by Sheilla Dingus
December 9, 2016
“Football is family.” That’s the warm, fuzzy sentiment the NFL broadcasts time and again every Sunday (and Monday and Thursday) to all who will listen. The harsh truth of the matter is “football is family” as long as you’re generating revenue for the league.
Jesse Solomon played nine years in the NFL. During his career as a linebacker for the Vikings, Cowboys, Buccaneers, Falcons, and Dolphins it is estimated that he experienced at least 69,000 full-speed contact hits. His dozens of orthopedic injuries which required multiple surgeries eventually ended his NFL career in 1995 when a particularly severe hit ripped his quadriceps tendon off his kneecap. All those violent hits also resulted in multiple concussions. But in those days we didn’t talk much about concussions and players just tried to “shake it off” and stay on the field, sometimes at the prodding of coaches and trainers as is customary in the league.
After leaving the NFL, Solomon returned to school and received his Masters Degree and coaching certificate from Florida A & M University. He began a second career as a high school teacher and football coach, but sadly, this wouldn’t last. The years and injuries quickly took their toll on Jesse Solomon as he progressively slid down hill both physically and mentally. He experienced severe pain spanning his neck all the way down to his feet, attributed to a diagnosis of spinal stenosis and lumbar disk herniations. In addition to this, he suffered residual pain from knee, ankle, and shoulder injuries. He also began to experience intense headaches on a near daily basis as well as bouts of dizziness and blurred vision. As he tried to cope with these frightening and degenerative changes, he found himself grappling with anxiety and major depression. He also struggled with an inability to concentrate and remember things. He found himself becoming easily distracted and easily angered.
An MRI done in 2005 – only 10 years after leaving the NFL – revealed multiple white matter changes in Solomon’s brain which are consistent with the result of repeated high velocity impacts in a helmet to helmet fashion and chronic concussion syndrome. As he tried to cope with the changes overtaking him, he became prone to outbursts which led to a forced resignation from his teaching and coaching job in 2007.
First Disability Application
Without the benefit of counsel (I guess he still believed the “football is family” pitch) he applied for Total and Permanent Disability (TPD) benefits with the Bert Bell/Pete Rozelle Player Retirement Plan on March 11, 2009. At the time, he based his claim on the physical, aspects of his disability, citing evidence of the orthopedic injuries, to his neck, shoulders, elbows, hands, lower back, hips, knees, ankles and feet. As is customary, Solomon was sent to a Plan doctor to verify his claims. The doctor verified the degree of physical injury but submitted the opinion that Solomon should be able to do some type of “light sedentary” work. This opinion was a stark contrast to a number of other physicians who had been treating Solomon, one of whom had been his doctor since 2004. His orthopedist stated verbatim that he was “not able to perform even sedentary type[s] of work” and “[t]his makes Mr. Solomon completely disabled from any type of employment.” An occupational therapist who conducted a full functional abilities evaluation and submitted a 28-page assessment concluded:
[I]t is questionable whether Mr. Solomon is able to safely and dependably return to work under even the SEDENTARY category of work . . . . Mr. Solomon is limited by pain, muscle fatigue, poorROM/endurance and instability in multiple joints. With this level of performance, Mr. Solomon’s productivity level for work is poor without significant restrictions and breaks throughout a typical workday. . . . Due to consistently demonstrated performance categorized below sedentary level of physical demand, Mr. Solomon does not appear to be appropriate for returning to competitive employment.
The Plan denied Solomon’s application on May 18, 2009. The sole basis was that the Plan doctor “indicated that you are employable.” So much for the “football is family” theory.
Second Disability Application
Still following the rules, and trying to navigate the legal complexities of the fine print on his own, he didn’t file a lawsuit, but instead waited the mandated year before re-filing his claim because of the “successive applications” clause in the benefit plan. This provision dictates that players wait a minimum of 12 months before resubmitting should their claim be denied.
On December 12, 2010 he filed his second application. This time, in addition to his orthopedic injuries, he cited evidence of his cognitive and neurological damage as well, basing his claim on cognitive impairment. While his first application was not based on his brain injuries, evidence of brain injury was included with his first application medical file, including the MRI from 2005. In his second application extensive evidence, both psychiatric and medical, demonstrating traumatic brain injury was submitted. One specialist, who had perfomed eleven different tests concluded that his “symptomatology is consistent with severe postconcussive syndrome, and possible chronic traumatic encephalopathy (CTE), a degenerative brain disease caused by head trauma.”
Once again, Solomon was required to undergo examination by a Plan doctor, this time a neurologist. Dr. DiDio, credited and agreed with each of the earlier evaluations. He found that Solomon suffered from “severe cognitive impairment, depression, anxiety, and near-daily migraine headaches” caused by “innumerable” on-the-field collisions and “many Grade 1 and Grade 2 cerebral concussions” resulting in “severe post-concussion/post-traumatic syndrome.” He went on to “agree” that Solomon “probably is demonstrating features of chronic traumatic encephalopathy. Thus the Plan’s own neurologist found that Jesse Solomon was totally and permanently disabled.
When a former player submits a request for disability benefits to the Plan, the claim is first decided by a two-person Disability Initial Claims Committee (DICC). A claim is granted only if both DICC members agree to approve the claim; if they deadlock – the claim is denied. In a letter of denial dated March 9, 2011, Solomon was informed that one member of the DICC had approved his request but the other member found “insufficient evidence to support a finding of total and permanent disability.” No explanation was offered as to why the undisputed medical opinions were “insufficient.” Nonetheless, unless approval is unanimously agreed, the claim is denied.
Solomon filed an appeal to the Disability Board on April 27, 2011. Appeals are reviewed when the six member panel meets quarterly. Any action by the Board concerning disability benefits requires an affirmative vote by four of the six members. Three of those members are appointed by the NFL’s team owners; the other three are appointed by the NFLPA.
Social Security Disability Determination
During the time it was taking for the Players Disability process to play out, Solomon filed for disability with the Social Security Administration. When his case was reviewed on June 16, 2011 by an SSA Administrative Law Judge, a “fully favorable” decision was rendered, dating his complete disability retroactively to October 29, 2008.
Plainly the SSA determined not only that Solomon was disabled as of the date of its decision in June 2011, and the date of his Plan applications in July 2009 and December 2010, but that he had been disabled since October 29, 2008.
On August 10, 2011, the Board denied Solomon’s request for full TPD disability benefits, and granted Mr. Solomon only the more limited “Inactive” TPD benefits. No explanation was offered as to why the both the consensus medical reports and affirmative disability determination were rejected. Instead, the Board vaguely stated that “the record did not support a finding of total and permanent disability prior to March 31, 2010,” which was the fifteen year window from retirement date in which the Plan permits total and permanent disability benefits at the level applied for.
Request for further review
Since an applicant is allowed to request further review by the Board, Solomon did this on September 27, 2011, pointing out the disability date established by the SSA, of October 2008, which was well within the timeframe of qualification for the Football Degenerative limit. On November 23, 2011, the Board denied him once again and, according to court documents, as with its original denial, “the Board neither discussed specific medical records, nor explained how it reconciled its denial with the clear medical evidence that Mr. Solomon was totally and permanently disabled within 15 years of his NFL retirement.”
Instead, the Board referred to two timing issues: The first one was based on a negative finding at his initial claim and the year-long delay in re-filing. (As you recall, this year delay was mandated by the Plan.) Second, they concluded that the SSA decision on the timing of Mr. Solomon’s disability status was “not binding on the Plan,” despite congressional testimony to the contrary by the Plan’s own counsel. Douglas Ell, of the Groom Law Group, who represents the Plan, stated in testimony to a congressional hearing regarding player disability that the Plan had agreed “to immediately grant T&P [TPD] benefits to players already receiving social security disability benefits.” Ell even went so far as to testify, “The collective bargaining process is an ongoing process, and the parties are looking for ways to improve benefits in the system. Our new 88 Plan for players with dementia is one example. . . .Allowing Social Security determinations as a separate, alternate way to get total and permanent disability benefits is a second improvement.”
Relief from District Court (almost)
Because the Plan is subject to ERISA, Solomon challenged the Board’s final denial in Maryland District Court, where Judge Marvin J. Garbis found “overwhelming” evidence that supported Solomon’s claim. He issued summary judgment to Solomon based on a ruling that the Plan had “abused its discretion” in two ways. First, it failed to recognize the disability date established by the SSA, and second, because its denial of Solomon’s application was neither “the result of a deliberate, principled reasoning process” nor “supported by substantial evidence.”
NFL Appeals the District ruling
Unwilling to accept Judge Garbis’ decision, the NFL Disability Plan appealed the case to the Fourth Circuit and that is where it rests now. The Plan now claims “absolute discretion to interpret the plan and decide claims for benefits.” The Plan also stated in their appellant brief, “Although Solomon will unleash a firestorm of misdirection concerning chronic traumatic encephalopathy, it is also plainly true that the precise cause of Solomon’s disability is basically irrelevant.” Irrelevant? What could be more relevant to a disability determination?
On Monday, Solomon’s counsel responded to the appeal, countering the Plan in a powerfully written and detailed brief. For now Jesse Solomon must continue to wait, his fate hanging on a ruling from the Fourth Circuit.
Solomon is not alone
Since I first began digging around in this area, with the denial of Darryl Ashmore, I’ve seen numerous cases where former players, who appear to qualify for benefits, are denied on vague grounds or technicalities. In speaking with former players and “Gridiron Greats,” an organization established to help veteran players in need, denials of permanently and completely disabled players has become pandemic. I’m told that many former players, now unable to support themselves, are living in abject poverty, some in government subsidized housing. I asked Gridiron Greats if I might speak to some of the players they’re helping so that their stories can be heard, but the response I received was that most of these guys are so embarrassed and humiliated, (though they shouldn’t be) that they won’t even speak with reporters.
One has to wonder why this is happening. So far I’ve found two strong indications, the first of which is precedent. With a class action concussion settlement facing court challenges and insurers demanding discovery to know what the NFL has known about the dangers of head injuries, and for how long, the NFL appears to be attempting to hedge responsibility for as long as possible.
As the NFL implements rule changes to make the game safer (even if the underlying reason is more closely related to limiting liability than actually caring for the players) it has yet to admit any meaningful liability regarding head trauma, concussions, and CTE. The class action suit now being challenged was presented more as philanthropy to those whose brains were somehow damaged, rather than a contrite admission of liability or fiscal and moral responsibility. Lest you think my imagination is running away with me, I’ll simply state that more than a few people, including former players and attorneys representing players who are trying to receive their benefits have strongly hinted at suspicions in this regard. Whether or not this bears out, the second possibility would be difficult to debate.
Conflict of interest
Just as Roger Goodell has ultimate disciplinary authority through Article 46 of the CBA; i.e., the ability to invoke discipline, handle the appeal of said discipline and rule in favor of his own decision, the disability process is similar. As mentioned before the Disability Determination Panel is comprised of three members selected by NFL franchise owners and three members selected by the Players Association, which by the way, represents active, not retired players.
According to the retirement and disability provisions outlined in the CBA, in addition to player payroll deductions, NFL owners are responsible for contributing to the funding allocated for payment of these benefits. It stands to reason in a profit oriented league that the three Plan members representing the owners would be motivated financially to deny players, thus an obvious conflict of interest is established.
This apparent conflict of interest was addressed in briefs filed by both the Plan and Solomon by way of his attorneys. Quoting from the brief filed on Monday:
In the District Court, the Plan argued that the Board was not conflicted because only the three NFL members represented the entity that funds the Plan…On appeal, the Plan makes a new argument, using non-record evidence, that the Board should not be found to be conflicted because the NFL does not “fund” the Plan, which instead is funded through “charge[s] against the funds available for the salary cap…they argue that “the costs of the Plan are deemed ‘Player Benefit Costs,’ and are charged against the funds available for the salary cap…As such, they argue, “the Plan’s costs reduce the salary cap, [and] they do not reduce NFL Club revenues.”
In addition to the apparent contradictions of the Plan’s argument in this regard, in trying to demonstrate a lack of conflict of interest on behalf of the NFL representatives, it seems they’ve revealed an even greater conflict.
In a parity oriented league, the salary cap was put in place to limit richer clubs from outspending poorer ones, thus acquiring a disproportionate amount of talent. Franchises are allocated a designated amount available for salary spending. This is called the salary cap. If the above statement is in fact true, and there is no reason that I see to believe it isn’t, the amount of money allowed for active player salaries decreases with approved disability awards. Here we see strong motivation for NFLPA Disability Board members, to protect the interest of the active players they represent by denying the claims of former players.
While it’s completely reasonable and necessary to have safeguards in place to protect the Retirement Plan from abuse and fraud, it’s quite another to deny players arbitrarily by going so far as to bend and break their own rules under the broad claim of “discretion.” In so far as discipline and arbitration are concerned, appellate courts have upheld the collectively bargained power of the commissioner. Solomon’s case will be decided in the Fourth Circuit Court of Appeals. One can only hope that under this vastly different area of bargaining, “broad discretion” will only carry so much weight and fairness will prevail.
Links to relevant court documents:
District Court Ruling
NFL Disability Board Appeal
Jesse Solomon Response
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.