Tyrone Keys’ Disability Case Illustrates the Triumvirate’s Scorched Earth Assault
December 25, 2019
Sheilla Dingus
There’s a 100% injury rate in the NFL. NFLPA Executive Director DeMaurice Smith has been quoted in regard to consequences of possible termination of the Affordable Care Act, and workers’ compensation restrictions in Illinois that all players leave the NFL with pre-existing conditions. One need only take a peek at the weekly injury reports to confirm the pandemic of injuries in the NFL.
Today’s injury reports will be tomorrow’s disability casualties unless action is taken and reforms are implemented.
While absolutely truthful in this regard, Smith speaks with a forked tongue in that while heralding the NFL/NFLPA collectively bargained benefit package as the best of its kind (though healthcare coverage is terminated at 5-years) he never addresses the elephant in the room, and that is the fact that the Bert Bell-Pete Rozelle Benefits Plan via the NFL and players’ union, spends millions every year to block retired players from collecting on those bargained-for benefits.
During its last reporting period from 4/1/2017 to 3/31/2018, the Plan paid its hired mercenary, Groom Law Group over $3.6 million to fight players and block their access to disability benefits.
Numerous lawsuits on behalf of former NFL players seeking to collect on their disability benefits are currently underway in the civil court system. The active lawsuits against the Bell-Pete Rozelle Benefits Plan along with in some instances the NFL and NFLPA are particularly troubling but part of a larger pattern of decades of denials, spawning the expression “Delay, deny, and hope we die,” from the unfortunate retirees.
Of the many compelling cases currently in federal court, perhaps none reflect the brutish nature of The Plan more so than the situation involving Tyrone Keys. Keys was a defensive lineman on the legendary 1985 Bears team, playing alongside such players as Jim McMahon, Richard Dent, Dave Duerson, and Keith Van Horne as they captured the Super Bowl XX Lombardi. The seven-year lineman, like many of his contemporaries, has paid a high price for his years of service to the football gods. In 1989, the Chargers, Keys’ final team, dismissed him because he was no longer able to play due to numerous injuries incurred in his career, not the least of which were to his knees neck and shoulders.
We wrote in-depth about Tyrone Keys’ situation that prompted his current lawsuit. Despite qualifying for disability almost immediately following retirement, which was almost a miracle in and of itself considering the difficulty involved, because of a minor car accident in 2002 the Plan now claims that Keys was paid benefits in error, blaming his well-documented football injuries on the fender-bender, and seeks to take back over $800,000 in disability pay that he’s received over the past almost 30 years.
Keys has undergone examinations by Plan physicians who are well-known for examining players in the strictest manner possible, resulting in hundreds of denied claims, but for Keys, his injuries were so severe that every Plan doctor who examined him arrived at the same conclusion—that Keys was totally and permanently disabled as a result of the injuries he incurred while playing professional football—an opinion also held by the Social Security Administration who also awarded disability benefits to Keys.
Perhaps one of the dirtiest little secrets the Plan, and by extension NFL and NFLPA manage to hide year after year is that it is largely unwilling to award benefits for football-related disablement, and most players who are eventually approved by the Plan are awarded compensation at the much lower rate established for players disabled by non-football causes.
We’ve recently written an update on Chris Hudson’s lawsuit, in which he maintains that the Triumvirate of the Plan, NFL and NFLPA have withheld information and deceived players like himself as to the requirements for collecting football degenerative benefits. For Hudson, it seems a careful formula was followed approving him for non-football disability, without explaining the “changed circumstances” that permit players to upgrade their benefits to football derived. Hudson believed, as is reasonable that changed circumstances would include more comprehensive documentation such as a determination from Social Security Disability, rather than the Plan’s definition of a new, previously unreported condition. It’s hard to fathom how a federal judge would permit this, but in Hudson’s case, Magistrate Judge Robert W. Lehrburger ruled that the meaning of “changed circumstances” was reasonable and understandable, and didn’t find a fiduciary duty of care regarding the NFL and NFLPA who appoint the Board Members who are to act as Plan fiduciaries. District Court Judge Gregory H. Woods mostly accepted the magistrate judge’s findings but allowing Hudson to file an amended complaint.
Nevertheless, this victory prompted the Plan to mount a scorched earth attack on Andre Royal, another retired player suing under the same causes and for the same reasons as Hudson. Royal was intimidated into dismissing his lawsuit. The NFL is now pursuing Royal for over $63,000 in attorney fees for filing a “baseless” lawsuit that is anything but. This is likely a shot fired as a deterrent for both players and attorneys who might contemplate filing similar claims.
Returning to Keys, cross-motions for summary judgment have been filed as well as opposition briefs to the same, in what promises to be a very important case, not only for Keys but other retired players who will likely find themselves in a similar situation if the NFL Plan is successful in its assault on Tyrone Keys.
Thousands of pages of documents were produced supporting Keys, yet the Plan continues to accuse the player of fraud, a tactic that has been repeated extensively in the NFL Concussion Settlement.
The Plan claims that Keys withheld injuries sustained in a minor vehicle accident in 2002 and that his disablement is the result of those injuries and not those of his football career. Among those thousands of documents, however, are records to support that Keys merely aggravated his pre-existing injuries.
It should be noted that Dr. Shaker’s report was part of the record Keys submitted. It should also be apparent that arthritis does not set in immediately following an injury, but over the course of time, instead. It would also appear obvious that a person with prior severe injuries which, in turn, caused the arthritic lesions to develop would experience pain when the injuries are disturbed as happened to Keys in the accident.
Keys’ attorneys, point out a very important fact. Without evidence, non-medical professionals are overruling the opinion of doctors, sometimes even their own Plan doctors, in order to deny claims.
The Disability Initial Claims Committee is composed of one person selected by the NFL and one selected by the union. Neither possesses a medical background. Likewise, the three board members from the NFL and three from the NFLPA all lack medical backgrounds yet have no problem overruling doctors, including their own neutrals.
Consider:
The Plan’s own Neutral Physician Dr. Harlan Selesnick found Keys to be disabled as a result of his 7-year football career.
In addition to the required physician’s form, Dr. Selesnick wrote a 3-page letter detailing Keys’ numerous orthopedic impairments, noting that he was forced into retirement due to injury.
He noted an 8/27/02 MRI scan that showed degenerative changes throughout Keys’ spine. Even someone without medical expertise understands that an initial injury is not the same as degeneration, nor does degeneration occur within a course of weeks or months.
The single paragraph from the record spanning more than 5,000 pages that the Plan relied upon in basing their opinion of Keys’ disability on a minor car accident on May 7, 2002, was this out of context excerpt from a report by Dr. Clark Janecki.
Contrast this with Dr. Janecki’s letter of clarification as Keys’ treating physician for 7 years as of the date of the letter.
Keys’ football degenerative condition is further supported by Dr. Lynn Wilson, who did an extensive examination of Keys on September 8, 2010, with particular attention to the accident and the degree it might contribute to his disability.
After a thorough medical examination and records review, Dr. Wilson attributed 100% of Keys’ disability to football play. Regarding his spinal injuries of which the Plan disputed causation, she determined that 30% of his spine disability was the direct result of an injury sustained in a game against the 49ers and 70% to “continuous trauma resulting from professional football.”
Keys’ long record of attending physicians dating back to the 1990s—many years prior to the auto accident should lead any reasonable person to conclude that Keys was disabled due to football. If only those employed by or appointed to the Plan could be considered “reasonable persons.”
Instead, their decision seems completely based on a letter from Groom Law Group, the law firm representing the plan in litigation to defend player benefit denials—a firm that has amassed millions of dollars pursuing the singular task of discrediting players to deny their benefits.
In addition to the Janecki excerpt Groom states that Keys withheld that he’d been awarded workers compensation benefits but the administrative record and Keys’ initial application for total and permanent disability refutes that suggestion.
Groom also claims that Keys’ earnings during the time he received disability payments indicate that he was employed, however, an independent audit of his tax returns shows that Keys was in compliance with Plan requirements.
In combing through the thousands of pages of records in Keys’ administrative record it shows that much of Keys charitable activity consisted of phone calls to at-risk youth, encouraging them in academic pursuits and public appearances at charitable events for at-risk youth and promoting safety in youth football, which earned him a letter of commendation from Commissioner Roger Goodell.
Commissioner Roger Goodell commends Keys as the Plan fights him regarding his benefits.
"All about the players." Really?Also buried in the volumes of documents was a heartfelt letter from Bessie Keys, Tyrone’s wife of many years, pleading with the commissioner to do the right thing. A letter unanswered. The NFL shouldn’t be able to have it both ways—commending a player as a “good citizen,” with a “commitment to the community” and “work to lead and inspire,”—while concurrently accusing the player of fraud because he has the audacity to claim he’s disabled because of his football career.
Unfortunately, this is a recurring narrative within the NFL and virtually every medical benefit players seek to receive, whether collectively bargained or the result of litigation. Denial of benefits and discrediting of players has a very long history in the disability plan, even invoking congressional hearings in 2007 and a DOJ/DOL investigation shortly thereafter. Groom Law Group is, however, a master in constructing smoke and mirrors to deflect away from the real issues at hand and the inherent conflicts of interest due to the NFL’s salary cap, which tends to also place the NFLPA in opposition of retired players.
Former NFLPA director Gene Upshaw was quoted in multiple places including the New York Times and Vice Sports as saying, “The bottom line is, I don’t work for [retired NFL football players]. They don’t hire me and they can’t fire me. They can complain about me all day long. They can have their opinion. But the active players have the vote. That’s who pays my salary.”
While Upshaw’s successor, DeMaurice Smith may have toned down the rhetoric, his actions and inactions declare the same message. As explained in simple terms in the 2005 Vice Sports article, the problem is rooted in the salary cap.
The “players’ share” of league revenue, roughly 48 percent of the NFL’s $10 billion pie [Now estimated at between $15 billion and $16 billion], includes more than just player salaries and those hefty contracts reported by Adam Schefter every offseason. It also includes player benefits, including their health care, pension and disability benefits, worker’s compensation insurance, 49 percent of the Legacy benefit, and dozens of the post-career benefits the league touts. This creates a fundamental tension between many player benefits and current player salaries: more for one, less for the other…
For example, in 2011, the most recent year in which data was available under the new CBA guidelines, the players’ share of NFL revenue came to $142 million per team. But player benefits costs set the salary cap at only $120 million. To put it another way, player benefits accounted for 15 percent of the players’ share of the total NFL pie.
The fiduciaries appointed to the benefits plan by NFLPA are selected and groomed to see their fiduciary duty as protecting and growing the assets of the plan as opposed to advocacy for disabled players who seek to collect on their benefits.
During the 2007 congressional hearings, a lawyer for the NFLPA testified that there was nothing unusual about a union prioritizing active over retired members. From a labor law perspective, there’s nothing unusual in this perspective, however, professional sports in general and the NFL specifically face a conflict not generally seen in other occupations, and that is that a player’s retirement will likely be at least twice as long as his period of employment. Add the NFL’s 100% injury rate and 3.3-year career average to the mix and you have a recipe for disaster. Other sports leagues have done a better job at overcoming this obstacle but due to the NFL’s large roster sizes and wide disparity in player salaries and perspectives, the issue never seems to be addressed even though all active players have one thing in common—they will all be retired players in the future and dependent on the same system that has largely failed their predecessors.
The current CBA is about to expire and negotiations for the next CBA are underway with the league hoping to finalize them as quickly as possible. That’s not surprising in that the prior CBA was largely favorable to the league and the fewer players actively participating in the CBA process, the better, as far as the NFL is concerned. Executive Director of the NFLPA, DeMaurice Smith seems in concurrence with the league in this respect.
Consider…
A substantial number of active players don’t oppose better treatment of retirees, but they are largely locked out of the process. As Vice Sports reported:
The vast majority of NFL players only have direct contact with union representatives during an annual meeting with NFLPA leadership, typically held just before the start of the season as a general overview of benefits available and priorities for the upcoming year. Each team also elects a player representative to communicate more regularly with the union and to vote on key matters, although even that system may be flawed. “My player rep experience exposed to me how much say the players really have in all of this, which is jack shit,” said Kyle Turley, a former player rep for the St. Louis Rams and New Orleans Saints from 2001 to 2003.
For example, Turley said, consider how players are expected to review the union’s budget at the NFLPA’s annual board meeting, typically held in tropical destinations such as Hawaii, the Bahamas, or secluded Floridian resorts. The night Turley arrived at one such board meeting, he was handed the NFLPA’s budget proposal—a stack of papers several inches thick—for the upcoming year. NFLPA employees told him to look it over; there would be a vote on it the next morning. Turley tried his best to absorb it, but the financial details were far too dense for a layman to comprehend, much less in one night.
In 2010, player reps voted to allow two retired players to be added to the union’s executive committee, which gave the group a greater voice during collective bargaining negotiations than ever before. But the two former players have no voting power.
Another problem is that player reps don’t take active roles in negotiations. Instead, McFarland and Turley say, NFLPA officials hold behind-closed-doors talks with their NFL counterparts, and then relay those conversations back to the player reps, who remain separated and disengaged from the most substantive negotiations.
Nowhere is this more evident than in the most recent NFLPA election—or rather non-election. Somehow—and the process has never really been clearly communicated as to how a special group of players was selected, apparently by Smith to decide whether or not to even have an election or instead just extend the current executive director’s term. This is exactly what the secret panel of players, which by the way, excluded some of the executive committee members, did, reinstating Smith for another term with no input from the union membership as a whole.
Given the situation, it sometimes appears hopeless that reforms will be adopted but there are some positive developments that could alter the landscape, at least to some degree. More and more players seem to be aware that the NFL and sometimes the NFLPA isn’t their friend. They’ve become wise to the injuries they’re incurring. Some, in a position to do so, like Andrew Luck and Rob Gronkowski are retiring earlier to preserve what’s left of their bodies and hopefully avert some of the latent cognitive issues in which research affirms that risk factors are amplified by longer careers.
Others who may not be in the same category of Luck or Gronk, are still taking things into their own hands as Kelechi Osemele did this season when he decided to undergo shoulder surgery against the Jets’ wishes to pump him full of painkillers and keep him on the field. In other words, today’s players are starting to use their leverage, but unfortunately, the leverage remains uneven.
As Andrew Brandt stated in a recent MMQB article, player power is increasing for a few. “Players such as Ezekiel Elliott, Jadeveown Clowney, Jalen Ramsey and yes, Brown, were all able to—through holding out or “holding in” (being with their team in a discontented state)—leverage their way into better contracts or preferred destinations. This prompted some to suggest that NFL player power was increasing. And it is, if, and only if you are a special, difference-making player. The Chargers’ Melvin Gordon, a very good player but not an elite one, failed in trying to play the leverage game, returning to the team with nothing but three weeks of salary lost.”
It remains to be seen if or how the players will come together for the next CBA. The players as a whole do have more leverage than they typically assert due to the conflicting interests of different classes of players, but, if they can unify and demonstrate solidarity they have an opportunity to make as dramatic a difference in the league as the generation before them who brought free agency to the NFL and now languishes with inferior pensions and disability denials. It’s a chance to set things right in a number of ways. Here’s hoping the players are up to the task.
*Note: This article was edited on 12/27 to add additional images.
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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.
