.
The National Football League (“NFL”) is the single largest entertainment property in the United States making over fourteen billion dollars in the year 2018 by grabbing the weekly attention of tens of millions of viewers throughout the world. Millions of spectators tune in or show up to watch NFL professional athletes compete at the highest level and in one of the most physically demanding sports that has ever existed on this planet. These gladiators playing the game of football are shown to know no fear and feel no pain. Sadly, as recent years have shown, this could not be further from the truth. Every impact to the brain is dangerous. Both concussive and subconcussive events cause permanent brain damage. During practice and games, an NFL player can sustain close to one thousand or more hits to the head in one season without any documented incapacitating concussion. Such repeated blows result in permanently-impaired brain function.
In 2012, the world watched as more than eighty former NFL players’ lawsuits against the NFL for concussion-related symptoms and injuries were merged into the first multidistrict litigation against the NFL. The “NFL Concussion Litigation” was brought on behalf of more than two thousand former NFL players, surrounding the concussion phenomenon the had inundated the NFL and former football players for decades.
The lawsuit goes on to explain that the NFL settled with the retired players in 2015, agreeing to an uncapped settlement of which the NFL has already paid out over $650 million but further elaborates:
Unfortunately, for most former NFL players experiencing medical conditions associated with repeated head trauma, not all head injuries are treated equally. The settlement agreement between the NFL and the former football players only covered six “Qualifying Diagnos[es]”, thus covering only a few different situations in which players developed, or may develop, an enumerated qualifying neurocognitive condition.2 Those conditions are: (1) Level 1.5 Neurocognitive Impairment (as defined by the settlement terms), (2) Level 3 [sic -this should be “Level 2”] Neurocognitive Impairment (as defined by the settlement terms), (3) Alzheimer’s Disease, (4) Death with documented Chronic Traumatic Encephalopathy (“CTE”) prior to April 22, 2015, (5) Parkinson’s Disease, and (6) Amyotrophic Lateral Sclerosis (ALS).
As I’ve written numerous times, what is referenced here as “as defined by settlement terms” is a narrow legal standard that is not representative of typical medical practice and as such, is designed to eliminate as many players as possible from qualifying for a monetary award. The fact that over $650 million in claims has been approved pending appeal and over $500 million has been paid out signifies the level of damage retired players’ brains have sustained—especially when you look even closer and see that many who have strong clinical diagnoses supporting debilitating brain injury have been denied because they don’t fall into the narrow settlement definitions.
Many of these veteran players, before or after finding out their serious medical conditions were not covered in the NFL Concussion Litigation, turned to the Bert Bell/Pete Rozelle NFL Player Retirement Plan (hereinafter referred to as the “Plan”) to see if their injuries qualified them for disability benefits under the Plan.
Sadly, more often than not, the Plan has been adversarial to retired players, likely in part because benefits come off the salary cap and the NFLPA is more interested in boosting cap numbers than in compensating the game’s casualties. The complaint explains how for over twenty years, the NFL and the Plan have faced numerous lawsuits for wrongful denials and miscategorizing of disability levels to undercut the compensation that former NFL players should receive for the total and permanent disabilities sustained during their professional careers. As detailed in the lawsuit, Mike Webster could be a poster child for the NFL’s scorched earth campaign against the men who built the league.
This six foot one, two hundred and fifty-five pound man, four time Super Bowl champion, and hall of fame inductee, died at the early age of fifty due to a heart attack. Iron Mike was plagued with cognitive ailments stemming from his fifteen season campaign. Iron Mike, still to this day, is considered to be one of the best NFL players of all time, but his last few years were tormented by amnesia, dementia, depression, and acute bone and muscle pain.
After Iron Mike’s death, it was discovered that he suffered from CTE – making him the first former NFL player to be diagnosed with CTE. Iron Mike’s estate brought the lawsuit against the Plan, alleging that the Plan owed Iron Mike’s estate $1,142,000.00 in disability benefits. Mike Webster had applied for disability benefits under the Plan, however, was denied the highest level of benefits available to former NFL athletes. The Retirement Board of the Plan issued its final decision in 2003 with respect to Mike Webster’s multiple appeals seeking reclassification into the highest disability category. The Board’s final decision denied Mike Webster’s last appeal and just after Iron Mike’s death, his estate filed an ERISA complaint against the Plan.
In 2006, the Court of Appeals for the Fourth Circuit affirmed Mike Webster’s estate’s judgment against the Plan, ruling that Mike Webster’s estate was entitled to all of the back benefits under the Plan and the highest level of disability benefits the Plan allows for… The Court further ruled that Iron Mike’s estate could collect benefits from the date when his disability first arose, the date the disability was found, and that his total and permanent disability arose when he was an active football player in the NFL.
It shouldn’t be this hard. Players shouldn’t have to die to prove they’re impaired—of course, that’s why one of the most common phrases in the retired NFL community is “Delay, deny, and hope we die,” – a phrase made famous by retired Vikings player Brent Boyd, when he testified about the disability plan’s war against retirees in front of Congress.
Andre Royal’s attorneys see similarities in their client’s experiences to those of Mike Webster.
Royal qualified for total and permanent disability benefits under the Plan, however the Plan incorrectly classified Andre Royal’s condition as “Football Degenerative”, a category that he was not supposed to be in, and continued to deny his appeals seeking to place him into the highest category for disability benefits under the Plan. The retirement board of the Plan intentionally and fraudulently concealed the Plan and summary plan description from Andre Royal. Andre Royal never had a copy of the Plan when he originally applied for his disability benefits in 2001, and even after repeated requests for the Plan, he was never provided the correct Plan the Board based their final denial off of. Plaintiff also suffers from debilitating injuries stemming from the brain damage he sustained while being an active playing in the NFL. Royal, at the time of filing his initial application for benefits, and now, could not and did not understand there was a different level of disability benefits he absolutely qualified for – Active Football Total and Permanent Disability.
As a linebacker, Royal experienced thousands of concussive and sub-concussive hits and in the third year of his career began experiencing major neurocognitive issues.
Just three years into his professional career, and the first year in his four year contract with the Saints, Royal began suffering from seizures, severe headaches, migraines, confusion, loss of awareness, incontinence, inability to concentrate, memory loss, insomnia, mood swings, several bitten tongues from seizures, emotional outburst, dizziness, waking up in different rooms from seizure and being unaware of what happened, nightmares, whole body shaking, difficulty finding words and loss of balance; all of which were reported to medical personnel and team doctors. The problems worsened over the next two years while Andre Royal played for the Indianapolis Colts. The problems got so bad, Royal was forced into retirement two years into his four year contract, ending his professional career in the year 2000. Royal continued all of those devastating conditions through his retirement and to this very day.
Though he first applied for benefits in 2001, less than a year after his retirement, under the 2009 collectively bargained plan, he has yet to receive a copy of the Plan document.
At the time of the October 18, 2001 meeting, the Retirement Board knew or should have known as fiduciaries of the Plan that: (1) Royal still had not received a copy of the relevant 1995 Plan; (2) Royal received his T&P disability while he was an active football player – since it forced him to retire from the NFL; (3) Royal was determined to be totally and permanently disabled by several doctors – some who were retained by the Retirement Board; and (4) Royal should have qualified for Active Football T&P Disability category under § 5(a) of the Plan because he received his total and permanent disability while being an active player in the NFL.
Sadly, this type of conduct seems to be standard operating procedure. As with active player Lane Johnson’s lawsuit, over two years into litigation in federal courts, he claims he still hasn’t been provided documents relevant to his defense. It’s especially sad when a player’s disability is used against him but it seems to be the way the Plan operates. Consider the case of Darryl Ashmore, who due to orthopedic limitations can’t fly or drive, and can only handle brief automobile travel. The Plan sought to send him on a 1,800-mile trek for examinations by Plan doctors and when he tried to make alternate arrangements denied his claim without review of the voluminous medical records he’d already submitted.
Andre Royal’s 34-page lawsuit chronicles in detail his nightmarish journey and cruel stonewalling by the fiduciaries that he trusted to help him. As in numerous other cases, the NFL, NFLPA, along with the Plan and its board members relied on legal jargon that would be unclear to almost any non-attorney and certainly a person suffering from neurocognitive impairment to deny him the higher level of benefits he clearly qualified for. Perhaps now that Royal has competent representation and is now in the federal court system he will at long, last after 18 long years, see the justice he deserves.
Note: All quotations not otherwise attributed are taken directly from the lawsuit, which is embedded in its entirety below:
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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.
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.
