February 14, 2023
The following was initially published as a newsletter.
Dear Retired NFL Players, Wives, and Advocates
NFL Disability has been in the news quite a bit over the last week or so, and I’ve had a lot of questions come my way which I’ll try to address here.
The questions at the top of everyone’s list relate to a new disability class action lawsuit filed by Chris Seeger and a few other firms. Here’s some background you should be aware of before delving into the lawsuit itself since much of it is based on another lawsuit filed by Michael Cloud. Michael’s counsel was extremely effective and was able to obtain some valuable discovery—which is unusual in an ERISA case. As you might guess the discovery was very damning, leading to a ruling in favor of Cloud, awarding him Active A Disability benefits. He had previously been receiving Inactive A. Judge Karen Gren Scholer, began her opinion with:
|“The curtain has been pulled back as to the inner workings of Defendant The Bert Bell/ Pete Rozelle NFL Player Retirement Plan. And what lies behind it is far from pretty with respect to how it handles disability benefit claims sought by former players, such as Michael Cloud.“|
One of the revelations produced in the Cloud case includes undefined terms that are inconsistently applied on a case-by-case basis:
|“Testimony from Board members confirms that the Board has never adhered to a defined or uniform interpretation of “changed circumstances.” Rather, the lack of any uniform definition of the term has allowed the Plan to modify its meaning on an ad hoc basis. For example, one Board member testified that the Plan’s lawyers came up with the definition of “changed circumstances.” Another Board member testified that ‘changed circumstances’ ‘has no set definition’ and that the meaning of the term is ‘evolving.’ He also testified that the Board ‘can make reasonable inferences as to what ‘changed circumstances’ mean in a particular case.'””|
Other disturbing revelations include how the Disability Initial Claims Committee and Trustees do not typically personally review the information and medical records submitted by a player, and instead delegate the review to advisors including Belinda Lerner, Bethany Marshall, and Groom Law Group. When a case is submitted Groom creates a case summary, and it is unclear if anyone goes beyond that case summary when reviewing claims. Claims are decided by the advisors prior to the Board meeting in which votes are cast. Advisors for the NFL and NFLPA Trustees conduct separate pre-meeting meetings in which Board Members learn about the cases for the first time as their advisors let them know how they should vote. Instead of an individual review, blocks of cases are lumped together for the pre-meeting discussion and voting in the official meeting.
If you’re interested in what goes on behind the scenes regarding how disability claims are handled, I’d strongly recommend reading Judge Scholer’s entire opinion.
The NFL Plan appealed Cloud’s win, and not only are the stakes high for Michael Cloud, but all retired players who may challenge a disability determination in federal court—or any disabled person from any walk of life, for that matter. The Plan insists that discovery was improper and that Judge Scholer overstepped her bounds. You can read their appeal to the Fifth Circuit here.
|Because of the importance of this case for ALL ERISA cases going forward, I’m proud to say that Advocacy for Fairness in Sports submitted an amicus, or rather, an amici brief, joined by law professor Roger Baron. Huge thanks to our attorney, Luke Schamel, whose hard work and diligence helped us to create and submit what I feel is a very strong and effective brief. You can read it here.
The Class Action Lawsuit:
On the same day we filed our amicus brief, ten disabled retired NFL Players filed a proposed class action lawsuit, represented by Chris Seeger, whom you are probably familiar with through the Concussion Settlement. Aside from the experiences of the ten plaintiffs, most of the complaint is based on infractions exposed by the Cloud lawsuit, underscoring its importance and the necessity of obtaining meaningful discovery.
Most of the complaint focuses on the bias of the Plan doctors, presented as “neutral physicians” and delves into the large sums of money these doctors receive and how it appears to influence them to keep the Plan happy by finding players “not disabled.” The statistics presented indicate that the more a doctor is paid, the less likely he or she is to find players disabled, despite unanimous findings elsewhere.
The primary areas of relief sought in the proposed class action include:
- Monetary relief sufficient to place Plaintiffs in the same position in which they would have been in if Defendants had granted and paid them the full amount of benefits that they deserved, in accordance with the plain terms of the Plan;
- Injunctive relief prohibiting Defendants from terminating or reducing Plaintiffs’ and Class members’ benefits until the end of the maximum benefit period, or such other declaration the Court deems proper;
- Injunctive relief prohibiting Defendants from acting inconsistently with the plain terms of the Plan;
- A judgment reinstating benefits to Plaintiffs and Class members with respect to whom the Plan terminated benefits previously granted and where significant procedural deficiencies occurred;
- Injunctive and equitable relief, prohibiting Defendants’ use of certain doctors;
- An injunction stripping the Board of its discretion as to presently pending and future claims for benefits by reason of its failure to exercise that discretion fairly and competently;
- Removal and replacement of current members of the Board and Committee.
Does it Prevent the Upcoming Benefit Reductions from the 2020 CBA?
I am optimistic that the existence of both lawsuits will be beneficial in gathering media attention which is often the factor that influences the league most. Well, outside of Congressional scrutiny, that is. But it was because of media coverage and pressure that Congress held the 2007 disability hearings and it is not out of the question for them to intervene again.
Advocacy for Fairness in Sports has focused most of its attention over the last several months on disability. In addition to filing the amicus brief in support of Cloud, we have been aware of the yet-to-be-filed class action for some time. In addition to that Advocacy for Fairness in Sports is preparing a dossier that we hope will further complicate and hinder the Plan’s reprehensible actions.
The work we do involves substantial expense, and we depend on your support to continue our work. We have no salaried employees and 100% of your contributions are used to pay for the tools we need in order to do our work. I feel we are getting closer to achieving some goals regarding disability. Please consider contributing what you can to keep this work moving forward. And I almost forgot—Happy Valentine’s Day!
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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.