[Senate Hearing 110-1177]
[From the U.S. Government Publishing Office]
S. Hrg. 110-1177
OVERSIGHT OF THE NATIONAL FOOTBALL LEAGUE (NFL) RETIREMENT SYSTEM
=======================================================================
HEARING
before the
COMMITTEE ON COMMERCE,
SCIENCE, AND TRANSPORTATION
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
SEPTEMBER 18, 2007
__________
Printed for the use of the Committee on Commerce, Science, and
Transportation
U.S. GOVERNMENT PRINTING OFFICE
76-327 WASHINGTON : 2012
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC
area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC
20402-0001
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
DANIEL K. INOUYE, Hawaii, Chairman
JOHN D. ROCKEFELLER IV, West TED STEVENS, Alaska, Vice Chairman
Virginia JOHN McCAIN, Arizona
JOHN F. KERRY, Massachusetts TRENT LOTT, Mississippi
BYRON L. DORGAN, North Dakota KAY BAILEY HUTCHISON, Texas
BARBARA BOXER, California OLYMPIA J. SNOWE, Maine
BILL NELSON, Florida GORDON H. SMITH, Oregon
MARIA CANTWELL, Washington JOHN ENSIGN, Nevada
FRANK R. LAUTENBERG, New Jersey JOHN E. SUNUNU, New Hampshire
MARK PRYOR, Arkansas JIM DeMINT, South Carolina
THOMAS R. CARPER, Delaware DAVID VITTER, Louisiana
CLAIRE McCASKILL, Missouri JOHN THUNE, South Dakota
AMY KLOBUCHAR, Minnesota
Margaret L. Cummisky, Democratic Staff Director and Chief Counsel
Lila Harper Helms, Democratic Deputy Staff Director and Policy Director
Christine D. Kurth, Republican Staff Director and General Counsel
Paul Nagle, Republican Chief Counsel
C O N T E N T S
----------
Page
Hearing held on September 18, 2007............................... 1
Statement of Senator Dorgan...................................... 1
Statement of Senator Hutchison................................... 2
Statement of Senator Kerry....................................... 39
Statement of Senator Klobuchar................................... 37
Statement of Senator McCaskill................................... 39
Statement of Senator Nelson...................................... 82
Statement of Senator Thune....................................... 40
Prepared statement........................................... 40
Witnesses
Bain, Bill, Former NFL Player, Los Angeles Rams, Green Bay
Packers, New England Patriots, Denver Broncos, New York Jets... 17
Boyd, Brent, Former NFL Player, Minnesota Vikings................ 23
Prepared statement........................................... 28
Ditka, Mike, Member, NFL Hall of Fame; Former NFL Player, Chicago
Bears, Philadelphia Eagles, Dallas Cowboys; and Former Head
Coach, Chicago Bears, New Orleans Saints....................... 68
Prepared statement........................................... 69
Duerson, Dave R., Trustee, Bert Bell/Pete Rozelle NFL Player
Retirement Plan; and Former NFL Player, Chicago Bears, New York
Giants, and Phoenix Cardinals.................................. 12
Prepared statement........................................... 15
Goodell, Roger, Commissioner, National Football League........... 62
Prepared statement........................................... 64
Johnston, Daryl, Sports Broadcaster, FOX; and Former NFL Player,
Dallas Cowboys................................................. 6
Prepared statement........................................... 8
Sayers, Gale Eugene, Member, NFL Hall of Fame; and Former NFL
Player, Chicago Bears.......................................... 71
Prepared statement........................................... 72
Upshaw, Gene, Executive Director, National Football League
Players Association............................................ 42
Prepared statement........................................... 45
Waters, Hon. Maxine, U.S. Representative from California......... 3
Webster, Garrett, Son of Mike Webster, Former NFL Player,
Pittsburgh Steelers and Kansas City Chiefs..................... 19
Prepared statement........................................... 21
Appendix
Joint response to written questions submitted by Hon. John D.
Rockefeller IV to the National Football League (NFL) and the
National Football League Players Association (NFLPA)........... 89
Supplementary information provided by Eugene ``Mercury'' Morris,
Former NFL Player, Miami Dolphins and San Diego Chargers....... 85
Combined response to written questions submitted by Hon. Trent
Lott and Hon. David Vitter to Roger Goodell.................... 95
OVERSIGHT OF THE NATIONAL FOOTBALL LEAGUE (NFL) RETIREMENT SYSTEM
----------
TUESDAY, SEPTEMBER 18, 2007
U.S. Senate,
Committee on Commerce, Science, and Transportation,
Washington, DC.
The Committee met, pursuant to notice, at 10:05 a.m. in
room SR-253, Russell Senate Office Building, Hon. Byron L.
Dorgan, presiding.
OPENING STATEMENT OF HON. BYRON L. DORGAN,
U.S. SENATOR FROM NORTH DAKOTA
Senator Dorgan. I call the hearing to order. This is a
hearing of the Senate Commerce Committee, a full committee
hearing. I am chairman of the Subcommittee dealing with
interstate commerce, trade, tourism, and sports. We will be
joined by other colleagues, but I want to start on time,
because we have a series of votes that begin shortly after 12
o'clock today, and I do want to begin on time.
I should say, at the start, that I am a football fan. I
watched Monday Night Football last evening. Football is an
unbelievably popular sport, very interesting and wonderful
sport in many ways. It is also big business. I call it
``sport,'' it is also big business, with mostly wealthy owners
and players that are paid a great deal of money. There are, I
believe, 32 teams. They are able to work with and speak with
each other because of an antitrust exemption. Those 32 teams,
of course, do not include teams from North Dakota or Wyoming or
states similar to that. We reserve these national pastimes for
the large population centers, and many states do not
participate personally in them by having professional sports
teams, and that's certainly the case with my state.
It is a sport, the sport of football, that causes, and can
cause, substantial physical injury to many athletes. We have
about 8,000 former players of this sport. There is, and has
been, controversy about disability issues, how former players
have been treated. Those who have formerly played this
professional sport believe that about 3 or 4 percent of the
living retirees qualify for some type of disability benefit.
The National Football League owners and the Players Association
say that is much higher than the 3 or 4 percent.
It seems to me that the Players Association represents
active players, and the Commissioner represents the owners. We
have many who will testify here who are former players in this
sport, and I don't quite know who represents them, if anyone.
In many cases, they are great athletes who ended their careers
with real damage to their bodies. Some live in pain. And the
question is, what happens to them? Who represents them? What
role do they have with respect to this growing industry and the
resources that this growing industry provides? It's a very
large and a very profitable industry, and, it seems to me, an
industry that ought to be able to take care of the needs of
those who helped build this wonderful sport.
When we called this hearing, I did not know what to expect,
in terms of communications. I must tell you, I have received,
as Chairman of the Subcommittee--and I'm chairing the full
committee at the request of Senator Inouye--I must tell you, I
have received a lot of mail, a lot of letters from former
football players, and was surprised by that, and surprised by
the message. I've had a chance to meet with people who feel
strongly on both sides of the issue of the controversy over
disability payments, and it is a worthwhile subject for us to
discuss what has happened, how it has happened, what might be
considered. And some would say, Well, why is it any business of
the United States Congress? Obviously, we have, in the
jurisdiction of this committee, sports. I've been involved in
sports issues, with Senator McCain and others, dealing with the
subject of boxing. Boxing is a sport in which too many young
boxers are used up by promoters, and discarded, and end up with
nothing. And so, we've attempted to create a National Boxing
Commission. And, with respect to football, there is an
antitrust exemption that allows the teams to work together and
to negotiate various things together. So, there is a reason for
us to be interested and concerned, and that's the purpose of
this hearing.
I'm going to call on Congresswoman Maxine Waters, who has
asked to testify today, and we appreciate having her here. I'll
take her testimony first. I don't expect we will ask questions,
but we're happy to have her here. And then we will have two
panels, and I will talk about the panels in a moment. But let
me introduce Senator Hutchison for an opening comment.
STATEMENT OF HON. KAY BAILEY HUTCHISON,
U.S. SENATOR FROM TEXAS
Senator Hutchison. Well, thank you, Mr. Chairman. I really
appreciate the opportunity to be at this hearing. I want to
thank Chairman Inouye, as well as Vice Chairman Stevens, and,
of course, Mr. Chairman Dorgan.
And I think you have laid it out very well. We know that
there are players, before the era of the mega-salaries
especially, who have had injuries that have manifested after
the 5-year time period in which they have full coverage. And
so, we read about these things, and it does raise questions.
And my hope is that, with this hearing, we will hear some of
the issues on both sides, and then, hopefully, the NFL will be
able to work it out with a good, fair negotiation with the
players and the former players, with everyone represented from
their different perspectives, because I do think that
perspectives are different, depending on the era in which a
player was able to play. And I also think that your reference
to boxing is one that does provide somewhat of a model, because
this is a high-risk sport, there is no question about it, and
so, we know that probably extra care on the medical side is
something that is certainly warranted.
However, I do hope that this can be settled in an amicable
way and a responsible way by all the parties. And, as we gather
information, maybe that will be helpful, and as we monitor
those negotiations.
Let me just say, on a personal note, that one of my
constituents is here, Daryl Johnston. I have known Daryl, from
a personal level, because our children go to the same school,
and so, I have watched him and his wonderful wife, who are so
active in the school and give back so much--so, I've known him
personally, but know he also had to retire, after 10 years with
the Dallas Cowboys, because of neck injuries, and has had a
view on this that I think is worthy for us to hear. He is a
person--Daryl ``Moose'' Johnston--who played for Syracuse--he
was an All American there--then earned his bachelor's degree in
economics, and is a FOX Sports NFL broadcaster now, has a great
career. And I really am very pleased that he could become a
part of the panel, and I thank the Chairman for allowing that
to happen.
And, with that, I will listen to the testimony. I do have
to leave a little earlier than the end of the hearing, so I
will say that ahead of time, but look forward to having all of
the testimony in writing.
Thank you.
Senator Dorgan. Senator, thank you very much.
First, we will hear from Congresswoman Waters.
Thank you very much for being with us. You may proceed.
STATEMENT OF HON. MAXINE WATERS,
U.S. REPRESENTATIVE FROM CALIFORNIA
Representative Waters. Thank you very much. Good morning,
ladies and gentlemen----
Senator Dorgan. Is the microphone turned on?
Ms. Waters. Can you hear me now? Yes? Good morning.
I'd like to thank you, Chairman Dorgan, for holding this
hearing. And I'd like to thank you, Senator Hutchison, for
being here this morning. And I'd like to thank all of the
witnesses who have come today to help shed some light on many
of the concerns that have been identified by former players.
The National Football League's current system of
compensation for its disabled retirees is an issue that has
been widely discussed in Congress and the media. This issue
also has great personal significance for me. My husband, Sidney
Williams, played football in the NFL for 5 years. The NFL, we
believe, has failed to fairly compensate its retired players
for injuries suffered while playing a game that is one of the
hallmarks of our American sporting tradition. These players
chose professional football as a career, dedicated themselves
to training and practice, and worked and played hard in a
highly competitive contact sport. These players have given much
to the NFL, and, indeed, have given their blood, sweat, and
tears to the game of football. In return, the NFL owes much to
its retired players that were injured as a result of competing
in the game that Americans cherish.
My purpose here today is to talk about a very specific case
that I worked on for almost a year for a gentleman by the name
of Jim Shorter. Mr. Shorter was a friend of my husband's and a
former NFL player. Mr. Shorter died a horrible death, a death
caused by years of neglect of football-related injuries. These
injuries were compounded by the onset of adult diabetes and a
lack of healthcare. When he died, Mr. Shorter had undergone
several amputations, was blind, had had a heart attack, and was
on dialysis. Furthermore, Jim Shorter died a broke man,
stripped of his dignity and his silver years by an unfair and
unyielding NFL disabilities program. This program, which is
built like the rest of the functions of the NFL, from the
blood, sweat, and tears of men like Jim Shorter, was designed,
in my belief, to refuse benefits for the very players that
needed them most.
At issue today are three components of the NFL benefit
plan: pensions, disability benefits, and medical insurance.
None of these adequately compensate the NFL's disabled players.
Despite their hard work, injuries, and playing through those
injuries, the average payout to retired professional football
players is less than $2,000 a month. This is striking, given
that the poverty level in the United States is approximately
$1,800 a month. Many retired football players receiving
pensions have serious physical problems stemming from their
playing days. Some have trouble walking, others have trouble
sleeping, some have undergone multiple surgeries. In a few
cases, former players have even committed suicide. One thing is
clear, nearly all need more money than is provided by their
pensions.
Employer compensation to the NFL's pension plan paled in
comparison to Major League Baseball. Total pension
contributions left an average payout of $13,000 per football
player and $36,700 per baseball player. To make the picture
even clearer concerning the disproportionate pension system
between football and baseball players, if former Washington
cornerback Darrell Green, who played 20 years, decides to
collect, at age 55, he would get the largest pension in NFL
history, $69,660 per year. A baseball player with a similar
career, Cal Ripkin, Jr., stands to collect, at 62, about
$160,000. These numbers are astounding, given that football
grosses considerably more revenue and income than baseball. The
MLB's gross income is approximately $4.3 billion, while the
NFL's gross is over $7.1 billion. Baseball continues to prosper
on less income and higher expenses. There is no excuse for the
NFL retirement benefits plan not to at least match the MLB's
benefit plan. The risk of long-term injuries to which NFL
players are exposed are legend. For example, there are growing
concerns regarding the frequency of concussions among NFL
players. In an aggressive contact sport, there are likely
thousands of cases of concussions, many of which may result in
subsequent disabilities. These retirees do not receive
disability payments, because they do not realize the
impairments were caused by head injuries incurred years
earlier. They are oftentimes too embarrassed to come forward,
and the benefit system has been at least slow to recognize this
phenomenon.
Former safety Andre Waters, a 12-year veteran, recently
committed suicide, 44. A study of Waters' brain tissue revealed
a succession of football-related concussions that left Waters
with the brain tissue of an 85-year-old man. The physical
nature of the NFL often leaves veterans unable to lead normal
lives, and many rely on their pensions to survive. Reform of
the disability benefit system is necessary to allow retirees to
receive the compensation that they deserve and need for their
disability.
Under the NFL's current medical insurance plan, the League
provides insurance to vested players for 5 years after
retirement. However, the 5-year period fails to account for the
many injuries that will not manifest serious health effects
until the end of this period. Because football is an intense
contact sport, football players face long-term physical
ailments that other athletes are lucky enough to avoid. A 2003
University of North Carolina study found that 263 of the 2,500
retired NFL players said concussions may have had a permanent
effect on their ability to think and remember as they got
older. In 2005, just before the Super Bowl, the Pittsburgh
Tribune-Review produced an investigation on the number of
injuries professional players suffer on the job. The
investigation found that, in the 2000 through 2003 seasons, NFL
players racked up 6,558 injuries. More than half the athletes
were hurt annually, with the number spiking at 68 percent in
2003 and 2004. During typical 4-year careers, one of every ten
NFL receivers experiences a concussion. On average seven
professional football players a week face potentially life-
altering head, spine, or neck trauma. The effects of these
players' injuries do not become apparent until many years into
the future. Long-term medical insurance is needed to treat the
professional football players' injuries.
As I mentioned at the beginning of my remarks, this issue
of--is of personal concern to me. My husband, Sidney Williams,
was an NFL player in the 1960s. During his 6 professional
years, he served as linebacker on one championship team.
Football is one of America's greatest sports. Our NFL football
players give their all on the field and play hard for the glory
of the game. The NFL should not forget the contributions of its
former players, and should provide them with an adequate system
to address their retirement and disability benefits.
Mr. Chairman, I have here a folder about Mr. Jim Shorter's
case. I worked on the case for almost a year. It started in
January 1999, when he informed me that he had been trying to
get the attention of the Association, and they had not returned
his calls, they had not responded. I started writing letters to
them, and I wrote to everybody, including Mr. Tagliabue, Mr.
Upshaw. And, finally, they advised us what we needed to do,
getting the health records. Not only did I get Mr. Shorter all
of the examinations that he needed, I went back into records,
years past, to get physical examination records in order to
help present his case. I wrote letters to every member of the
board. At that time, it was----
Senator Dorgan. Congresswoman Waters, I'm going to have to
ask you to summarize. We have ten witnesses today.
Representative Waters. Thank you. Well, we wrote letters to
the board. We reviewed the Bert Bell Plan. We discovered that
Mr. Shorter had received early retirement after he left
football, having made very little money. Of course he took
early retirement, because he had no funds. But, at that time,
the plan said, if you take early retirement, no matter what
your disabilities are, you can never receive disability
benefits.
And so, these are the records, and the Committee is welcome
to them. Some, perhaps we can share with you at a later date,
but I wanted to share with you, today, my personal knowledge
about the inadequacies of the plan. And I thank you very much.
Senator Dorgan. Congresswoman Waters, we will include--if
you will provide us with information, we will include relevant
information in the permanent committee record.
Senator Dorgan. We appreciate very much your coming over
from the U.S. House today to provide testimony.
Thank you.
Representative Waters. You're welcome. And thank you.
Senator Dorgan. Thank you very much.
Representative Waters. You're welcome.
Senator Dorgan. We have two panels today, and I want to
mention the first panel. Let me introduce members of the first
panel: Daryl Johnston, who has been introduced by my colleague
from Texas, a FOX Sports announcer, former NFL player, Dallas
Cowboys; Dave Duerson, a player Trustee for the NFL Player
Retirement Plan, and former NFL player for the Chicago Bears;
Brent Boyd, former NFL player for the Minnesota Vikings; Bill
Bain, former NFL Player for the Los Angeles Rams; and Garrett
Webster, the son of NFL player Mike Webster, of the Pittsburgh
Steelers.
My understanding is that we have a number of other retirees
in the room who have traveled to Washington for the hearing. I
have the names of at least four of them. Let me mention them.
If you are in the room, if you would just identify yourself:
Conrad Dobler--is Conrad Dobler here? Thank you. David Pear,
Dwight Harrison, and Delvin Williams. Thank you for being here.
We appreciate your attending the hearing.
Let us begin with this panel, and let me call on you, Mr.
Johnston. And let me say that the entire statement that you
submit will be made a part of the permanent record. I would ask
that each of you summarize your statements, if you would.
STATEMENT OF DARYL JOHNSTON, SPORTS BROADCASTER, FOX; AND
FORMER NFL PLAYER, DALLAS COWBOYS
Mr. Johnston. Thank you, Senator Dorgan. Welcome, to all
the distinguished guests.
My name is Daryl Johnston. I played 11 years in the NFL for
the Dallas Cowboys, at the running back position. My career was
ended prematurely due to a neck injury I suffered in the
opening game of the 1999 season. I know, firsthand, the
frustration that many NFL players experience when going through
the disability process.
The initial doctor that filed my claim, and the doctor who
heard my appeal, are designated as neutral physicians, but, in
reality, are handpicked doctors by the NFL Players Association.
The Board that denied my claim is selected by NFL ownership and
the NFL Players Association. Obviously, this is a system that
is, by design, not interested in assisting the retired player.
Going through this process, the frustration causes us to
use such strong words as ``fraud,'' ``corruption,''
``cronyism.'' And I don't think that the NFL Retirement Board
understands that they're not only impacting the player, but the
families of these players. Divorce is high. People are fighting
for the custody of their children. I was very fortunate to play
at a time when the NFL Players Association had regained some of
their bargaining power and used that in the 1993 collective
bargaining agreement to implement some plans for current
players, such as a severance package, a 401(k), a second-career
savings plan, and 5 years in a COBRA health plan. But none of
these programs benefit players before 1993. Players such as
Mike Mosley, who played from 1982 to 1984, who received full
disability for 6 years, until a doctor, hired by the NFL, ruled
sedentary work was possible, and, without warning, withdrew his
payments in 2004. Mike now lives at home with his 75-year-old
mother, his 14-year-old daughter, and they're asked to survive
on his mother's $306-per-month Social Security check.
I also played in an era when player safety was emphasized.
The artificial surfaces that we played on were much safer than
those played on the generation previous to me. A gentleman such
as Conrad Dobler, who spent his entire 10-year career playing
on an experimental surface, known as Astroturf, that has a
direct link to the multiple knee and hip replacements he's had.
In a span of 1 year he had seven surgeries performed, and spent
nearly 100 days in the hospital last year. He's been denied
disability multiple times, even though he has been deemed to be
90 percent disabled.
During my career, there was also raised awareness about the
concussion issue and it's impact on NFL players. Stricter
protocols were put into place, with--about when a player could
return to the field of play, and, also a whistleblower policy
was implemented to make sure that these protocols were upheld
within organizations. This type of policy would have benefited
Garrett Webster's father, Mike Webster, who, if not the best,
one of the best centers to ever pay in the NFL. Upon
retirement, he was impacted by dementia, was homeless, living
out of his car, and never received a dime of disability from
the NFL plan.
The NFL Players Association is trying to make amends. In
the most recent CBA, they did create a program, that they are
implementing the ``88 Plan,'' named for Baltimore Colts tight
end John Mackey. The 88 Plan provides $88,000 a year for
residential care facility or $54,000 a year for home care, for
players suffering from dementia, early onset Alzheimer's, as
John Mackey himself is. However, this is administered as a
reimbursement plan. Kay Morris, who's the wife of Bears
linebacker Larry Morris, who played in the late 1950s and early
1960s, has yet to receive a disability payment off of The 88
Plan, although she has already incurred $200,000 in medical
expenses.
The reason that we have the retirees in the situation that
they're in right now is that we have no voice and we have no
bargaining power. And I would like to ask the Senate oversight
committee to help us find our voice, to help us increase our
bargaining power, so that we, the retirees, can do the same
thing that the NFLPA did in the 1993 collective bargaining
agreement for the current players.
I also would like to request that this committee call on
the Government Accountability Office to conduct a study so all
the data can be known by all the members that will be involved
in negotiations as we move forward. The NFL, as has been
mentioned, is a $7 billion-a-year industry. There is too much
money here for this problem to exist. With the help of all the
parties involved, Gene Upshaw, Roger Goodell, who will testify
later, Dave Duerson, who sits to my left, the retired players
who are in this room, we can fix this problem. The money is
there to fix this problem. And there is no reason for our
players to be in the situations that they're in. And, with your
help, I hope that we can take the first steps in creating a
disability program that gives NFL retirees a voice and ensures
that the players who founded this league are no longer
forgotten.
Thank you for your time.
[The prepared statement of Mr. Johnston follows:]
Prepared Statement of Daryl Johnston, Sports Broadcaster, FOX; and
Former NFL Player, Dallas Cowboys
Chairman Inouye, Subcommittee Chairman Dorgan, Ranking Member
Stevens, Subcommittee Ranking Member DeMint, Members of the Committee
and distinguished guests, my name is Daryl Johnston. I had the
privilege of playing professional football for the Dallas Cowboys for
11 years as a Running Back. I was forced to discontinue playing when a
neck injury sidelined my career. I am here today to help implement
positive change to the NFL's existing disability system, which is in
dire need of reform. As a member of a fairly recent generation of
retirees who ended his career in 1999, I want to assure you that this
problem is a crucial concern for anyone who has ever played or will
play professional football.
Growing up, I knew I always wanted to play football. My heroes were
Larry Csonka, Rocky Blier, and Roger Staubach because of their
unwavering courage and love of the game. They played with their hearts,
they played with passion, and these men were my heroes. As a Pop Warner
player, I always considered football a contact sport. At the college
level, my coach taught us football is not a contact sport--that if you
want a contact sport, then take ballroom dancing. Football is a
collision sport. I was also taught the difference between pain and
injury, which are quite different concepts in the world of the NFL. If
you are not injured, the emphasis is to get back out on the field and
perform your job. You play through the pain--and thus put yourself at
greater physical risk for life after football. With the size and speed
of the players today, and with the nature of new equipment design, the
collisions have become more violent every year. The severity of
collisions was evidenced once again just recently when Kevin Everett
with the Buffalo Bills suffered a catastrophic spinal injury. A career
ending injury is every player's worst fear when he steps onto a
football field.
In the late 1960s and early 1970s, the players competed on a new
experimental surface called Astroturf. Astroturf basically consisted of
a thin, carpet-like cushion between the playing surface and the
concrete. NFL organizations chose to put down a low-maintenance,
synthetic surface to allow for revenue producing events in their
stadiums without regard for the damaging effects this hard surface
would have on the players' bodies. For decades, the NFLPA has knowingly
misled players to believe that artificial turf posed no more threat to
injury than natural grass. As a player, one knows and experiences
firsthand on Monday morning, from the aches, pains, bruises, and
abrasions that result from playing on an inferior artificial surface
the day before. And this type of surface is responsible for as many
concussions--probably more--than the actual collisions you see on the
field.
I recently met Conrad Dobler, a 10-year veteran Offensive Lineman
for the St. Louis Cardinals. He has had multiple knee and hip
replacements from playing on Astroturf. He has had as many as seven
surgeries in 1 year, and he's spent nearly 100 days in the hospital
this past year. He has been denied disability benefits numerous times
by the NFL Players Union, yet has been told by doctors he is severely
disabled. He's never received a penny of disability money from the
union or the league. The NFLPA has nothing in place to take care of
players suffering these medical challenges from the physical abuse of
an NFL career. Another issue unaccounted for under the NFLPA's
disability plans are the degenerative nerve conditions that result from
the violent collisions associated with the game of football. As a
player, you always believe the Union will be there for you at the end
of your career. However, as I learned, that is not the case. The union
is only obligated to represent and protect active employees--not
retired players. Therefore, they only focus on the interest of active
players.
Highly recognizable players are suffering heart-wrenching setbacks
and near hopeless predicaments. Mike Mosley, a receiver for the Buffalo
Bills from 1982-84, experienced knee, neck, and back injuries that
shortened his career and left him permanently disabled. Mosley played
20 games in 3 seasons as a wide receiver. He received full disability
payments for 6 years, and then a doctor assigned by the NFL ruled
sedentary work was possible so, in 2004, all his disability payments
were immediately cutoff without warning. He has lost his house, his
truck, his savings, and his entire quality of life. He's had to move in
with his 75 year old Mom (living off a $306 social security check), and
has sole custody of a 14 year old daughter he's trying to raise--for
whom he cannot even buy clothes. He also has no health insurance and
cannot afford any medical care. It has ruined his life. In a medical
emergency, he will no doubt become the responsibility of the state. So,
much as you and I send tax money that should pay for our schools and
teachers to build NFL stadiums, we will pay for Mike's care someday
because the NFL doesn't want to pick up their own check.
Brian DeMarco, a former offensive lineman for the Jacksonville
Jaguars and Cincinnati Bengals, is damaged so badly from his 5 years
playing pro football that he is only a fraction less disabled than a
quadriplegic at age 35. He has had so many injuries that only people
who have been in horrendous car crashes might understand--all from
playing America's favorite sport. DeMarco's career ended amid severe
health problems after the 1999 season. After 4 attempts over several
years to navigate the NFL's disability system's red tape, he was unable
to even get his application process started and be assigned a doctor
for evaluation--even though his back was broken in 17 places. He's been
homeless 3 times in the last 4 years, and has lived in storage units
for 5 months with his wife and 2 children. He has constant pain from
his crushed spine, numerous physical ailments, and is unable to hold a
job. This is a man who's given up his quality of life for this sport.
Because of injuries and runaway medical bills and an inability to work
or get any kind of health insurance, the once proud and well-off
DeMarco was as down and out as you can get in this country. The NFL
Players Association has given him virtually no help. He has called the
NFLPA over 100 times in the last year but has experienced no success in
getting a claim opened. At one point, he was actually told that he
needed to help himself before the NFLPA could help him and he was told
to get a job and sent bus fare to search for one by an NFLPA
representative. And, finally, whenever he has had the temerity to raise
his voice and discuss his problems in public, the NFL's and NFLPA's
representatives have branded him a fraud.
The urgency and demand in the NFL to get back on the field creates
a greater risk. The cumulative effect of multiple surgeries throughout
your career is damaging to the body. This toughness, a sign of the
times in that NFL era in the early 1960s explains why Larry Morris, a
linebacker for the Bears from 1959 to 1965, once returned to action 6
weeks after knee surgery, removed a cast on his broken thumb during a
game and played through 4 concussions. After one such knock in the head
during the 1964 season, the NFL encouraged Larry to ignore dizzy spells
and ringing in his ears so he could play. Larry is best known for being
the most valuable player for the Bears in the 1963 NFL Championship
game. Larry now suffers from dementia at age 73 and cannot be left
unattended. His healthcare expenses have sapped more than $200,000. His
wife of 50 years, Kay Morris is still waiting for the full benefits to
which Larry is entitled under the new ``88 Plan''--named after the
number of Baltimore Colt great John Mackey--but the award to date is at
a lower level and administrative difficulties with that Plan have
prevented her from obtaining adequate support. It has been proven that
almost all medical claims coming from brain trauma due to concussions
are denied or only given lesser benefits stating that the injuries and
mental issues such as depression and early onset dementia cannot be
proven that they are a direct result of football. (In a recent article
in the Charlotte Observer, an NFL Plan attorney divulged that there
have only been four such claims made successfully in the history of the
Plan--only four concussion cases!) It is difficult for families who are
technologically challenged and struggling to afford food and healthcare
to navigate this bureaucratic maze.
My own career was ended prematurely. I had five remaining years of
a seven-year contract. I suffered a herniated disk at C-6 and C-7.
After surgery, I battled my way back onto the field and played 1 year
and one game. I herniated a disk again at C-5 and C-6. I had an
agreement with my doctor that, if this happened, I would retire and
walk away from the game. I chose quality of life with my new family
moving forward under the impression that the union would provide
financial assistance in lieu of the money I left on the table with my
contract. I discovered by going through the NFLPA Disability process
that this system was put in place to deny claims by former players. The
only concern that they had was that I could maintain another job--any
other job--and generate income with no regard to the injuries that were
a direct result of playing the game of football.
The doctor I met with is considered a neutral physician but, in
reality, he was a physician designated by the NFLPA. I was not allowed
to bring in x-rays, MRI's, and the doctor could not consult with the
trainers from my team or the doctor who performed my surgery. He denied
my claim. His only interest was whether I was capable of holding
another job. He showed little interest in my physical condition and the
injuries sustained from an 11 year NFL career.
Upon appeal, to another designated NFLPA physician, my claim was
denied as I walked into the office. He did not examine me, nor did he
interview me. My impression was the decision was made long before I
walked through the door. I am not the first to have experienced this
routine treatment of injured players. When I talked to other colleagues
about my case, their instructions to me were to just keep fighting and,
eventually, I would be accepted. The system has no set standards that
instill confidence and trust with any player going through the process
that they will be granted disability benefits.
Former NFL players are hurting physically, emotionally, and
financially. There is a tremendous amount of pride in NFL players. We
don't ask for much but we will beg for nothing. This system forces us
to beg for benefits that we have earned and to which we are rightfully
entitled. The League needs to take care of these legendary players who
made the game of football what it is today.
The NFL claims to have paid benefits to 284 former players--only
about 3 or 4 percent of the estimated 7,000 NFL retirees who have
received disability payments (this is the Plan's own figure; it has
also used 8,000 in testimony before the House of Representatives and
9,000 in public statements afterwards, but I'll use the lower number to
give the most flattering picture of their efforts). A meager 3 or 4
percent at most who have received disability payments is not nearly
enough for a game that takes the unique toll on human bodies that
football does. That this discrepancy should exist in a game that
realizes over $7 billion in annual revenue is a stain upon the game's
integrity. The issue of former NFL players' needing financial and
medical assistance is hardly is a new one. The story of former
Pittsburgh center Mike Webster, a Hall of Fame player, came to light a
decade ago. Crippled by the constant banging during his career, Webster
became homeless. He applied several times for disability, but was
unanimously turned down each and every time. He died of a heart attack
in 2002, and his family sued the NFL for benefits the league had denied
him. They won $1.5 million.
In recent months the league has taken positive measures to
acknowledge those realities by implementing ``The 88 Plan'' into the
most recent labor agreement in honor of former Baltimore Colts tight
end John Mackey. Like Morris, Mackey suffers from dementia--but on a
more severe level. The ``88 Plan'' provides up to $88,000 a year for
families to put toward a residential care facility or up to $54,000 for
home care. In the case of Kay Morris, Kay doesn't believe a nursing
home is the best place for her husband, and the $54,000 allotted for
home care just isn't enough money to pay for nursing help and necessary
medical attention. This added program is a step in the right direction;
however, it is not enough. Moreover, since the Mackey Plan is
administered as a reimbursement plan, many qualifying players do not
have the front money to participate and obtain care.
To protect their economic interests, the NFL and the current
players' union have allowed the Plan's procedures to become an obstacle
course for former players in order to prevent them from getting
benefits. They have not published or prescribed rules or standards for
the determination of benefit eligibility. There are documented cases,
such as Brent Boyd's, in which the Plan has disregarded the medical
opinions of its own ``Plan Approved'' doctors when the Board does not
want to pay benefits. In order to minimize the amount owners must pay,
the Board denies many former players' claims. This is an inherent
conflict of interest that favors the owners and active players and has
led to tragic results for many severely disabled NFL retirees.
The Retirement Board created a 42-month limit on retroactive
disability amounts for retired players, which is not only against the
retired player's best interests but also a direct violation of the
ERISA law. The imposition of a limitation on the amount a player is
able to recover reduces the accrued benefit. Degenerative conditions do
not always show up within 42 months. Therefore, this makes applying for
this benefit impossible due to the time limitation.
The NFL Retirement Board, not the NFLPA, determines disability
claims. Representatives are appointed by the NFL owners and the NFL
Players Association. There is no one on the board looking out for the
interests of former players. This six-member board votes unanimously
almost every time. The Groom law firm who established the pension fund
in the 1993 Collective Bargaining Agreement also serves as counsel to
defend the distribution of disability payments. They have earned $3.15
million for defending claims in the past year--about one-sixth of what
the Plan says it pays out in disability benefits. This is an obvious
conflict of interest. The emphasis is only on the current player. The
players who built the NFL have been left behind.
The retired player has no voice in the current system. The salaries
paid to players who built the NFL pale in comparison to the salaries
the players receive today. The NFLPA, however, continues to focus on
the current player and his financial stability. In 1993, the Collective
Bargaining Agreement (CBA) added many new benefits in addition to the
pension. It added a severance, a 5 year COBRA Health Plan after
retirement, a 401k Plan, and a second career savings plan--none of
which was retroactive before 1993 and there had been no changes in
benefits for the previous twenty-three years.
Delvin Williams, who played 8 years as a running back in the NFL,
experienced this firsthand. After 8 years, 6 surgeries, 2 concussions,
broken ribs, a dislocated thumb, knee and spinal injuries, as well as
numerous other joint and vertebrae injuries, his professional football
career ended in 1981, when the Green Bay Packers released him. He was
one of approximately 285 out of 7,000 retired NFL Players who received
degenerative disability benefits. However, it did not come without a
fight and persistence. He started the process in 1983 and was awarded a
football degenerative disability benefit in July 1995--12 years later!
In 12 years, he was turned down twice and lost at arbitration before
being awarded the disability pension benefit.
The NFL may be concerned about the small number of players who
might abuse the system, but in ostensibly protecting against this small
problem, they are turning their backs on literally hundreds of players
who need assistance. The NFLPA looks at this as protecting themselves
against a player, however, this is destroying the family unit and
quality of life--families are divorcing, players are losing custody of
their children, losing their houses, living in homeless shelters, etc.
There are lots of players in dire need. They were the foundation of the
NFL. The league and active players are making millions of dollars.
These former players are losing their health, homes, and dignity. Even
the great Johnny Unitas was denied disability.
The retirement plan has been contorted into a way for the players
association to aid the active players. They have cut out the retired
players and diverted this money into new plans for active players.
Major League Baseball, which draws annual revenues of $4.3 billion,
pays out an average of $36,700 in benefits to its participating
players. Compare that to the NFL, which is currently drawing $7.1
billion in annual revenues, yet its average benefit payout is $13,000.
This is an incredible injustice.
These disabled football players helped build the NFL into a multi-
billion dollar industry that continues to grow. Many of these
individuals are suffering from debilitating injuries, post-traumatic
stress, and dementia after sacrificing their bodies and minds for the
League--for the NFL's success. They face mounting medical problems and
financial hardships and the League must do more to assist them. The
league has not only forgotten them, but has attempted to strangle their
quality of life through an unwieldy retirement and disability benefit
system. This disability plan is grossly inadequate for those who need
it the most--the former players.
Why am I here? I am not here to cause controversy, but to affect
positive change. We want to fix this issue. As Senators, you have the
ability to make a difference and the power to create change
immediately. After presentation of these facts, my hopes are high that
this situation will be resolved. There is an excessive amount of money
generated by the NFL--the money is there to solve this problem. This is
a $7 billion dollar industry. Why is it not being funneled into the
right areas and why is it not being administered to accomplish what it
was set up to do? I implore you to make educated decisions and take
care of those retired players--the heroes that have made the game of
football the number one spectator sport in America. These retired
players are being denied benefits while the NFL continues to profit off
their work. These are the giants that helped build the league.
I am asking the Senate Committee for oversight to ensure the NFLPA
is working toward correcting the problem in good faith. I would like to
request the NFLPA be fiscally responsible in paying disability claims.
Claim information needs to be publicly divulged so all can see the
record of disability claims that have been paid. A major frustration
has been the lack of openness on the part of the NFLPA to share the
financial aspects of the Plan. The Plan completes a valuation once a
year, which compares the assets to the liabilities for the past year.
There is nothing confidential or privileged about the information
included in this report. If copies of this report for the past 5 years
were made available to retired players, a huge increase in trust could
be achieved. Why has this not happened before now? This simple request
for information should be volunteered by the NFLPA with openness as
evidence of proper administration of the plan.
What do we hope to accomplish? Our hope is to bring a measure of
fairness to the relationship between the League and retired disabled
football players. We would like to rework the structure of the
disability system. The system must be neutral to all parties. The
framework must include a designated group of retirees from each decade
of the NFL in order to provide a voice for forgotten players. The
voices that need to be heard are those of retired players who are
suffering medically and financially from the harsh realities of their
post NFL careers. It is necessary they be voted in by their peers, not
appointed or hand picked by the NFL Committee. The league needs to take
a hard look at doing more for veteran players, and address the core
issue of overhauling the current disability system. My goal is to help
create a system that addresses the needs of former players that are in
dire straights because of the injuries they suffered as a direct result
of playing professional football. There are unique circumstances to
some of these individuals that the system must account for and take
into consideration. The retired players from the previous era must be
provided a voice as the NFL moves forward.
Roger Goodell, the Commissioner of the NFL is forming its first
alliance to improve medical services for ailing retired players. As a
form of recognition that a serious problem exists, this is a step in
the right direction, but the alliance was devised and announced without
gaining sufficient input from advocates who have represented the
interests of retirees for years. A better negotiation process would
have produced a better alliance. To his credit, Mr. Goodell is cleaning
up the NFL regarding the actions of certain contemporary players, but
now he needs to restore the dignity of the Players who built this
league, which has been robbed from many of them by the disability
process. According to the Integrity Clause of the NFL, ``The
Commissioner is in charge of the integrity of the game, its management
and its players.'' Webster defines the term ``integrity'' as ``a noun .
. . [that] means honesty. . . . A trustworthiness and incorruptibility
to the degree that one is incapable of being false to an agreement,
contract, responsibility or pledge.'' We have an ethical and fiduciary
responsibility to the Public--the people who drive the ``engine of
success'' of the NFL. The fans and retired players are counting on the
Commissioner and the Senate to be truthful and honest, and to make a
difference in the lives of these broken heroes and past football giants
that made football the number one spectator sport in America.
Senator Dorgan. Mr. Johnson, thank you very much.
Next, we'll hear from Mr. Dave Duerson, the player Trustee
for the NFL `Player Retirement Plan, and former NFL player for
the Chicago Bears.
Mr. Duerson?
STATEMENT OF DAVE R. DUERSON, TRUSTEE, BERT BELL/PETE ROZELLE
NFL PLAYER RETIREMENT PLAN; AND FORMER NFL PLAYER, CHICAGO
BEARS, NEW YORK GIANTS, AND PHOENIX CARDINALS
Mr. Duerson. Mr. Chairman, it's a pleasure to be here. It's
been quite some time since I've walked these halls, back as a
summer intern in 1982, for Senator Dick Lugar. So, please say
hello for me to him.
But, to you, Chairman and the members of the Committee, I'm
David R. Duerson, an 11-year retired NFL veteran. It is my
privilege to serve as a trustee of the collectively bargained
plans covering NFL players.
I was born in Muncie, Indiana, in 1960, to Julian Arthur
Duerson, Jr. My parents were married for 59 years, until my
mother's death, almost 4 years ago. My father is my hero. He
has two Bronze Stars from World War II, having fought in the
European theater, yet the medal he is most proud of is his
Medal of Conduct. He also believes that every male child should
serve 2 years in the armed services. My dad spent 38 years with
General Motors, and was an active member in the UAW. I stood
alongside of him, as a very small child, on many picket lines,
and I can still remember the day, in 1974, that we became a
two-car, and then a three-car, family. I asked my dad, ``What
changed?'' And he said that GM had just given him the job, in
1974, that he was qualified to do in 1945, upon returning from
the war. My dad also told me that he was not raising any
average kids. God, integrity, and education forms the
foundation from which the Duerson name is built upon.
I attended the University of Notre Dame on a football/
baseball scholarship, graduating in May 1983 with a BA in
economics. I was a 4-year starter, two-time All-American
captain, Most Valuable Player, and was drafted by the Bears in
1983 as the 64th player overall. I also graduated from
McDonald's Hamburger University and Harvard Business School's
Owner/Presidents Management Program.
Since retiring from the NFL, I have owned three McDonald's
restaurants and two world-class meat processing companies. My
first company ranked as high as the 44th largest African-
American-owned and -operated business in the United States,
with 2001 revenue in excess of $63 million.
I had an extremely blessed NFL career, which included four
consecutive Pro Bowls, two World Championships, 1987 NFL Man of
the Year, and 1988 NFLPA Humanitarian of the Year. My service
to the NFLPA has been uninterrupted since the end of my rookie
year, when I was voted assistant player representative, until
today, as a trustee. I represented both the Bears and the
Giants as player rep, and the Arizona Cardinals as rep, and as
a member of the NFLPA Executive Committee. I was also a named
plaintiff in the Federal lawsuit which brought free agency to
the NFL in 1993, along with Reggie White, Michael Buck, Hardy
Nickerson, and Van McElroy.
I personally observed Gene Upshaw and his staff take our
union from insolvency to an organization with a for-profit wing
that generates millions of dollars for the players. I also
watched them take us through decertification and
recertification of the exact same union, the first time in the
history of organized labor that that occurred. It was Gene who
coined the phrase, ``Past, Present, Future.'' The focus has
always been on honoring those players who played before us. I'm
very proud of the role my teammates had in leading the strike.
The union meeting to strike was held in Chicago. I will never
forget the comment that our head coach, Mike Ditka, made when
we returned to work. During the strike, the league brought in
replacement players. Mike kept four of those replacement
players, and he told all of us that, ``Those guys, the four
SCAB players, are the real Bears.'' Mike's comments furthered
my resolve, which ultimately led to my role as a plaintiff in
U.S. District Court.
Fighting for players' rights became a passion for me, and
it's even stronger today. I was honored when I received an
invitation, upon retiring from the NFL, to become alternate
trustee of the players' plans, to serve alongside of Tom
Condon, Jeff Van Note, and the late great Len Teeuws. Each man
has operated with absolute integrity and with great resolve in
carrying out their fiduciary responsibility.
Our meetings with the NFL trustees have oftentimes been
spirited, and, on occasion, contentious, but always with both
sides operating within ERISA guidelines. In all cases, Federal
law requires us to follow the terms of the plan, which states
that if an individual is, quote, ``employable,'' he does not
qualify for total and permanent disability. That is not an
arbitrary decision being made on the part of the board. It is
the law.
1993 was a pivotal year in regards to player salaries and
benefits as a result of collective bargaining in Dallas, Texas,
and a new collective bargaining agreement was agreed to. In
that same meeting, the Executive Committee moved to create a
pension benefit for the pre-'59ers, those men who played prior
to the creation of benefits. We got there with Mike Kenn as
President and an 11-member Executive Committee, and a few
strong player reps who wouldn't bend. Since 1993, with every
negotiation and extension, the players have reached back to
fund increases and pass players benefits.
Can the process be improved? Absolutely. Can the process be
sped up? It must be. But, remember, we are bound by Federal law
and the terms of the plan. Can more be placed into the coffers
for disability benefits? Again, absolutely. But those decisions
are made by the current players, who, by the way, are putting 6
percent of their collectively negotiated package into total
benefits. That's $82,000 per player per year, that comes
directly from additional salary they would realize, that's
going into benefits to the benefit of retired players.
Gene and his staff have done yeomen's work on more than one
occasion. I pay tribute to all of those players who, over the
years, sacrificed time with family--and, oftentimes, careers--
to join in this fight. I can personally recall numerous men who
lost their jobs because of their union involvement. Today, we
are as close to labor peace as we've ever been, but the day is
coming when the agreement will run out, and a system very much
like pre-1993 becomes a possibility again, with salaries being
set and no free agency. I can uniquely relate to the players,
both current and retired, as well as management, since I had as
many as 252 employees. I paid their benefits out of my pocket.
And I can also relate to the players, who are feeling a
significant financial crunch, as I lost my business in 2006 to
receivership due to a cash-flow challenge associated with a
late startup after construction. I won a Federal lawsuit in
October 2004, for $34.592 million, but, because the company is
based in the Netherlands, I have been unable to secure any of
the individuals' assets, as of yet, but I will. It has cost me
my business and my home, and I'm exhausting assets as I speak.
But God has been good, and he has been good to those men who
take issue with where they find themselves today.
This, Capitol Hill, is not the proper venue for this
discussion of, How do we improve disability benefits? I am a
retired player, and every man playing today will very soon join
our ranks. The place for this discussion is at the annual
player rep meeting. Retired players need to be there, 300
strong. It's there that the decisions are made, and it's there
that our voice will be heard, and influence felt. Eight men
thoroughly immersed in a truly united spirit are far greater
assets than 80 with lukewarm enthusiasm.
The game is better than it has ever been, and the players
are compensated at unprecedented levels. I didn't realize the
impact of it, but one of my sons might, or their children, when
they have them. I'm excited about what we've accomplished so
far, and it's been a very fair life.
I thank you. God bless you.
[The prepared statement of Mr. Duerson follows:]
Prepared Statement of Dave R. Duerson, Trustee, Bert Bell/Pete Rozelle
NFL Player Retirement Plan; and Former NFL Player, Chicago Bears, New
York Giants, and Phoenix Cardinals
Chairman Dorgan and Members of the Committee, I am David R.
Duerson, an 11-year retired NFL Veteran. It is my privilege to serve as
a Trustee of the collectively bargaining plans covering NFL players.
I was born in Muncie, IN, in 1960, to Arthur and Julia Duerson,
Jr. My parents were married for 59 years, until my mother's death, of
almost 4 years. My father is my hero! He has 2 Bronze Stars from WWII,
having fought in The European Theatre, yet the medal he is most proud
of is his Medal of Conduct! He also believes that every male child
should do 2 years in The Armed Services! My dad spent 38 years with
General Motors, and was an active member in The UAW. I stood along side
of him, as a very small child, on many picket lines. I can still
remember the day, in 1974, that we became a 2-car, and then 3-car
family. I asked my dad ``what changed?'', and he said that GM had just
given him the job in 1974 that he was qualified to do in 1945, upon
returning from the War. My dad also told me that he was not raising any
``average kids!'' He proved it to me, by taking Baseball (my best
sport) away from me one summer, because I brought home less than
acceptable grades! GOD, Integrity, and Education forms the foundation
from which the Duerson name is built upon.
I attended The University of Notre Dame (1979-1983) on a Football/
Baseball Scholarship, graduating in May 1983 with a B.A. in Economics.
I was a 4-year starter, 2-time All-American, Captain and MVP of The
Fighting Irish, and was drafted by The Bears in 1983, as the 64th
player overall. I also graduated from McDonald's Hamburger University
in 1994, and am an Alum of Harvard Business School's Owner/President/
Management Program (OPM30), finishing in May 2001.
Since retiring from NFL football in April 1994, I have been in the
private sector. While finishing my career in Phoenix, with The
Cardinals, I would play on Sunday and be behind a McDonald's counter on
Monday and Tuesday . . . which ultimately led to my having 3 McDonald's
restaurants in Louisville, KY for 6 months, before moving to the
supply-side. From April 1995-December 2006 I owned 2 world-class, 1st-
tier meat processing companies, serving internationally the likes of
McDonald's, Burger King, The Olive Garden, and Sara Lee, as well as,
The USDA's National School Lunch Program and military bases throughout
The European Theatre, and others. In 1998-99, we were the 44th largest
African-American owned and operated company in The United States. Our
2002 revenue was in excess of $63M.
I had an extremely blessed NFL career, which included: 4
consecutive Pro Bowls, All-Pro 3-times as a Strong Safety and once as a
Free Safety, 2 World Championships (Chicago Bears SB XX, and NY Giants
SB XXV), 1987 NFL Man Of The Year and 1988 NFLPA Humanitarian Of the
Year. My service to The NFLPA has been uninterrupted, since the end of
my rookie year (1983) with The Bears, when I was voted Assistant Player
Representative, until today as a Trustee. I represented both The Bears
and The Giants in the role of Player Rep and The Arizona Cardinals as
Rep and as a member of The NFLPA Executive Committee. I was also a
named plaintiff, in The Federal Lawsuit which brought Free Agency to
The NFL, in 1993, along with Reggie White, Michael Buck, Hardy
Nickerson, and Van McElroy.
I personally observed Gene Upshaw and his staff take our union from
insolvency to an organization with a For-Profit wing that generates
millions of dollars for the players. I also watched him take us through
Decertification and Recertification (of the exact same union) . . . the
first time in the history of Organized Labor that that occurred! It was
I who moved to give Gene and his staff a Vote Of Confidence . . . it
was unanimous! I also recall during those lean years the number of
times that Gene and his staff would not cash their pay cheques, because
there was not enough money to pay them . . . they kept their cheques in
their desk drawers! It was Gene who coined the phrase, our motto and
mission statement: ``Past, Present, Future!'' The focus has always been
on honoring those players, who played before us!
I became team Player Rep in 1987, the year of our strike. I am very
proud of the role my teammates had in leading the strike, and we were
the last group of men to return to the practice field, when the strike
was called off, and no one crossed the picket line! The union meeting
to strike was held in Chicago. I will never forget the comment that our
Head Coach, Mike Ditka, made when we returned for our first meeting. As
a result of the strike, The League brought in replacement players
(SCABS) who played (3) games in place of the striking players. Mike
kept 4 of those replacement players, when we returned, and he told all
of us that ``Those guys (the 4 SCAB players) are THE REAL BEARS!''
Mike's comments furthered my resolve, which ultimately led to my role
as a plaintiff in U.S. District Court. It stung my conscience, as much
as my dad's comments regarding GM and the 29 years it took them to give
him the job he was qualified to do in 1945. And also of my first
meeting with Buddy Ryan, my rookie year, who asked me: ``Golden Domer,
you one of those doctors or lawyers?'' I said ``yes sir!'' He said
``well, you won't be here too long, because I don't like smart
Niggas!'' I called my dad and told him that ``I didn't graduate from
college to go through this!!!'' My dad said: ``It sounds to me like
you're in The Army!'' It was a very short phone call. From that, I
learned to persevere.
Fighting for players' rights became a passion for me and it's even
stronger today. I was honored when I received an invitation, upon
retiring from the NFL, to become Alternate Trustee of the player plans,
to serve along side of Tom Condon, Jeff Van Note, and the late great
Len Teeuws. Each man has operated with absolute integrity and with
great resolve, in carrying out their fiduciary responsibility. In fact,
during the years that we played without a union representing us, those
men were totally naked, in terms of liability, without any financial
backing from the players, had a suit arisen!!!
I recall receiving my first set of documents with players'
applications and renewals, with all of their medical records, and
turning to my wife and saying: ``I now know far more than I care to
know about these men and their financial & family situations.'' Our
meetings with the NFL Trustees have oftentimes been spirited and on
occasion contentious, but always with both sides operating within ERISA
Guidelines. I can say, without question, that Tom, Jeff, Len, and I
have fought for every individual player who has filed an application
for benefits. Len was a tireless champion for the men who served in The
Armed Services, to get accredited seasons for them, during those years
when they were serving our country. In replacing Len, as a full
trustee, upon his retirement, I have continued that fight. Trace
Armstrong now serves as the Alternate. We are even more diligent in our
efforts to gain benefits for any and all players who are deemed totally
& permanently disabled! In all cases, Federal law requires us to follow
the terms of the Plan, which states that if an individual is
``employable'', he does not qualify for total and permanent disability.
That is not an arbitrary decision being made on the part of the Board.
. . . It Is The Law!
1993 was a pivotal year, in regards to player salaries and
benefits. As a result of collective bargaining, in Dallas, TX, a new
CBA was agreed to. The very first thing negotiated was Benefits, and I
immediately left the room to go and call Daryl Stingley to let him know
that his benefits were tripling! In that same meeting, the Executive
Committee moved to create a Pension Benefit for The Pre-59'ers . . .
those men who played prior to the creation of benefits, who had not
received one from the guys who came after them. We got there with Mike
Kenn as President and an 11-membered Executive Committee, and a few
strong player reps who wouldn't bend! Since 1993, every negotiation and
extension of the current agreement, the players have reached back (out
of their pockets to the tune of $82K per year, per player this year) to
fund increases in PAST PLAYER'S BENEFITS!
Can the process be improved? Absolutely! Can the process be sped
up? It must be! But remember, we are bound by Federal law and the terms
of the Plan, and quite frankly, the only reason the players have a seat
on the Board is because it was collectively bargained . . . just as
with my companies, I as management could run the benefit portion
without employee input! Can more be placed into the coffers for
Disability Benefits? Absolutely! But, those decisions are made by the
current players who, by the way, are putting 6 percent of their
collectively negotiated package into total benefits. That $82K per
player per year comes directly from additional salary they could
realize!
I have seen our benefit numbers grow from under $7M to over $2.5B,
since the year I became a rep. Gene and his staff have done yeoman's
work, on more than one occasion. I pay tribute to all of those player
reps, who over the years, sacrificed time with family and oftentimes,
careers, to join in this fight. I can personally recall numerous men
who lost their jobs because of their union involvement. Today, we are
as close to labor peace as we've ever been. . . . The ``Poison Pill''
at the end of the agreement, placed their by The Special Magistrate is
responsible for that. The day is coming when the agreement WILL run
out, and a system very much like pre-1993 becomes a possibility, again,
with salaries being set and no Free Agency. On that day, benefits will
be frozen or simply taken away.
I can uniquely relate to the players, both current and retired, as
well as, management, since I had as many as 252 employees . . . I paid
their benefits out of my pocket. I can also relate to the players who
are feeling a significant financial crunch, as I lost my business in
2006 to receivership, due to cash-flow challenges, associated with a
late startup, after construction. I won a Federal Lawsuit in October
2004 for $34.592M, but because the company is based in The Netherlands,
I have been unable to secure any of the individual's assets, as of yet,
but I will. The Hedge Fund wasn't concerned with my challenge, nor my
family's. It has cost me my business and my home, and I'm exhausting
assets as I speak. But, GOD has been good, and HE has been good to
those men who take issue with where they find themselves today.
I have had some great coaches: Terry Hitchcock, Dan Devine, Jim
Johnson, Mike Ditka, Buddy Ryan, Bill Parcells, and Bill Bellichek.
I've had and have great mentors and known great leaders.
This (Capitol Hill) is not the proper venue for this discussion, of
how do we improve disability benefits. I am a retired player, and every
man playing today will very soon join our ranks. The place for this
discussion is with the current players, at their Annual Player Rep
Meeting, in March. Retired Players need to go there 300+ strong! It's
there that the decisions are made, and it's there that our voice will
be heard and influence felt! ``Eight men thoroughly immersed in true
unionized spirit are far greater assets, than eighty, with lukewarm
enthusiasm!''
The game is better than it has ever been, and the players are
compensated at unprecedented levels. Salaries and benefits skyrocketed
as a result of Reggie White, Michael Buck, Hardy Nickerson, Van
McElroy, and myself, and others. I didn't realize the impact of it, but
one of my sons might, or their children (when they have them). I'm
excited about what we've accomplished so far and it's been a very fair
life.
Thank you. GOD Bless You!
Senator Dorgan. Mr. Duerson, thank you very much. As you
know, we have arranged the sounds of a carpenter as
accompaniment for your testimony. We apologize for that. But--
see if we can stop it. Thank you for your statement.
Mr. Bill Bain is a former NFL player for the Los Angeles
Rams.
Mr. Bain, you may proceed.
STATEMENT OF BILL BAIN, FORMER NFL PLAYER,
LOS ANGELES RAMS, GREEN BAY PACKERS, NEW ENGLAND PATRIOTS,
DENVER BRONCOS, NEW YORK JETS
Mr. Bain. Good morning, Mr. Chairman, Senators, and members
of the Committee.
My name is Bill Bain. I am happy to be here in support of
the NFLPA. I played 12 years in the NFL, most of them on
running teams. It was my pleasure to spend 8 years with the
L.A. Rams. I got to play with Hall of Famers Jack Youngblood,
Jackie Slater, and Eric Dickerson. In 1983, Eric set the rookie
record, which still stands after 24 years. In 1984, Eric set
the NFL rushing record, which still stands after 23 years. I
was very proud to be part of that L.A. Ram offensive line.
Now, as I stated before, I've been on running teams most of
my career. The injuries I have received can best be described
by an equation developed by a physicist that says, ``Two 280-
pound linemen hitting head-on 60 times a game is the equivalent
to two cars hitting head-on at 40 miles an hour.'' On running
teams, you practice run-blocking on Wednesday, Thursday, and
Sunday. By doing so over 12 years, I developed a condition
called venous insufficiency in both legs. That means that the
veins have collapsed, making it difficult for blood to return--
back up to my heart. It just pools into my feet, in my legs. My
legs, from my calf down, are the color of this tie. After
retiring, in 1987, I could not use my college degree to help my
family, because the employers that wanted to hire me were
afraid that my medical conditions would increase the future
medical insurance premiums beyond their acceptable levels. It
was then that I was forced to take various physically demanding
jobs to help my family out. This deteriorated my legs even
further, causing ulcers, which would ooze and bleed and take 4
to 6 months to heal. An ulcer can best be described as a worm
in an apple, with stuff oozing out of it.
In 1993, I received two letters from the NFL Players
Benefits Office advising me of a financial condition of two
funds that were negotiated by the NFLPA in the most recent CBA,
which was negotiated after I had retired. I called the NFL
office. My call was directed to Miki Yaris-Davis. And she is a
godsend. Anyway, she explained to me what the two programs
were. I got off the phone, explained what the two programs were
to my wife. She--we both looked at each other and, kind of,
laughed. And she said, ``You can easily qualify for this.''
I called the NFLPA and requested a physical exam. A form
was sent to me immediately. I had a doctor's appointment made.
However, when I got to that doctor's appointment, unbeknownst
to me, I needed to pay $300 up front for the exam. The doctor
would not see me. Finally, on September 15, 1996, 2 years 9
months after receiving the two letters, I was able to save up
$300 to pay the up- front fee for the physical and take the
examination. On January 16, the Retirement Board met, and on
January 18th I received a letter of denial. The letter stated
that Dr. Schultz did not consider me permanently damaged goods.
Between January 19 and March 15, I started the appeal
process. I collected letters from two workman's comp attorneys,
three physicians, and two personal friends, all who have known
me well and had followed my career. One of the attorneys was
Mike Bagby. Mike's a great friend. Mike Bagby is a lawyer, and
he has associates, and they specialize in workman's comp
attorney law for the employer; and he's out of Santa Ana,
California. Mike read Dr. Schultz's report and asked me if I
had a surgically repaired scar on my right knee. My answer was
no, it's on my left knee. Then Mike asked me how come there was
no reference to the venous insufficiency? And I answered,
``Mike, because he didn't ask me to take my socks off.'' I
presented these letters to the board on April 24, 1997. I had
my appeal hearing. It ended at a 3-3 tie. And that's a good
thing--it's three players and three owners--it was a good
thing, because, with that decision as a tie, I get to go see a
MAP doctor. ``MAP,'' meaning Medical Advisory Physician.
On May 28, 1997, I was examined by Dr. Tiboni. Thank God I
took my wife with me, who's an RN. During the exam, Dr. Tiboni
stated, ``You're kinda messed up, but not so badly that you
should receive disability.'' That's when my wife said--as I
said, ``She's an RN''--that's when my wife said, ``Bill, take
down your socks.'' Well, Dr. Tiboni--looked--he just went like
that, a look of complete astonishment. Dr. Tiboni examined my
feet and my legs for the next 10 minutes, and then said,
``Congratulations, you've flunked your physical.'' This is a
good thing.
On July 23, the Board granted my appeal for total and
permanent disability benefits. On August 15, 1997, the Feast of
the Assumption, I received my first check. During that tough,
long year process, I wanted to quit several times, but due to
the support of the NFLPA and Miki Yaris-Davis, I didn't.
In closing, I want to say that, without the NFLPA's
efforts, I'd be upside down. Without the Federal Social
Security disability benefits, I'd be inside out. Without my
wife and her job and the medical benefits her job provides, I
don't know where I would be, my four daughters would be, my
whole family would be. I thank the NFLPA so very much for all
their help, because they stuck by me.
Thank you very much.
Senator Dorgan. Mr. Bain, thank you very much for being
with us and sharing that story and your testimony.
Next, we'll hear from Mr. Garrett Webster, the son of NFL
player Mike Webster, from the Pittsburgh Steelers.
Mr. Webster, you may proceed.
STATEMENT OF GARRETT WEBSTER, SON OF MIKE WEBSTER,
FORMER NFL PLAYER, PITTSBURGH STEELERS AND
KANSAS CITY CHIEFS
Mr. Webster. Thank you, Senator.
Ladies and gentlemen, before I begin my testimony, I would
just like to express my gratitude for being included in today's
proceedings. I am humbled to be here today in the capital of
the greatest country in the world and to share the story of a
great football player and a great man who was abandoned by the
League he helped build.
Today, you will hear firsthand from former players about
what it's like to try and obtain disabilities from the NFL. You
will hear what it's like to be in constant pain. You will hear
what it is like to fear the loss of your mind, body, and
perhaps even your very soul while you are still relatively
young.
But that's not my story. I cannot tell you what it's like
to wake up and not be able to walk out--walk to the shower
without being in constant pain. I cannot tell you what it's
like to fear the loss of your mind and then to feel it actually
happening. I cannot tell you what it's like to become a
stranger even to yourself.
However, what I can tell you, and what I will tell you, is
what it's like to stand by, helpless, as your father's life is
turned into a constant living hell that most people would take
their own lives to escape from.
My father was Iron Mike Webster. He played 17 years and was
perhaps the most widely respect player in the League during
that time period. For--he was mainly respected for his work
ethic and his devotion to his city and his team, the Pittsburgh
Steelers. He was the Steeler the fans viewed as one of their
own, a blue-collar man who would dedicate countless hours to
help raising millions of dollars for spina bifida, who would
stay long after autograph shows so everyone got their souvenir
signed, who greeted everyone with a handshake from those
massive hands, and made them feel like they were a personal
friend. Ask all of these people who Mike Webster was, and they
will tell you he is the definition of an all-time great.
I am proud of my father, and, as all sons are, I think my
dad was the greatest dad in the world. When I was young, I
remember my dad wrestling with my brother Colin and I in the
pool, chasing robins with my sisters, Brooke and Hillary, out
in our front yard, and reading stories into a tape recorder so
we could hear his voice while he was on long road trips. My
mother, who could not be here today, remembers my dad as a good
father and husband, who could remember the street layouts of
Chicago after taking one look at a map, and a man who would
play practical jokes on the neighbors, not limited to putting a
few rubber snakes in Mrs. Gregg's mailbox.
But, as I grew older and I grew more and more aware of my
dad and his condition, I knew that the Mike Webster that I grew
up and loved was dying. I remember the day that I knew
something was wrong, when, on my 10th birthday, my dad was
nowhere to be found. I didn't even receive a phone call, which
was not like him, because he would usually call me every single
night before I went to sleep, and call me his ``Little Buddy.''
Later that month, I found out why, when our family
discovered Iron Mike Webster, bloated to over 300 pounds,
shivering naked in a bed in a rat-infested motel, and, at his
side were not pictures of his kids, nor his Super Bowl rings,
nor autographs or any glory that you associate with football,
but a bucket of human waste, because he was too weak to make it
to the bathroom.
As time passed, my dad's condition only got worse. I have
lived through things I would not wish on my worst enemy. Have
any of you people around here had to shock your own father with
a taser so he could go a few minutes without pain? Have any of
you had to receive a phone call from your father telling you he
was about to kill himself so he could get away from it all?
Have any of you had to witness a once-proud, strong man as Mike
Webster, have to beg for KFC and perhaps offer autographs just
so he could eat something? Well, I have. And I cannot forget
those experiences.
My father is gone now. I cannot help him. But I can do what
he would do for his teammates and fellow football players if he
were here, healthy, and the man that he was before the repeated
head injuries suffered on the football field took his mind and
body from him at an early age, and took him from me far too
soon.
What I'm asking is that the NFL Players Union and the
National Football League, as a whole, look beyond the bottom
line and help the past, present, and future gladiators, in
every way that they can, to find peace, self respect, and a
measure of health when their very short time in the game is
over, and they don't end up relieving themselves in the oven
as--in a flash of dementia, as my father once did. Believe me,
there are millions of kids who play this beautiful game of
football and have no idea of the risks. I'm calling on the
League, the Players Union, the Commissioner, the retired
players, and the U.S. Government to put aside egos and hurt
feelings and work in a way to educate people about the health
risks involved with playing the game, and to take care of those
athletes who got hurt while playing it in a fair and balanced
way, whether it be with healthcare, social workers, insurance,
or whatever can be provided by a multibillion-dollar
corporation.
A final plea, I will make to you, Commissioner Roger
Goodell. I personally think that you're a good man who wants to
promote positive change in today's game. You have shown good
leadership with things, such as making sure the NFL players are
accountable when they break the law, so they are good role
models for kids today. I am making a plea to you, not as the
son of Mike Webster, not as a 23-year-old kid who has lost his
best friend and father, but as a young man who desperately
wants no one to ever feel the pain that I feel every morning,
to feel the loneliness that I feel when I have to turn to my
father for advice and he is not there, to feel the heartbreak
that I feel when I hear about Chris Benoit, Andre Waters,
Reggie White, Justin Strzelczyk, and the web of people
connected to them that have had brain injuries, and those brain
injuries have destroyed their lives by repeated concussions and
head--other head injuries. I ask you, Mr. Goodell, to use your
position as NFL Commissioner, to lead the charge to educate the
public about brain injuries and show them how to rehab and take
care of those injuries, and take care of people that are slowly
becoming a stranger to themselves and those around them. I
pledge to offer whatever help I can, and support. My father
would like that, I know. I would give my life to never see
another family end up like mine. I am ready to help. Please
join me.
Ladies and gentlemen of the Senate, I thank you for your
time.
[The prepared statement of Mr. Webster follows:]
Prepared Statement of Garrett Webster, Son of Mike Webster, Former NFL
Player, Pittsburgh Steelers and Kansas City Chiefs
The following people all helped Mr. Mike Webster in his final
years, and I would like to include their names on this document----
Bob Fitzsimmons
Sunny Jani
Devin Jani
Alexis Jani
Dr. Charles Kelly
Dr. Jim Vodvarka
Freddy Shaheen
Sam Nuci
Terry Despoy
Cy Smith
Pamela Webster
Brooke Webster
Colin Webster
Garrett Webster
And the entire Pittsburgh Steelers Family.
Ladies and gentleman, before I begin my testimony, I would like to
express my gratitude for being included in today's proceedings. I am
humbled to be able to appear here today, in the capitol of the greatest
country in the world, to share the story of a great football player and
a great man who was abandoned by the league he helped build.
Because I am proud of the way my father lived and still agonized at
the way he died, I may struggle in my oral presentation of this
testimony against being inappropriate. I hope I am at my best for you
Members of the Committee who have kindly taken oversight of the great
injustices of the NFL's disability system, and for the men who have
suffered, and who continue to suffer, under it. I know that, for their
sake and for the memory of my father, whom I represent today, that I
must try to put hurt feelings aside and coolly expose the deceptions in
that system that will rob other children of fathers, mothers of sons,
and wives of husbands if it is allowed to continue. I ask you to listen
with open hearts and open minds with concern not for icons, superstars,
quarterbacks, lineman, or football players, but for your fellow human
beings. In return, I will try to be as brave before my task as my
father was in life.
Today you will hear, first hand, from former players about what
it's like to try and obtain relief for their disabilities from the NFL.
You will hear what its like to be in constant pain. You will hear what
its like to fear the loss of your mind, body, and perhaps even your
very soul while you are still relatively young. But that is not my
story. I cannot tell you what its like to wake up and not be able to
walk to the shower without being in constant pain. I cannot tell you
what its like to fear the loss of your mind and to feel it actually
happening. I cannot tell you what its like to become a stranger even to
yourself. However what I can tell you, and what I will tell you, is
what its like to stand by, helpless, as your father's life is turned
into a constant living hell that most people would take their own lives
to escape.
My father was Iron Mike Webster. He played 17 years and was perhaps
the most widely respected player in the league during the 1970s and 80s
for his strength, for his work ethic, and for his devotion to his team,
the Pittsburgh Steelers. He was the Steeler the fans viewed as one of
them--a regular man who dedicated hundreds of hours to helping raise
millions of dollars for spina bifida, who would stay long after
autograph shows so everyone got a souvenir signed, who greeted everyone
with a handshake from those massive hands and made them feel like they
where a personal friend. Ask all of these people who Mike Webster was
and they will tell you that he is the definition of an all time great.
I would love to tell you that Iron Mike Webster lived out his
remaining years, a proud man, sharp as a tack, humorous, warm, and
caring, a wonderful husband and father. But I cannot lie and, because I
care about my Dad's memory and I care about the people that are here
today who are suffering under the same system that failed him so
miserably, I must try to tell the truth as I saw it, through the eyes
of a surviving son.
I'm proud of my father, and as all sons are, I think my dad was the
greatest dad in the world. When I was young, I remember my dad
wrestling with my brother Colin and I in the pool, chasing robins with
my sisters Brooke and Hillary in our front yard and reading stories
into a tape recorder so we could hear his voice when he was away on
road trips. My Mother, who could not be here today, remembers my dad as
a good father and husband who could remember the street layouts of
Chicago after taking one look at a map, and who would play practical
jokes on the neighbors, not limited to putting a few rubber snakes in
Mrs. Gregg's mailbox.
But, as I grew older, I grew more and more aware that the Mike
Webster I knew was dying. I remember the day I knew something was wrong
when, on my 10th birthday, my dad was nowhere to be found. I didn't
even receive a phone call, which was not like him. Later that month I
found out why, when our family discovered ``Iron Mike'' bloated to over
300 pounds, shivering in a bed at a rat infested motel. At his side
were not pictures of his kids, nor his super bowl rings, but a bucket
of human waste because he was too weak to make it to the bathroom.
As time passed, my dad's condition only got worse. I have lived
through things I would not wish on my worst enemy. Have any of you had
to shock a family member with a tazer so he could be without pain for a
few moments, have any of you, at the age of 13, received a phone call
from your father in which he tells you he is about to kill himself?
Have any of you witnessed a once strong, proud man, reduce himself to
begging for Kentucky Fried Chicken? I hope not. I have and I cannot
forget.
My father is gone, now. I cannot help him. But I can do what he
would do for his teammates and fellow football players if he were here,
and healthy, and the man he was before repeated head injuries suffered
on the football field took his mind and body from him at an early age,
and took him from me far too soon. What I'm asking is that the NFL
Players Union and the National Football League as a whole look beyond
the bottom line and help the modern day gladiators in every way they
can to find peace, self respect and a measure of health when there very
short time in the game is over so they don't end up relieving
themselves in an oven in a flash of dementia as my father did once.
Believe me, there are millions of kids who play this beautiful game of
football who have no idea of the risks. I'm calling on the League, the
Players Union, the Commissioner, the retired players, and the U.S.
Government to put aside egos and hurt feelings and work on a way to
educate people about the health risks involved with playing the game,
and to take care of those athletes who got hurt while playing it in a
fair and balanced way, whether that be with healthcare, social workers,
insurance or whatever help can be provided by a multi-billion dollar
corporation.
The final plea I will make is to you, Commissioner Goodell. I
personally think that you're a good man who wants to promote positive
change in today's game. You have shown good leadership with things such
as making sure NFL players are accountable when they break the law, so
they are good role models for kids today. I'm making a plea to you, not
as the son of Mike Webster, not as a 23 year-old kid who has lost his
best friend and father, but as a young man who desperately wants no one
to ever feel the pain that I feel every morning, to feel the loneliness
when I feel when I need to turn to my father for advice and he is not
there, to feel the heartbreak that I feel when I hear about Chris
Beniot, Andre Waters, Reggie White, Justin Strylzick and the web of
people connected to them, that have had there lives destroyed by
repeated concussions and head injuries. I ask you, Mr. Goodell, to use
your position as NFL Commissioner to lead the charge to educate the
public about brain injuries and show them how to rehab and take care of
someone that is slowly becoming a stranger to himself and those around
him. I pledge to offer whatever help I can in support. My father would
like that, I know. I would give my life to never see another family end
up like mine. I am ready to help. Please join me.
Ladies and gentlemen of the Senate, I thank you for your time.
Senator Dorgan. Mr. Webster, thank you very much for being
here today and for providing your testimony, as well.
Finally, we will hear from Brent Boyd, who's a former NFL
player for the Minnesota Vikings.
Mr. Boyd, you may proceed.
STATEMENT OF BRENT BOYD, FORMER NFL PLAYER, MINNESOTA VIKINGS
Mr. Boyd. All right, thank you, Senator Dorgan and the
Committee, and especially your dedicated staff, who's been so
generous with their time and hard work going--leading into this
hearing.
Before my clock starts, as I was allowed in the House, I
request a chance to explain my invisible disability, because it
affects my testimony. I do have brain damage. It's been located
on brain scans. The damaged part of the brain gets--when I'm
under stress, gets less blood, instead of more, like normal
people, in--besides causing problems communicating, it causes
excruciating pain. So, you know, this is a Senate hearing, it's
fairly stressful, and, you know, the 5-minute clock is a little
stressful, so I need to--I beg of you to let me go slow and
tell the story. There's a lot to tell. I'm going to need
questions to tell--I can't get it all into 5 minutes. Thank you
for accommodating my disability.
And now, to begin, I'm Brent Boyd. I'm a native
Californian. I graduated with honors from UCLA, am now a
resident of Reno, Nevada.
My wife, Gina, a U.S. Postal mechanic, and son, Anders, 19
years old, fireman in training, they couldn't make it with this
trip. My neurologist prefers, I don't travel alone, so I want
to thank and acknowledge that I have been escorted by one of
America's most decorated Vietnam heroes: retired Colonel Jack
Kelly, United States Marine Corps, has escorted me from the
West Coast and around town.
Although I just turned 50 this year, I am already on
medications for dementia and Alzheimer's. As is all too common
for NFL players, the snowball of dementia has started rolling,
so please grant me the opportunity to tell this whole story
while I'm able. I have a lot to tell. The Committee needs to
hear a lot. So, as long as we're here and we have this time
together, let's take advantage of it, please. And exhaust me
with questions. I am fighting for my life, I'll stay here all
day to answer questions.
In addition to my own story, in the last week or two,
players who have found my e-mail address have written their own
stories. And I haven't counted them. There are 150, 200
letters, probably. I would like to submit this into the
official record. Instead of a form letter, where, you know,
faceless signatures are on it, each story here tells their own
story of their disability and their journey through the rigged
disability board. And each story is different and unique in its
own way, but each has the common thread of the fraud and
corruption of this disability process.
May I submit this?
Senator Dorgan. Without objection, we will include it----
Mr. Boyd. OK.
Senator Dorgan.--in the permanent record, Mr. Boyd.
Mr. Boyd. Also, I wrote the Boyd Plan, which is attached to
my written testimony, and this was in answer to Chairwoman
Sanchez's written follow up question, but it's the only--to
date--comprehensive solution to this. So, I'm here to complain,
but there is also a solution to the process of the plan. So, I
would like--just to let you know, I can answer questions not
only anecdotally about myself, but about these other things.
Now I got lost.
There are--they keep changing the number of former players,
but, you know, there are approximately 8,000 former players in
this most violent sport since the gladiators. We read, Sunday,
only four qualify for concussion disability. They claim 317
disability recipients, which is a ridiculous number, to begin
with, but their 2006 tax filings show only 121 of the 8,000
former players are receiving any disability payments.
The most disgusting number is this. They're taking $3.1
million out of our own pension fund to pay Doug Ell and Groom
law firm to fight us, with our own money, and to alter and
change the plan, and turn it into a jungle of red tape. By
contrast, baseball is paying their attorneys $170,000 to do the
same job.
Now, I love football. Everybody in this room loves
football. I am aware that I'm putting a damper on this party.
Everyone loves football. They play Fantasy Football. They don't
want to hear about this ugly side, about all the carnage. It's
like hearing Santa Claus beat up the reindeer. When a horse
gets crippled, like Barbaro, you'd think President Lincoln got
shot again. When decades of NFL players are crippled and are
denied benefits and left destitute by a rigged system, we are
shoved into the shadow so the party can continue.
I am depending on your questioning to allow for details,
but here is the story, in short.
It was not until 1999 that doctors correctly diagnosed my
problems as being connected with concussions. Once they did
that, I was sent for a 2-day neurological report--brain scans
show, clear as day--it's on the brain scan, there is brain
damage. It's on the picture. It's important, because when they
shopped and got to the third doctor who denied me--in his
report, he admits he never looked at any brain scan.
Well, hearing this, friend and baseball agent Barry Axelrod
helped me file my claim. When I called the NFL to alert them
that I was filing my claim, I was told not to bother, and their
quote was, ``The owners would never open that can of worms by
approving a claim for head injury.'' The liability is so great,
it's like tobacco companies fighting against the link between
smoking and cancer, it's like automakers, when they have faulty
designs, trying to deny any liability. This is a $7 billion to
$8 billion industry. I'm just a guy who has been, off and on,
homeless, and am fighting, you know, on the computer in my
bedroom. But that's--this is the truth of the situation.
So, you have the statement saying they will never open this
can of worms. Shortly after that, my Viking medical files
disappeared. Out of the blue, you know, it has to be, the NFL
destroyed these files to remove the pesky contemporaneous notes
that would prove my claim instantly, and then to allow the Path
& Groom Law's experts at manipulating ERISA.
I was sent to a doctor picked by the NFL, as expected. This
doctor was picked off a preapproved list of physicians. I was
living in San Diego at the time, single father with a young
son. This neurologist enthusiastically supported my claim, to
the point of--the NFL only asked him to examine me 1 day; he
voluntarily brought me back a second day, because, at the end
of the first day, he said, ``I suspect you have vertigo as a
result of these concussions, and I need another full day to
confirm that.'' His tests confirmed, I have vertigo from NFL
concussions. This report was sent to the NFL Disability Board.
NFL Disability Board does not care. The NFL Disability Board
ignores the basic tenet of ERISA. They only look for reasons to
deny a claim, they never look for reasons to approve a claim.
Importantly--after they ignored him, they sent me to a
second doctor; this time, a psychiatrist--first one was a
neurologist. And the second--the psychiatrist was even more
enthusiastically in support of my claim. He sees NFL players
often, and he says mine was the most profound that he had seen.
And then--most importantly, these first two NFL doctors--there
is a mandatory NFL form that the NFL asked these doctors to
fill out. The reason for this form is to remove any doubt as to
cause of--causation, make sure there are no claims of
ambivalence or ``equivalitization,'' if I said that right. The
first two doctors checked the boxes--you know, it asked them if
I was fully disabled, permanently disabled, yes; part of the
body: brain. Question is, on both of these--I'll just hold up
one--Is the disability a result of injury? Yes. Is the injury
resulting from football-related activity? Yes. Both NFL--
remember, they're NFL doctors--checked these claims, sent them
to the Disability Board. The Disability Board doesn't want to
hear it, because it's in support of a player.
Now, again, this form proves causation and removes doubt
about equivocating. The third doctor, who had denied my claim,
has yet, to this day, to fill out this questionnaire. His name
is Dr. Barry Gordon, from Johns Hopkins. This third doctor
never says, in his report what they used to deny me, that--it's
not found in his report that he says--even says I am not
disabled by the NFL. He does make a ridiculous statement that
says, ``Concussions could not cause headaches.'' And anybody
who believes that, raise your hand. ``Concussions don't cause
depression, dizziness, and fatigue,'' my four symptoms he
admits I have, says they are impossible to link to concussions.
To this day, despite what you're told in the misleading NFL
white papers, we still have no idea what Dr. Gordon's answer is
to the question, whether my disability is football-related. But
that I was close enough for them to vote unanimously to deny my
claim.
Now, again, I was a single dad, often homeless. I was kept
alive by charity. To the disgrace of the National Football
League, it was Major League Baseball who kept me alive. Through
Barry Axelrod, baseball players Mark Grace, Rick Sutcliffe,
Jeff Bagwell, along with UCLA alums, actor Mark Harmon, Bill
Walton, and others, formed a charity to move my son out of a
campground or out of the cheap motel we were living in, into an
apartment near my son's school. And I need to thank the San
Diego Native American Health Clinic, of which I don't qualify,
but they provided emergency medical and dental care, just out
of pity.
So, after a 9-month delay, in which I was still reliant on
charity, I was forced to leave my young son in San Diego and
travel to Baltimore to see Dr. Barry Gordon. We fought this.
There are plenty of doctors in Southern California--Doug Ell
said, ``You see Dr. Gordon--only Dr. Gordon, or you're
denied.'' So, I had no choice but to go.
Importantly, those first two doctors were selected off that
preapproved list, Dr. Gordon was handpicked by Doug Ell of
Groom Law.
Since I had already seen a neurologist, they can't just
send me to another neurologist and--say they weren't happy with
the first neurologist's report, they needed to have another
excuse to go. So, I was told I was being flown coast to coast
to take a complex, sophisticated neuropsychological exam. And,
before we get into that plan, I want to--it's important for you
to know that, after these first two doctor reports, the wording
of the plan, the hangup for Mr. Ell, was--the plan says that I
am to be awarded full disability if my disability is ``caused
by, or even relates to, a head injury.'' No percentage of
causation, just if it relates to a head injury. So, again,
incredibly, Dr. Gordon admits, in his report, he never bothered
to look at existing brain scans, never ordered his own. He
ruled on a body part he never looked at. As they teach in law
school, ``Don't ask, if you don't want the answer.''
And now, this neuropsychological test, that was all
important to deciding my case, that they forced me to fly coast
to coast, was not given by Dr. Gordon, as they had been telling
me the whole time. This story gets more ridiculous as we go
along, so hang with me. I show up in Baltimore, and this
neurological test, which takes years to learn how to
administer--is supposed to be only given by a Ph.D., especially
if it's a case with legal ramifications, and it takes years to
understand the nuance--this is--it's not just reading what was
checked, you know, on the paper, you've got to understand the
nuances of the person taking the test. It's supposed to be
given by a neuropsychologist. They didn't bother hiring a
neuropsychologist. It was a young linguistics student named
Laura Atella, who kept telling me, over and over, as a running
joke, she had never seen the test til the day before. She took
it home the night before, and practiced on her boyfriend. This
was the test they flew me coast to coast, this was the test
that was going to decide the fate of me and my son. They don't
hire a neuropsychologist, they pull a linguistics student, with
no medical training, off the street, she gives me the test.
Her test was paired with Dr. Gordon's report. And Dr.
Gordon's report, again, says, ``concussions could not cause
headaches.'' And, again, I'm asking anybody to raise their hand
who agrees with that. My--now, this claim that, for years,
while all the reports were in my favor, stretched for years,
once they got this report I was denied, by the end of the week.
It only took days.
Now, after my Ninth Circuit case--too late for my case--I
found a 1990 medical journal, fully documented by our same Dr.
Barry Gordon, who said all of my symptoms--he admitted my
symptoms had expression--dizziness, fatigue--when paid by the
NFL, said, ``You can't link those symptoms to concussions.''
Here's an article, called ``Postconcussion Syndrome,'' written
by Dr. Barry Gordon at Johns Hopkins. The very first paragraph
says, ``Overall, headache, fatigue, and dizziness are the most
common symptoms.'' And then, to make it easier, on his--page
one, he creates a chart, Table 1. Title of the chart is,
``Symptoms of Postconcussional Syndrome.'' All the symptoms--
all my symptoms are on this chart, the same symptoms, when paid
by Doug Ell, he wrote, ``you can't link to concussions.'' This
is his own medical independent research for review by other
neurologists by his own peers.
So, this process took years. And, to this day, my supposed
advocates have never returned a call or e-mail. That's why so
many veterans are so angry. Mr. Upshaw's in the paper, saying,
``Why are they mad at me? Why are they mad at Tom Condon?''
This is why Lanny Davis is brought into the process.
During these years, they kept getting it wrong. You know,
we get 90 days between when we can get a report. I tried to try
to call Gene Upshaw or Tom Condon or members of the Disability
Board and say, ``Hey, it's wrong. Fix it before the next
meeting.'' They don't answer a call. To this day, they have
never answered a call. They're not--they are our trusted
advocates. We don't get to pick them. They're supposed to stand
up and defend us. They don't return our calls. They are like
dirty cops, sitting idly by in these meetings, as doctor-
shopping and schemes for false denials are cooked up and
executed right in front of them.
We wouldn't be here, we wouldn't have a need for this
hearing today, if they would just stand up and do their job and
advocate. We wouldn't be here today if not for the willing
collusion of all sides--the Commissioner--the previous
Commissioner, at least--Mr. Upshaw, who are--both attend the
meeting. There are three owners and three people appointed by
Mr. Upshaw who are the six who actually vote. They all have
to----
Senator Dorgan. Mr. Boyd, I'm going to have to ask you to
summarize. I have----
Mr. Boyd. OK. I know I got--that's why I say----
Senator Dorgan. But we have----
Mr. Boyd. In review, I can speak for thousands of players,
I can speak about solutions. I suffer both from the rigged
system and the extra issue of concussions. To review--I was
told they would never open a can of worms. My medical files
disappeared. I was flown cross-country for a sophisticated
neuropsychological exam that was given by a young linguistics
student. The doctor who denied me didn't bother to look at the
brain scans. He wrote ``concussions could not cause
headaches,'' but his independent medical research is totally
contradictory to what he wrote when paid by the NFL. This is
fraud, corruption, collusion. It's rampant in the NFL. I have
over 150 letters from--saying the same story.
Thank you. Please exhaust me with questions. And--sorry to
go on so long.
[The prepared statement of Mr. Boyd follows:]
Prepared Statement of Brent Boyd, Former NFL Player, Minnesota Vikings
Dear Members of the Senate Committee on Commerce:
I am Brent Boyd, disabled former National Football League player. I
am here for double duty . . . to explain to you the corrupt NFL
Disability process in general, and to also address the more
controversial issue of concussions. The NFL would rather you not look
into the topic of head injuries, their liability is huge.
I want to thank you for inviting me to testify, I have an
incredible but true story that is guaranteed to open your eyes in
anger. I thank you for your interest in this issue on behalf of
thousands of hurting former players, I tip my hat to your courage on
taking on this $7-8 $BILLION sports league. While they have owned the
legal process, today is our time for justice.
I am 50 years old, a native of Southern California and currently
reside in Reno, NV. My wife Gina, a U.S. Postal mechanic, and son
Anders, a firefighter in training, could not accompany me today. My
neurologist prefers I don't travel alone, and I am honored to be
escorted cross-country by one of America's highly decorated Marines
from Vietnam, Retired Colonel John ``Jack'' Kelly, USMC.
For your convenience, and edification, I have broken up my
testimony into 3 parts. One, my written testimony from the June 26th
House hearing, for which I was also a witness. This is invaluable to
walk you through the NFL disability process and makes clear as day the
false disability claim denials and doctor shopping. This testimony
spells out clearly what happened in my case, and I pray you ask plenty
of questions because 5 minutes is not near enough time to explain the
crime committed against me.
Also, you will see how fiercely the NFL is fighting to avoid full
liability for our concussions. Another issue is the generations who
served as guinea pigs for the horrible Astroturf playing surfaces. We
literally played on concrete, and many concussions did not involve
hitting another player but just the ground, and it ruined knees and
bodies as well as minds.
The second section, entitled ``Delay, Deny, and Hope We Die''
(after the NFL's famous delay tactics hoping for the OSHA life
expectancy of 52 years or the destitution and depression to force
suicides) describes the problem in a more general sense, with facts and
figures that will outrage you. This is a presentation first written for
Senator Harry Reid's staff on August 20, 2007.
Only 4 players in the history of the NFL qualify for disability due
to concussions. Only 121 TOTAL are receiving any benefits for any
reason, according to their 2006 tax return. $3.1 million per year spent
on legal fees out of our own retirement fund solely to alter the plan
and fight us in court . . . baseball spends approx. $170,000 by
contrast. This section also tells you why not to be tricked by the
boasts that we lost in court . . . once the process has been corrupted
in the early stages, all courts are hogtied by ``full discretion''
wording, courts do not rule on medical evidence. For the NFL to claim
we had a fair day in court is disingenuous.
But I am not here only to complain. . . . I have written the only
comprehensive solution to this process, ``The Boyd Plan'', the final
section. This is a response to chair Linda Sanchez' written follow up
question after last June's House hearings. The Boyd Plan is a simple
solution to solving the ``Process'' players must go through to receive
a claim, how to streamline, make transparent, add actual medical
professionals to interpret stacks of doctor's reports instead of the
plan's attorneys. The Boyd Plan at worst is a starting point for
debating the answers to how to fix the ``process'' side of the problem.
The current process is so corrupted, so rigged against disabled
players, and is done in medieval secrecy. Doctor shopping is flagrant
and in the open, the NFL, with their absolute power, are like war
criminals in that they once had total power and never dreamed they
would be caught, exposed, and held accountable for so many unforgivable
offenses. That includes needless homelessness and suicides. Doug Ell
and Groom Law can manipulate the legal process, but they can't fool the
distinguished members of this Commerce committee.
I am fighting for my life here today, for benefits for my family--
in full and fully retroactive--we do not expect half-measures or
partial settlements. There are countless proud men who are destitute,
homeless, on the brink of suicide from the pain and financial shame.
Lastly, it is important for all of you to know that I received over
a hundred e-mails in the last 2 weeks, each from a different player
with a different injury and a different story. But each has a common
thread, the thread of a rigged system, of doctor shopping, of a union
that doesn't care.
Because I have received so many letters, which will be made part of
the record, and the fact I authored the ``Boyd Plan'', I ask you to
exhaust me with questions. Not just anecdotal regarding my own
experience, but perhaps on the general nature of the widespread problem
for which I can speak with confidence. And because ``the Boyd Plan''
offers solutions, I ask to be also included in questions and answers
regarding what to do next.
Please allow me to help you understand this NFL disability issue
and how to fix it.
Respectfully,
Brent Boyd
Attachment 1
Testimony of Brent Boyd, Disabled Former NFL Player to the Subcommittee
on Commercial and Administrative Law of the U.S. House of
Representatives' Committee on the Judiciary
Hearing on the National Football League's System for Compensating
Retired Players: An Uneven Playing Field?
June 26, 2007
Madam Chairwoman, Ranking Member Cannon, Members of the Committee:
My name is Brent Boyd. I played for the Minnesota Vikings from
1980-86. I am a native Southern Californian, was raised in La Habra,
CA, graduated WITH HONORS from UCLA and am a proud resident of Reno, NV
since 2002. I am here today with my wife Gina, who is a mechanic for
the U.S. Postal Service. My 18 year old son Anders couldn't come, he is
home fighting wildfires for the BLM. I am on Social Security disability
due to my post concussion injuries from the NFL, but receive only the
minimum ``non-football related'' disability benefits from the NFL.
First of all, thank you for having the courage to hold these
hearings. It's long overdue and I am sure what you hear today will lead
to immediate further hearings and big changes demanded by Congress of
the NFL leadership. It's high time to expose the corruption of the NFL
Disability Board, especially with Groom Law Group's absolute power and
members like Tom Condon, whose unforgivable co-chairmanship is
responsible for all this needless suffering that lead to you calling
this hearing.
I would also like to thank Jennifer Smith and the Gridiron Greats
for making my travel here today possible. We could never have afforded
to be here and I am grateful for their assistance.
I am here today because I have a remarkable but true story about my
claim denial, doctor shopping and fraud. And betrayal by the League I
love. My case also involves the subject of concussions. Just like the
tobacco companies fought like hell to deny any link between smoking and
cancer, the NFL is desperately fighting to avoid any liability for all
the carnage left behind by these NFL concussions.
Joe Montana was recently asked about my NFL concussions disability
claims denial by Mike Sullivan of San Diego's North County Times,
``Once they say there is an issue, then they have to fix it,''
Montana said. ``As long as they never admit that there is one,
then they never have to fix it.
``They're never going to admit it because then they have to go
about and try to correct it.''
I am here to illustrate for you how the NFL disability process is
corrupted, how Tom Condon, Gene Upshaw, the NFL, and Doug Ell of Groom
Law orchestrate these fraudulent decisions, and I am sure if I can walk
you thru my experience you will get a feel for the travesty that has
befallen countless other disabled players.
Before I get to the details of my case, I would be remiss if I
didn't point out to you that another loser when we are denied benefits
are the hard working American taxpayers. These 32 NFL billionaire team
owners hire their ``dream team'' of attorneys to get them out of paying
their legal obligation. So we are then cast upon the taxpayers, thru
Social Security and Medicare, and our communities through local
charities and churches. The same Taxpayers who are already paying for
the stadiums they can't afford to go watch a game in, are the poor
people stuck with the bill every time the NFL's money buys them a
disability denial in court.
Plus, our court cases set legal precedents that make it harder for
the average truck driver, saleswoman, office worker, mechanics and so
on to ever collect a disability claim. The NFL Disability Board isn't
just sticking it to football players, they are sticking it to the
American workers and taxpayers as well.
My concussions started in August 1980 . . . that was one of only
God knows how many concussions I suffered. This one sticks out in my
memory because I temporarily lost sight in my right eye and became very
frightened. We didn't even count concussions or keep track of them back
then, a concussion was not considered a serious injury, as opposed to
an injury to a weight bearing bone. A concussion was a ``nuisance''
injury, like getting hit in the funny bone. It's a pain in the butt,
hurts like heck for a while. But like a hit to the funny bone the
symptoms faded away soon and you never considered it again once it
subsided . . . you surely didn't think getting ``dinged'' was going to
affect you the rest of your life, and in fact in my case, destroy my
life.
A little background info about myself first,
I was an ``A'' student growing up in La Habra, Ca.
A month prior to going to my first NFL training camp, I graduated
WITH HONORS from UCLA, June 1980. That took a tremendous amount of
drive and determination. I was drafted in the third round to Minnesota,
a feat which also requires a great deal of effort and self sacrifice.
My whole life up to that point was of hard work, dedication, and an
ability to set goals and successfully reach them.
As a rookie, we had only 9 days between the start of training camp
and our first exhibition game. We didn't have all the off-season
practices they have today. In those 9 days as a rookie I was able to
learn and play all five offensive line positions, something I'm told
hasn't happened often if at all in the NFL.
The end of that month was when that first concussion occurred in a
preseason game in Miami, that's the concussion I remember most because
of going temporarily blind, but there were so many more in the 7 years
that I played.
When I complained to the medical staff about headaches, I was told
it was from the anti-inflammatory medications I was taking for my
knees. Mainly a drug called Indocin, which was notorious for giving
headaches but worked miracles on injured knees. I kept asking for a
brain scan because of my headaches. . . . I think I was more afraid I
had a brain tumor, because I was never told my concussions would have
these long lasting effects. I was always denied the brain scan.
Upon being released mid-season 1986, I was given an ``exit exam''.
I was released because of poor performance and lackadaisical effort. I
had been complaining of a sore leg all season, and was told it was just
shin splints. On my exit exam I asked for both a leg x-ray and a brain
scan.
Again, I was denied a brain scan for headaches, but was granted the
x-ray. The leg x-ray showed I had been playing 8 weeks on a broken leg.
This was never announced to the media or my coaches or teammates, they
were left to think I was dogging it, physically with my leg and
mentally with my inability to retain plays and keep the energy and
focus required to play in the NFL.
I continued to take Indocin until the mid to late 1990s, dealing
with the headaches but still believing it was from Indocin. When I
stopped taking Indocin, my headaches never subsided.
I tore my knee again around 1996 while playing with my son at
Disneyland, and had more surgery. A friend told me about the NFL
disability plan and said if anyone qualified, I might because of my
knee. In 1996 or 1997, I called the union, Miki Yaras-Davis helped me
write a letter, and they sent me to a doctor, who said I didn't
qualify. I left it at that, I thought this was some informal process
between ex-players and NFLPA. I don't believe I even submitted my own
doctor's reports, it was not presented to me as any legal thing, I was
never told to get an attorney or about this behemoth called ERISA that
a few years later would rule my life. I simply asked if my knee
qualified, they said no, and that was that. I didn't even know I was
allowed to appeal.
After a life of hard-driven success, suddenly the 1980s and 1990s
were nothing but one failure after another for me. I couldn't
concentrate, I always felt sick--dizzy, a little nauseous, and always
very tired. I had a splitting headache that never went away, but was
eased through self medication. In the 1980s, before the news my son was
conceived, I was like many 20-somethings and used cocaine, in my case I
was desperate for the energy to make up for my fatigue. (my cocaine use
was stopped for good in 1987 with news of a son on his way.)
And the alcohol numbs my headaches and physical pains.
I spent years searching for a medical answer, doctors could find
nothing wrong below the neck. They were also trying to treat
depression, which they came to believe was the cause of my fatigue . .
. over the years I took every anti-depressant in every dosage and in
every combination with other drugs.
I stopped drinking for many years with no positive change in my
symptoms.
From mid to late 1990s I was checked for every form of cancer, and
had every organ x-rayed, MRI'd and ultrasounded. I had tubes and
cameras stuck up both ends.
After years of hoping to find relief but not getting any better, 1
day one of my psychiatrists told me a probable reason NONE of these
drugs had any effect could be if I had an organic brain injury. He then
asked if I ever had a concussion? That was in 1999, and that was the
first time any doctor had ever asked me about concussions.
I was sent to neurologists and had brain scans and SPECT scans and
all kinds of testing done. The scans showed the exact location of the
brain injury, and they explained how the areas damaged correlated to
the symptoms I was having, both the temporary loss of sight in 1980 and
the lingering symptoms of depression, headaches, fatigue, dizziness.
They said the concussions also gave me ``trauma-induced A.D.D.''.
I was relieved to find a medical cause after all those years. For
over 15 years I had been stung by words like ``lazy'', ``crazy'',
``alcoholic'' , ``failure'', and all this was from my loved ones! My
employers were even harder on me. Worst of all, I came to believe it
myself. I thought my failures were from a character flaw.
I lost my home, my car, my first marriage, and job after job after
job. I was then a single father, and we were scrambling for a roof over
our heads. (I divorced in 1992, and was a single Dad until marrying
Gina in 2004) We lived in some nice places sometimes, but we were
homeless at others. We lived in cheap motels and even had to pitch a
tent in a campground more than once.
My son went without getting his needs met, my son Anders is the
REAL victim of this crime. Even in the years after we filed our
disability claim, and the NFL knew we were in dire straits, my son lost
teeth because of lack of basic dental care, he had a significant vision
problem that needed surgery in kindergarten and glasses thereafter. He
went to school every day with old beat up scratched glasses that no man
could see thru. He has learning disorders that I could not afford
tutoring help for, and he was always grading poorly in school.
But this kid has tenacity, he still showed up to school everyday
with a smile, did homework without argument, got straight ``O's'' for
Outstanding citizenship but D's and F's for the class grade. He never
quit, never gave up, never gave in and took up drugs or any of the
temptations of this era . . . and he is now a fine young man, a high
school grad in 2006 and a fireman in training. He is spending this
summer fighting wildfires for the BLM. My son Anders has suffered so
greatly, so much of it purposefully at the hands of Tom Condon and the
NFL, and I love and admire him for his perseverance.
When I think of what the corrupt NFL Disability Board needlessly
put my child through is when I get my angriest!
We did get help from the NFL Players Assistance Trust, but it was
$5,000 that could not be given directly to me. It helped pay past
doctor bills, yes, but it did not alleviate the stress and fear of
where would we sleep tomorrow and how was I going to feed and clothe my
son.
Now to what I'm here to describe, the fraud and corruption of the
NFL Disability process.
Once my team of treating doctors concluded clearly that I had
suffered organic brain damage from NFL concussions, and that I was
total and permanently disabled, we filed my claim with the NFL. I was
helped by a good friend and fellow UCLA alum Barry Axelrod. Barry is
both an attorney and a prominent sports agent, but he was neither to
me. He was just a friend helping a friend, for free. We submitted piles
of doctor's reports and brain scans.
Upon filing my claim, I was told by Miki Yaras-Davis of the NFLPA
not to bother filing, her exact words were ``the owners will never open
that can of worms'' by granting a claim for concussions.
Shortly after that, my Vikings medical files mysteriously
``disappeared''. The courts were never made aware of this. Medical
files are sacred to a player, we were not ever allowed in the same room
with them. We had to trust that after our career the NFL would store
the files and present them in the event of a claim.
In essence, they destroyed the evidence that would have easily
proven my claim. The 9th Circuit would mistakenly hold that against ME,
not them, and said without any contemporaneous notes the Disability
Board could send me from one doctor to another.
There were contemporaneous notes, I believe Groom Law destroyed
them to clear their path for manipulation of the process.
Now starts the process of seeing an NFL doctor to see if he agrees
or disagrees with my claim. I am living in San Diego, they send me to
an NFL chosen neurologist in San Diego, Dr. J Sterling Ford. Dr Ford
not only totally agrees with my doctor's and approves my claim, this
NFL doctor voluntarily asks me to come back a second day to test for
vertigo, which he suspected I was suffering as a result of the
concussions. His testing confirmed his suspicions; according to the
NFL's own neurologist I do have vertigo caused by head injury.
So at this point we have several of my treating physicians and the
NFL's own doctor all agreeing, we feel that will mean automatic
approval.
Barry Axelrod organizes a group of his Major League Baseball
clients and friends and other UCLA alumni to create a charity to move
my son and I out of the cheap motel we were living in and into an
apartment near his school. They believe, with all of this overwhelming
evidence in my favor, it will only be a matter of weeks until the next
Board meeting that they will need to support me. There was no way I
could be denied my claim! These guys were not doing this for publicity,
quite the opposite. The individual identities of this group from 2000-
2002 was not known to me, other than Barry Axelrod, until last
February's ESPN report.
The group included the great baseball players Mark Grace, Rick
Sutcliffe, Jeff Bagwell; actor Mark Harmon, NBA legend Bill Walton and
his ex-NFL player brother Bruce, and many others. Without the help of
these guys, I would not have survived to be here today. Along with
Pastor Don Seltzer and the folks at North Coast Presbyterian Church in
Encinitas, CA. They cared about my son and me . . . while at the exact
same time the NFL didn't give a damn if we died, in fact they hoped I
would put a bullet in my head and solve their problem, and were busy
scheming a way to deny my benefits.
The NFL decided not to listen to their own first doctor, because
his opinion was in favor of a player, so the NFL selects a second
doctor of their own choosing, this time a psychiatrist in Long Beach,
CA. His name is very long, Dr. Branko Radisavljevic, but he says to
call him Dr. Branko.
Dr. Branko enthusiastically supports my claim, and joins every
other doctor to this point. Every doctor had the same opinion, it was
all one voice that included my own doctors and now TWO NFL doctors.
Unfortunately for Condon and Ells, all these reports were FAVORABLE to
a disabled player . . . that's no good. . . .
The Board meets every 90 days, we know there is no way they can
delay approving my claim any longer . . . but instead my case is
``tabled'' at their next meeting, meaning 90 more days of stress. Only
the next meeting doesn't bring approval either. That means 6 extra
months now of relying on charity to survive.
They DO decide at this point that I AM totally and permanently
disabled and begin giving me the $1,500/mo ``non-football'' related
disability, Despite the glaring fact that every doctor had said it was
concussions that caused my suffering. But remember, they don't want to
admit it is concussion-related, they ``don't want to open that can of
worms''.
So after an 8-month delay to give them time to buy a doctor, and 8
more months of relying on charity to survive, I am forced to travel
from San Diego to Baltimore to see Barry Gordon at Johns Hopkins. The
reason given is they wanted me to take a sophisticated
neuropsychological exam. I can take this test at any neuropsychologist
in San Diego, as Social Security sent me to when they approved my
disability claim for post-concussion . . . but they insisted I see
Gordon and ONLY Gordon. If I refuse or hold out for another doctor, I
am told, I am denied.
Gordon is not on the list of pre-approved ``neutral'' physicians
normally used by the Board, he is hand picked by Doug Ells of Groom
Law. Gordon is also walking distance to NFL Benefits headquarters in
Baltimore. Axelrod and I smell a rat, but we have no choice, if I don't
go I am denied anyway, they will not agree to a doctor in Southern
California.
So, I arrange for care for my son, they fly me coast to coast, pay
for taxis, meals, hotels, even replaced clothes when my luggage was
lost.
They went to ALL that expense, but they didn't go to the most
important expense, HIRING A NEUROPYSCHOLOGIST to give me the test. This
test takes years to understand the nuances and complexities, and,
especially in cases with legal ramifications, should only be given by
someone with a Ph.D., . . . a neuropsychologist!
I thought Gordon was going to be giving me the test himself, that's
why all the bother to fly across country. But I wind up seeing him for
only about 30 minutes. He bangs my knee with a hammer, tickles the
bottom of my feet, and conducts tests I now am told by neurologists
were just for show and his tests only tested the NERVE ENDINGS, not the
brain.
Barry Gordon writes in his report that ``the records available to
me are incomplete in ways that may be relevant for my impressions.'' He
also admits he didn't bother to look at the existing brain scans and
ordered none of his own. This is like diagnosing a broken leg without
seeing an x-ray--he was deciding my fate by opining on a body part he
never bothered to look at!
Instead of hiring a neuropsychologist to give me this
neuropsychological test they deem SO important to deciding my case,
this neuropsychological test was instead given to me unsupervised by a
young grad student in LINGUISTICS, with no medical background. Her name
is Lara Atella.
Lara Atella keeps apologizing and laughing, she keeps telling me
she had never seen this test until the day before, and she took it home
to practice on her boyfriend. I spend 99 percent of my time in Johns
Hopkins with Lara, and am sent home wondering why I didn't see much of
Dr. Gordon.
Atella's test result was paired with Gordon's ridiculous report
stating that my symptoms of headaches, depression, dizziness, and
fatigue COULD NOT BE CAUSED BY CONCUSSIONS!
Let me repeat in case you didn't grasp that--concussions COULD NOT
cause headaches!
Does anyone REALLY believe that?
This process has been stretched out years when all the doctor's
reports were in my favor.
Armed with a report unfavorable to a player, Within DAYS I am
immediately denied my claim by a unanimous vote. Upshaw and his
appointees, Tom Condon and Jeff Van Note, and Len Teeuws, my advocates
in those Board meetings, never said a word of protest . . . at this
point they should have been screaming bloody murder, crying out this is
a bunch of bull, and insisting this fraud stops right there. You know,
advocating! Doing their appointed duty!
None of this could have been possible without the FULL knowledge,
cooperation, and participation from all sides on the Board. Commisioner
Taglibue, Upshaw, the NFLPA, and especially Tom Condon and Jeff Van
Note. And it was all masterfully orchestrated by Doug Ell of Groom Law
Group, located at 1701 Pennsylvania Ave across the street from the
White House.
What's worse, as my only advocates allowed in Board meetings,
Condon and Upshaw and Upshaw's other appointees never once, including
to this day, returned my phone calls, letters or e-mails. Or made any
effort to understand my case. They simply followed orders from Doug Ell
and Groom Law.
They will tell you they found the first two NFL doctor's reports
``equivocal.'' I have spoken with those two NFL doctors since, and they
are furious I was denied and furious they were characterized as
equivocal. I hope you can subpoena them. These doctors will tell you NO
ONE, not even my advocates, had ever called for clarification. The NFL
couldn't risk clarifying, they didn't want the truth. It was easier to
wait 8 months and fly me cross country than to pick up a phone?
As they teach in law school, don't ask a question if you don't want
the answer.
If you read Dr. Gordon's report, you will find a gold mine of
equivocalization. The fine tooth comb used by Groom Law to play
semantics with doctors who approved my claim is suddenly missing when a
report supports denial.
Not only that, but the first two doctors filled out the required
NFL questionnaire. This is where they avoid confusion and are asked to
check boxes simply yes or no. Both Ford and Branko checked ``yes'' to
the questions ``am I disabled from an injury'' and ``was this injury a
result of playing football'' Both checked Yes. Period. Case closed.
Despite many demands on record from NFL Benefits Office to Gordon
to attach his questionnaire to his invoice or he wouldn't get paid, he
never filled that form out. And he was paid. That leaves HIS report
incomplete. Gordon never answers the question ``is my disability
``football-related''!!!
Gordon's report gives possible alternative reasons for my symptoms,
which included chronic pain and other football-related causes, so maybe
he still could have checked the box ``yes'' when asked if my disability
was football related . . . all he said was it was impossible to link
headaches with concussions. We still don't know Gordon's answer to that
question!
Wait, you think this is bad enough already? Here's where it gets
even better. . . .
The most important and most damning proof of fraud and doctor
shopping comes from Dr. Gordon himself. After my 9th Circuit case, I
found this 1990 medical journal, containing an article by our same
Barry Gordon. It's titled ``postconcussional syndrome''. You only need
read the first paragraph to see he is adamant that my symptoms,
headache, depression, dizziness, and fatigue are THE MOST COMMON
SYMPTOMS of post concussion. He even makes it easier for the reader, he
creates a chart, table 1, titled ``most common symptoms of post
concussion'' . . . right there in that list are ALL of my symptoms, the
same symptoms, that when paid by the NFL he wrote were impossible to
link to concussions.
His article also says he orders a brain scan ``in essentially all
patients''. He didn't go to that bother with me.
If that's not proof of fraud and corruption, than we need to remove
the words fraud and corruption from our vocabulary.
The only reason they aren't in jail is that there are some holes in
Federal Laws that you in Congress need to fix to help EVERY American
worker, mainly the ``full discretion'' allowed to the Board, and you
need to return the ``treating physician rule'' removed from law by
Groom Law Group's secret intervention in Supreme Court ``Nord v. Black
&Decker'' (my attorney was on the losing end of that decision).
The NFLPA fiercely tries to claim no responsibility in our claim
denials. Here is a quote from Feb. 11, 2007 ESPN article on my case by
John Barr and Arty Berko, that accompanied their story on me on ESPN
TV's ``Outside the Lines,'' catching Gene Upshaw in flat out lies:
``While nobody from the NFLPA would speak with ESPN about
Boyd's case, NFLPA Executive Director Gene Upshaw did address
Boyd's allegations at a recent news conference.
``To say that the NFLPA is `doctor shopping,' we don't have
anything to do with it, with the process,'' Upshaw said.
The facts say otherwise. The retirement board, the ultimate
authority on disability cases, is made up of three league and three
union representatives. To say the union has nothing to do with the
process is simply untrue.
Upshaw went on to say, ``If a doctor determines that a player is
entitled to a disability and he meets the standards he gets it.'' But
in Boyd's case, two doctors, chosen by the retirement board, determined
his disability was football-related and his claim was still rejected.
The NFLPA is quoted recently as saying they were only doing what
ERISA demands them to do. In other words, ``The devil made them do
it!'' Nonsense. ERISA demands that they look EQUALLY as hard for
evidence to APPROVE a claim as they look for evidence to DENY a claim.
That clearly is not happening in the NFL.
The real ``devil that made them do it'' is in reality Doug Ell and
Groom Law, with their scorch and burn, leave no witnesses, win at all
cost strategies.
This NFL Disability Board has blinders on and only seeks reasons to
DENY.
Courts are hogtied by the ``full discretion'' wording, and the
absence of discovery and depositions in ERISA cases. Only you in
Congress, with your oversight of the NFL, and your gifting of anti-
trust exemptions, and your power of subpoena under oath, can fix this
scam.
ERISA gives the Board ``full discretion'', which is the opposite of
what they are claiming now in public. Instead of LIMITING their
options, ``full discretion'' gives the Board the widest possible range
of options possible. The only restrictions on their ``discretion'' are
what their stomachs and conscience had handle.
ERISA does not ``force'' the Board to ignore evidence supporting
players' claims, nor to draw up elaborate doctor shopping schemes to
defeat them, as Dave Duerson recently hinted. (Duerson is the newest
robot member of the Board)
Congress gives the Board ``full discretion'' through ERISA, which
gives the Board absolute power. AND WE ALL KNOW THAT ABSOLUTE POWER
CORRUPTS!. Please eliminate the ``full discretion'' wording in ERISA.
A 1994 OSHA study said life expectancy for NFL players is 55 years,
52 for linemen . . . that is why Condon and the Board's tactics are to
``delay, deny, and hope we die. . . .''
I beg this Committee to hold further hearings, subpoena Tom Condon,
Gene Upshaw, Doug Ell, Paul Tagliubue, and Barry Gordon. Clean house in
the NFL Disability Board, punish Groom Law and Tom Condon and Gene
Upshaw for their conflicts of interests and selfish greedy actions.
And most of all, someone FINALLY hold the NFL/NFLPA accountable for
all the needless suffering that their blatant doctor shopping and
fraudulent claims denials have caused countless NFL retired players.
I also welcome questions regarding ``88 Plan''.
I have e-mailed several attachments to my testimony and ask that
they all be officially included in the record.
Thank You,
Brent Boyd
Attachment 2
``The Boyd Plan''
Brief Outline:
1. Fire Groom Law--there can and will be no trust until Groom is
replaced. Groom Law is a symbol of years of too many unfair decisions,
questionable tactics, doctor shopping, needless suffering, needless
homelessness, needless deaths, needless suicides--Groom Law must go
before any healing begins!
2. Eliminate the ``full discretion'' wording or implication in our
plan; investigate etiology of ``full dicretion'' into our plan; full
discretion equals absolute power; absolute power corrupts--and
predictably we have seen that abuse as the outcome of allowing full
discretion to NFL disability board. We need checks and balances.
3. Define the plan's definition of ``disability'' in terms set in
stone and easily understood by all, in definitive terms that will be
easily interpreted the same way by players, the board and every court--
not open to Groom's manipulation (full discretion--and Groom--will be
gone so that will help) and remake this new definition of disability so
that it is not so overwhelmingly prohibitive to approval of claim--
don't continue with Groom's ever changing and impossible to meet
definition.
Current unwritten but strictly adhered to definitions of disability
include the infamous ``can he sell pencils on the street corner'' quote
or ``wash windshields'' criteria, which are obscene and must be
eliminated along with all those who support these draconian standards.
The men who built this multi-billion dollar league deserve dignity if
not wealth.
And eliminate the ``15 years after playing'' limit for full
benefits, most disabilities don't degenerate into full disabilities
until long after that period. It is when guys enter their 50s and
beyond that these disabilities become debilitating and they can't live
on the lesser benefit amount . . . and remember, OSHA says NFL linemen
life expectancy is 52 years.
4. Ensure transparency--shine the light! Print the minutes of board
meetings, record all debates, report each vote--allow Congressional
representatives to sit in on any meeting at will. The NFL disability
board shall no longer act as a secret medieval organization.
5. Treating physician rule--give more weight to our own doctors who
treat us regularly for years than is given to opposing doctors who see
us for 30 minutes. Reimburse the plan for all fees paid to Groom Law
when they covertly helped remove treating physician rule from ERISA--by
joining non-football related court cases (e.g., Nord v. Black & Decker
in Supreme Court) those fees paid to Groom were taken out of our own
pension funds--using our own money to take our own rights away, all
without our knowledge!
6. If NFL's own chosen physicians agree with a player's claim, so
should the disability board.
Doctor shopping carries ``death penalty''--similar to NCAA football
programs in violation of certain rules--or gambling in NFL----
If NFL's own chosen doctor agrees with player's claims, no more
ignoring that doctor and sending players to endless doctors until
finally one supports denial. If board claims a doctor to be
``equivocal,'' simply pick up phone and clarify instead of delaying for
months and doctor shopping.
Any knowledge of or connection with doctor-shopping or
fraudulently denying a player his rightful benefits will result in no
further association with NFL in any capacity, ever--this must be
considered a sacred intolerable offense!
7. Let retired players select our own 3 advocates to the board, not
selected by NFLPA executive director. Replace all existing board
members. Active players' agents and actual or de facto employees of NFL
are not acceptable as players reps board members, they have blatant
conflict of interest.
Destroy the longstanding mentality of board that defines
``fiduciary duties'' to mean only to protect the ``pot of money''.
Players rights and disabled players receiving their rightful benefits
have equal or greater weight to the fiduciaries as does the ``pot of
money''.
The board must look equally as hard for reasons to approve a claim
as they look for reason to deny a claim. ``Fiduciary duties'' do not
mean solely to automatically reject a player's claim and save the
plan's money. Give players' rights equal attention, equal rights, and
even more protection than the ``pot of money.''
8. Allow players and/or representative to attend board meetings--
that's not currently allowed (at least not at time of my claim)--
especially allow them to attend the final appeals meeting.
Stop holding board meetings at 5-star resorts, meet at more
practical locations so players can afford to attend; also it will stop
wasting our precious plan money! (Aren't they claiming we are short on
cash?)
9. Add 3 medical professionals to board, not just to explain
complex medical issues to the otherwise all-laymen board--but give
these doctors votes! This will eliminate the 3 to 3 votes that lead to
doctor shopping. Pay these doctors out of a blind trust favoring
neither side, rotate these doctors often to prevent the buying of
doctors by the league that has been suspected in the past.
The doctors on the board shall have no information as to the
financial health of the pension fund, and shall leave the room when any
issues other than medical are discussed.
10. Write the rules. Once and for all. This sounds simple but has
not happened successfully. Currently Groom Law unilaterally makes up or
changes rules on the fly to suit their needs, at the expense of
players' rights. Right now rules and regulations are a moving target.
11. No more lengthy, strategic, and painful delays. Keep the claims
process and voting a fluid process.
Hold meetings monthly instead of every 90 days--more often using
modern technology. Send player to a doctor immediately after he files a
claim. Send all doctor's reports immediately to player/attorney to
allow speedy response. Use today's technology to keep the process
moving.
12. The current system of two ``gatekeepers'' was not in place at
time of my claim, but like most elements of Groom Law's changes to our
plan, all without valid plan purposes, this one doesn't pass the
``smell test'' either. A one to one tie means denial? This is obviously
Doug Ell's ideal vision of a plan, the player has no chance from the
get-go.
13. This one is for Congress only--remove ``full discretion'' and
``deference'' from not only the NFL plan but from ERISA; sit in on NFL
disability board meetings at your pleasure;
Set goals and expectations for the disability board to meet
annually in order to keep anti-trust and other Congressional gifts,
without which they could not exist.
Do not allow certain disabilities--especially concussions!--to be
constantly denied as disability claims. Congress must step in to
permanently protect the brain damaged players.
For the sake of all American workers everywhere, rework ERISA!
ERISA is a mess. ERISA is a disaster for American workers, a gold mine
for attorneys.
Keep Congressional oversight and pressure on the NFL disability
board . . . players desperately depend on your protection!
Senator Dorgan. Mr. Boyd, thank you very much. Let me thank
all the members of this panel.
We have two panels today, with ten witnesses. I want to
have the next panel begin testifying at a quarter after 11.
That's 10 minutes from now. And I'm sorry we don't have
unlimited time, but we will begin a series of votes on the
floor of the Senate at 12:15. So, we're--let me make a couple
of comments.
First of all, the panel that we have heard from first is a
panel that has very strong feelings about this issue. I think
it--you contribute to a body of knowledge here, and
information, that describes a problem. You know, I mean--and
we're going to have a second panel in which some of that will
be reacted to, some of it will be described again.
But I've written a list of questions. I--what I'm going to
want to do is submit some questions to you in writing, if
you're willing to respond to them.
You raise a lot of important things. You know, Mr.
Johnston, just very quickly, the concussion issues--seems to me
that's probably a very significant issue in this sport,
probably not very well described, or not very well discussed in
the early years of the sport. Do you think it's been addressed
now for current players? It is obviously safer, they have more
procedures. Is it addressed sufficiently for current players?
Mr. Johnston. More so now than it was in the past. There
are improvements in equipment. There are a lot of different
things that have contributed to that. But the protocol for
getting a player back onto the field, he has to pass a series
of tests. They are forced sometimes, with the severity of the
concussion, to sit out the game the following week. So, they
are making some strides there. But, back in the day, back when
Mr. Boyd played, it was a badge of honor to go out on the
field. We joked with each other, ``The light's on, but nobody's
home.'' ``The elevator doesn't go to the top.'' So, we wore
that as a badge of honor back at that time. It's changed, but
it's an issue that is going to affect the players from the
previous generation, absolutely.
Senator Dorgan. One of the overlying questions here is that
Commissioner Goodell represents the owners and Mr. Upshaw
represents current players for the Players Association. The
question is--and I will ask others about this in the next
panel, as well--the implication, I guess, is that the retired
players don't have an advocate, or are not represented. And I
think Mr. Upshaw will say, ``Well, we have bargained and made
some substantial changes to try to improve things.'' But we
will ask some questions about that.
I've been joined by several colleagues. I'd like very much
to call the second panel up at 11:15. We, unfortunately, don't
have unlimited time this morning, because of the votes that
will occur in the Senate.
Senator Klobuchar?
STATEMENT OF HON. AMY KLOBUCHAR,
U.S. SENATOR FROM MINNESOTA
Senator Klobuchar. Thank you, Mr. Chairman. Thank you for
putting this together.
I wanted to welcome Mr. Boyd, who's a former Viking. And
Mr. Boyd knows well that my father used to cover the Vikings
and wrote several books including ``True Hearts and Purple
Heads,'' and ``Will the Vikings Ever Win the Super Bowl?'' and
``Will America Accept Love at Halftime,'' my favorite one.
[Laughter.]
Senator Klobuchar. But I just wanted to thank you for
sharing your difficult story today. And I think that all active
players will one day be former players, and the average career,
of an NFL player is short, and I would hope that active players
have a strong interest in the fair treatment of retired
players. I appreciated you coming, Mr. Boyd, and sharing your
story with me, as well as the other players. I'm sure that
everyone can agree that the NFL and the NFL Players Association
would do best if they came to an agreement in a fair and an
appropriate way about how former players should be treated.
I have one quick question, Mr. Chairman, and that is--of
some of the retired players--what were your understandings
about your retirement when you were an active player? Did
anyone ever explain to you how your retirement plan worked?
What advice would you give now to active players about their
consideration of their benefits as they go forward?
Mr. Boyd. Real quickly--and they can answer, too--but we
understood that it would be physical, orthopaedic risk. And,
you know, I have all that--replaced knee and replaced hip's
coming next, and--but they never explained to us was that
concussions would have the--would--a mild concussion would--
could destroy your life. We thought that we'd have a safety
net. NFL players take incredible risks with their health and
their life, and we thought at least there would be a safety
net. But, incredibly, they're paying millions of dollars--the
process is there, the money is there--they're paying millions
of dollars to get great attorneys to make sure we don't get
those benefits.
Mr. Duerson. If I understood the question in regards to
what the players knew, in terms of benefits and that
information, that education process is quite thorough, and the
players have a full understanding in regards to the choices
they make. And, even for those players who--some years ago, who
played--perhaps in the 1960s and 1970s, who took the early
retirement benefits, signed documents that they, in fact, yes,
understood the penalties associated with taking early
retirement, and the ramifications of that. So, from the
standpoint of player reps on each team, those meetings, and--as
well as seminars that take place--were taking place, certainly,
in the 1980s when I played, and they're most certainly taking
place now--that education process is quite thorough. But, for
individual players, they have to make those decisions
themselves.
And also, in regards to the issue of Alzheimer's, my
father's 84, and, as I had mentioned earlier, Senator, spent 30
years with General Motors. He also has--he has Alzheimer's and
brain damage, but never played a professional sport. So, the
challenge, you know, in terms of where the damage comes from,
is a fair question, and one that--you know, that has been
addressed, and that--and is one that we, in fact, ask.
But I would just say, to Mr. Boyd, that I've never received
a phone call from him.
Mr. Boyd. Well, he is new, he wasn't----
Senator Klobuchar. All right.
Mr. Boyd.--there during my process.
Mr. Duerson. Well, but various names were mentioned, and
so--and then I was a trustee at that time, as well, and I can
tell you that, for any player who's ever given me a call,
I've----
Mr. Boyd. They don't--ask my wife--there are plenty of
people--we've got a stack of letters--who had called.
Mr. Johnston. Mr. Duerson's statement that his father has
Alzheimer's and he worked for GM at a plant, and that
automatically excludes NFL----
Mr. Duerson. No, I didn't say----
Mr. Johnston. Well, that's the reasoning, that's the--
that's the line you're trying to connect.
Mr. Duerson. No, I'm not, Moose, I----
Mr. Johnston. And--well, but if--just let me finish. Let me
finish.
Senator Dorgan. Can we let Mr. Johnston speak, here,
please?
Mr. Duerson. Well--but he's putting words in my mouth.
Mr. Johnston. Well, I'm not--but that's----
Senator Dorgan. One at a time, please.
Mr. Johnston.--the process--that's how we understand the
process to be, that they're looking for ways to deny claims. We
don't know if it's a 100 percent certainty that playing in
the--the National Football League will cause you to have early
onset Alzheimer's or dementia. We don't know that 100 percent.
But there is definite information that leads us that way. And,
you know, trying to--trying to prevent one or two or three
people going through this system and receiving benefits, and
tightening the purse strings down is turning your back and
denying benefits to the other 98 percent, 99 percent of the
people who rightfully qualify. That's the impression that we
get, as players, is there is so much concern about opening
Pandora's Box and these funds being depleted, that you're
turning your back on everybody that rightfully deserves this
disability payment.
Senator Dorgan. Let me just say, we will not serve the
interests of the inquiry of this hearing if we don't get the
second panel up, because we've spent nearly an hour on this
panel.
I'll call on Senator McCaskill and then Senator Kerry, and
then I want to call the second panel up.
Senator McCaskill?
STATEMENT OF HON. CLAIRE McCASKILL,
U.S. SENATOR FROM MISSOURI
Senator McCaskill. Thank you, Mr. Chairman--I heard you
call Conrad Dobler's name, and I guess he's not here?
Senator Dorgan. He's here.
Senator McCaskill. Oh, hi, Conrad. I used to represent
Conrad on some matters as a lawyer in Kansas City. And I
certainly was a big fan of your dad's, Mr. Webster, as a Chiefs
season ticketholder for a number of years.
I really am going to please you, Mr. Chairman, because my
questions really are probably more appropriate for the second
panel, because what I want to talk about is financial
transparency. I want to talk about the fact that the disability
fund and pension fund has a billion dollars in assets, and the
fact that the retired players don't have a good sense of
exactly how that's earning money, exactly how it's being paid
out, whether or not it is financially viable, in terms of being
more generous, in terms of disability determinations and taking
care of the players that have taken care of fans for as long as
the game has been in existence. And so, I will withhold my
questions, and hopefully I'll be here by the time it's time to
do that. If not, I'll make sure they get answered for the
record.
But thank you all for being here. And we will do our best
to see if we can't alleviate some of the pain and suffering
that is ongoing with retired NFL players.
Mr. Boyd. Thank you.
Senator Dorgan. Senator McCaskill, thank you very much.
Senator Kerry?
STATEMENT OF HON. JOHN F. KERRY,
U.S. SENATOR FROM MASSACHUSETTS
Senator Kerry. Mr. Chairman, thank you. I apologize for
being late.
Just very quickly, because we do want to hear from the
second panel--obviously, America loves this game. It's
important to our national fabric. And it's a great game, and
people respect those of you who played it, and particularly
those retired players who have built what we have today, this
extraordinary franchise, something like 67,000 spectators per
game across the country. It's the highest-watched domestic
sport--professional sport in the Nation. The revenues are
extraordinary, $6 billion annually. And you have this fund of
$1.1 billion. And I think most Americans would look at this
today and say, ``Wow, what is the Congress doing getting into
this, and why do they have to, and what's going on in this
relationship?''
It seems to me that a league as wealthy and as successful
as the National Football League, built on the contribution of a
bunch of gifted athletes, who, two-thirds of them have suffered
an injury that required either surgery or an eight-game
absence, 50 percent of whom retire because of an injury, 60
percent of whom had had a concussion, a quarter of whom have
had multiple concussions--it seems to me the League itself is
dropping the ball here, no pun intended, in terms of, just, its
relationship with these people.
What do you do in the face of that kind of wealth, that
kind of money being made by people who never touch the field
except to walk on it, congratulate the guys who played, and
people are struggling with the aftereffects in the way that
they are? There isn't any physician in the country, or any
person who's a weekend athlete, who doesn't understand what
happens to the body as it gets older and what happens to you as
a consequence of early injuries of any kind.
So, my hope is, the League will get its act together here.
That's really what's needed. Better communication, a
standardized sort of understanding of the process. And,
frankly, a presumption in favor of those who went out on the
field and put themselves at risk in the way that they do on a
weekly basis.
So, I hope we don't have to do something. And, Mr.
Chairman, I'm sure you are--I am prepared, if the League
doesn't do that, to introduce--which I would hope we wouldn't
ever have to do--legislation to create some kind of appropriate
accountability and oversight. I hope that it never comes to
that.
Senator Dorgan. Senator Kerry, thank you very much.
Senator Thune, we have just finished with the first panel
and are about to call up the second panel. Would you want to be
recognized now, or would you like to wait til the----
STATEMENT OF HON. JOHN THUNE,
U.S. SENATOR FROM SOUTH DAKOTA
Senator Thune. Mr. Chairman, I'd be happy--I've got an
opening statement I'll include for the record. I want to thank
you for holding the hearing, and appreciate those who have come
today to share their stories and testify.
[The prepared statement of Senator Thune follows:]
Prepared Statement of Hon. John Thune, U.S. Senator from South Dakota
I would like to thank Senator Dorgan for convening this hearing. I
would also like to thank our witnesses for taking time out of their
schedules to testify before our committee today.
I grew up watching the Green Bay Packers and it pains me to think,
as it does many Americans, that some of our former football heroes are
struggling to make ends meet. Some of the stories we have heard today
at the hearing as well as those recently highlighted in news and
magazine articles are heart-wrenching. It is counter-intuitive to think
of strong, well-paid NFL players, leaving the game, and falling into
lives of pain, disability, and even poverty.
I hope today's hearing helps shine the light on these issues and
helps bring players, management and former players together to find a
solution. If we step back and compare the pension and disability plans
for NFL players to the plans most Americans have access to, the NFL
players are well ahead of the curve. Therefore I hope the opposing
sides can work this out on their own.
Senator Dorgan. Thank you very much.
Let me just say, as we release this panel, we will be
submitting some questions to you.
Mr. Bain, Mr. Boyd, for example, your testimony--I
understand the passion and the emotion. This is not a debate
about some idea, this is about your lives. And so, I understand
that, and I very much appreciate your willingness--and, Mr.
Webster--your willingness to come--Mr. Duerson, thank you for
being here, and Mr. Johnston, as well--to come and be a part of
this discussion. It's a very important discussion. And so, we
will be submitting some questions to you. But many of you have
come great distance to present testimony, and we are very
grateful for that. Thank you very, very much.
Mr. Boyd. Ms. McCaskill, if I can add one stat that'll be
important before you get to the second--and it's only 5
seconds. 1994 OSHA study, life expectancy for NFL players, for
total players, is 55 years; for the big linemen like us, is 52
years. And that's--thus, our slogan is, what they're doing
``Delay, deny, hope we die.'' They have incentive to drag their
feet and hope that nature takes its course and solves this
problem.
And the second point is, they say, ``Well, you--if you work
for IBM, you know, when you're 50, they don't take care of you.
But if you walk in the room, a 50-, 60-year-old IBM veterans,
you know, most of them aren't crippled, and half of them
aren't--don't have dementia. So, I just wanted to let you know
there was a--that OSHA study is very important for you to know.
Senator Dorgan. Let me thank this panel. We will excuse the
panel and ask for the second panel to please come forward.
Thank you very much for your testimony and your appearance.
The second panel will include Mr. Gene Upshaw, the
Executive Director of the National Football League Players
Association; Mr. Roger Goodell, the Commissioner of the
National Football League; Mr. Mike Ditka, Member of the
National Football League Hall of Fame, former NFL Player and
Coach; Mr. Gale Sayers, the--Member of the NFL Hall of Fame,
former NFL Player for the Chicago Bears.
We would ask that those witnesses come forward and take
their place at the witness table.
[Pause.]
Senator Dorgan. Let me thank the second panel for coming.
And I apologize that you have had to wait, but I think it is
probably valuable to have heard the first panel. I know many of
you have traveled long distances to be here, as well, and we
appreciate that.
We will hear first from Mr. Gene Upshaw, Executive Director
of the National Football League Players Association.
Mr. Upshaw, you may proceed.
STATEMENT OF GENE UPSHAW, EXECUTIVE DIRECTOR,
NATIONAL FOOTBALL LEAGUE PLAYERS ASSOCIATION
Mr. Upshaw. I'm just waiting for a chart that has to get
up, but I'll start anyway.
Senator Dorgan. All right.
Mr. Upshaw. I first want to thank the Chairman and the
panel for inviting us here and--to be part of this.
Before I get started, I'd like to introduce a few players
that came along to hear the testimony: Troy Vincent, who is the
President of the NFL Players Association, Eddie Mason, Ryan
Kuehl, Brian Mitchell, and Brig Owens. They're all here because
they are very interested in this issue, as all active and
retired players are.
I would first like to say that I am Gene Upshaw. I am the
Executive Director of the NFL Players Association. And I appear
before this committee at your invitation to discuss benefits
provided for NFL players in the National Football League.
Prior to becoming Executive Director, I played 16 years in
the National Football League, and I understand the rewards and
the risks of playing this game. I'm also distressed when I hear
about former players who are hurting and are in need. Remember,
I played with a lot of these guys, I know a lot of these guys,
and I played against a lot of these guys. So, I've spent my
entire professional life fighting for the rights of players,
both active and retired.
I also recognize that these are emotional issues, that we
play an emotional game, and this game brings out some emotions
that it takes to play it, and it just follows you the rest of
your life.
I'll ask permission from the Chairman to submit our White
Paper as part of the record, also my written testimony and my
summary as part of the record.
Senator Dorgan. Without objection.
Mr. Upshaw. Thank you.
Our benefits in the National Football League were forged in
collective bargaining. In 1993, as part of my first collective
bargaining agreement as Executive Director, we dramatically
improved both pension and disability for all players. I just
want to make three simple points in my presentation.
First, the NFLPA is proud of the job that we have done for
NFL players, both active and retired. Players are well
compensated and enjoy an outstanding benefit package. Unlike
many businesses, where benefits have been reduced, benefits for
NFL players have been maintained and repeatedly improved. We
represent the best practices of labor relations.
Second, we're not finished. I think the active players
respect and empathize with the emotions and concerns expressed
by retired players. That is why we established, in 1984, a
Retired Players Division at the NFL Players Association's
office. And, in 1990, we established a Players Assistance
Trust, which is funded by the active players to help former
players in need. In the past 18 months, this fund has
distributed over $1.5 million to former players in need and in
financial--that need financial assistance.
When I became Executive Director, in 1983, about 30 percent
of the NFL revenues went to the players. That has now doubled
to 60 percent and--of all of the revenues. Our union had to go
through some dark times to achieve this. We had to renounce our
status as a union, we had to decertify, and we had to bring a
legal challenge that ultimately led to our present success. I
don't think any union has ever done that. And many thought we
were crazy, but we made it work. We shifted the battle from the
picket line to the courtroom and forged a partnership with the
owners we are proud of today. With labor peace, the game has
grown and has benefited both the players, the owners, and the
fans. This success has allowed us to win against prevailing
trends of reducing workers' benefits.
I have some charts that I brought me to, sort of,
illustrate the point that we have.
Chart 1, that's to my right and your left, shows that, in
1993, we reached back, for the first time, to include all
players that had no pension, the pre-59ers, and brought them
into the pension plan in 1993. This mean that we brought in an
additional 900 players and their beneficiaries.
Each succeeding extension--1998, 2002, and 2006--we have
improved the pension benefit credits for all former players,
and they've been increased.
Let's turn to disability. I want to begin by emphasizing
that the Players Association--the members, the staff, and me
personally--are sensitive to the medical, financial, and
emotional needs of professional players, both active and
retired. We are distressed when we hear about a player in need,
and we're committed to responding to the needs of all players.
But we reject the charges that the present disability system
treats veteran players harshly and denies them access to the
benefits. The factual record disproves those charges. Of course
the system can be improved. And Commissioner Goodell and I are
determined to simplify, expedite the process of these claims.
Chart 2, it summarized the disability decisions from 1993,
when the present categories were put in place and established.
We've had 1,052 applicants. We have 48 cases that are pending.
We've approved 428 cases, and we have 776--576 that were
denied.
Of the cases that are denied, there are several reasons why
they were denied. Some were already drawing pension, some
didn't have enough vested years. Just recently, we just added a
new disability, that's been mentioned earlier--in earlier
testimony, Plan 88. Plan 88 was established in honor of John
Mackey, the great tight end Hall of Famer who wore number 88
and is suffering from this terrible, terrible disease. It was
negotiated between Paul Tagliabue and myself in the 2006 CBA
extension. This benefit was extremely important to all of us
connected to the National Football League. John was the first
president of the combined union in 1970, and we all have tried
to remain as close to John as we possibly can as he deal with
this terrible, terrible disease.
Chart 3 shows in--as of February, when we instituted this
plan, that 130 applications were mailed out to players. We
received 79 back, and, of that 79, 60 have been approved, 4
have been denied, and 15 are pending.
Commissioner Goodell and I do not decide disability claims.
You've heard a lot about the Disability Board that sits, and
the Retirement Board that sits, on behalf of the NFL players
and the NFL owners. These claims must first go through a two-
person Disability Committee, then it must--if a player is not
happy, he can--if a player is not happy and there is a
deadlock, he can then appeal it to the full board, where there
are three members, three player--former players--Tom Condon,
who is a President of the NFLPA--former president; Jeff Van
Note, another former President of the NFLPA, played 18 years
for the Falcons; and Dave Duerson, who testified earlier. The
NFL appoints team owners, and have appointed team owners--Bill
Bidwell, of Arizona, Clark Hunt, of Kansas City, and Dick Cass,
who is the President of the Baltimore Ravens.
If a player is dissatisfied with this board, they have a
right, which you have heard from Brent Boyd, to appeal to the
Federal courts. And we have had several appeals to the Federal
courts.
Most recently, the NFL and the NFLPA formed an alliance,
bringing together over $7 million, initially, to fund joint
replacements and to address financial needs and hardships of
retired players. The joint replacement surgery will be
available at no cost to players, without insurance, and
designated--at designated hospitals across the country. All of
these benefits are paid for by the active players.
Chart 4 shows that the current players give up--what the
current players give up to fund these benefits. Our CBA
allocates a fixed percentage for salaries and benefits. This
past year, the active players voluntarily gave up $147.5
million to fund the benefits for the retired players. That's
$95 million--I mean $96.5 million to fund pensions, 20 million
to fund disability benefits, 31 million to fund medical
benefits, just for the former players. And these numbers are
growing. We've had 124- percent increase from 2005 to 2006 in
just pension increase alone.
The process has cost active players $82,000 per player to
fund these benefits, which brings me to my third point. I have
three suggestions for Congressional consideration to help us in
this.
First, we need standards for workers' compensation. The
current state-by-state system causes the vast majority of hurt
workers, not just NFL players, to settle for a lump-sum payment
and give up their rights to lifetime medical for their injuries
on the job. Congress could impose Federal standards to allow
workers to get immediate medical care, but still maintain
lifetime coverage.
Second, the Federal law does not allow a union to manage
the plans alone. It's negotiated with an--employees, and they
give a fixed amount. And, since we are getting blamed for not
granting disabilities, we believe that we should have the only
voice when it comes to granting of disabilities. We're not
saying that the six trustees have done anything wrong, or
have--or we're not criticizing the trustees for the job that
they've done.
And, third, the Department of Labor, in 2006, imposed a
standard, a different--a layer on disability decisions. It's an
Initial Claims Committee. It's a--we think that Congress could
eliminate this requirement, which is another bottleneck that
will help speed up the process.
Senator Dorgan. Mr. Upshaw, I'm going to have to ask you to
summarize, please.
Mr. Upshaw. I'm at the end.
Senator Dorgan. All right.
Mr. Upshaw. So, after 16 years as an NFL player, and
another 24 as Executive Director, be assured that no one cares
more for the players in the National Football League, both past
and present, than I do. And I've spent an awful lot of my
lifetime fighting those battles to protect those rights and to
give us what we have today. But our job is not over.
[The prepared statement of Mr. Upshaw follows:]
Prepared Statement of Gene Upshaw, Executive Director, National
Football League Players Association
Chairman Dorgan and Members of the Committee, I am Gene Upshaw,
Executive Director of the NFL Players Association (``NFLPA''). I appear
today at the Committee's invitation to discuss the benefits provided to
players in the National Football League (``NFL''). Prior to becoming
Executive Director in 1983, I played 16 years in the National Football
League. I know the risks and rewards of the game.
I am distressed when I hear about any former player who is hurting
and in need. Remember I played with a lot of these guys. I have spent
my entire professional career fighting for the rights of players. I
also recognize these are very emotional issues but we cannot overlook
the facts. The facts are the facts. I ask permission to submit for the
record our detailed ``White Paper,'' which describes the retirement,
disability, health care, and other benefits currently available to NFL
players.
Our benefits were forged in collective bargaining. In 1993, as part
of my first collective bargaining agreement as Executive Director, we
dramatically improved both pension and disability benefits for all
players.
I want to make three simple points.
First, the NFLPA is proud of the job we have done for NFL Players
both active and retired. NFL Players are well compensated and enjoy an
outstanding benefits package. Unlike many businesses, where benefits
have been reduced, benefits for NFL players have been maintained and
repeatedly improved. We represent the best practices of labor
relations.
Second, we are not finished. I think all of the active players
respect and empathize with the emotions and concerns expressed by
retired players. This is why we established a Retired Players
organization as a division of the NFLPA in 1984. And, in 1990, we
established the Players Assistance Trust (PAT), funded by the active
players to help former players in need. In the past 18 months, this
fund has disbursed over $1.5 million to former players in need of
financial assistance.
When I became Executive Director in 1983, about 30 percent of NFL
revenues went to the players. That has now doubled, to 60 percent of
all revenues. Our union went through some dark times. We had to
renounce our union status--``decertify''--to bring the legal challenge
that ultimately led to our present success. I don't think any other
union had ever done that; everyone said we were crazy. But we made it
work. We shifted the battle from the picket line to the courtroom, and
forged the partnership with the owners we are proud to have today. With
labor peace, the game has grown enormously, and all have benefited--
players, owners, and fans.
This success has allowed us to win against the prevailing trend of
reducing benefits to workers. Before we get into the hype, let's look
at the facts. The NFLPA has fought hard to increase benefits--
especially pensions, disability, and health care. The charts behind me,
and our more detailed White Paper, speak the truth.
Chart I shows in 1993, we reached back and included the ``pre-
59ers'' for the first time in the Pension plan and reduced the vesting
period. These changes extended coverage to over 900 former players and
their beneficiaries. In each succeeding extension of the CBA in 1998,
2002 and 2006, the benefit credits for pension purposes of former
players were increased.
Let's turn to disability. I want to begin by emphasizing that the
Players Association, its members, staff and me personally, are
sensitive to the medical, financial and emotional needs of professional
football players--both retired and active. We are distressed when a
former player is in need, and we are committed to responding to the
needs of all players.
But we reject charges that the present NFL Disability Benefit
system treats veteran players harshly or denies them access to
benefits. The factual record disproves those charges. Of course, the
system can be improved, and Commissioner Goodell and I are determined
to simplify and expedite the processing of claims.
Chart II summarizes disability decisions from 1993, when the
present disability categories were established, through June 2007.
Of the 1,052 applicants for disability benefits since 1993, many
were ineligible because they were not vested or were already receiving
a pension. Since 1993, 428 players, or 42.6 percent of those who
applied, have received disability benefits. Forty eight cases are still
pending, and there will be more approvals. This compares to a 47
percent approval rate for Social Security disability.
Another recent disability benefit added by agreement between the
NFLPA and NFL is the establishment this year of the ``88 Plan''. ``88''
was Hall of Fame John Mackey's number and the plan is named in his
honor. It was negotiated and agreed to between Paul Tagliabue and
myself during our 2006 CBA extension talks. This benefit was extremely
important to me and our union because of how much John Mackey meant to
us. He was the first President of the NFLPA after the merger of the old
NFL Players Association with the American Football League Players
Association in 1970. John put his name on the line in a major antitrust
suit which we won in the mid-1970s, and he has long been an inspiration
to the officers and staff of the NFLPA. I know John well and he is
always in our thoughts as we continue to make improvements.
Chart III shows that since February of this year we have
distributed 130 applications to players. Of those applicants, we have
received 79 back from players and 60 of the applications have been
approved. Of the remaining 19, only 4 have been denied and 15 are
pending.
Commissioner Goodell and I do not decide disability claims.
Disability claims must first go to a two-person Disability Initial
Claims Committee (required by Department of Labor regulations since
January 2002). If the Committee deadlocks or a player is not satisfied
with its decision, the player may appeal to the full Retirement Board.
The Board has six voting members; three appointed by the League and
three appointed by the NFLPA. The 3 members appointed by the NFLPA are
retired players: Tom Condon, former President of the NFLPA, played 11
years in the NFL; Jeff Van Note, former President of the NFLPA, played
18 years for the Atlanta Falcons; and Dave Duerson, who played 11
years, and was an All-Pro safety. The NFL appointees are team owners
William (Bill) Bidwell (Arizona Cardinals), Clark Hunt (Kansas City
Chiefs) and Dick Cass (President, Baltimore Ravens). If a player is
dissatisfied with the Board's decision, a player may seek review in
Federal court.
More recently the NFLPA/NFL formed an ``Alliance'' bringing
together an initial $7 million fund to pay for joint replacement
surgery and address other financial hardships of retired players. The
joint replacement surgeries will be available at no cost to retired
players without insurance at designated hospitals across the country.
All of these benefits and improvements are paid for by the active
players.
Chart IV shows what the current players give up to help those who
came before them. Our CBA allocates a fixed percentage of total NFL
revenues for player salaries and benefits. As you can see, last year
alone the current players voluntarily gave up $147.5 million to help
former players. None of this $147.5 million went to current players.
That's $96.5 million to fund pensions, $20 million to fund
disability benefits, and $31 million to fund medical benefits. Just for
former players. And these numbers are growing. Because of the pension
increases in the 2006 CBA, the cost of funding pensions alone for
former players more than doubled--from $39 million to $96.5 million--a
147 percent increase in 1 year.
In the process each active player essentially reduced his salary by
$82,000.
My third point is that Congress can help. I have three suggestions
for legislative action.
First, we need Federal standards for workers compensation. The
current state-by-state system often causes the vast majority of hurt
workers, not just NFL players, to settle for a lump sum, and give up
their rights to lifetime medical care for their injuries on the job.
Congress should impose Federal standards that allow injured workers to
get immediate medical help and keep lifetime coverage.
Second, Federal law does not allow unions to manage their own
plans, even when, as here, the negotiated contribution by employers is
fixed and plan actions cannot impose extra liability. By proposing this
I do not suggest that any of the six trustees have not acted in good
faith and in accordance with their fiduciary duty. But since the NFLPA
has been criticized when applications are denied (even though a
majority vote of the six trustees is necessary for a decision), and
since current players are funding the system, it makes sense for the
players to be the ones making the disability decisions.
Third, in 2002, the Department of Labor imposed an extra level of
decision-making in disability decisions--a new Initial Claims
Committee--before our six trustees can hear the evidence about a
particular player's disability. I ask Congress to eliminate this
requirement. I opposed the creation of this extra committee when the
Department of Labor proposed it.
Conclusion
After 16 years as a player in the NFL and another 24 years as NFLPA
Executive Director, be assured that no one cares more than I do about
the disability issues and others facing my fellow players. We have made
great progress and we are not finished. Congress can help.
I welcome any questions the Committee may wish to ask and will do
my best to answer them.
______
NFLPA WHITE PAPER
Table of Contents and Executive Summary
I. NFL/NFLPA Benefits Overview: All Benefits to Retired Players Paid by
Current Players Under Salary Cap--60 percent of NFL Revenues
Active Players Pay For All Benefits.
The NFLPA Has Obtained Repeated and Significant Increases in
Benefits for Retired Players.
II. Disability System
A. Disability Benefits Overview
Most Generous and Flexible Disability in Professional Sports
The NFLPA Is Always Working to Improve Benefits and
Procedures
B. Disability Eligibility and Award Statistics
C. Disability Categories, Application and Award Process
1. Categories of Disability
Plan Pays Both Total and Permanent and Partial Disability
Benefits
Four Categories of Total and Permanent Disability Benefits
Active Football: Football-related, within 6 months
Active Non-Football: Non-football related, within 6
months
Football Degenerative: Football-related, within
fifteen years
Inactive: Non-football related, no time limit
Line of Duty Benefits (``LOD''): Partial Disability, Player
may be working
2. Disability Application and Award Procedure
Decisions Are Made By Plan Fiduciaries, Including 3 Former
Players
Disability Claims are Processed as Required by Federal Law
Application
Initial Medical Examination
Initial Decision by Disability Initial Claims Committee
Appeal Rights
Retirement Board
Second Medical Exam
The Retirement Board decides all appeals based on the entire
record
Players Can Appeal to Federal Court
Since 1993, the courts have upheld 96 percent of the
Retirement Board's decisions in lawsuits filed by retired
players (in 24 of 25 decided cases)
D. Facts About Former Players With Public Controversies Over Disability
Issues
Brent Boyd
Brian DeMarco
Conrad Dobler
Daryl Johnston
Eugene ``Mercury'' Morris
Mike Mosley
Dave Pear
Mike Webster
Delvin Williams
III. Workman's Compensation
NFLPA Bargained for and obtained Workman's compensation
benefits for all players and provides legal counsel to help
players apply
IV. Lifetime Retirement Income Security Plans
A. Lifetime Pensions Paid by Current Players
A player needs to be vested to be eligible for retirement
and for the third and fourth categories of T&P disability
benefits
Benefit Credits
Past pensions have been increased four times since 1993
In 1993, pre-1959 players ``Pre-59ers'' began to receive
pensions for the first time
Some players receive a smaller than usual pension because
they elected to take their pensions many years before
retirement age
Some players receive a small pension because they elected to
take a ``Social Security Adjustment''
Other reasons why some retired players are receiving smaller
than usual pensions
B. Second Career Savings Plan: 401(k)
2 for 1 401(k) benefits for players
C. NFL Player Annuity Program
V. Health Care Benefits
A. Five Free Years of Post-Career Medical Coverage
B. Pre-Tax Deposits Into Health Reimbursement Accounts ($25,000 per
year/$300,000 max)
C. 88 Plan
VI. Other Charitable Retired Player Programs
Widows and Surviving Children Benefits
Players Assistance Fund
Retired Players Medical and Assistance Fund
I. NFL/NFLPA Benefits Overview
Active Players Pay For All Benefits: The NFL Players Association
and the NFL agree in collective bargaining on the benefits to be
provided. Benefit costs reduce the revenue available for active players
under the Collective Bargaining Agreement (``CBA''):
The CBA between the Players Association and the NFL provides
retirement, medical, and disability benefits to former players.
The CBA allocates a percentage of the League's revenues for
player salaries and player benefits (currently 60 percent).
The costs of benefits to former players come from the active
players' side of the table. In other words, all of the CBA
benefits, including the cost of benefits for players no longer
active, reduce the amount available for salaries and benefits
of active players.
In 2006 alone, active players gave up $147.5 million for
benefits to retired players. This means that each active player
gave up approximately $82,000 of his salary for medical,
disability, and retirement benefits for former players.
From April 2006 to March 2007--the active players gave up
approximately:
$96.5 million to fund retirement benefits for retired
players;
$31 million to fund medical benefits for retired players;
$18 million in contributions to health reimbursement
accounts.
$2 million to 88 Plan for Dementia.
$11 million for 5 years post-retirement fully paid
health care.
$20 million to fund disability benefits for former players.
In 2005-2006, current players contributed $39 million to fund
retirement benefits for former players.
The current $96.5 million is a 147 percent increase in 1
year thanks to the 2006 CBA.
The NFLPA Has Obtained Repeated and Significant Increases in Benefits
for Retired Players.
Beginning in 1993, the NFLPA obtained significantly increased
pensions for retired players four times. Pre-59ers were included in the
Retirement Plan for the first time in 1993, and their benefits have
since been more than tripled.
Significantly increased Total and Permanent Disability benefits.
Tripled widow and surviving children benefits.
Created Plan 88 (see below).
II. Disability System
A. Disability Benefits Overview
Most Generous and Flexible Disability in Professional Sports: The
Plan offers total and partial disability benefits--T&P and Line of
Duty--explained in further detail below.
The disability award process investigates (1) whether a
player is able to work; (2) what caused the player's
disability; and (3) when the disability began.
Vested former NFL players who become unable to work--for
whatever reason--decades after they leave the game may still
receive a disability benefit that serves as income replacement.
This is highly unusual. An employee of a corporation like
IBM or General Motors does not expect to get--and does not
get--disability benefits if he or she becomes unable to work
decades after leaving the job.
The Plan also offers partial disability called ``Line of
Duty,'' which players may receive even when they are still able
to work.
Since 1993--when the current structure was put in place--
about $140 million has been paid to disabled players.
Once a disabled retired player reaches retirement age, he
will begin to receive the higher of either his disability or
his pension for the remainder of his life.
The NFLPA Is Always Working to Improve Benefits and Procedures:
Even outside of the formal collective bargaining process, the NFLPA
continues to seek improvements in benefits and in the process.
The NFL/NFLPA recently announced an agreement that
automatically grants disability benefits to eligible former
players who receive social security disability benefits.
Because of this change, additional players will now receive
NFL disability benefits, and players already receiving social
security benefits will not have to be examined by a Plan
doctor.
The NFLPA has suggested other major changes that could
eliminate difficult decisions on effective dates and causation
for many players, and allow the Plan to process applications
faster.
B. Disability Eligibility and Award Statistics
Eligibility and Award Statistics: This has been considerable
misinformation reported about the disability award and eligibility
statistics, which we would like to clarify below:
From 1993 to June 2007, 42.6 percent of individuals who have
applied for NFLPA/NFL disability benefits were awarded
disability benefits of some kind. Social security is awarded at
roughly 47 percent.
As the table below demonstrates, 428 applicants have
received disability benefits--of the 1004 who have received a
final decisions--which brings the approval rate to 42.6
percent.
There are currently 317 former players who are
receiving some kind of disability benefit under the Plan.
Since 1993, 41 former players who were awarded disability
began receiving their pension when they reached retirement
age, and therefore no longer receive disability payments.
The remaining players who no longer receive disability have
either passed away, or no longer qualify for disability
since their initial award because the benefit expired, or
because the Plan has determined that they are no longer
disabled.
Of the 1,052 people who applied in this period, many were
already receiving a pension or were not vested (had not played
3 or more seasons), and therefore were ineligible when they
applied for disability benefits.
Currently, there are 4,900 vested (3 seasons or more) former
players who are eligible to apply for disability benefits under
the NFL/NFLPA plan, not 10,000, as has been reported in some
media outlets.
In addition to the 4,900 vested former players who are
eligible, there are currently 2,100 active players who are not
eligible to apply for disability because they are actively
playing football, and are therefore not disabled.
There are additionally close to 3,000 former players who are
currently receiving a pension from the NFL/NFLPA Retirement
Plan, and are also therefore not eligible to receive
disability. Since pension and disability are both ``income
replacement'' benefits, once a player begins to receive his
pension he can no longer apply for disability benefits. (This
is standard, if not universal, among all employers.)
Table 1 summarizes the disability decisions of the Retirement Plan
from July 1993, when the present disability categories were created to
June 26, 2007.
Table 1
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Total disability applicants 1,052
Approved at initial stage \1\ 358
Denied at initial stage 675
Awaiting initial decision 19
Applicants denied at initial stage who appealed 223
Approved on appeal 69
Denied on appeal 132
Appeal Pending 22
Applicants who have sued 32
Retirement Board upheld 24
Retirement Board reversed 1
Lawsuit pending 7
Overall disability applicants 1,052
Cases pending 48
Benefit approved 428
Benefit denied 576
----------------------------------------------------------------------------------------------------------------
Prior to January 1, 2002, initial decisions were made by the Retirement Board. After January 1, 2002, initial
decisions are made by the Disability Initial Claims Committee, as required by a change in Federal law. The
Disability Initial Claims Committee has deadlocked on whether to grant a benefit 37 times.
C. Disability Categories, Application and Award Process
1. Disability Categories
Plan Pays Both Total and Permanent and Partial Disability Benefits:
The Retirement Plan awards both ``total and permanent,'' (``T&P'')
disability benefits (meaning the retired player is unable to work) and
partial disability benefits.
Total and Permanent Disability--T&P: Total and Permanent disability
benefits are paid when an eligible player is unable to work, and are
designed to replace income.
Eligible players may receive T&P benefits even when their
inability to work occurs many years after a football career has
ended, and even when NFL football did not cause the inability
to work.
Once a retired player reaches retirement age (55), he will
begin receiving the higher of either his disability payment or
his pension for the remainder of his life.
Players who begin receiving their pension can not apply for
disability. Both are income-replacement benefits; this is
standard, if not universal, among all employers.
Four Categories of Total and Permanent Disability Benefits:
Active Football: Football-related, within 6 months.
A former player receives $224,000 per year if he
becomes totally and permanently disabled due to NFL
football within 6 months after his NFL career ends.
No vesting required--available to a player who plays
in as little as one game.
Active Non-Football: Non-football related, within 6 months.
A former player receives $134,000 per year if he
becomes totally and permanently disabled from any other
cause within 6 months after his NFL career ends.
Based on a player's benefit credits, this amount could
be higher.
No vesting required--available to a player who plays
in as little as one game.
Football Degenerative: Football-related, within fifteen
years.
A former player receives $110,000 a year if he becomes
totally and permanently disabled due to NFL football within
15 years after his NFL career ends.
Inactive: Non-football related, no time limit.
A former player receives a minimum of $18,000 a year
($21,000 for applications on and after April 1, 2007) if he
becomes totally and permanently disabled and does not
qualify for one of the other categories.
Based on a player's benefit credits, this amount could
be higher.
NOTE: Vesting Required for Football Degenerative and Inactive T&P
benefits:
These two categories of disability are only available to
former players who played in the NFL during at least three
seasons and are therefore ``vested.'' Generally, a player earns
a season if he is paid for three or more games during that
season.
Line of Duty Benefits (``LOD''): Partial Disability, Player may be
working.
Partial disability benefits are paid to players who suffer a
``substantial disablement.'' Whether a player has a substantial
disablement is generally determined using the rating system created by
the American Medical Association for measuring impairments.
LOD benefits are available to players who play in as little as one
NFL game.
To receive ``LOD'' disability a player must apply within 48 months
(4 years) after his NFL career ends. Partial disability benefits are
paid for up to 90 months (7.5 years).
A player's LOD benefit equals the sum of his Benefit Credits.
Therefore, a player who leaves the game today with five seasons would
have a monthly LOD benefit of $2,350 (5 seasons times $470).
Regardless of the number of a player's seasons, he will receive at
least $1,000 per month.
Most injuries to NFL players are orthopedic. The collective
bargaining parties have adopted guidelines created by the American
Medical Association to measure impairments resulting from orthopedic
injuries.
For orthopedic impairments, using the AMA guidelines, LOD benefits
are paid if the player meets any one of the following thresholds:
A 38 percent or greater loss of use of the entire lower
extremity;
A 23 percent or greater loss of use of the entire upper
extremity;
An impairment to the cervical or thoracic spine that results
in a 25 percent or greater whole body impairment;
An impairment to the lumbar spine that results in a 20
percent or greater whole body impairment; or
Any combination of lower extremity, upper extremity, and
spine impairments that results in a 25 percent or greater whole
body impairment.
Up to 3 percentage points may be added to the impairment ratings of
a player if he experiences excess pain.
2. Disability Application and Award Procedure
Decisions Are Made By Plan Fiduciaries, Including 3 Former Players:
The Players Association and the NFL do not award or deny disability
claims. Final decisions on disability benefits are made by 6 voting
members of the Retirement Board--three of whom are former players--and
all medical decisions are based on the medical reports of one or more
neutral doctors chosen by all voting members, and all medical
information submitted by the player.
Disability Claims are Processed as Required by Federal Law: In
compliance with Federal law, the Retirement Plan gives former players
every opportunity to qualify for disability benefits. The process that
a player goes through is outlined as follows:
Application: A player seeking disability benefits begins by
completing a written application and sending it to the Plan Office in
Baltimore. The Plan Office has a toll-free number that former players
can call to ask questions and get forms, and also has a website for
downloading forms.
Initial Medical Examination: The player is then sent to a neutral,
qualified physician approved by the Retirement Board for an
examination. These physicians are called neutral physicians because
they are appointed jointly by the Retirement Board members appointed by
the Players Association and the NFL. Based on his examination, the
physician provides a written report that describes the player's
condition, measures impairments for purposes of LOD benefits, and
addresses the player's ability to work.
Initial Decision: The Disability Initial Claims Committee
(the ``DICC'' or ``Committee'') makes initial decisions on
disability benefit claims. It is comprised of two individuals--
one appointed by the NFL and the other by the NFLPA. The Labor
Department required this layer of decisionmaking by Federal law
in 2002.
The Committee reviews the player's entire file, including
all medical reports by the Plan neutral physicians and by other
physicians submitted by the Player. If the Committee approves
the application, disability payments begin immediately.
If the Committee denies the player's claim, or if the
Committee is deadlocked (in which case the application is
deemed denied), the player may appeal, as described below.
Appeal Rights: If the Committee denies a claim, is deadlocked, or
the player is dissatisfied with the Committee's decision in any way,
the player may appeal to the full Retirement Board for a complete
review of the claim. On appeal, the Retirement Board will review all
available materials, whether or not presented to the Committee, and
will give no deference to the decision of the Committee. The Retirement
Board conducts a full and fair and totally independent review of all
appeals.
Retirement Board: The Retirement Board has six voting members--
three appointed by the NFLPA, and three appointed by the NFL.
NFLPA-appointed voting members: All distinguished retired players:
Tom Condon played for the NFL for 11 years, and served as
President of the NFLPA while he was an active player. Today, he
is an attorney and a top football agent with Creative Artists
Agency.
Jeff Van Note played for the Atlanta Falcons for 18 years,
and served as President of the NFLPA while he was an active
player.
David Duerson played in the NFL for 8 seasons, was all-Pro
in 4 years, and won two Super Bowl rings. Mr. Duerson attended
Harvard Business School after retiring from the NFL and
currently works in business.
NFL-appointed voting members:
William Bidwill, Owner of the Arizona Cardinals.
Clark Hunt, Owner of the Kansas City Chiefs.
Dick Cass, President of the Baltimore Ravens.
Second Medical Exam: On appeal, the player is sent, as required by
Federal law, to one or more new neutral physicians for additional
medical examination. These physicians provide written reports on the
Player's condition.
The Retirement Board decides all appeals based on the entire
record.
Resolving Deadlocks: 3 to 3 votes--of the Retirement Board are
resolved by either:
Medical Advisory Physician (``MAP''): If the dispute is over
a medical issue, such as whether a player medically is
substantially unable to work, either side (the player-appointed
trustees or the management-appointed trustees) can send the
player to one of the Plan's top, pre-approved, neutral three
doctors. These doctors are called ``Medical Advisory Physicians
(``MAPs''), and their medical decisions are binding on the
Retirement Board. This final review will almost always resolve
any deadlock between voting trustees.
Arbitration: In rare cases--and this has happened only once
in the last 14 years--the deadlock is resolved by arbitration
between the members of the Retirement Board.
Players Can Appeal to Federal Court: If a player is dissatisfied in
any way with the decision of the Retirement Board, he has the right to
file a lawsuit in Federal court for benefits.
Since 1993, the courts have upheld 96 percent of the Retirement
Board's decisions in lawsuits filed by retired players (in 24 of 25
decided cases).
This record demonstrates the care with which the Committee and the
Retirement Board decide pension and disability claims.
D. Facts About Former Players With Public Controversies Over Disability
Issues
Brent Boyd
Mr. Boyd played professional football in the NFL from 1980-1986.
Mr. Boyd is receiving total and permanent disability (``T&P'')
benefits under the Plan's ``Inactive'' category, which provides a
minimum of $18,000 per year.
Mr. Boyd is receiving Inactive T&P benefits rather than
Football Degenerative T&P benefits because the only doctor who
was certain about the cause of his psychological and
psychiatric problems--a neutral and renowned expert from Johns
Hopkins University Medical Center--determined, to a reasonable
degree of medical certainty, that Mr. Boyd's problems could not
have been caused by Mr. Boyd's concussion in 1980.
Accordingly, he did not meet the standard for the highest
level of payment, the football-related ``Football
Degenerative'' T&P benefits.
Mr. Boyd first applied for T&P benefits in 1997; he claimed that he
was unable to work due to orthopedic impairments, never mentioning a
football-related head injury in his application.
After a Plan neural orthopedist opined that Mr. Boyd was
capable of sales and other work, the Retirement Board denied
Boyd's application.
Mr. Boyd did not challenge that decision by pursuing a
Federal court appeal.
Mr. Boyd reapplied in 2000; he now claimed, for the first time,
that he was unable to work due to a psychological disorder caused by a
head injury that occurred in 1980.
The Retirement Board referred Mr. Boyd for examination by a
neurologist and a psychiatrist.
Both doctors indicated that Mr. Boyd was then totally and
permanently disabled (i.e., substantially couldn't work) due to
cognitive and psychiatric impairments. But, both physicians
also indicated in their written reports that they were
uncertain what caused Mr. Boyd's disability.
The player trustees wanted to award Mr. Boyd the higher
Football Degenerative T&P benefit, but the management trustees
would not agree, in large part because Mr. Boyd had not claimed
head injuries in his 1997 application.
The Retirement Board awarded Mr. Boyd the Inactive T&P
benefits (i.e., a minimum of $18,000 per year where a player
does not qualify for a higher category) on the basis of these
reports, and agreed to further study the causation of Mr.
Boyd's impairments for possible reclassification.
To resolve the deadlock on causation, the Retirement Board referred
Mr. Boyd to a pre-eminent neurologist at Johns Hopkins, Dr. Barry
Gordon, who has particular expertise in memory, cognitive impairments,
and head injuries.
After an extensive examination by Dr. Gordon, which lasted well
over an hour, Dr. Gordon concluded, ``to a reasonable degree of medical
certainty,'' that Mr. Boyd's impairments were not caused by NFL
Football. Mr. Boyd and his attorneys were given repeated opportunities
to provide a medical rebuttal, but never did. Contrary to Mr. Boyd's
public statements, Dr. Gordon's assistant, who performed tests, had
completed the course work for a Masters in Developmental Psychology at
Hopkins (which she received 2 months later), was well-trained in
testing and had performed that test on other patients at least a dozen
times before Mr. Boyd, and still works as a consultant to John Hopkins.
Based on this information, the Retirement Board concluded that Mr.
Boyd did not meet the requirements for a football-related disability,
and awarded him Inactive total and permanent disability benefits (the
fourth T&P category, at a minimum of $18,000 per year).
Mr. Boyd sued the Retirement Plan in Federal District Court in San
Diego. That court upheld the Board's decision and reasoning that Mr.
Boyd's psychological impairments were not caused by a football-related
injury, and rejected Mr. Boyd's arguments.
Mr. Boyd then appealed to the Ninth Circuit Court of Appeals. A
three judge panel unanimously affirmed the District Court's decision
and upheld the findings of the Retirement Board. The Ninth Circuit
rejected Mr. Boyd's claim that his psychological condition was
football-related.
Brian DeMarco
Mr. DeMarco played professional football in the NFL from 1995-1999.
Mr. DeMarco has never filed a claim for disability benefits, even
after the Retirement Plan sent him five applications via certified mail
over the past 5 years.
The plan sent Mr. DeMarco disability applications in March 2002,
December 2002, September 2005, August 2006, and July 2007.
The Plan Office has never received a single disability application
from Mr. DeMarco. The Plan still has three of the written, signed
proofs that the application was received.
Because Mr. DeMarco has declined to even begin the process, the
Plan cannot be blamed for failing to pay disability benefits to him.
Mr. DeMarco has claimed that he sent in the application, which was
misplaced by the Plan office. This is false. As of September 2007, Mr.
DeMarco has still not sent in an application for disability.
Conrad Dobler
Mr. Dobler played professional football in the NFL from 1972-1981.
First, the Board denied Mr. Dobler's 1993 claim for T&P benefits
because he was able to work at that time, despite his knee and elbow
impairments. As described above, T&P benefits are reserved for former
players whose impairments prevent them from being able to work.
Mr. Dobler applied for Total and Permanent Disability in
1993.
After evaluating the report of the Plan neutral physician
who examined Mr. Dobler, the player trustees wanted to award
him T&P disability benefits, but again the management trustees
refused to do so, which left the Board deadlocked at 3 to 3.
As a result of this deadlock, the Board sent Mr. Dobler for
an additional examination by a Medical Advisory Physician
(``MAP''), whose medical determinations are final and binding
on the Board.
The MAP determined that Mr. Dobler did not qualify for T&P
benefits because he was able to work, and was in fact working.
Therefore, the Board denied his application for T&P benefits.
Second, the Board denied Mr. Dobler's 2006 claim for LOD benefits
(partial disability, player may still be able to work) because his
claim for those benefits was more than 2 decades late. The Plan
requires that a player apply for LOD benefits within 4 years of leaving
the game.
In 2006, thirteen years after his initial application and 25
years after playing football, Mr. Dobler applied for LOD
benefits.
His application was more than 20 years late.
A player must apply for Line of Duty disability within 4
years of retiring from the NFL, and Mr. Dobler's last season
was 1981.
Daryl Johnston
Mr. Johnston played professional football in the NFL from 1989-
1999.
Mr. Johnston's neck impairment did not meet the Plan's standards
for a ``substantial disablement'' for line-of-duty disability (``LOD'')
benefits when he applied, and he therefore did not qualify to receive
them.
Mr. Johnston applied for LOD benefits in 2001.
The player members of the Retirement Board wanted to award
LOD benefits, and the management members refused, which left
the Board deadlocked at 3 to 3.
As a result of this deadlock, Mr. Johnston was sent to a
Medical Advisory Physician, whose medical opinion is final and
binding on the Retirement Board.
This physician determined that Mr. Johnston did not meet the
Plan's standards for LOD benefits.
Eugene ``Mercury'' Morris
Mr. Morris played professional football in the NFL from 1969-1975.
In 1992, Mr. Morris accepted a lump sum payment of $295,000 in
return for giving up all rights to any future disability benefits.
Mr. Morris made this decision while represented by his attorney.
In spite of the settlement, Mr. Morris has repeatedly tried to set
aside the settlement by filing multiple lawsuits and conducting a
harassment campaign against Plan attorneys.
Three Federal courts have told Mr. Morris he is bound by the
agreement and that the agreement clearly does not allow him to obtain
additional benefits for disability.
The courts have told him that another lawsuit will result in
sanctions.
Mike Mosley
Mr. Mosley played professional football in the NFL from 1981-1984.
After receiving Football Degenerative total and permanent
disability benefits for 6 years (third category of T&P benefits, which
pays $110,000 per year), Mr. Mosley no longer qualified for these
benefits because he became able to work. It would be unfair to disabled
players to pay benefits to former players who are not disabled.
Mr. Mosley applied for total and permanent disability
benefits in September 1998.
His application was approved in October 1998, and Mr. Mosley
began to receive the disability benefits awarded to him.
In 2004, Mr. Mosley was reexamined by a Plan doctor who
found that Mr. Mosley was able to work.
A second, neutral Plan doctor confirmed this assessment.
The Plan therefore terminated Mr. Mosley's benefits in
October 2004.
Dave Pear
Mr. Pear played professional football in the NFL from 1975-1980.
The Retirement Board denied Mr. Pear's 1983 claim for LOD benefits
based on an arbitration decision finding that Mr. Pear did not meet the
requirements for those benefits in effect when he applied.
Mr. Pear applied for LOD benefits in 1983.
At that time, the Retirement Board was required to determine
that the player's injury caused him to leave football before it
could grant LOD benefits.
After evaluating the report of the neutral physician who
examined Mr. Pear, the three player trustees wanted to award
Mr. Pear the LOD benefits, but the three management trustees
refused to do so.
As a result of this deadlock, the Board sent the issue to an
arbitrator, who ultimately ruled that the injury did not cause
Mr. Pear to leave football.
As a result of the NFLPA's successful negotiations in
bargaining, this requirement for LOD benefits--that the injury
must have made the player leave the game--was dropped from the
Plan after the 1993 CBA.
The Retirement Board denied Mr. Pear's 1995 claim for T&P benefits
because the Board determined that he could work after evaluating the
medical evidence in his file.
Mr. Pear applied for T&P benefits in 1995.
The Plan doctor who examined Mr. Pear determined that he
could work.
The Board therefore concluded that Mr. Pear did not qualify
for T&P disability benefits.
Mike Webster
Mr. Webster played professional football in the NFL from 1974-1990.
Mr. Webster applied for Football Degenerative T&P disability
benefits (third T&P category that pays $110,000 per year) due to head
injuries in June 1999. The Board promptly and unanimously determined
that Mr. Webster could not work, and that football had caused his
disability.
Mr. Webster began to receive over $9,000 per month, and he
collected those benefits for the rest of his life. The Plan also paid
an additional $300,000 in retroactive benefits after the Board
unanimously determined that he became totally and permanently disabled
in 1996.
The only issue in dispute in Mr. Webster's case was when Mr.
Webster became unable to work. The Retirement Board unanimously decided
to pay Mr. Webster retroactively back to 1996, when the evidence showed
he was first unable to work, and the Board unanimously found that
football caused his inability to work.
Mr. Webster had worked very hard to set up businesses and
real estate deals after he left the NFL in 1991.
The Retirement Plan undertook a thorough investigation into
the time of Mr. Webster's impairment, carefully reconstructing
the details of Mr. Webster's life almost a decade earlier.
The Plan learned that in the years immediately following
football, Mr. Webster set up businesses, bought property,
promoted products, traveled extensively, and filed lawsuits.
In 1995 Mr. Webster's own attorney told him that he would
not qualify for Social Security disability benefits because he
was working.
Although his businesses ultimately failed, there was no
indication that Mr. Webster had a serious medical impairment
until he was hospitalized in September 1996.
The Retirement Board unanimously decided to pay benefits
retroactively to September 1996--an award of over $300,000 in
retroactive benefits, in addition to his disability payment of
over $9,000 per month for the rest of his life.
The Retirement Board never improperly delayed payment to Mr.
Webster.
When Mr. Webster applied for T&P benefits in June 1999, the
Retirement Plan awarded Football Degenerative T&P benefits
within 3 months (at the first meeting it could do so) of his
application because of the head injuries he had sustained, and
Mr. Webster promptly began to receive disability payments of
over $9,000 per month.
It did take time to reconstruct Mr. Webster's activities in
prior years--Mr. Webster's attorney requested and received
additional time to make a case that Mr. Webster was totally and
permanently disabled upon his retirement from NFL football in
1991.
The IRS then presented a tax levy based on unpaid taxes for
income Mr. Webster received during 1992 and 1993, during which
time Mr. Webster was claiming total and permanent disability.
Mr. Webster's then-attorney took many months to explain Mr.
Webster's income during those years.
Ultimately, the Estate of Mike Webster exercised its right to
judicial review of the matter, and sued the Retirement Plan in the
Baltimore, Maryland Federal district court.
Through his attorney, Mr. Webster argued that he was so mentally
impaired when he left football in 1991 that he could not even file an
application.
The court determined that Mr. Webster was totally and permanently
disabled as of 1991, 5 years earlier than the date awarded by the
Retirement Board, and thus awarded his Estate additional $2 million in
retroactive disability benefits for 5 years and attorneys fees.
The Fourth Circuit Court of Appeals upheld the district court's
decision on when Mr. Webster became unable to work, and the Retirement
Board paid the additional disability benefits awarded by the court to
the Estate of Mike Webster.
Delvin Williams
Mr. Williams played in the NFL from 1974 to 1981.
Mr. Williams applied for LOD benefits in 1983. The player members
of the Retirement Board believed he qualified for that benefit, but the
management members did not. The matter was sent to arbitration. The
arbitrator said that he did not qualify.
Mr. Williams applied for T&P benefits in June 1995. Based on the
medical evidence, at its July 20, 1995 meeting, the Retirement Board
unanimously awarded Mr. Williams Football Degenerative T&P benefits
starting August 1, 1995.
Because Mr. Williams desired an effective date of July 1, 1993 for
his T&P benefits, the Plan requested evidence of Mr. Williams'
employment during the period between July 1, 1993 and August 1, 1995.
The Plan learned the following facts:
According to his Social Security Administration earnings
records and tax records, Mr. Williams had substantial
employment earnings in most of the years after his retirement
from the NFL in 1981 and up to 1995. In 1992, Mr. Williams
earned $51,583; in 1993, his income was $52,491; in 1994, his
income was $55,839; and in 7 months of working in 1995, he
earned $31,574.
From December 1, 1991 to December 1, 1992, Mr. Williams
worked for Solem & Associates, a San Francisco public relations
firm. From January 1, 1993 to April 1, 1995, Mr. Williams
worked for the San Francisco Chamber of Commerce. Mr. Williams
worked for a company called Sports Lab from April 17, 1995 to
July 15, 1995. During these years, Mr. Williams listed his
occupation as ``Executive'' or ``Community Relations'' on his
Federal income tax returns.
Based on Mr. Williams' substantial employment during the period
prior to August 1, 1995, the Retirement Board denied his claim for
retroactive disability benefits.
Mr. Williams appealed, and submitted a new medical report from the
doctor that examined him in 1983, in connection with Mr. Williams'
unsuccessful claim for LOD benefits. This doctor stated both that Mr.
Williams had been totally and permanently disabled in 1983 and that his
medical condition had not changed since 1983. This doctor made these
statements in 1997 even though he did not find Mr. Williams totally and
permanently disabled in 1983.
The Retirement Board found this report unconvincing, because it
contradicted both that same doctor's report in 1983 and the undisputed
evidence of Mr. Williams' substantial employment through 1995. The
Retirement Board unanimously denied his appeal for disability benefits
for periods prior to August 1995.
In October 1998, Mr. Williams filed a class action lawsuit for
retroactive disability benefits for the period from July 1993 to August
1995. He also asked the court for various other remedies arising out of
alleged fiduciary breaches and unlawful amendments of the Retirement
Plan and Disability Plan. His complaint was over 100 pages long.
The district court dismissed all of the fiduciary breach and
illegal plan amendment claims advanced by Mr. Williams. The court also
rejected Mr. Williams' attempt to convert the case into a class action.
The court, however, did award Mr. Williams an earlier effective date
for his T&P benefits.
On appeal, a three judge panel of the Ninth Circuit Court of
Appeals unanimously overturned the effective date decision of the
district court. The Retirement Board was completely vindicated.
Following the Ninth Circuit's decision, the district court awarded
the Retirement Plan a modest amount of attorneys' fees and costs, to be
paid gradually out of the $110,000 each year that Mr. Williams
continues to receive in disability benefits.
III. Workers' Compensation
NFLPA bargained for and obtained Workman's compensation benefits
for all players and provides legal counsel to help players apply.
The NFLPA has negotiated for Workers Compensation benefits to be
provided to all players. Over the past 25 years the NFLPA has
established a panel of qualified lawyers to help players file and
pursue their claims.
Workman's Compensation Benefits are in addition to
disability benefits.
Workman's Compensation Benefits are paid for by current
players.
The NFLPA strongly advises each player to preserve his
rights under Workers Compensation for life-time medical care
for his football injuries.
The NFLPA and NFL have agreed that there is no reduction in
other disability benefits when a player also receives Workers
Compensation.
The cost of Workers Compensation comes out of the players'
share of League revenues, like other health and disability
benefits.
IV. Lifetime Retirement Income Security Plans
A. Lifetime Pension Payments
Vesting: A player needs to be vested to be eligible for retirement
and for the third and fourth categories of T&P disability benefits--
Football Degenerative and Inactive. Currently, a player is vested if he
is plays for three or more seasons. A player receives a credited season
if he is paid for three or more regular or post-season games in that
season.
Under the 1993 collective bargaining agreement--the first
collective bargaining agreement negotiated by Gene Upshaw--the vesting
standard was reduced from four seasons to three seasons for all players
with a season after 1992.
Under the 1998 collective bargaining agreement, the vesting
standard for all older players was reduced from five seasons to four.
The effect of these changes was to provide many more players with a
vested pension benefit under the Retirement Plan.
Benefit Credit: Every vested player qualifies for a pension based
on the sum of his ``Benefit Credits,'' which are amounts determined by
collective bargaining for each NFL season.
The current schedule of Benefit Credits for seasons is:
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Before 1982 $250
1982 through 1992 255
1993 and 1994 265
1995 and 1996 315
1997 365
1998 and later seasons 470
----------------------------------------------------------------------------------------------------------------
For example, a player who plays NFL football for 10 seasons
beginning in 1998 is guaranteed a pension at age 55 of $4,700 per month
($470 x 10 seasons), which is $56,400 per year, for the rest of his
life.
If he takes his pension at age 65--normal retirement age for many
under Social Security--the benefit rises to $147,711 each year for the
remainder of his life.
Past pensions have been increased four times since 1993.
For the oldest players, Benefit Credits went from $60 prior to the
1993 CBA to the current level of $250 due to the NFLPA's efforts in
collective bargaining.
For current players, Benefit Credit levels went from $150 prior to
the 1993 CBA to the current level of $470 in collective bargaining.
In 1993, ``Pre-59ers'' began to receive pensions for the first
time.
The Retirement Plan was created in the early 1960s. In the 1993
CBA, the NFLPA, under Mr. Upshaw, fought for these forgotten former
Players who played before 1959, and won them the right for the first
time to a vested pension. In CBAs after 1993, their benefit has more
than tripled.
Before the 1993 CBA, these players were receiving a ``stipend'' of
$60 per season that was not guaranteed. They were bumped up to a
guaranteed pension of $80 per season in 1993. That $80 has since
increased to $250.
The 1993 CBA added 854 former players and 65 beneficiaries to the
Retirement Plan.
Some players receive a smaller than usual pension because they
elected to take their pensions many years before retirement age.
Because a player who starts payments at age 45 (instead of 55) will
receive benefits for more years, his age-55 benefit is actuarially
reduced by more than 50 percent in this situation, since they will
receive their pension for ten more years.
The option of taking Retirement Plan benefits early (prior to age
55) is no longer available to current players. The bargaining parties
eliminated it 1993 because it was detrimental to retired players.
Because of legal requirements, the option continues to be
available to all players who played a season prior to 1993.
Players continue to take their pensions early, even though
they are warned that doing so will result in a reduction.
Some players receive a small pension because they elected to take a
``Social Security Adjustment''.
Many former players voluntarily chose to front-load their
retirement benefits by electing a ``Social Security Adjustment'' form
of benefit, in which the majority of their retirement benefit is paid
prior to age 62, with only a token benefit starting age 62.
The idea behind this concept is that Social Security benefits would
make up all or part of the difference. In the 1970s, the players at
that time asked for and obtained this option.
Electing this option dramatically reduces the retirement benefits
of players when they reach 62.
Other reasons why some players are receiving smaller than usual
pensions.
Some players are divorced, and must share all or a substantial part
of their retirement benefit with an ex-wife.
Many players who complain about the size of their monthly pension
benefits have at least one, and often a combination, of the factors
described above reducing their monthly benefits.
B. Second Career Savings Plan: First 401(k) Plan in Pro Sports.
2 for 1 Match
Beginning in a player's second year, all pre-tax contributions are
matched at a rate of $2 for every $1 a player puts in, up to $20,000.
Players can make pre-tax contributions up to the IRS limit ($15,500
for 2007).
Players who do not contribute any of their own money receive a more
modest Club contribution.
Prior to the 1993 CBA, no professional sport had a pension plan of
this type. Gene's efforts in the 1993 CBA established this Plan.
The assets of the Savings Plan have grown from $0 in 1993 to over
$800 million.
C. NFL Player Annuity Program
In collective bargaining in 1998, Mr. Upshaw fought for and won a
new defined contribution plan, the NFL Player Annuity Program. This
Program also provides deferred compensation to players, as early as age
35.
Players receive contributions based on the following schedule:
in their second and third years, $5,000;
in their fourth year, $55,000; and
in subsequent years, $65,000.
After the law was changed in 2006, Mr. Upshaw persuaded the NFL in
the 2006 CBA to contribute most of this money in a tax-favored form.
The total assets of the Annuity Program have grown from $0 in 1998
to about $340 million.
V. Health Care Benefits
A. Five Free Years of Post-Career Medical Coverage: After the
recent 2006 CBA extension, all vested players now receive 5 years of
free post-career medical coverage for themselves and their families.
In a recent 12 month period, Active Players paid $11.5
million to provide this coverage to former Players. This
coverage has been improved repeatedly since the 1993 CBA.
B. Pre-Tax Deposits Into Health Reimbursement Accounts ($25,000 per
year/$300,000 max): The 2006 CBA created a new plan that can be used by
former players to pay for medical benefits or medical coverage after
their 5 years of free coverage ends.
Eligible players (playing in 2004 and after) are credited (i.e., as
if deposited pre-tax into their own accounts) with accounts valued at
up to $300,000 ($25,000 per season up to the maximum of $300,000) that
can be used exclusively to pay their medical expenses (including
insurance premiums) and the medical expenses of their family members.
The player can use account to pay medical expenses--without paying
taxes, throughout his life, and if any amounts are left over at his
death, the account passes to his eligible beneficiaries.
C. 88 Plan: The 2006 CBA also created a new and innovative medical
benefit exclusively for former Players with dementia. This plan is
called the ``88 Plan,'' in honor of former Baltimore Colts player and
Hall of Fame member John Mackey, whose jersey number was 88.
As far as we know, this is the first plan in the country that
provides special benefits for employees who are afflicted with
dementia, even when that dementia occurs decades after their employment
has ceased.
In May of this year, NFLPA Executive Director Gene Upshaw and
Harold Henderson of the NFL Management Council were honored by the
Alzheimer's Association in New York for this achievement.
Although this Plan began in February 2007, it has already paid out
over $500,000 in benefits. Like all other benefits for active and
former players, this cost is paid for by the active players.
As of mid-September 2007, the 88 Plan had received 79 applications.
15 are pending. Out of the remaining 64, 60 have been approved, an
approval rate of 94 percent.
VI. Other Charitable Retired Player Programs
Widows and Surviving Children Benefits: Under the 2006 CBA, the
NFLPA was able to triple the benefits paid to widows and surviving
children of former NFL Players.
Players Assistance Fund: In addition to all of the above benefits,
the Players Association has long had a fund, called the ``Players
Assistance Fund,'' that provides up to $20,000 to players in need. Last
year alone the Players Assistance Fund paid over $1 million to 146
players in need, and provided almost $500,000 for scholarships and
grants to charities.
Retired Players Medical and Assistance Fund: The NFLPA/NFL
recently-formed ``Alliance'' to coordinate medical support services for
retired players in need of care--comprised of the NFLPA Players
Assistance Trust (PAT), the NFL Alumni Association's Dire Need Fund,
and the Hall of Fame Enshrinee Assistance Fund. In July 2007 these
groups established an initial $7 million unified fund to pay for joint
replacement surgeries and to address other financial hardships of
retired players. Additional funding will be provided by current and
retired players, and NFL clubs. The joint replacement surgeries will be
available at no cost to retired players without insurance or with
financial need. The NFLPA/NFL are in the process of identifying 10-15
medical centers across the country to provide these surgeries.
Senator Dorgan. Mr. Upshaw, thank you very much for being
here and for your testimony.
Commissioner Goodell, welcome. You may proceed.
STATEMENT OF ROGER GOODELL, COMMISSIONER,
NATIONAL FOOTBALL LEAGUE
Mr. Goodell. Chairman Dorgan, thank you. I know--members of
the Committee, I know that we're pressed for time, so I'll move
as quickly as I can.
Good morning, and thank you for inviting me to appear today
and testify on this very important subject. We, in the NFL,
strive to do everything in a responsible and comprehensive
fashion, and we can only benefit from objective, thoughtful
reviews of our policies and our programs.
I am joined here today by Harold Henderson and Dennis
Curran, both who have been deeply involved in the development
administration of player benefit programs for the past two
decades. If you have any questions regarding individual cases,
I'm certain that they, or one of Mr. Upshaw's colleagues, could
respond better than I can today.
I'm also joined by Jim Irsay, the owner of the defending
Super Bowl Champion, Indianapolis Colts, who, like all NFL
owners, has a keen interest in the welfare of our NFL alumni
and has grown up in the NFL, just like I.
I recently completed my first year as Commissioner. I have
spent a considerable amount of time with retired players and
listening to their views. And, while I would candidly
acknowledge that we would have more work to do, I want to
outline both the steps taken thus far and the framework within
which we are approaching this issue, going forward.
I begin from a premise which I think no one seriously
disputes: the men who played professional football decades ago
deserve our respect and recognition, and their contributions to
our game must never be overlooked. I honor them, and neither I,
nor the NFL clubs, will turn our backs on them. And this is not
Gene Upshaw's problem alone, nor is it the NFL's. The
responsibility for helping retired players belongs to all of
us--NFL owners, the union, current and retired players, and me,
as Commissioner. I must be compassionate, creative, and
responsible.
We are proud of the fact that player benefits steadily
improved over time. While many businesses have terminated their
pension plans, or turned them over to the Federal Pension
Guaranty Board, we have both negotiated steady increases in our
benefits and agreed to apply those increases on a retroactive
basis. In the last 10 years, owners have increased their
obligations by roughly $400 million, virtually all of which has
been for the benefit of retired players. Our disability plan
offers a range of benefits, including active football,
inactive, and football degenerative, total and permanent
disability benefits and line-of-duty partial disability
benefits. We recently added another benefit, which Gene spoke
about, known as the 88 Plan, which provides up to $88,000 per
year for former players suffering from dementia, without
requiring proof that the dementia is football-related.
Benefits available under our disability plan have also
grown substantially over the past 15 years. The football-
related total and permanent disability benefit is now $224,000
per year. An active player whose total and permanent disability
is not related to football, but, rather, to an automobile
accident or some other off-the- field incident, receives
$134,000 per year. Former players with football-related
degenerative disabilities receive $110,000 per year. These
payments continue as long as he remains disabled.
Players with at least 3 years of experience are eligible
for benefits, even if the disability is not football-related.
Eligible players can still apply for football degenerative
benefits for up to 15 years after they retire from the NFL. The
NFL plan provides for payment of disability benefits on a
retroactive basis, so players are not prejudiced if there are
delays in the application and administration process. And NFL
disability benefits are not offset by medical or workers'
compensation payments. We believe these features, far from
being exclusionary, demonstrate our commitment to providing
fair and generous benefits to players and their families. And
the record bears them out. Since 2000, we have paid more than
$110 million to players from the 1960s to the present who
qualified for disability benefits.
Like you, I have heard concerns expressed about red tape
and the complexity of the application process. We have taken
recent steps to address that problem, and I think there is more
we can do. We have tried to ensure that the standards by which
disability claims are evaluated are clear and understandable,
and, therefore, more easily and evenly applied. Decisions
regarding line-of-duty disability are based on standards
developed by the American Medical Association. We also recently
agreed to expand the standards for determining total and
permanent disability. If a player has been determined to be
eligible for disability benefits by Social Security, that will
also apply for NFL disability payments.
Our retirees have my personal commitment to continue the
effort to identify and implement any reasonable procedural
changes that would allow disability determinations to be made
more quickly and reliably. And Gene and I have agreed to work
hard on this issue.
This does not mean that every person who seeks disability
benefits will, or should, receive them. And it does not mean
that mean, even if approved, every applicant will receive the
amount he requests. But we will continue to strive to help
those who need benefits or other support.
Apart from addressing the workings of the disability plan,
we have recently taken some additional steps to address
specific needs of former players. Earlier this year, we joined
the NFL Players Association, the NFL Alumni Association, and
the Pro Football Hall of Fame to establish an Alliance to bring
together different groups seeking to help retired players in
need. As a first step, we agreed to create a fund, set
initially at $7 million, to fund two specific medical
initiatives. First, to provide full or partial funding of hip,
knee, or shoulder replacement surgery and related
rehabilitation for former players at a network of leading
hospitals throughout the country that can guarantee quality
care. Second, to provide an expanded national program of
cardiovascular risk screening and education for former players.
Apart from these two programs, we are also exploring ways of
providing support for older players in need of assisted-living
arrangements and other specific medical needs.
Finally, we are expanding our outreach efforts to better
identify former players with special needs so that our alliance
can provide financial assistance to those proud former players
and their families, who are sometimes hesitant to ask for
assistance. As needed, our alliance will provide additional
funding for these initiatives.
Some of the leaders addressing this issue--former players
like Jerry Kramer or Hall of Famers Coach Ditka, Willie Lanier,
and Merlin Olsen--have met with us, and continue to do so.
Today, there are approximately 4,900 NFL retired players
eligible to receive disability benefits. Like many groups of
that size, the circumstances vary widely. Fortunately, the vast
majority remain active and productive, and do not need to be
involved in the disability system. But we remain proud of the
comprehensive and improving package of benefits provided to
players, and we will continue working to do as much as possible
to help those in need.
Thank you for the opportunity to testify before your
committee today.
[The prepared statement of Mr. Goodell follows:]
Prepared Statement of Roger Goodell, Commissioner,
National Football League
Chairman Dorgan, Chairman Inouye, Vice-Chairman Stevens, and
Members of the Committee:
Good morning and thank you for inviting me to appear today and
testify on this important subject. I do not believe that this subject
is, or should be, immune from Congressional scrutiny. To the contrary,
the National Football League has always strived to conduct itself in
the public interest, and to do everything in a first-class way. We can
only benefit from objective, thoughtful reviews of our policies and
programs. And so I welcome the opportunity to be with you today.
I am joined here today by Harold Henderson, our Executive Vice
President of Player Programs, and Dennis Curran, our Senior Vice
President and labor relations counsel. Both Mr. Henderson and Mr.
Curran have been deeply involved for the past two decades in collective
bargaining, including on player benefits, and in the administration of
these benefit programs by the joint NFL/NFL Players Association
Retirement Board.
I recently completed my first year as Commissioner of the NFL.
During that year, I have spent a considerable amount of time with
retired players and on the concerns raised by a number of them. And
while I would candidly acknowledge that we have more work to do, I want
to outline both the steps taken thus far, and the framework within
which we are approaching this issue going forward.
In that context I should add that I cannot comment on the specifics
of any individual case. In my role as Commissioner, I have not read the
disability claims files, and I am not qualified to speak to the medical
and legal issues raised in any individual case. Although I appoint one
half of the Trustees on the Retirement Board, those Trustees act in a
fiduciary capacity and I never discuss pending cases with them. Insofar
as you may have questions regarding individual cases, I am certain that
Mr. Henderson or Mr. Curran, or one of Mr. Upshaw's colleagues, could
respond better than I can today.
In considering the subject of benefits for retired players, I begin
from a premise which I think no one seriously disputes--the men who
played professional football decades ago deserve our respect and
recognition, and their contributions to our game must never be
overlooked. I honor them and their achievements and neither I nor the
NFL clubs will turn our backs on them.
Second, while it might be tempting to say--as some have--that this
is Gene Upshaw's problem to solve, that is neither fair nor accurate.
The responsibility for addressing the needs of retired players belongs
to all of us. The retired players, the current players, the clubs, Gene
as head of the Union, and I as the Commissioner--all of us have a role
to play. We will continue to address this issue in a way that is
compassionate, creative, and realistic.
Third, just as it would be wrong to say this is Gene Upshaw's
problem to solve, it would be wrong to say that the NFL can or should
solve the problem by itself. While some may not believe this, the fact
is that we cannot solve every problem of every type that has been
identified, and certainly not in a way that will satisfy everyone. NFL
clubs currently spend close to 60 percent of their gross revenues on
player benefits and salaries. Our clubs contributed almost $150 million
last year to finance medical, disability, and retirement benefits for
former players, and during the term of our current collective
bargaining agreement, we project that our clubs will spend more than
$700 million to fund just this package of player benefits. Owners are
responsibly addressing these concerns, but they are simply not in a
position to absorb significant incremental costs.
In meetings with Committee and personal staff, our office and the
NFLPA have provided you with a comprehensive summary of the benefits
provided to retired players. Those benefits have steadily improved over
time, and among the benefits available to a player who retires from the
NFL today are all of the following:
A defined benefit pension plan with a benefit that is geared
only to years of service, not to the player's earnings. If a
player with 10 years of service begins to receive his pension
at age 55, he receives $56,000 per year; if he waits until age
65, he receives $147,000 per year. These amounts have grown
steadily, and pension benefits have been increased in each new
collective bargaining agreement over the past 15 years. For
example, a player who retired 25 years ago--in 1982--and who
begins to receive his pension at age 55 has seen his pension
benefit credit more than double since he retired as a result of
increases agreed to in collective bargaining.
At a time when companies all over America--many of which are
considerably larger than the NFL--have terminated their pension
plans or turned them over to the Federal pension guaranty
board, we have both negotiated steady increases in our
benefits, and agreed to apply those increases on a retroactive
basis. In our most recent agreement in 2006, we agreed to
increase pension obligations by more than $200 million. In the
last 10 years, we have increased those obligations by roughly
$400 million--virtually all of which has been for the benefit
of retired players. I think everyone would agree that this is a
substantial additional commitment by our member clubs to former
and current players.
We also offer a 401(k) plan, in which player contributions
are matched on a 2:1 basis by the clubs up to $20,000 per year.
Players have access to these funds as early as age 45.
A player annuity plan, under which eligible players receive
an NFL contribution of $65,000 per year to provide transition
income to players. They have access to these funds as early as
age 35.
Five years of post-career medical care and a health
reimbursement account of up to $300,000 for use later in life.
A lump sum severance benefit paid upon retirement from the
NFL based on the number of seasons played.
We also, as the Committee knows, have a disability plan which
offers a range of benefits, including Total & Permanent, Football
degenerative, and ``Line of Duty'' benefits. We recently added another
benefit, known as the ``88 Plan,'' which provides up to $88,000 per
year for former players suffering from dementia, without requiring
proof that the dementia is football related. For other categories of
disability, the benefits range from $18,000 per year to $224,000 per
year, depending on the nature and severity of the disability. These
benefits are in addition to any state workers' compensation. In
addition, not all disability benefits are based on a complete inability
to work.
Benefits available under the disability plan have also grown
substantially over the past 15 years. An active player who qualifies
for football-related Total & Permanent disability has seen his annual
benefit increase from $48,000 in 1993 to $224,000 today. An active
player whose Total & Permanent disability is not related to football
has seen his annual benefit grow to $134,000. And former players with
football-related ``degenerative'' disabilities have seen their annual
benefit grow from $75,000 in 1993 to $110,000 today. These are annual
amounts paid to the player as long as he remains disabled.
Our disability plan has a number of features that make it unique
and superior to many other plans. I am told that most American workers
have no employer-provided disability benefits. A report released last
month by the Labor Department showed that barely 3 out of every 10
workers in the private sector have access to long term disability
coverage. In certain sectors of the economy that might be perceived as
higher risk, the rate of coverage is ever lower.
The NFL Plan covers all players with at least three seasons of
experience (four years for players retiring before 1993) and provides
for benefits even if the disability is not football-related. With as
few as 3 years of NFL experience, a former player can receive benefits
from the NFL disability plan even if his disability results from a car
accident, a fall at home, or some other everyday cause. Moreover,
eligible players can still apply for football degenerative benefits for
up to 15 years after they retire from the NFL.
The NFL Plan provides for payment of disability benefits on a
retroactive basis, so players are not prejudiced by delays in the
application and administration process. A player who is approved will
receive benefits retroactive to his date of application. If the
disability precedes the application, the player can receive up to 42
months of benefits on a retroactive basis. And, finally, NFL disability
benefits are not offset by medical or workers' compensation payments,
or any other NFL benefits, such as injury protection or severance pay.
As the Committee knows, the workers' compensation system provides
lifetime medical and other benefits to players. NFL disability benefits
are in addition to any payments received from those systems.
We believe these features, far from being exclusionary, demonstrate
our commitment to providing fair and generous benefits to players and
their families. And the record bears that out--since 2000, we have paid
more than $110 million to players from the 1960s to the present who
qualified for disability benefits.
Like you, I have heard concerns expressed about ``red tape'' and
the complexity of the application process. We have taken recent steps
to address that problem, and I think there is more we can do. One area
of frustration is the Plan's ``Initial Claims Committee.'' This arises
out of new regulations adopted by the Labor Department in 2002. At the
time these regulations were being considered, we filed comments with
the Department noting that these regulations would likely have the
effect of slowing down decisions on disability claims, and urged that
they not be adopted. As we said at the time, because of the sometimes
complex nature of disability decisions, including the need to have
medical examinations completed by neutral physicians, and the reports
analyzed within 45 days, the new rules ``will only force faster
denials.'' The requirements imposed by the Labor Department have had
the unintended consequence of making the application process longer and
more complex, as our people feared at the time they were proposed.
In the future, we can look more closely at how we decide which
cases need to be reconsidered. The statistics show that an overwhelming
number of recipients are approved to continue their benefits, which
rather strongly suggests that we may not need to review and reconsider
cases as often as we have in the past. We have begun that process by
reducing the frequency of medical re-evaluations from annually to once
every 3 years for players receiving Total & Permanent disability
payments.
When decisions need to be reconsidered at the Board level, we will
begin making decisions outside of the Retirement Board's quarterly
meetings. Thus once an application is complete, or additional medical
evaluations have been received, the Board can consider and vote on the
application by fax or e-mail. This simple change will allow more
expedited processing of applications.
Finally, we have tried to ensure that the standards by which
disability claims are evaluated are clear and understandable, and
therefore more easily applied. As one example, decisions regarding
``Line of Duty'' disability, which is a partial disability arising from
football, are based on standards developed by the American Medical
Association. We also recently agreed to expand the standards for
determining Total & Permanent disability by incorporating the medical
findings of the Social Security Administration. If a player has been
determined to be eligible for disability benefits by Social Security,
no separate medical assessments will be needed. Instead, the
determination of the Social Security Administration will govern the
former player's medical eligibility for NFL disability benefits. Our
retirees have my personal commitment to continue the effort to identify
and implement any reasonable procedural changes that would allow
disability determinations to be made more quickly and reliably. To that
end, we have enlisted the assistance of independent counsel and benefit
consultants to advise us on best practices with respect to disability
plans and to recommend steps we can take to improve the administration
of the Plan.
This does not mean that every person who seeks disability benefits
will, or should, receive them. That needs to be understood by all
parties. Disability benefits are meant to assist people who cannot
work, not simply that they can no longer play professional football. No
disability plan, whether sponsored by a private insurer, by an
employer, or by the Federal Government, provides benefits to anyone who
applies. And it does not mean that, even if approved, every applicant
will receive the amount he requests. But we will continue to strive to
do better, and to be seen as doing better.
I now want to address certain allegations about the manner in which
decisions are made on disability applications. The administration of
the disability plan is governed by Federal law and by regulations
established by Federal agencies. The Plan operates as required under
those regulations, including the use of an Initial Claims Committee,
neutral physicians, and the associated time limits. The people who make
decisions act as fiduciaries, who are obligated to follow the law and
the terms of the Plan.
There are those who claim that disability applications are
nonetheless denied as a result of some sort of grand labor-management
conspiracy. This claim assumes that an extraordinary number of people--
myself, my predecessor, Gene Upshaw, the Trustees, the Plan
Administrator, the neutral doctors, Plan counsel, and their various
staffs--have all agreed to deny benefits without regard to whether an
applicant actually qualifies.
Those who adhere to this theory also dismiss that Federal courts
throughout the country have upheld the Retirement Board's decisions in
24 of the 25 cases that have been litigated. The critics explain that
away by saying that the standard of review is too deferential, ignoring
that the standard is set by Federal law, not by the NFL, and is
consistently applied in reviewing decisions by benefit plan
administrators and fiduciaries in all sectors of the American life.
But no matter how deferential the standard of review may be, no
court would defer to a decision tainted by collusion or conspiracy. The
simple reality is that no such claim has ever been proved and no court
has ever made such a finding. These charges are as cynical as they are
unfounded, and the Committee should not dignify them here.
There is one other myth about decision-making that should be
dispelled--that being that many players are either denied benefits
altogether, or forced to endure extraordinary delay, because the Union
and management trustees routinely divide 3-3 on applications. There is
no basis whatsoever for this suggestion. In fact, since the Initial
Claims Committee was put into place in 2002, it has deadlocked on only
six claims in a line-of-duty disability and only 32 cases of Total &
Permanent Disability. Every other claim filed--almost 600 claims--was
decided unanimously, one way or another.
Where claims are appealed to the Retirement Board, the same is
true. The Board seldom splits in its votes. And even if there is a
split in the Retirement Board, the case is referred to a neutral
physician, called the Medical Advisory Physician. That doctor's report
is final and binding. That report decides the case--not the Union
trustees or the Management Trustees.
Apart from addressing the workings of the disability plan, we have
recently taken some additional steps to address specific needs of
former players.
Earlier this year, we joined with the NFL Players' Association, the
NFL Alumni Association, and the Pro Football Hall of Fame to establish
an ``Alliance'' to bring together the different groups seeking to help
retired players. As a first step, we have agreed to create a fund, set
initially at $7 million, to fund two specific medical initiatives.
First, to provide full or partial funding of hip, knee or shoulder
replacement surgery and related rehabilitation for former players at a
network of leading hospitals throughout the country.
Second, to provide an expanded national program of cardiovascular
risk screening, and education for former players.
Apart from these two programs, we are also exploring ways of
providing support for players in need of assisted living arrangements,
and other specific medical needs.
Finally, we are expanding our outreach efforts to better identify
former players with special needs, so that our Alliance can provide
financial assistance to those proud former players and their families
who are sometimes hesitant to ask for assistance.
We recognize that this is not a short-term problem. Some of the
leaders addressing this issue--former players like Jerry Kramer or Hall
of Famers Willie Lanier and Merlin Olsen--have met with us and continue
to do so. I am sure that together we have the resources, creativity and
determination to make a real difference in the lives of our former
players.
There are today approximately 8,000 active and retired NFL Players.
Like many groups of 8,000 people, their circumstances vary widely. We
are proud of the comprehensive and improving package of benefits
provided to players, and we will continue working to do as much as
possible to help those in need.
Thank you for the opportunity to testify before your Committee
today.
Senator Dorgan. Commissioner Goodell, thank you very much
for being here, and for your statement.
Mr. Mike Ditka, from--player, coach, Chicago Bears.
Mr. Ditka----
STATEMENT OF MIKE DITKA, MEMBER, NFL HALL OF FAME; FORMER NFL
PLAYER, CHICAGO BEARS, PHILADELPHIA
EAGLES, DALLAS COWBOYS; AND FORMER HEAD COACH,
CHICAGO BEARS, NEW ORLEANS SAINTS
Mr. Ditka: Whatever.
[Laughter.]
Mr. Ditka. Mr. Chairman and distinguished members of the
Committee, I'm--I appreciate you being here, but I'm not sure I
really understand it. The Congress of the United States of this
great country has a lot more important things to do than this.
And it's a shame that it's come to this. But it has come to
this.
I want to clarify one thing. We've had one of my former
players take some pretty good potshots, and that seems to be
his nature. I'm not mad at anybody, especially this man or that
man. The system's broken. Fix it.
Football--and listen to me--football owes me nothing. Not a
thing. But I owe everything I have in life to this great game.
From high school to college to professional, I've been able to
participate as a player, an assistant coach, a head coach, for
almost 50 years in this League, and now I'm an expert, I get to
talk about it. That's pretty interesting.
The system is broke, fix it. They know what's broke, they
know how to fix it. We're not talking about the money.
Everybody knows the money's there. Fix the system. Don't make
proud men beg. Don't make 'em jump through hoops. They have
dignity. Let people live out their lives with some respect,
that's all I'm asking. I'm not asking for an increase in my
pension, as has been mentioned. Nobody cares about that stuff.
And it was thrown up, what I get in my pension. I also waited
to age 65 to get it. That--I'm entitled to that. I played in
this game. But the guys who--these players, today, say, ``Well,
they're doing--they're making all these contributions to the
former players.'' They should. The former players are the
reason this League is what it is, not the total reason, they're
not the whole of it, they're part of it. The players today are
only the keepers of a great game. The makers of a great game
came a long time ago, and will continue to come, long after
these guys are gone. Just let them live out their life with a
little bit of respect.
We started a Hall of Fame Assistance Dire Need Fund about 8
years ago from a golf tournament I have. We've been giving
money to former Hall of Famers--or Hall of Famers, and,
actually, former players who aren't Hall of Famers. And we've
been helping 'em out. It's a little, here. It's $10,000, it's
$5,000, it's $2,500--it's no big deal, but it helps out. They
need the help. And they're not--they don't even know where to
go to get other help.
Now, maybe this is being--they're being made more aware of
the situation and how to get help. But all we're saying is,
hey, you know, nobody's mad at anybody. I'm grateful. I just
think--this shouldn't be happening. I really mean that from the
bottom of my heart. You people have more important things to do
than what we're doing. And I hope it doesn't come down to--any
decisions you have to make, I want you to hear the story. The
League--this man is a good man, he's got a good heart. Gene
Upshaw, I'm sure, is a good man with a good heart. Do the right
thing. Fix the system. Quit arguing about it. Everybody'll go
away. And--especially me, because I didn't ``chose'' this, it
chose me, believe me. This is not what I'm looking to be doing,
believe me.
So, I just want to tell you, I have no charts to show you,
if--you'll be grateful of that.
[Laughter.]
Mr. Ditka. Thank you for your time, and I do apologize. I
mean it.
[The prepared statement of Mr. Ditka follows:]
Prepared Statement of Mike Ditka, Member, NFL Hall of Fame; Former NFL
Player, Chicago Bears, Philadelphia Eagles, Dallas Cowboys; and Former
Head Coach, Chicago Bears, New Orleans Saints
Chairman Inouye, Subcommittee Chairman Dorgan, Ranking Member
Stevens, Subcommittee Ranking Member DeMint, Members of the Committee
and distinguished guests, my name is Mike Ditka. I played for the
Chicago Bears and the Dallas Cowboys from 1961 to 1972. I also was an
assistant coach for the Cowboys and the head coach of the Bears 1985
Super Bowl championship team. Since 1992, I have been involved in
broadcasting of NFL games as a color commentator and analyst, as well
as other business ventures. I have been fairly successful and, at the
outset, I'd like to clarify that nothing could interest me less than
the size of my own NFL pension. I am here today on behalf of many other
retired NFL players who have not been as fortunate as I in the years
since their retirements because the injuries they received playing the
game of football prevented them from making a living.
For some time, now, I have been involved in charitable efforts to
aid disabled and economically challenged NFL retirees through nonprofit
organizations such as the Gridiron Greats and the Mike Ditka Hall of
Fame Trust. For some time, these and other organizations have picked up
the slack left by an NFLPA that does not do enough for disabled retired
players and an ownership that seeks to avoid doing anything at all,
both of which seem to have handed the operations of the Plan to an
aggressive litigation firm charged with delaying or denying every
legitimate claim that players bring forth. What these charities do, all
they can do, is place a band-aid upon the huge wound these other groups
are, at best, ignoring by minimizing it's gravity and keeping it's true
extent secret. We will continue to do this work as long as the problem
exists. But we will also continue to point out the responsibility the
other parties I've mentioned have for perpetuating and worsening this
problem, and their corresponding duty to shoulder the burden of fixing
it before those who suffer under the current system conveniently die
and reduce the excess financial burden upon the Plan's funds.
I'd like to address the question of disability pensions under the
Bert Bell Retirement Plan. It is hard to say what is more disturbing:
what we know, or what we don't know. What we know is bad enough. To
start with, the Plan provides disability benefits to too few players
(no more than 200 or so, although this statistic often goes up or down
in statements by the Plan's lawyers). According to the Plan, there are
more than 7,000 retired players who are entitled to receive some kind
of retirement benefit. (The actual number is probably significantly
higher, but I'll use 7,000 here to describe the Plan as generously as I
can.) This means that, at most, 3 or 4 percent of retired players are
receiving any kind of disability benefit. And this is in a game that
pushes most players out of the league within a few years--often due to
injury (the average playing career is around 3.5 years). It is a
collision sport, not merely a contact sport, which is probably the most
violent public spectacle since the gladiatorial games. So the idea that
only three or four out of every 100 retired players are entitled to ANY
kind of disability benefit (not just the top level, but any kind at
all) just clashes with common sense.
On top of that, look at the number of retired players who have
received disability benefits for brain injuries caused by multiple
concussions. Again, according to statements by the Plan's lawyer in
Sunday's Charlotte Observer, there have only been four--ever, in
history! One of them was Mike Webster. And the Plan's representatives
claim not to know the number of players who have applied for disability
due to such injuries. Anyone who has played the game, especially in the
recent past when it was often played on a concrete parking lot covered
with a quarter-inch layer of indoor-outdoor carpeting called
``Astroturf'', will tell you that NFL football often results in
concussions and that players commonly receive multiple concussions over
the course of their careers. Again, the idea that only four men who
have ever played pro football have had disabling brain injuries just
doesn't make a lot of sense.
Why don't more players receive the disability benefits they need?
There are lots of answers, starting with the bargaining process between
the union and the NFL. Gene Upshaw described his attitude toward the
retired players last year, when he told a newspaper that retired
players ``don't hire me and they can't fire me. They can complain about
me all day long.'' It's possible that the union leadership doesn't push
harder for fair disability benefits because they think it might mean
less for current players. But part of the job of union leadership is to
explain to current players that they could be ex-players next week or
next month, as a result of injuries or salary cap decisions. It's
actually in the interests of current players to push hard for fair,
generous disability benefits--and to get that money from both the team
owners and from current players.
Look at it this way: the Plan says that retired players receive
only $20 million per year in disability benefits today. The players'
share of revenues under the salary cap system is about $4 billion a
year. Tripling the disability payments to $60 million--an increase of
$40 million--would be only 1 percent of the players' total share. If
the players and the owners each gave an extra .5 percent of the
player's current share for disability pensions, they could easily cover
this amount.
Another big barrier to fair disability benefits is the way the Bert
Bell Plan is run. We've heard the same stories from too many retired
players to chalk this up to complainers, the way the Plan would like to
have it. All claims are reviewed by two office staff who possess no
relevant skills for reviewing disability claims. If they deadlock, the
claim is denied. None of the members of the Retirement Board have any
medical training, and several of them have close ties to the union
president--including the agent who negotiated Mr. Upshaw's $7 million
contract. The Plan will delay decisions over and over again--Mike
Webster's case took 4 years before he had a final decision. Often these
delays are so that the Plan can request multiple reports from doctors
in the same specialty or closely related ones--``doctor shopping'' is
the right word for it. We all know that if you ask for enough medical
opinions, someone will eventually find that there is no disability, or
disability at a lower level. And the Plan spends extraordinary amounts
on its attorneys--$3.15 million last year. In fact, that's almost one-
sixth of what the Plan claims it spent on all disability payments. Once
again, those numbers just don't add up.
All of this suggests that, under the Bert Bell Plan, the main
emphasis is on minimizing the benefits paid out, not on making sure
it's done fairly. The website for the Plan's lawyers has boasted about
how many times they have defeated claims by retired players. But the
number of lawsuits suggests that something is broken in the Board's
procedures. According to the Plan's attorneys, it has been sued by
almost one-quarter of the retired players whose claims were denied.
This is not the sign of a healthy process.
If you want to get an idea of how the Plan really works, take a
look at the Mike Webster case. Here was a guy who started almost 250
games for the Steelers, and played every offensive down for six
straight seasons. He wasn't called ``Iron Mike'' for nothing. He played
when the head slap was legal, and probably had thousands of serious
hits to his head and dozens of concussions. He couldn't work after he
retired, and was hired by the Kansas City Chiefs as a favor. His
friends told the pension plan's investigator that he wasn't right
mentally and never held a job. But the Bert Bell Plan told Mike that
his brain injuries weren't the direct result of playing football, and
told him that he wasn't disabled until years after he retired. They
ignored the opinion of their own doctor, and refused to look at the
evidence from Mike's doctors. And it took so long to decide his claim
that he died in 2002 before the Plan had made a final decision.
After he filed suit, the first judge who looked at the case said
that given the overwhelming evidence, the Bert Bell Plan had probably
acted in bad faith. Did the Plan pay Mike's children then? No. They
appealed. And this time it was three judges in a Court of Appeals that
said the Plan had ignored the unanimous medical evidence. They said it
would require a ``leap of faith'' to agree with the Plan. And so the
Plan paid hundreds and hundreds of thousands of dollars in attorneys'
fees to fight the case, and also paid for the time that Mike's
attorneys spent pursuing it. That helps explain why the Bert Bell Plan
ran up a $3.5 million bill for attorneys last year--money that could
have gone to injured players. And even today, just a week ago,
representatives of the Players Association claimed that Mike Webster
was actually working after he retired from football. That's not true,
and they know it.
I've talked about some of the things we know about the Bert Bell
Plan. But it's just as important to point out what we don't know, and
what I hope this Committee can help find out through the hearing and
oversight process. Right now, the Plan gives out virtually no
information about the number of players receiving disability benefits,
how many people get each type of benefit, even the total dollars paid
out each year for disability. The information that gets handed out by
the Plan--only in response to Congressional and media scrutiny--is
fragmentary and unreliable. What we really need is full disclosure by
the Bert Bell Plan of all the key information behind the disability
benefits, so that the retired players, and the union, can negotiate for
better procedures, changes in the way the Plan is administered, and
more money for disabled retirees. I hope that this kind of necessary
disclosure is one result of this Committee's work, and I look forward
to working with you so that the great men who built this league can
lead lives of dignity after their retirement.
Senator Dorgan. Mr. Ditka, thank you very much.
The baseball folks said no one has any business holding
hearings on steroids, either.
Mr. Ditka. Yes.
Senator Dorgan. But the fact is, because there were
hearings on steroids, the changes were made in baseball in a
very significant and a very positive way. Perhaps public
pressure is important when you're talking about people's lives,
people who can't get up and walk in the morning, and so on. So,
I understand, I don't--my preference is that--although there is
an antitrust exemption and various things, my preference is
that Congress do nothing more than hold hearings and applying
some pressure, and, perhaps, through that approach, we'll get
to the right result.
Mr. Gale Sayers, Chicago Bears, Hall of Fame.
STATEMENT OF GALE EUGENE SAYERS, MEMBER, NFL HALL OF FAME; AND
FORMER NFL PLAYER, CHICAGO BEARS
Mr. Sayers. Thank you, Mr. Chairman, members of the
Committee, distinguished guests.
My name is Gale Sayers. I was a running back for the
Chicago Bears from 1961--1965 to 1971, when my career ended as
a result of a knee injury. I have since had rewarding careers
in athletic administration and sports marketing. I started a
computer business, in 1983, which has grown into a major
provider of technology products and services. In short, I'm a
man truly blessed by God and life, like my friends, Mike Ditka
and Gene Upshaw.
I'm not a typical NFL retiree who has suffered through the
disability process we discuss today. As a board member of a
charity that helps retired players, however, I have seen many
horror stories. I am here for those who are not as lucky as I
was. I'm also here as a member of the NFL family who is worried
about the effects of--our broken disability system is having on
the entire game. At its best, football is a family, but extreme
success has strained its relationships. Today, the NFL is a $7-
plus billion industry, yet it still struggles to do right by
the retired players whose sacrifices built this game.
I believe this failure is at the core of a general crisis
in the game. You've been hearing about the symptoms almost
every day. What family can remain healthy if its younger
players are convinced that every dollar spent on the health of
its elders is a dollar out of their pockets? Does that message
promote the respect among generations that support rules of
good conduct? Doesn't this attitude endorse the selfish
behavior we observe in some young players? The current
disability system routinely bars retired players from fair
access to disability payments that offer a minimum standard of
care. This is not the way a family works, and is not the face
the NFL should be--to--should present to the world, to the
other families that pay for the tickets, the TV subscriptions,
the hotdogs and jerseys.
I do not blame anyone for this failed system, but we will
all share the blame if we don't pull together and fix it now,
while these players are still alive and in need.
I heard Gene speak about his efforts to obtain more
benefits for retirees. I take him at his word. But whatever has
been done to date has not been enough, because the problem is
still there. He, the NFLPA, and today's players must do more.
I've also heard a statement attributed to Mr. Goodell that the
owners see this 40:60 revenue split with the active players as
so generous that they cannot do more for retired players. I'm
glad to hear him say that, you know, the owners take, you know,
a stake in helping the retired players.
This problem belongs to the entire NFL family, including
the owners. As for the charitable efforts that retired players
have engaged in for the disabled among us, they will continue.
We will all know when we've done enough, because the problem
will simply not exist anymore. Until then, there is
responsibility to take and work to do. Some legislative action
might help this situation, but today I want to make a more
immediate appeal to the Committee. Please help us try to fix
this problem. You call this an oversight hearing, and I think
that's just what we need. At its best, football is a family
with no need for an overseer, where bargaining power is not an
issue. But, in this new rich NFL, bargaining power is crucial,
and the retired players have none without your help. I don't
ask you to play for our side, only keep the game fair and keep
it going until the job is done. I ask this committee to take
oversight over a bargaining process among all of the parties
represented at this table by asking for periodic reports to the
Committee on our progress, perhaps every 30 days or so. If you
do this, I think we can get the job done.
For my part, if you will be the referee, I promise to give
you my best game.
Thank you for your consideration and for your oversight on
this very important subject.
[The prepared statement of Mr. Sayers follows:]
Prepared Statement of Gale Eugene Sayers, Member, NFL Hall of Fame;
and Former NFL Player, Chicago Bears
Chairman Inouye, Subcommittee Chairman Dorgan, Ranking Member
Stevens, Subcommittee Ranking Member DeMint, Members of the Commerce
Committee and distinguished guests, my name is Gale Sayers. I was a
running back for the Chicago Bears from 1965 to 1971, when my career
ended as a result of a knee injury. I have since had rewarding careers
in athletic administration and sports marketing, until I launched a
business in 1983, which has grown into a major provider of technology
products and services. In short, I am a man truly blessed by God and
life, like my friends Mike Ditka and Gene Upshaw. Like them, as well, I
am not at all a typical NFL retiree who suffered a career-ending injury
and then suffered again through the current disability process that is
the subject of today's hearing. But my own blessings bring
responsibilities, and I am here for those who were not as lucky as I
was, many of whom have gone through that unfortunate experience. As a
board member of a charity that helps retired players, I have heard many
of their horror stories and I want that system reformed. Moreover, as
Mike has often said, football owes us nothing and we owe football
everything. I agree. So, as I see it, I am here for football, too--a
game I love and a family I love. As a member of that family, I am
worried about the effects our broken disability system is having on the
fabric of the entire game. I call football a family because that's what
it has always been at its best. Now, families don't always get along
perfectly. Ask my old friend and teammate, Dick Butkus, about
negotiating a contract personally with our old coach and owner, George
Halas, as was the common custom in my day, and you might hear a
response that I would not dare put in writing before the eyes of the
Senate. If, however, you were to speak harshly of Mr. Halas yourself,
Dick would jump to the defense of ``Papa Bear'' the way any of you
would respond if a stranger criticized a member of your own family. The
violent nature of our game makes us pull together like family members.
When someone is playing hurt, we all know in the locker room. We
protect the secret so he won't be vulnerable, and we watch his back
during the game in an effort to protect him from further injury. Like a
family, we watch out for one another.
Extreme financial success can put strain on any family's
relationships. The football family is no exception. Today, the NFL is a
$7-plus billion per year industry, yet it still struggles to do right
by the retired players whose blood, sweat and sacrifice built the game.
Sometimes it seems as if football has been torn apart by its own
success. I believe that is what has happened with the NFL today. I also
believe that the failure to address this disability issue is at the
core of a more general crisis in the game. You've been hearing about
the symptoms of that crisis almost every day recently. But what family
can remain healthy if its senior members are thought of as a useless
burden on its budget? Or if its younger members accept the idea that
every dollar spent on the health of their elders is a dollar out of
their pockets? Will that family engender respect among its generations
and a sense of authority to support rules of good conduct or common
sense? If this disrespect for the history of the game, which is
embodied in its retired players, is allowed to continue unchallenged,
if generations of older players continue to be seen as expensive and
irrelevant, can anyone be surprised if the recent displays of
selfishness, irresponsibility, even of criminality, continue to be
exhibited by growing numbers of young players? When families break down
in this way, such behavior is always the result.
When I came into the league, older players and retired players
were, generally, treated with respect and seen as sources of authority
and wisdom. Reverence for them inspired reverence for the game itself,
its history, its rules and the need to project some image of integrity
to the fans who, believe it or not, look to football as more than just
a game on the field. This reverence for the people who built the game
is no longer common and the results are on display everywhere. I'm not
saying my generation of players was a bunch or angels or that the
current one is the opposite--far from it. I see a young man like
Ladanian Tomlinson or Peyton Manning and I know there is still a sense
of stewardship and honor alive among the current generation. But that
ethic is coming under greater attack today than ever before and
exclusive worship of the bottom line is eroding the strength the game
derives from the extended family culture it was founded upon
generations ago. We need to turn that around and we must begin that
effort today.
We at this table, all members of football's family, must pull
together and fix this disability problem. If we fail to do so, I
believe we will continue to see more and more signs of moral and social
decay in our game. If we succeed, however, I believe many good things
will follow. I truly believe we can pull together as a family and save
our game, but I am also certain that we will need the help of this
Committee to do so, as I will explain.
The current disability system routinely bars retired players from
fair access to disability payments that offer a minimal standard of
care. The word often heard is that the inconvenient ``problem'' of
disability will eventually pass away--a nice way of saying that the
retirees themselves will conveniently die. This is not the way a family
should work and it is not the face the NFL should present to the
world--to the other families that pay for all the tickets, the TV
subscriptions, the hot dogs and the jerseys. A game worth over $7
billion per year owes the fans that support it something more than just
a mirror held up to all of society's problems. Much is given to this
game, so much should be expected of it, I would argue, and the game and
its players should be held up to a higher standard. My friend Charles
Barkley once famously said, ``I am not a role model.'' He meant that as
a caution to society at large not to hold up athletes up as heroes. I
agree with that warning wholeheartedly, but I do not agree that
athletes, as public figures, and the games that benefit from presenting
their images to the world, do not have a special burden of
responsibility to the public. This is not something we choose, it is
something that is thrust upon us as and we must accept some sense of
responsibility because, frankly, children are watching. Their parents
should pay heed to Charles' warning and teach their children
accordingly, but it is our responsibility and the game's to act as if
they cannot.
The image this disability issue projects to the public is beneath
the dignity of the NFL and it must come to an end before it damages our
relationship of trust with the fans. I do not blame any single person
for this failed system, whether at this table or elsewhere, but we will
all share the blame if we don't pull together and fix it now, while
these players are still alive and in need. If we do not do so, if we
simply allow this problem to ``solve'' itself by waiting for a
generation of gravely injured retirees to die before they can succeed
in claiming disability support to which they have a right, then the
stain upon the game and it's history will never be removed.
I have heard Gene speak of his efforts to obtain more benefits for
retirees. I take him at his word. But whatever has been done to date
has not been enough because the problem is still with us. He, the NFLPA
and today's players must do more to fund this system adequately.
I have also heard a statement attributed to Mr. Goodell that the
owners consider their 40-60 revenue split with the active players to be
so generous that they cannot do more regarding disability for retirees.
I want to believe that this was a misunderstanding or misquote and I
hope he will correct it here today. But if it is a true reflection of
the owners' sentiments, then it is an absolutely inadequate response
and an evasion of responsibility to the game and the people who built
it into the financial success the owners enjoy today. As Gene has often
pointed out, neither the ownership nor the NFLPA directly represented
the interests of retired players in collective bargaining, so the
revenue split produced by that bargaining offers the owners no shield
whatsoever from their responsibilities to disabled retirees.
No, this problem belongs to the entire NFL family and the owners
are not exempt from their proportionate share. I'm glad the NFL has
hired a ``crisis manager,'' but I disagree with their definition of
this ``crisis'' if it simply means that they might have to spend some
more money on healthcare for the men who helped build their fortunes.
The crisis, to me, is this broken system that dishonors our game by
compounding the injuries suffered in honest competition by its retired
players, and ``managing'' this crisis must not mean finding ways for
the NFL owners to evade their responsibilities. This is not just
another stadium that will be built with public money if the owners
threaten to leave town. This is a system that demoralizes, shames,
bankrupts, injures and, at the extreme of it's cruelty, even kills
people. Everyone is responsible for a share of curing this misery.
I thank the NFL and the Players Association fo proposing their new
``Alliance'' plan. It is an important step in that it is a public
recognition that this serious problem exists. As a substantive response
to the problem, however, it falls far short. That was predictable
since, unfortunately, virtually none of the people on the retirees'
side of the ball who have worked on this issue for years were invited
to contribute to that proposal. Perhaps because the collective
bargaining process has habituated them to think this way, the NFL and
the NFLPA are, unfortunately, accustomed to keeping the retirees locked
out of actual discussions concerning their fate. As such, as was done
with this plan, they simply hand us a plate that we didn't order and
tell us to eat it with full enjoyment. This is not an adequate way to
construct a plan for the retirees care and, therefore, this plan is not
as good as the one we could have hammered out together. We must do
better. We can. To do so, we must come together and negotiate. For
that, as I said, we will need the help of the Senate.
As for the charitable efforts in which we retired players have
engaged for the sake of our NFL family members, as Mike has said, they
will continue. We must do more, too, and we will. But such private
charity is a mere band-aid upon this enormous systemic problem. It
cannot ever substitute fully for responsible engagement with the
problem on behalf of the rest of the NFL family, the owners and the
NFLPA, which are obviously not doing enough. We will all know when
we've done enough because the problem will simply not exist anymore.
Till then, there is responsibility to take and work to do.
But funding this system adequately is not the only problem that
must be addressed. The unfairness of the system's procedures must be
reformed immediately, before they do further harm to retirees and their
families. Inconsistent and arbitrary administration of retirement
benefits is common under the Plan and the tragic consequences are
everywhere. Because of weaknesses in the Employee Retirement Income
Security Act, which is the Federal employee benefits law regulating
employee benefit plans, including the Plan, and the Federal Labor
Management Relations Act, which regulates collective bargaining, those
practices have been allowed to continue. I would direct the Committee's
attention to the letter provided it by my fellow Kansas Jayhawk alumus
and running back for the San Francisco 49ers. Miami Dolphins and Green
Bay Packers, Delvin Williams, for a fuller discussion of these issues
and an example of the punitive lengths to which the representatives of
the disability plan have gone in litigation against a disabled player
who dared to pursue his rights in court. Because that letter treats
these issues in detail, I have attached it to this testimony as an
``addendum'' and ask the Committee to accept it into the record as an
extension of my own remarks.
Here are but some of the problems I see in the Plan, as it exists
today, which I hope can be addressed in negotiation or, failing that,
through legislative action:
1. There is no one on the Retirement Board of anyone with a
sufficient incentive either adequately to represent the
interests of the disabled retired players or to ensure that
benefits are provided uniformly and objectively. Indeed, there
are inherent conflicts of interest among members of Retirement
Board in favor of the owners of the NFL teams and the active
players.
2. Many severely disabled retired players have had their valid
disability benefit claims denied because there is no objective
oversight over the actions of the Retirement Board and its
staff and the members of the Retirement Board have inherent
conflict of interests in their service to the participants in
the Plan.
a. Representatives on the Retirement Board who are
appointed by the owners of the NFL teams recognize that
denying benefits to the disabled retired players will
minimize future contributions to the Plan by the NFL
teams.
b. Representatives on the Retirement Board appointed by
the Union have included among them agents of active
players who do not represent retired players. If the
executives of the union are inherently more concerned
with the active players who re-elect them as
executives, they lack sufficient incentive to look out
for the best interests of the disabled retired players,
which is their charge under ERISA. If those Union
representatives are more concerned with the pay for the
active players, they will also recognize that denying
benefits to the disabled retired players will minimize
current and future payments for their clients.
c. Gene has often said that the Union has negotiated
new benefits for retired players, even though he does
not represent them, and that the active union employees
have ``subsidized'' those benefits. He has not,
however, sufficiently emphasized that these benefits
are, in fact, also for the current players and that,
once those benefits are established, the Union has a
moral and legal obligation to ensure that they are
administered objectively and uniformly among both
current players and retirees. That has not happened. If
the Committee would request and obtain data concerning
the actual relative distribution of these funds, the
full picture would become clear and public, as it
should be.
3. The Retirement Board and its staff have not been required to
prescribe, publish or adhere to objective standards for
determining the eligibility for benefits under the Plan or to
publish Plan changes in a timely manner.
4. There is no adequate administrative help for applicants,
many of which have brain injuries and corresponding short-term
memory loss due to multiple concussions, to fill out
applications and proceed through the process. Simply posting
application information on a website, without the availability
of objective, real-time human help, is a particularly egregious
shortcoming in the context of such injuries, which are common
among ex-NFL players. Moreover, since the NFL has frequently
argued that players have not sent in their paperwork (a claim
which stretches credulity when referring to totally disabled
people who have little else to depend upon but a successful
application, but which is nevertheless conveniently impossible
to disprove in the absence of better recordkeeping safeguards),
these interactions should be recorded and an evidentiary chain
firmly established to keep the process honest.
5. The time for processing of claims is inordinately long. Plan
representatives have often quoted an ``average'' processing
time of 18 months, which is interminable in itself if one is
disabled, but if the Committee could look behind this
``average'' time to a true distribution of processing times
(considering that many claims are disallowed almost
instantaneously), I believe it would find that the processing
of claims actually meriting the largest levels of compensation
takes a much longer period. Those that cannot be denied
immediately are, thus, often delayed inordinately. This, again,
is particularly egregious because, by the NFL's own
computations, the average ex-player lives to an age of only 55,
with linemen averaging only 52. [It should be noted that these
figures have been used historically by the Plan's
representatives to urge ex-players to take retirement at an
earlier age, which results in dramatically lower levels of
compensation]. This convergence of facts has given rise to a
popular characterization of the Plan's tacit strategy as
``Delay, Deny and Hope They Die.''
6. There is no adequate deference given to medical opinion in
the entire process. As noted above, Plan medical experts are
routinely undermined and circumvented after they have made a
disability finding in favor of a retired player. Moreover, as
in the case of Brent Boyd, non-Plan experts have been
specifically enlisted to overturn the decision of Plan doctors
who made disability findings. Medical expertise functions as
sword to deny disability, but it is no shield against the
aggressive strategies of administrative denial and, if
necessary, litigation by the Plan staff and the Groom Law
Group.
7. All numerical data associated with the Plan is non-public
and inaccessible, making misrepresentations by the Plan's
representatives common and not immediately arguable. How many
retirees are there? The Plan's own representatives have given
numbers ranging from 8,000 to 13,500, seemingly dependant upon
which number was more advantageous under the circumstances. How
many receive disability payments? At a hearing earlier this
year before the Administrative Law Subcommittee of the House
Judiciary Committee, Plan representatives said 317. Later, they
amended this to 428. On information and belief, which is as
good as we can get with respect to such unpublished data, the
number is actually less than 200. Crucially, at what levels
have people been compensated? (Again, like the ``average''
claim processing time, what is the distribution?). This has
never been answered. How many have applied for disability
predicated upon brain injuries resulting from concussions? As
recently as this Friday, Plan representatives told Senate staff
that they did not know this number--this even though the NFL is
supposedly seeking to implement a new, progressive policy to
protect players from the effects of concussions. How many have
been successful in obtaining disability based on concussions?
According to a statement by Attorney Douglas Ell of the Groom
Law Group to a reporter, that number is four (4)--for the most
violent game since the Roman Arena, often played on a surface
consisting of concrete covered with a quarter-inch layer of
indoor-outdoor carpeting called ``Astroturf'', which was
incorporated in stadium construction to save on grounds-keeping
bills, without regard to the havoc it visited on men's bodies.
If that number is accurate, the Committee can draw it's own
conclusions about the adequacy of the Plan's protections. I
implore the Commerce Committee, consistent with its oversight
function, which is the reason for this hearing, to seek
extensive and complete data on all aspects of the Plan, its
procedures and its funding. The truth, which has been artfully
and thoroughly hidden to date, is in these numbers. Without the
thorough examination and publication of these data by the
Committee, any private negotiations held in an attempt to solve
this problem cannot bear fruit.
8. The NFL Retirees have no bargaining power to negotiate an
end to this inequitable situation without the continuing
oversight of the Senate. The collective bargaining entities,
the NFL and the NFLPA, do not and cannot represent the retired
players. Indeed, as noted above, the Plan representatives have
not even fulfilled their fiduciary and representative duties to
the retired players with respect to the distribution of pension
and disability distributions. The light of common day and, with
it, the power of public and governmental scrutiny of this
process is the only bargaining power available to the NFL
Retirees. Nevertheless, if the Committee would continue its
oversight of this issue and demand regular reports of
negotiating progress by the parties represented at this
hearing, the NFL Retirees would like to engage the collective
bargaining entities in a true negotiation in an effort to
settle this matter privately, without the need for specific
legislative relief. I therefore ask the Committee to exhort the
parties to come together in such a negotiation immediately
after this hearing and to subject that process to your regular
oversight in the form of such periodic reports, which we
propose be produced to the Committee every 30 days from the
date of this hearing.
Some legislative actions might help this situation but today I want
to make a more immediate appeal to the Members of the Commerce
Committee: please help us pull together as a family and try to fix this
problem ourselves.
You've called this an ``oversight'' hearing. I like that word. I
think that's just what we need. As I've said, at its best, football is
a family, with no need for an overseer, where ``bargaining power' is
not an issue. But in this new rich NFL bargaining power is crucial and
the retired players have none without your help. I don't ask you to
play for our side, only to keep the game fair and keep it going until
the job is done. We need a referee. I think that if this Committee
would ask the parties to come together, starting tomorrow, and
negotiate a true solution to this problem, and if it would take
oversight of a bargaining process among the owners, the Players
Association and representatives of the retired players, with each party
making periodic reports to the Committee about the progress of those
negotiations every thirty days or so, we should be able to get this job
done ourselves. I ask this Committee to take such oversight and to
request and publish all numbers and data necessary to a fair
negotiation, so that one can go forward. I am told the most effective
mechanism to obtain such data is a study and report by the Government
Accountablity Office. I respectfully request that such a study be
performed and such a report be written. If you do these things, I think
we in the NFL family can get this job done and clean an ugly stain upon
our great game before it becomes permanent. For my part, if you will be
referees, I promise you my best game.
Thank you for your consideration and for your oversight of this
important subject.
Senator Dorgan. Mr. Sayers, thank you very much.
I wish all of you could have heard testimony previously
before this committee at other times and other occasions, when
pediatricians would come forward and tell us that these young
kids, taking a look at baseball and football players, idolizing
these players, are finding ways and searching for ways to
become a 300-pound lineman while in high school. So, when
people say to me--or the issue of steroids in baseball--when
people say to me, ``Well, Congress has no business in any of
these areas.'' My preference is that be the case, but if
Congress can play a role, in my judgment, for applying some
pressure and shining some light on what's wrong and how to fix
it, perhaps Congress will do something very important, not just
for players and former players, perhaps for young kids, who are
going to come through this system to be the future of baseball
and football and other professional sports.
So, let me make a comment. As a result of oversight
hearing, I'm not particularly anxious or interested in
legislating. It seems to me that professional football players
and owners control a big pot of money, very substantial pot of
money. The profits and salaries and ticket prices are very
substantial, frankly. And it seems to me that they ought to
find a way--when I say ``they,'' I'm talking about owners and
players and all those involved in this professional sport--
ought to find a way to use the substantial amount of money that
exists in this industry to respond to these issues.
Now, let me ask one opening question, then I'm--in
deference to my colleagues, I want them to be able to ask
questions before we have a time problem.
The one question I would ask, of Mr. Goodell and Mr.
Upshaw, is this. I come to this knowing very little about it.
I've done a lot of reading about it in preparation for this
hearing. But if I were in your two seats, and I heard the
testimony in the first panel, I would say, ``Gotta be something
wrong here.'' There's a former football player that goes to a
third doctor, after the first two have said, ``Look, you've got
a problem here, a very serious medical problem,'' and the third
doctor doesn't look at the brain scan and says, ``No, you're
OK.'' I would look at that, and I would say, ``Boy, there is
something broken, and we ought fix it.''
Give me your assessment of what we hear today at this
panel.
Mr. Goodell. Well, Senator, let me respond to that first,
and then Gene can respond.
I agree with you--and Gene and I have talked about this--
that there has got to be a better system, there has got to be a
way to improve our system to be more responsive to players that
have injuries. We have made some changes in the short term. I
have changed out two of the trustees, not because they were
fiduciarilyy--irresponsible--but because I felt it was time to
get fresh thinking. In addition, we have tried to address this
issue on a more regular basis; rather than quarterly meetings,
we're meeting on a much more regular basis, and our staffs are
working on this in between the quarterly meetings.
In addition, we have looked to outside counsel, independent
counsel, that we are--that are experts in this area--I am not--
but what we could do to try to make the system more
intelligent, more responsive and fair.
So, I think we are looking at what to do. I would agree
with you that, when you hear these stories, it is difficult,
and you want to be responsive.
Senator Dorgan. And, while you answer, Mr. Upshaw--and, Mr.
Goodell, you may want to comment--Charlotte Observer, this
weekend, reported that there are only four retired players who
have received total and permanent disability. That's just
counterintuitive to everything you would expect would be the
case with respect to professional football. Is that a right--is
that an accurate number? And, if so, do you find it as
counterintuitive as I do?
Mr. Upshaw. To receive active T&P--total and permanent--it
would have to be like the player that just experienced that
this weekend, or this past weekend, in Buffalo, a player that
is totally and permanent, on the field--or applies for total
and permanent within 6 months after the injury. There are four,
and there are other players that are receiving total and
permanent, that have become age 55, that are now getting a
retirement benefit, not a total-and-permanent benefit. Our
system provides that, once a player becomes 55 years old, he
then switches from disability to retirement, but he still
continues to get the higher of the two benefits.
Senator Dorgan. Senator Klobuchar?
Senator Klobuchar. Thank you, Senator Dorgan.
And thank you--I was listening to Mr. Ditka and thinking
back to those old days when my dad was a reporter. He was
actually friends of these players when Norm Van Brocklin was in
our living room, getting into a fistfight with my father, and
when the players used to practice on a field formerly owned by
the Animal Rescue League.
Mr. Ditka. I got in a fistfight with Norm Van Brocklin.
Senator Klobuchar. That's what I figured.
[Laughter.]
Senator Klobuchar. But what I remember most is that it was
a different time in the game, and there was less money, and now
a lot of those players are old and they're injured.
And I guess my question of you, Mr. Goodell, is just--I've
heard about the differences between National Football League
and the other leagues, and, when considered as a percentage of
league revenue, how does the amount that football spends on
disability payments, retired players, compared to the amount
spent by other sports leagues?
Mr. Goodell. It's a very good question. We have looked at
that. And when we look at our entire retirement benefits,
versus baseball, we think they are comparable. We have more
players in the NFL, we have less, obviously, than Major League
Baseball. We have more revenues, we have a different cost
structure. But we do look at that, and we want to make sure
that we are treating our players in the same fashion, or
better--hopefully better--than other leagues.
When you look at it in isolated cases with respect to,
potentially, just a disability case or a pension case, there
will be differences. But when you look at the entire scope of
benefits for players, we think they're comparable.
Senator Klobuchar. But I'm curious about why, just until
recently, you didn't accept the determination, for Social
Security purposes, of disabled, that you didn't use that as
your standard. And you said you recently agreed--in your
testimony today--to accept as totally and permanently disabled
any player determined to be disabled for purposes of Social
Security, why wasn't that done before? And what difference has
that made now?
Mr. Goodell. Well, I've only been in this position for 1
year, but it's something Gene and I talked about 6 months ago,
and, frankly, agreed to 6 months ago. If a individual is
already qualified under the Social Security standard, we should
move the process forward quickly and allow them to qualify
under our disability program, and we have done that.
Senator Klobuchar. Mr. Ditka, did you want to respond?
Mr. Ditka. Yes, I only want to say one thing. You know, I--
delivering mail, working as a mechanic, being a newscaster,
what--football is completely different. I mean, I don't want to
bring it up. You know, we have a 12-year window to file for
disability. You know, the average career of a football player
is less than 4 years, or right under 5 years or something. You
have to be 4 years to be vested. OK, supposing a guy comes
into--21, 22--he's out at 28, 29. Nothing shows up before he's
41. Very normal. And then things start showing up. I'm not sure
I understand it. You know, it's fine to sit here and say, ``Oh,
we have ERISA law, we have Social Security, we're tying it in.
This is all''--this is an exception. Football is an exception.
It is not a contact sport, it's a collision sport.
This young man, the other day, did nothing but make a
tackle, and he almost lost his life. Those things happen. The
first week of the NFL season this year, you've got five guys, I
think, that are out for the year. It's tough. It--you've got
200-, 300-pound bodies flying around at great speeds. It's
different than delivering mail or working in a factory or
building cars. You can't tie it into Social Security the way
everybody wants to do. It's a different thing.
Senator Klobuchar. Thank you, Mr. Ditka. And I just want to
end, so I can let Senator McCaskill go, by saying--we talked a
little bit about, why should Congress be looking at this? And
Mr. Sayers was talking about how football is a family. Well,
it's a very public family. And I think the way that we treat
people with disabilities--people are watching this--the way we
treat people that have built, basically, an empire for others
to profit from, people are watching this.
So, thank you.
Senator Dorgan. I mentioned the Charlotte Observer article,
the four retired players, total and permanent disability, that
was for brain injuries caused by multiple concussions. So, I
wanted to make that point, because there has been testimony
today, and it relates to what Mr. Ditka suggested, that this
may show up 10, 15, or 20 years later.
Senator McCaskill?
Senator McCaskill. Thank you, Mr. Chairman.
I also want to mention--he's not here, but I want to
mention Fred Arbanas. Fred and I served together on the county
legislature for a number of years. I've watched his body fall
apart. I've watched him going from a very proud man who's
recognized everywhere in Kansas City for all the right reasons
to basically not being able to do much before noon, because it
takes him that long to get his body moving.
I want to ask a couple of questions. It's my understanding,
Mr. Upshaw, that the money that is given over to the pension
and disability fund is, in fact, negotiated by the Players
Association, and it is set aside at the negotiation, and it is,
in fact, their money.
Mr. Upshaw. Yes.
Senator McCaskill. Then, why is it three and three? Why do
the owners have just as much say on how that money is being
spent as the players? If that money has already been negotiated
away from the owners, and that belongs to the players, then why
do they get to veto, by a 3-3 vote, a disability finding that
the players decide is valid?
Mr. Upshaw. Because the plan operates under the Taft-
Hartley laws, and the Taft-Hartley laws give both the players
and the owners an equal vote.
Senator McCaskill. Well, do you need us to amend the Taft-
Harley players----
Mr. Upshaw. I think I suggested----
Senator McCaskill.--to allow----
Mr. Upshaw.--I suggested that as----
Senator McCaskill. OK.
Mr. Upshaw.--part of--one of the solutions.
Senator McCaskill. So, it seems to me that it--you know,
it's almost like you negotiate to try to get this money, and
this comes off the top, I understand.
Mr. Upshaw. Yes.
Senator McCaskill. This isn't a line item on people's
paycheck.
Mr. Upshaw. No.
Senator McCaskill. This is off the top. And if that's the
case, and you worked hard to negotiate, it seems to me you
ought to be here asking that--and demanding for this
legislation on behalf of the Players Association, that the
players have the ability to decide what former players are
entitled to disability, under what circumstances.
Mr. Upshaw. Well, that's why we end up with a 3-3 vote. We
do have unanimous votes from time to time, but there is no
dispute over the facts in a unanimous vote, either for an
approval or for a denial. But, in a lot of cases there are 3-3
votes, which is no reason whatsoever for a player--the former
players to vote against another player if he qualifies. There
are a lot of players that file claims that do not qualify.
Senator McCaskill. Mr. Goodell, would you have any problem
with that, if we amended the Taft-Hartley, to allow, under
these circumstances, since the money has been negotiated away
from the owners at the bargaining table, would there be any
problem with the people that have negotiated for that making
the decision as to how the money was going to be spent?
Mr. Goodell. Well, I'd make a couple of points, Senator.
First off, and most importantly, anything that would improve
the system, that is responsible to do for the parties, we would
consider. Most importantly. Second of all, it somewhat implies
that we have been a negative influence in this circumstance,
and I don't believe we have. I think the facts don't support
that.
Senator McCaskill. Well, I think it----
Mr. Goodell. Second of all----
Senator McCaskill.--I think that 3-3 votes are tough. I
think 3-3 votes are tough.
Mr. Goodell. But the facts are, there haven't been that
many 3-3 votes, and what happens is, the process is set up
through Federal regulations and through the law that it would
go on to see an independent doctor. And, ultimately, it goes to
an independent doctor, who makes the final decision. And we
have had some cases that have been taken and litigated. We've
had 25. Twenty-four have returned back in favor of the
retirement board; only one was reversed.
Senator McCaskill. I know what's involved in filing a
Federal lawsuit, and I don't think we want to make these guys
have to go to Federal court----
Mr. Goodell. I agree with that.
Senator McCaskill.--to do this.
Mr. Goodell. And----
Senator McCaskill. I--let me--because I don't have much
time. I don't mean to cut you off. But the other area I really
wanted to cover here was the LOD disability, the line-of-duty
disability. I mean, you're going to have a whole lot of these
players that are going to have a line-of-duty disability,
particularly if you talk about orthopaedic needs. I mean, I got
a new knee this year, and, I've got to tell you, I never played
a day of football, and it hurts, and it's a pain, and I'm
limping around here today, and I--and, you know, I was just a
cheerleader in high school, for gosh sakes. Nobody----
[Laughter.]
Senator McCaskill. Nobody was--no 300-pound linemen were
flying at me--well, I'll take--well, no----
[Laughter.]
Senator McCaskill. I--in all seriousness, the idea that an
LOD disability has to be--you have to apply within 48 months--I
mean, 4 years--if you've got a guy that's retiring at 27 or 28
because of a minor injury or for some other reason, or just
doesn't make it the next year, gets cut, I mean, you're asking
that orthopaedic, serious surgery, to show up within 4 years? I
just think that is wildly unreasonable. And are you in favor of
extending the LOB--LOD disability to a filing period that would
be much longer than 4 years? Is that something that you all
would object to? Mr. Upshaw?
Mr. Upshaw. No, we wouldn't object to it at all. Matter of
fact, we've actually increased that. It used to be 36 months,
and it's been increased to where it is today. But the line-of-
duty disability is not the last place that you can go. We have
players that come in on a line-of-duty, and then move up the
chart to degenerative, which will now let you into the door,
which Mike talked about, is 15 years. So, 15 years after you
leave the game, you can still apply for a--that disability.
Before 1993, we had none of these disabilities. All of
these improvements, we've made since 1993. So, we're not
opposed to that, but we also have another total-and-permanent
disability that Brent Boyd is getting, that someone that
doesn't qualify for anything in our plan can still get a
disability, even though it was not caused by football. So, if
you get hit by a bus, and you come back and file for disability
under this plan, you can receive it. That is what Brent Boyd is
getting, because the doctor said--not Mr. Ell; Mr. Ell is not
the doctor, he is the attorney that represents the plan that
is--he's co-counsel to the plan--the doctor said Brent Boyd did
not--you couldn't connect one concussion in 1980 to his present
condition today.
Senator McCaskill. Total-and-permanent is different than
partial. And you're going to have a lot more partials than
you're going to have total-and-permanent. And 4 years is not
enough. I think, as a show of good faith, you ought to get busy
and get that fixed. What Mr. Ditka said is correct, this is
common sense. Take care of these guys. They're taking care of
us, they're taking care of the Players Association officers
that are here, their colleagues are going to be in the same
position in 15 years as Conrad Dobler and Fred Arbanas and all
the other great heroes that are here.
And thank you all for being here, and I appreciate the
answers to my question.
Senator Dorgan. Senator McCaskill, thank you very much.
Senator Nelson?
STATEMENT OF HON. BILL NELSON,
U.S. SENATOR FROM FLORIDA
Senator Nelson. Thank you, Mr. Chairman.
I can't help but come to the table to note the difference
between the NFL and Major League Baseball on the question of
handling some of the former players. It was this Senator that
had to get right in the middle of it with regard to the
compensation for the members of the old Negro Leagues in Major
League Baseball. And it has been slowgoing with Major League
Baseball, and there has been a recognition of that. I'm
grateful we don't have those issues before us here today, and I
thank you for that.
Now, the question that occurs to me is, Why should there
not be a medical doctor on either one of those boards?
Mr. Upshaw. Well, we don't have a medical doctor on the
board, but we rely on the medical evidence that's presented by
the player, both the board doctors and any evidence that the
player might bring from his doctor.
Senator Nelson. Mr. Goodell?
Mr. Goodell. I would respond to that, Senator, by saying
that the board is not making a medical decision, they are
taking the information from medical doctors who examine the
players, who take all of their medical records, make an
evaluation, and make a recommendation to the board. I'm not
opposed to it. We would have to find a representative. But I
believe that's the best explanation I can give you today.
Senator Nelson. Does anybody else want to comment on that?
Mr. Ditka. Why not take it away from 'em completely, the
owners and the Players Association--take it totally away from
'em and create a board, completely independent--completely
independent, made up of medical people. And then, if they turn
it down, then there must be a reason to turn it down. But when
these other people turn it down, people think there is an
ulterior motive for turning it down. That's all I ask. Make it
completely independent and see what happens.
Mr. Goodell. Senator, if I might add, then if it moves down
the process of being a 3-3 tie, it goes to an independent
doctor, and it's binding--whatever that doctor's decision is,
it is binding, so it is ultimately made by a doctor, if there
is a dispute amongst the Retirement Board.
Senator Nelson. Mr. Chairman, is that a vote?
Senator Dorgan. Yes.
Senator Nelson. Well, then I'll just conclude by saying
that, you know, one of the phoniest problems that we have, over
and over, is the question of disability for veterans. And they
go through all of these disability claims procedures that are
quite extensive. Maybe we ought to take a lesson from the
experience that we try to determine the degree of disability
with our veterans and have that be a lesson to apply here.
Thank you.
Senator Dorgan. Senator Nelson, thank you very much.
A vote did start at 12, noon, and I would normally ask if
we could stand in recess, but, because there is a vote
following this, it would require at least a half-hour recess,
and I don't want to inconvenience you. All of you who have
testified today have come here and provided, I think, some real
assistance in giving us your perspective of what's happening.
It seems to me there is something that's not connected
here. I don't know what it is, exactly, but something's not
connected. Something is not working the way it should work.
And, as I indicated earlier, there is plenty of money around. I
watch football from a living room, but I understand what ticket
prices are, I understand what owners' profits are, generally,
from what I read, and I understand how much some of these
contracts, some players, are. And so, there is plenty of money
around. It seems to me that sufficient money should be
available to provide the kind of assistance that is necessary
for those that helped build this professional sport, called
football. I think it is, perhaps, the most widely watched
professional sport in our country. And my guess is, most of
those who would hear stories, or read about them in the
newspaper, as is frequently the case, or hear the testimony
today, would be flabbergasted that there are people who spent
their lives in this professional sport and are now living in
poverty, are now living in a circumstance where they can't find
the kind of healthcare that they need, or the kind of medical
assistance they need.
We will certainly evaluate the testimony and try to
consider what kinds of things might be available. And I think,
Mr. Commissioner and Mr. Upshaw, you, I hope, will take a look.
What I'm going to do is, I'm going to send you two packets,
like this, individual letters from former players. I would
think that, in this business, in this industry--I know you will
want to go through it and understand it and then evaluate, what
is it here that's wrong? how do we fix it?
So, I thank all of you very much for your willingness to
come to this hearing.
This hearing's adjourned.
[Whereupon, at 12:12 p.m., the hearing was adjourned.]
A P P E N D I X
Supplementary Information Provided by Eugene ``Mercury'' Morris, Former
NFL Player, Miami Dolphins and San Diego Chargers
The Black Paper: A Response to the Claims Set Forth in the NFLPA's
``White Paper''
I have been asked to address the specific content of the document
produced by the joint efforts of the two collective bargaining parties,
the NFLMC and the NFLPA. The NFLPA ``White Paper'' was prepared for the
September 18th hearing on Capitol Hill before the Senate Committee on
Commerce, Science, and Transportation. The content, however, is
virtually the same as the NFLPA written statement submitted for the
June 26, 2007 hearing before the Subcommittee on Commercial and
Administrative Law of the House Judiciary Committee. My statement in
response to the remarks made by Douglas Ell at the House hearing
addresses most of the issues ``repackaged'' and reintroduced in the
September 18, 2007 hearing and I refer the reader to that statement. I
will address some of the issues that require clarification as to the
factual content of the declarations made in the White Paper the NFLPA
has distributed both to traditional media and Internet-based news
outlets. The NFLPA has also initiated a ``new'' campaign called: ``The
Truth Squad: Fact vs. Fiction,'' which I will show is neither
substantively new nor factually accurate in the following paragraphs.
In keeping with the theme ``fact vs. fiction,'' I respond on behalf
of the NFL Retired Players whom I have represented involving disability
and retirement issues. For the record I have, on three (3) different
occasions since 2001, been successful in recovering disability benefits
that had been arbitrarily taken by the retirement board from Players
who were qualified under the Plan's Terms.
I have over 21 years of experience in dealing with this group, who
cast themselves as caretakers of the retired Players' future welfare as
fiduciaries, in the role of trustees to the Plan, governed by ERISA
Law.
I have watched the evolution of the language of the Plan, I can say
with absolute explicit facts and evidence that fiduciary misconduct has
occurred and it is documented by the very words of the author of the
White Paper.
For the record, the term ``White Paper'' is defined as a detailed
or authoritative report. The following is a quote from a docketed Bar
Complaint filed against a former Groom Counsel, John McAllister, for
lying to a Plan participant. Mr. McAllister is no longer on the Case
and has left the Groom Law Group.
If you have information but it's misinformation, the best you
can be is misinformed, if someone is allowed to perfect a
concept based upon that misinformation, then what you have is a
misconception.
It is with that premise in mind that I set forth my response to the
White Paper in this ``Black Paper'', the title of which describes the
ironic distance between what the NFLPA asserts to be true, pure and
``white'' and the actual practices and policies inherent in their
administration of the Plan's disability provisions.
Page 4, paragraph one of the White Paper states: ``Active Players
pay for all benefits.''
That statement is categorically false according to the Plan's own
terms. The Bert Bell/Pete Rozelle Plan document at page 10, paragraph
3, Article 3.2 states the following:
The sources of revenue to be used to satisfy any contribution
obligation of the employer will be exclusively within the
control of the employers.
Webster defines the term ``exclusive'' as ``limiting or limited to
possession control or use by a single individual or group.''
It is clear that the active Players in fact do not contribute to
the fund under ERISA that is governed by the Plan's terms; therefore
the statement made in the ``White Paper'' regarding Player
contributions to the Plan is fiction not fact.
Sec. 3.1of the Plan states that, ``a contribution to the trust will
be made by the employers.'' Players do not contribute to the ERISA-
governed fund.
Another statement from the White Paper, made in paragraph ``three''
page 4, declares that, ``the cost of benefits to former Players comes
from the active Players side of the table". That statement is also
false and misleading.
Under ERISA law and the Plans terms, there is no ``active Players
side of the table,'' in fact there is no ``table,'' there are only
fiduciary responsibilities to do two things:
1. Pay benefits.
2. Pay expenses.
Under ERISA Law, the language of the Plan, at one time, did have
specific instruction as to the course of conduct of the trustees of the
Plan regarding specific language under Sec. 404; that defines the
duties of those trustees who accept that fiduciary responsibility by
Law and operate under the spirit and the letter of the intention of the
Plan's terms.
The White Paper states that the active Players each gave up
$82,000.00 in salary for medical, disability and retirement benefits.
That statement is misleading because it implies that currently
active Players are paying medical and disability benefits for retired
Players, which is false. See Sec. 3.2 page 10, Plan Document.
From the White Paper, page 5, paragraph one, Mr. Ell seems to imply
that ``pension for the Retired Players'' significantly increased four
(4) times, and their benefits ``have since been more than tripled.''
Webster's defines the term ``significant'' as: Having the meaning
of a noticeably or measurably large amount.
Clearly the amount involved here is large only if expressed in
relative terms. If the benefits for retired Players were in fact
increased 4 times and ``triple'' the amount they were originally, then
the resulting $250 per month, per credited season only shows up as a
``large amount'' when compared with the paltry size of the original
pension benefit.
In 2002, in a collective bargaining negotiation, a new retirement
benefit increase of a $100-per-month per credited season was initiated.
As I detail in my response to Doug Ell's House testimony, however, in
2004 the same collective bargaining parties devised a ``new'' benefit
paying each current Player $200 each and every time he steps on the
field.
The collective bargaining parties in 1993 ``segregated'' themselves
from the retired Players. This has now grown into a full-fledged
``business within a business.'' The disability benefits, in fact, have
dramatically improved, however, not for the retired Players. The
statement involving ``significant increase over the years'' by the two
(2) collective bargaining parties is false and misleading because it
omits what the NFLPA did for the current Players in the 2004 CBA
extension.
``The most generous and flexible disability in professional
sports.''
However ``generous'' the collective bargaining parties say these
benefits are, the fact is these ``benefits'' are not accessible to the
Players without their meeting complicated requirements. Moreover, even
if they are able to do so, the bottom line still rests upon the
judgment of the Trustees as to whether or not a person with a
disability is ``able to work''--a judgment that is entirely up to their
discretion, rendered according to a criterion itself is so vague that
it has no specific definition. How can a doctor, untrained in
occupational therapy, make a determination on a person's ability to
work in a 25-minute office visit? Moreover, if the theoretical capacity
to work any job is the de facto standard, as experience would suggest
it is, and it is subject to the unfettered discretion of the retirement
board in application, does this standard have any meaningful function
other than to exclude virtually every applicant?
Since my personal involvement with this process began, I have seen
the administrative complexities grow steadily to the point where the
average Player applying for benefits must now meet technical
requirements that involve a mountain of red tape designed to make the
Player seeking benefits either give up or sue the Plan. If he has the
tenacity to sue, then The Groom Law Group reaps the true ``benefits''
of this system--litigation to the tune of almost $20 million over the
last 6 years against retired Players pursuing their rights. Yet, when
questioned about the make up of the ``legal team'' in question, Mr. Ell
says; ``Oh we try to keep the lawyers down to an absolute minimum.''
And those ``few guys'' make millions.
Ironically, the suggestion to ``give up'' often comes from the
NFLPA representatives. When you examine the actions of the retirement
board you get a completely different perspective about what they are
trying to accomplish, which in no way accords with the standard of what
a ``prudent person acting in a like capacity and familiar with such
matters would use in the conduct of an enterprise of like character
with like aims,'' which is their charge in the Plan document in words
that are mirrored in the specific language of Sec. 404 of ERISA.
The Groom Law Group, by its own admission, changed the terms of the
Plan to exclude the specific language that would permit the
``circumstance'' in which a fiduciary could make a decision to spend an
amount that would rectify the disparity in value between the benefits
of the current Players and the benefits of the retired Players. Under
ERISA, the fiduciaries are to ``minimize the risk of large losses
unless under the circumstances, it is clearly prudent not to do so.''
ERISA, Sec. 404(C).
This specific language appears in the Bert Bell Plan at Sec. 8.20.
It also appears in the Bert Bell/Pete Rozelle Plan. Somewhere between
1998 and September 2005, however, the Groom Law Group changed the
language of the Plan. This language now appears under Duty and Care,
Sec. 8.2 of the Plan. The new plan states:
Except that the retirement board and the DICC will follow the
terms of the Plan.
This changed the ERISA language from Sec. 404 of the ERISA code--a
change, in itself, which violates ERISA Law.
By law, you cannot change the terms of a Plan that contains ERISA
guidelines. Yet that is exactly what the NFLPA did at Groom's
suggestion. Groom claims that, ``they (Groom), do not make decisions
regarding benefits,'' yet Doctor Alfred J. Tria, the first neutral
Medical Advisory Physician (MAP), states in the Public Record, that
Groom chastised him for qualifying a Player under Line of Duty. In
1989, I was the first Player qualified by Dr. Tria under Line of Duty
Disability. I was sent to Dr. Tria due to a deadlock of the retirement
board pursuant to the Plan's terms. The Owner-Members rejected the
qualification even though it was final and binding on the retirement
board, which violated the Plan's Terms.
I will focus on several issues of material fact that are not in
dispute in the applicable language of the Plan's Terms. These specific
facts contradict what is presented in the NFLPA White Paper on behalf
of both collective bargaining units.
On page 5, under ``Disability Benefits Overview,'' the White Paper
states:
Point 1: The award process investigates whether a Player is
able to work. (Emphasis added).
The question would be why the ``extent of the disability'' is not
considered first. ERISA states that the retirement board must carry out
its duties in a manner that considers the Player's interest first, with
the secondary inquiry being ``what caused the Player's disability?''
But this clear ERISA requirement again is construed as an
``opinion'' and the retirement board reserves the right to disregard
any medical finding that does not support the agenda of the retirement
board trustees who, as representatives of the collective bargaining
unit, not surprisingly have established a record of disqualifying
Players seeking any type of disability unless that Player is a ``friend
of the NFLPA.''
The Doug Betters Case is illustrative of this point.
Doug Betters was paralyzed in an accident while skiing in 1998.
Doug, retired from the NFL in 1988 because of back and neck injuries.
When Doug applied for disability, he was denied because the retirement
board trustees, with no expertise in the medical field and no expertise
in spinal chord injuries, declared that Doug Betters did not get hurt
while playing football: ``he got hurt skiing''. An unlicensed opinion
thus became a denial of disability to a classified quadriplegic with no
improvement and continued degeneration.
Doug is paralyzed and has been in a wheelchair since 1998. He
receives a pension equal to his retirement. Doug is entitled to the
active non-football disability. Doug receives something called an
``inactive'' disability benefit, which is equal to his retirement
benefit. They call it a disability benefit, but his check comes from
the retirement fund. Inactive disability is a fictional term-of-
convenience used to categorize Players in a manner so that they cannot
obtain a class of benefits that pay more. (If you have an ``inactive''
driver's license can you drive?)
In 1989, the retirement board said, ``Traditionally, we use Darryl
Stingley as a test case for the total and permanent disability.''
Tom Condon assured Doug that ``there was nothing to worry about!''
The retirement board vote was 6 to 0, unanimous against a paralyzed
Player. In a retirement board quarterly meeting, Bill Bidwell, the
owner of the Arizona Cardinals, theorized that paralyzed players in
wheel chairs could ``sell pencils on the street corner''--a form of
gainful employment that would presumably preclude the disbursement of
disability benefits.
The third category of analysis is ``When the disability began.''
This issue is at the heart of the Mike Webster case, in which the Court
declared that it was an ``abuse of discretion'' by the retirement board
to refuse to assign Webster the proper ``effective date'' on which the
disability began.
This, too, is an area of contention, having roots as far back as
1984, documented in explicit detail revealed in the minutes of the
Retirement Board meetings.
Under the Bert Bell Plan, the language was clear that disability
began according to the physician's report, which asked the question of
the MAP ``Date of Disability?'' (The answer was to be determined by the
Doctor.)
That question has appeared for the last 30 years on the form to be
filled out by the MAP. As stated by the White Paper, the MAP's decision
was final and binding on the retirement board.
This became a problem for the collective bargaining units because
it meant that a Player could collect a payment that was retroactive
back to the date of disability, which meant that a Player's accrued
disability benefit could pay as much as 15 years in retroactive
payments.
The Groom Law Group removed the ``date of disability'' space from
the Doctor's report form. This gives the retirement board the
``contrived discretion'' to construe the ``effective date'' to be any
date they choose, as opposed to correctly using the Physician's date of
disability on the physician's form. All this was done to control the
amount of the retroactive portion of the disability benefit, which the
Trustees were obligated to pay in full.
I sent a letter to Commissioner Roger Goodell detailing the
specific facts and evidence that The Groom Law Group violated Sec. 302
of the ERISA code, as described in my complaint sent to the
Commissioner on June 4th, 2007 titled ``Fiduciary Misconduct.''
For the record, the Commissioner has stated the following: We will
continue to do what we have always done, rely on the facts.
However, in this particular case the Commissioner has ignored ``the
facts'' and has refused to act under the Integrity Clause of the NFL
Bylaws. This clause allows the Commissioner to rectify almost any
situation concerning the NFL.
To date, however, he has refused to investigate any wrongdoing by
the Management, the people who put him in that office as Commissioner
of the NFL.
The next issue is on page 10, titled: ``Disability application and
award procedure''.
I have addressed this issue in my response to Doug Ell's written
testimony on June 26, 2007, however, I will make an additional comment
concerning the ``truth'' and regarding the ``facts'' surrounding the
``neutral physician''. In the White Paper the author repeatedly
declares the importance of the neutral physician, yet on page 15,
bottom paragraph, Mr. Ell describes to a Federal investigator
``exactly'' what is the real role of the neutral physician, Mr. Ell
contradicted his own words in the White Paper regarding the
responsibilities of the neutral physician. Mr. Ell states:
Neutral physicians have no authority and are simply instructed
to report their best medical findings.
Unless, as in the case of Don Bessilieu, the retirement board uses
the ``opinion'' and medical findings of the neutral physician to
disqualify the Player, then the ``neutral physician's'' opinion is used
by the disability claims committee member (one person) to disqualify
the Player who was already receiving disability benefits for 5 years,
as was the case with Don Bessilieu.
I can say that the description of the responsibilities declared by
the author of the White Paper regarding the neutral physician is false.
Any evidence to support the contention in the White Paper would also be
false. Mr. ElI told a Department of Labor investigator exactly the
opposite of what appears in the White Paper. One of the two statements
by Mr. Ell is a false statement made to a government investigator, a
criminal violation.
Page 11, ``Appeal Rights''.
This section is a perfect example of the ``deception'' described in
the White Paper as ``Appeal Rights''.
First of all, appeal rights depend on various situations concerning
exactly what is being appealed and who is appealing. One case in point
is when a Player is denied by the DICC and it is the Player's initial
disability claim, the retirement board must follow the decisions made
by the DICC, which amounts to a circle, with no possible way of
overcoming the denial, because Groom has changed the language of the
Plan from Sec. 8.2 which says:
Except that the retirement board will follow the decisions made
by the Disability Initial Claims Committee.
Prior to this change, for over 45 years, Sec. 8 of the Bert Bell
Plan and the Bert Bell/Pete Rozelle Plan both stated:
The retirement board will have the power to decide claims
(except that the retirement board will follow the decision made
by the Medical Advisory Physician. [whose decision will be
final and binding on the retirement board]).
The retirement board now uses whatever language ``fits'' the
denial. This section of the Plan's Terms was changed in order to
accommodate the retirement board's ability to have what would appear to
be ``absolute discretion'' \1\ and authority over the outcome of
disability determinations.
---------------------------------------------------------------------------
\1\ This specific language was changed under the Bert Bell Plan at
Sec. 8.4: ``The Retirement Board will have the broadest discretion
permitted by the Act.'' This is the protective language of ERISA. This
means, where there is ``no permission there is no discretion.'' In 1995
Groom changed the Plan's Terms to exclude the specific language that
restricted the retirement board's ability to act ``outside'' the Plan's
Terms. In 1995 they removed ERISA governing terms and replaced them
with their own made up authority.
---------------------------------------------------------------------------
In the White Paper under ``appeal rights'' the author declares that
the retirement board gives no deference to the decisions made by the
DICC, a patently false statement. The evidence points to the Groom Law
Group as the principal architect and administrator of the attempt to
control the disability process on behalf of the two collective
bargaining units.
The specific language in the Plan's Terms under Sec. 8.2 of the new
Plan document makes that declaration false and the premise declared in
the White Paper fiction. In fact, the majority of the three topics I
have reviewed in this ``Black Paper'' all contain ``fiction'' in their
premises and falsehood in their factual content.
I have, in the details contained in my 26-page response to Doug
Ell's written testimony on June 26, and the White Paper written for the
September 18, 2007 hearing provided a significant amount of facts and
evidence to support the contention that misconduct has occurred at the
hands of the authors of the White Paper.
There are numerous misstatements of fact that I have not addressed,
all of which point to the same conclusion . . . ``Fraud'' is defined by
Webster as:
A. Deceit, trickery, intentional perversion of the truth in
order to induce another to part with something of value or to
surrender a legal right.
B. An act of deceiving or misrepresenting: A trick. One who is
not what he pretends to be. An imposter. One who defrauds.
Cheat. One that is not what it seems to be or is represented to
be.
C. Synonym . . . Deception.
I have presented some of the ABCs of the White Paper, which may
well be misleading and fraudulent in its design.
I welcome any effort by the NFLPA or the NFLMC to refute any of the
statements contained in the Black Paper.
Sooner or later the truth about the ``Truth Squad'' will become
clear in the form of facts vs. fictions, which will spell themselves
out in black and white.
Submitted to the Members of the Committee on Commerce, Science and
Transportation of the U.S. Senate to aid in their oversight of this
issue, and to the NFLPA for its analysis and response.
P.S. I am waiting for your response.
______
Joint Response to Written Questions Submitted by
Hon. John D. Rockefeller IV to the National Football League (NFL) and
the National Football League Players Association (NFLPA)
Question 1. Identify each of the 6 members of the Retirement Board
(the ``Board''), the person(s) who selected each member to serve on the
Board, and the reason each member was chosen for such service.
Answer. The Retirement Board is composed of seven members. Three
voting members are appointed by the NFL Players Association (``NFLPA'')
and three voting members are appointed by the NFL Management Council
(``NFLMC''). The Commissioner of the NFL is an ex-officio, non-voting
member. The Commissioner's designee, NFLMC Executive Vice President
Harold Henderson, presides at all meetings of the Retirement Board.
The Retirement Board members appointed by the NFLMC are:
William Bidwill, Owner, Arizona Cardinals, appointed by Terry
Bledsoe, former NFLMC executive.
Clark Hunt, Owner, Kansas City Chiefs, appointed by Harold
Henderson, Executive Vice President.
Dick Cass, President, Baltimore Ravens, appointed by Harold
Henderson, Executive Vice President.
During the last 5 years, Taylor Smith, Owner, Atlanta Falcons, and
Eddie Jones, President, Miami Dolphins, also served on the Retirement
Board. Each was appointed by Harold Henderson.
The Retirement Board members appointed by Gene Upshaw on behalf of
the NFLPA are three retired veteran NFL players:
Tom Condon, who played 12 years in the NFL from 1974-1985;
Jeff Van Note, who played 17 years in the NFL from 1970-1986;
and
David Duerson, who played 11 years in the NFL from 1983-1993.
Tom Condon and Jeff Van Note were appointed prior to 2002. Dave
Duerson was appointed in 2006. Len Teeuws, deceased, preceded Mr.
Duerson on the Retirement Board.
The NFLMC and NFLPA appointments are made based on ability,
interest in, and familiarity with employee benefit plans, the
investment process, collective bargaining history, and/or player
welfare, and their knowledge of the types of injuries that NFL Players
may incur. In addition, the members agree to carry out the terms of the
plan and to accept personal fiduciary liability.
The NFLPA and the NFLMC may name a proxy for each of the members
they have appointed, for any meeting for which that member is
unavailable.
Question 2. Identify each member of the Disability Initial Claims
Committee (the ``DICC''), the person(s) who selected each member to
serve on the Committee, and the reason each member was chosen for such
service.
Answer. The Disability Initial Claims Committee (``DICC'') consists
of two members--one appointed by the NFLPA and one appointed by the
NFLMC. The NFLPA appointed Chris Smith and the NFLMC appointed Mary-ann
Fleming. Mary-ann Fleming is an employee of the NFLMC, Manager of
Player Benefits, and was chosen for her familiarity with NFL players
and benefits after agreeing to carry out the terms of the plan. Harold
Henderson and Director of Player Benefits Valerie Cross selected Ms.
Fleming for the NFLMC. Chris Smith is Assistant Director of Benefits at
the NFLPA. Ms. Smith was chosen for her familiarity with NFL players
and benefits and her knowledge of the types of injuries that NFL
Players may incur, after agreeing to carry out the terms of the plan.
Executive Director Gene Upshaw and Director of Benefits Michele Yaras-
Davis selected her for the NFLPA.
Both Chris Smith and Mary-ann Fleming have served on the DICC since
it was created, pursuant to regulations of the Department of Labor, in
2002.
Question 3. Explain the process for choosing members of both the
DICC and the Board.
Answer. The Bert Bell/Pete Rozelle NFL Player Retirement Plan
designates the NFLPA and the NFLMC as having the authority to appoint
and to remove the voting members to the Retirement Board and to the
DICC. The Executive Vice President who leads the NFLMC exercises this
authority with respect to NFLMC appointments. The Executive Director of
the NFLPA exercises this authority with respect to NFLPA appointments.
Question 4. State the total amount paid for disability pensions
from both the Bert Bell/Pete Rozelle Plan and the NFL Supplemental
Disability Plan (together, the ``Plans'').
Answer. Below are the total amounts of disability benefits paid by
the Bert Bell/Pete Rozelle NFL Player Retirement Plan and NFL Player
Supplemental Disability Plan for the full calendar years 2002 through
2006 and for 2007 through November, based on records provided by the
Player Benefits Office. These amounts may differ from the amounts
reported for Plan Years (April 1 to March 31).
----------------------------------------------------------------------------------------------------------------
Year Amount
----------------------------------------------------------------------------------------------------------------
2002 $14,856,632
2003 15,882,616
2004 16,934,525
2005 18,237,320
2006 20,266,009
2007 (through November) 19,981,483
----------------------------------------------------------------------------------------------------------------
Total $106,158,585
----------------------------------------------------------------------------------------------------------------
The figures above include all payments to players deemed to be
totally and permanently disabled, including payments to these players
after they attain normal retirement age, and payments for line-of-duty
disability benefits.
Question 5. State the total number of players receiving disability
payments, broken down by category (i.e., Active Football, Football
Degenerative, Line of Duty, etc.).
Answer. The following table, based on records provided by the
Player Benefits Office, shows the average number of former players paid
for each kind of disability benefit per month for each calendar year
2002 through 2006 and for 2007 through November 2007.
----------------------------------------------------------------------------------------------------------------
Active Active Football Retirement
Year Line of duty football nonfootball degenerative Inactive continuation
----------------------------------------------------------------------------------------------------------------
2002 93 5 12 65 50 44
2003 96 6 11 71 45 49
2004 109 5 10 75 46 57
2005 122 5 10 81 47 63
2006 144 5 9 85 46 71
2007 158 5 9 87 46 76
(through
11/07)
----------------------------------------------------------------------------------------------------------------
Question 6. Please provide a breakdown of these categories into
types of injury (i.e, Concussion, Spinal injury, Joint Replacement,
etc.).
Answer. Awards of line-of-duty disability benefits for orthopedic
impairments are based upon a qualifying percentage impairment of one or
more of the cervical spine, lower extremity, lumbar spine, thoracic
spine, upper extremity or whole body, using a system developed by the
American Medical Association. Awards of total and permanent (T&P)
disability benefits are based on whether a player is able to work,
taking into account all facts and circumstances. The Player Benefits
Office automated record system records the decisions of the DICC and
the Retirement Board, but not the underlying types of injury or
impairment.
Question 7. State the process for choosing doctors or other
healthcare providers who are eligible to administer medical
examinations to claimants for consideration by the DICC or the Board.
Identify any qualifications which are considered or required for such
service.
Answer. Neutral physicians are selected by the Retirement Board.
The Retirement Board is advised by two prominent orthopedic surgeons,
who are not neutral physicians, and who recommend Board-certified
orthopedists of exceptional quality who have substantial experience
with the orthopedic problems of athletes. If a non-orthopedic neutral
physician is needed in a particular location, then, pursuant to a
procedure set up by the Retirement Board, the nearest orthopedic
neutral physician is asked to recommend a highly qualified physician
with the needed medical specialty in that area.
Medical Advisory Physicians are selected by mutual agreement of the
NFLPA and the NFLMC, pursuant to section 11.4(a) of the Retirement
Plan. Medical Advisory Physicians are Board-certified orthopedists who
previously were Plan neutral physicians, or are physicians of
exceptional quality in other specialties.
Question 8. State the process for removing doctors or other
healthcare providers from the list of those eligible to administer
medical examinations to claimants for consideration by the DICC or the
Board. [Next question is not limited to 5 years] Identify every doctor/
health care provider who has been removed from that list, and the
reason(s) for such removal.
Answer. A neutral physician can be removed at any time by the
Retirement Board. A Medical Advisory Physician can be removed at any
time jointly by the NFLPA and NFLMC, or 30 days after the NFLPA or
NFLMC gives written notice of the Medical Advisory Physician's removal
to the other party, the Medical Advisory Physician, and the Retirement
Board.
The automated record system of the Player Benefits Office does not
record the reason why a particular neutral physician is no longer being
used. The reasons include:
The physician has died or retired,
The physician has voluntarily elected not to be active,
A physician was needed on occasion in a specific location
and was used so that a player would not have to travel,
A physician was needed on occasion to evaluate a specific
type of injury or medical condition of a player, and
The physician did not perform the requested tasks in a
timely manner.
Exhibit A* is a list of neutral physicians furnished by the Plan
Office who have performed evaluations for the Retirement Board since
1985 but who are not currently performing evaluations for the plan.
*(All exhibits mentioned are retained in Committee files.)
Question 9. Identify every change in or amendment to the Plan
Document, or in the rules or procedures governing disability claims, or
in the benefits offered by the Plans in the past 3 years (e.g., use of
a Social Security standard, the ``88 Plan''). State the reason for each
such change. Produce a current copy of the Plan Document, and any
rules, regulations, or guidelines which are used to administer the Plan
Document.
Answer. Exhibit B contains the Retirement Plan amendments adopted
from 2004 to the present, and Exhibit C contains the current Retirement
Plan Document and a listing of all amendments to that document.
Exhibits D and E contain the NFL Player Supplemental Disability Plan
and the 88 Plan, respectively, and all amendments to those plans from
2004 to the present.
Question 10. State the mean and median time between initial filing
of an application for disability benefits, and (a) decision by the
DICC, as well as (b) decision on appeal by the Board.
Answer. The Player Benefits Office automated record system does not
maintain the information needed to calculate the mean and median time
taken by the DICC to make an initial decision or the Retirement Board
to decide an appeal. In particular, the time taken for the applicant to
respond, and to provide any additional information or to be examined,
is not tracked.
Question 11. [Next question is not limited to 5 years] Identify
every case in which the Board or the DICC has requested more than one
medical examination of a claimant by a Plans-selected doctor in the
same specialty, and state the reason for each such request.
Answer. Exhibit F lists the cases for which the Retirement Board
referred an applicant to a second medical examiner, based on records
provided by the Player Benefits Office. This examiner is referred to as
the ``Medical Advisory Physician'' (MAP). Such referrals are generally
made when there is uncertainty or ambiguity in the medical records
presented to the Retirement Board. The referral is made at the option
of three or more Retirement Board members. The specific reason for each
referral is not in the automated record system of the Player Benefits
Office.
In addition, in rare cases, a player has been referred to an
examining physician in the same specialty, below the MAP level, when
the initial examination was unclear or inadequate for any reason. The
number of times this has occurred is not available on the Player
Benefits Office system.
Finally, in 2002, the Disability Initial Claims Committee selected
14 applicants for line-of-duty disability benefits to be reexamined.
The purpose of these reexaminations was to measure their impairments
using a rating system developed by the American Medical Association.
Question 12. Identify any training or education provided to members
of the DICC or the Board in order to perform their duties. Provide a
copy of any documents which are used by them to administer the Plans or
to decide claims or appeals, other than the case files submitted by
individual claimants.
Answer. As indicated in the answers to questions 1 and 2, the
members of the DICC and the Retirement Board were selected based on
their ability and their interest in employee benefit plans, among other
factors. The members of the DICC have attended numerous seminars on
employee benefit issues. The members of the Retirement Board are
extensively briefed for 2 days at each quarterly meeting. Other
meetings on special topics and conference calls occur as needed
throughout the year. In addition to the plan documents provided in
response to question 9, the DICC and the Retirement Board use a variety
of forms to help them administer the Plans. These forms are in Exhibit
G.
Question 13. Explain the role of Sarah Gaunt in the DICC and the
Board's consideration of individual claims and appeals.
Answer. Sarah Gaunt is Plan Director of the Bert Bell/Pete Rozelle
NFL Player Retirement Plan. In this capacity, she performs ministerial
functions including maintaining records and presenting documents, such
as disability applications, physician reports, and other documents, to
the DICC and Retirement Board. She has no discretionary authority or
discretionary responsibility in the administration of the Plan,
including the determination of disability benefits or the evaluation of
medical reports, nor any discretionary control with respect to the
management of the Plan or its assets.
Question 14. [Next question is not limited to 5 years] Explain the
role of the Medical Advisory Physician in the decision of individual
claims or appeals. Identify each case in which the Medical Advisory
Physician was asked to address a claim or appeal, and the role played
by the Physician in each case.
Answer. Section 8.3(a) of the Retirement Plan, which is reproduced
below, describes the role of the Medical Advisory Physician:
``If the voting members of the Retirement Board are deadlocked
with respect to a decision as to (1) whether a claimant
medically is substantially prevented from or substantially
unable to engage in any occupation or employment for
remuneration or profit within the meaning of Section 5.2, or
(2) whether an applicant meets the requisite percentage
disability requirements to be eligible for line-of-duty
disability benefits, the Retirement Board may by an affirmative
vote of three voting members submit such disputes to a Medical
Advisory Physician for a final and binding determination
regarding such medical issues.''
Exhibit F contains the requested list of cases, based on records
provided by the Player Benefits Office.
Question 15. With respect to the summary table provided at p. 16 of
the 6/26/07 written testimony of Douglas Ell before the House Committee
on the Judiciary Subcommittee on Commercial and Administrative Law,
please state the following:
a. In the line identified as ``Approved at initial stage,''
please state whether this includes claims which were approved
for any benefits of any kind, or whether it includes only
claims in which the entire benefit sought (i.e., Active
Football) was approved. Also state whether it includes claims
in which the DICC or the Board awarded a retroactive date later
than was sought by the claimant. For example, if a claimant
sought a retroactive date of 11/02, and was awarded a date of
11/04, was that counted as an approval or a denial?
b. In the line identified as ``Approved on appeal,'' please
provide the same information. Does this include cases in which
the appeal resulted in any change in the benefits awarded or
the retroactive date, or does it include only claims in which
the claimant was awarded both the benefits and the retroactive
date requested?
Answer. The table provided at page 16 of the June 26, 2007 written
testimony of Douglas Ell lists claims and appeals as ``approved'' if
disability benefits of any kind were awarded at that level. The table
does not capture the complexities of effective dates or categorization.
At each level, a claim is listed as ``approved'' if disability benefits
of any kind were awarded at that level, whether or not the participant
was awarded all the benefits for which he applied, and whether or not a
retroactive award was made. Cases listed on appeal are cases where no
benefit was awarded at the initial level.
Question 16. Is it true that you plan to use Social Security
standards for disability approval? And what does that mean?
Answer. The NFLMC and the NFLPA have agreed to amend the Bert Bell/
Pete Rozelle NFL Player Retirement Plan such that an eligible player
who is receiving Federal Social Security disability benefits will be
considered to have met the Retirement Plan's standards for total and
permanent disability. Such a player will not, during the period he is
receiving Social Security disability benefits, be required to further
demonstrate that he is totally and permanently disabled. The Retirement
Board will determine the level of total and permanent disability
benefit to which he is entitled.
Question 17. What is the ``four point'' plan that will try to
simplify approval process for disability benefits?
Answer. We do not know to what ``four point'' plan you refer. The
NFLPA and the NFLMC are, however, taking a number of steps in
cooperation with the Retirement Board and the DICC in order to
streamline our process as much as possible under the Federal rules
protecting plan participants. The NFL has hired independent benefit
consultants and independent counsel to identify best practices that
could be incorporated into the administration of the plans. In
addition, as described in the answer to question 16, the Plans will now
recognize the Federal Social Security determination of disability for
eligible players. The bargaining parties have asked the DICC and the
Retirement Board if they could meet more often, and more frequent
meetings should take place soon.
Question 18. What is the ``Coalition'' planned by Mr. Goodell and
Mr. Upshaw in the July meeting with retired players ``that will try to
ease suffering among former players''? What will it do?
Answer. The ``coalition'' that we have planned has also been
referred to as the ``Alliance'' and is described in the answers to
questions 19 and 20 below.
Question 19. What is the new assistance program that will be
created to address several critical issues drawing from the league,
union and ``charities affiliated with pro football'' called the
``Alliance''?
Answer. The NFL, the NFLPA, the Pro Football Hall of Fame and the
NFL Alumni, Inc. have come together to form an alliance to help former
NFL players in need. We have established a new charitable foundation
called the NFL Player Care Foundation. The Foundation has been
established ``to provide relief to the disadvantaged and distressed,
with preference to former players in the NFL, including, but not
limited to, the support, promotion or funding of medical and other
healthcare or assistance and improvement of the qualify of life.''
The Foundation has a number of projects it will immediately pursue.
The Foundation will provide, to former players in need, substantial
financial assistance for the costs associated with the new NFL Player
Joint Replacement Benefit Plan, a plan for retired NFL players who need
joint replacements, and will also provide necessary rehabilitation care
after joint replacement surgery. The Foundation also provides free
cardiovascular screening and referral services for former players, and
is also exploring long term care and other assistance for former
players.
Question 20. How does the Coalition plan to continue studying ways
to improve benefits for the pioneers of the NFL?
Answer. The NFLMC and the NFLPA continually monitor, through many
sources both personal and institutional, such as the NFL Alumni, the
Pro Football Hall of Fame, and the NFL Clubs, all of which employ
former NFL players, the status and condition of former players, both
``football-related'' and the normal process of aging. Each and every
CBA between the NFLPA and the NFLMC has addressed and provided
significant additional past service benefits for former players, mostly
from improvements to the pension plan. We are interested not only in
the condition of former players but in continually improving the care
and environment for current players. The Alliance and Player Care
Foundation are also exploring long term care and other assistance for
former players and we expect to announce initiatives in these areas in
the near future.
Question 21. In a Sept. 13 RTT News story about the likely life-
altering spinal injury received by Buffalo Bills tight end Kevin
Everett in a game a week ago says he will receive compensation from the
National Football League Players Association, an organization that has
come under fire recently from retired football players. Is it the NFLPA
who determines benefits under the current plan?
Answer. The NFLPA does not decide claims for benefits. In
accordance with regulations of the Department of Labor, initial claims
for disability benefits are decided by the DICC, whose members are
described in the answer to question 2. Appeals of disability claims are
decided by the Retirement Board, whose members are described in the
answer to question 1. For benefits other than disability benefits,
please refer to the table contained in the answer to question 22.
We understand that the reference to compensation in the news story
refers to disability benefits under the Plan. In the event Mr. Everett
applies for disability benefits, the Disability Initial Claims
Committee and Retirement Board will address that claim under its normal
claims procedures.
Mr. Everett is receiving his entire salary and all medical care
under his player contract at this time, and will be eligible for other
collectively bargained benefits, including pension, disability
benefits, 401(k), continuing medical benefits, injury protection, a
health reimbursement account and a severance benefit.
Question 22. Can we clear up which sources are responsible for
which benefits? NFLPA? Retirement Plan? Worker's Compensation? New
benefits in the 2006 CBA imply that some of the benefits do not include
the older retired players. Is that true?
Answer. The collective bargaining agreement (``CBA'') between the
NFLPA and the NFLMC provides retirement, medical, disability, and other
benefits to active and former players. The 2006 CBA included large
increases in the benefits for older retired players; for example their
pensions were increased by 25 percent. The benefits provided to
players, and which players are eligible for which benefits, are
summarized below.
Since 1993, the NFLPA and the NFLMC have agreed four times in
bargaining to increase retirement and disability benefits.
------------------------------------------------------------------------
Benefits players on
Plan/Program Responsible entity or after \1\
------------------------------------------------------------------------
Retirement Benefits Retirement Board All NFL Players
(Retirement Plan)
Death Benefits (Retirement Retirement Board All NFL Players
Plan)
Total and Permanent Disability Retirement Board All NFL Players
Benefits
(Retirement Plan)
Line-of-Duty Disability Retirement Board All NFL Players
Group Insurance \2\ NFLMC 1970 Forward
Severance Pay NFLMC 1982 Forward
Retiree Medical NFLMC 1993 Forward
Savings Plan (401(k)Plan) Savings Board 1993 Forward
Total and Permanent Disability Disability Board 1993 Forward
Benefits
(NFL Player Supplemental
Disability Plan)
Annuity Program Annuity Board 1998 Forward
88 Plan 88 Board All NFL Players
NFL Player Health HRA Board 2004 Forward
Reimbursement Account Plan
Cardiovascular Health Program NFLPA/NFL All NFL Players
Alliance
Joint Replacement Surgery NFLPA/NFL Approved for
Alliance Implementation
Assisted Living Program NFLPA/NFL Approved for
Alliance Implementation
Workers' Compensation NFL Clubs All NFL Players
------------------------------------------------------------------------
\1\ This column indicates which NFL players are eligible for these
benefits by year of play. In some cases, vesting or other eligibility
requirements may apply.
\2\ For active players, group insurance includes life, medical, and
dental benefits. For vested former players, group insurance includes
medical and dental benefits for 5 years after their NFL careers end.
______
Combined Response to Written Questions Submitted by
Hon. Trent Lott and Hon. David Vitter to Roger Goodell
Question 1. In oral and written testimony before the Committee,
several witnesses stated that conflicts of interest impair the fair
operation of the Retirement Board, because those who appoint the Board
will gain economically if the Board rejects disability claims. What is
your response?
Answer. Simply put, there is no evidence to support their claim.
The Retirement Board operates in accordance with Federal law as defined
by the Taft-Hartley and Employee Retirement Income Security Acts, and
as supplemented by regulations issued by the Department of Labor and
Internal Revenue Service. Board members and staff make decisions, as
they are required to do, based on the terms of the Disability Plan and
based on the medical evidence submitted by an applicant for benefits
and by one or more neutral physicians. In cases where the Retirement
Board is unable to reach a decision on a particular application, the
matter is referred to a third neutral physician (called the ``Medical
Advisory Physician''), whose medical decision is final and binding on
the Board.
The collective bargaining parties, the NFL and the NFLPA, are
committed to delivering the negotiated benefits, have budgeted ample
funds to do so, and have appointed Board members and staff who are
directed to do so. No member of the Board or staff has an economic
incentive to do otherwise.
Question 2. As to the inference of collusion between the appointing
authorities and the Retirement Board, I note that dissatisfied former
players can appeal Board decisions to court. Although courts have been
deferential to the decisions of the Retirement Board trustees and the
trustees of other plans, would collusion between the trustees and the
appointing authority be a basis to overturn a Board decision? Has any
court anywhere found evidence of such collusion or a similar violation
of the trustees' fiduciary duties?
Answer. Collusion between the trustees and the appointing authority
would be a basis for a court to overturn a Board decision. We submit
that no court would defer to a decision tainted by collusion. That
said, of the 25 occasions on which decisions of the Board have been
challenged in Federal court, the Board's decision has been upheld in 24
of those cases. In no case--including the one case that did not uphold
the Board's decision--was there any finding or credible evidence of
collusion, either among the Trustees themselves, or between the
Trustees and the party appointing them to the Retirement Board.
Question 3. It has been suggested that since disability and
retirement benefits are paid from the current players' portion of
league revenues, management should support leaving administration of
the Plan strictly to the players. What is your response? Further, are
management-appointed trustees an obstacle to the fair and proper
administration of the Plan?
Answer. While it is true that disability and retirement benefits
are negotiated and treated as part of the portion of NFL revenues
assigned to players generally, that is not the same as saying that
these are the current players' funds, and we do not agree that they
are. Rather the bargaining parties, in budgeting a sum of money for
benefits, have agreed again and again to earmark amounts for retired
players, thus allowing both parties to participate in addressing the
needs of former players.
Joint management-labor administration of benefit plans has been
part of Federal law for six decades, and is well recognized as being
consistent with and in furtherance of Federal labor policy. Far from
being an obstacle to the fair administration of benefit plans, such
joint administration serves important interests, including developing
support from management for those benefit plans, and ensuring that
unions--which, after all, have the statutory duty of representing the
interests of current workers who comprise the bargaining unit--do not
ignore the needs of retirees. Further, as I testified, clubs do not
believe that the needs of retired players are simply a ``problem'' for
the union to ``solve.'' Instead, the needs of retired players are a
concern of both the clubs and the union, and of current and retired
players alike.
Not only are the management-appointed trustees not ``an obstacle to
the fair and proper administration'' of player benefits, the management
trustees contribute valuable business and investment insight,
administrative capacity and employer perspective to the process.
Moreover, the overwhelming number of decisions of the Retirement Board
are unanimous, reflecting the fact that both management and labor
trustees administer the plan fairly, and in accordance with its terms
and the medical evidence presented in each case.
Question 4. Several witnesses complained that the Plan and its
operations are opaque and difficult to understand. Are there steps you
have taken or can take to simplify plan operations and make them more
transparent? If legal requirements obstruct your ability to streamline
the plan, do you recommend modifications to address these obstructions?
Answer. As I testified, we will continue our effort ``to identify
and implement any reasonable procedural changes that would allow
disability determinations to be made more quickly and reliably.'' We
have engaged independent counsel and benefit consultants to advise us
in this regard, particularly with respect to identifying best practices
in the administration of disability plans outside professional sports.
We have attempted to ensure that the standards for making decisions are
clear and understandable. The Retirement Board relies on standards
developed by the American Medical Association for deciding partial
disability, or ``Line of Duty'' cases. And we recently agreed to
incorporate the medical findings of the Social Security Administration
in deciding cases of total and permanent disability. Thus, if a player
has been found to be totally and permanent disabled by Social Security,
that finding will govern the player's medical eligibility for NFL
disability benefits.
Much of the complained-of complexity is the result of the complex
Federal statutory and regulatory scheme that governs benefit plans. We
continue to believe, as we advised the Department of Labor in 2002,
that the regulations governing the operation of the Initial Claims
Committee have not served the process well and have in fact delayed the
adjudication of benefit claims. We submitted extensive comments to the
Labor Department when this requirement was first proposed addressing
this subject.
Question 5. Several witnesses alleged that the Plan ``doctor
shops'' in order to find physicians who will deny disability claims or
promote conflict in medical evidence that will create a basis to deny
claims. What is your response?
Answer. This claim is without substance. For example, the
orthopedic doctors, who evaluate most of the claims, were identified by
two acknowledged leaders in the profession, and not by the Plan
administrators, the parties, or the trustees on the Retirement Board.
Doctors are chosen based on their skills and experience. The Plan
maintains, particularly for orthopedic issues, a national network of
neutral physicians.
No doctor has been retained because of any record of hostility
toward disability claims, and no doctor has been dismissed because of a
history of decisions favorable to disability claimants. The neutral
physicians are obligated to follow the terms of the Plan, and to apply
well-recognized standards, such as those established by the American
Medical Association (in cases of partial disability or ``Line of Duty''
claims). In cases involving claims of total and permanent disability,
the Plan will accept medical findings of the Social Security
Administration and will not require separate medical exams in those
cases.
In addition to the report(s) prepared by the neutral physician(s),
the Plan will always consider medical evidence submitted by a player's
physician, as well as medical records from the Player's club. Players
are free to submit their own medical records to the neutral physicians
who examine them. Because the Plan's fiduciaries are obligated to make
decisions based on medical evidence, players applying for disability
claims have an opportunity to supplement the record and ensure that it
is complete and accurate.
Question 6. The Committee notes that you and the NFL Players
Association have formed an ``Alliance'' of programs designed to help
former players in need. Please describe the current status of the
Alliance and how you see it evolving.
Answer. The Alliance is made up of the NFL, the NFL Players
Association, NFL Charities, the NFL Alumni Association and the Pro
Football Hall of Fame. We are actively seeking the support of other
interested parties, including the Gridiron Greats, the group endorsed
by Coach Ditka. The five parties currently part of the Alliance have
each agreed both to initial funding commitments, as well as to further
fundraising efforts to ensure that there will be adequate resources
available to carry out its program.
The Alliance is currently focusing on several specific medical
projects to benefit retired players. Those projects include joint
replacement surgery and rehabilitation, which will be provided free or
at reduced cost at leading medical centers throughout the country. A
second initiative involves comprehensive cardiovascular health
screening and education, which will be provided at no cost to retired
players under the oversight of the League's Medical Committee on
Cardiovascular Health. A third initiative involves identifying a
network of assisted living facilities throughout the country that will
provide favorable access to retired players in need of these services.
Apart from these initiatives, the Alliance is exploring other
targeted medical services and ways of providing various forms of
supplemental health insurance to retired players and their families.
Finally, the Alliance is committed to coordinating all of the
different services offered by its various members. Doing so will allow
us more effectively to communicate to retirees and their families and
identify those in need. By pooling our financial and administrative
resources, we can better achieve our goal of providing help to retired
players in need in a timely, confidential, and dignified way.
Question 7. If the standard for awarding Total and Permanent
disability claims is that the former player is substantially unable to
work, what programs do you have to assist former players who do not
meet this standard but who suffer from football-related injuries?
Answer. The Disability Plan offers both total and permanent
disability and partial disability benefits. Retired players who are
able to work but nonetheless have a disability may seek partial
disability or ``Line of Duty'' benefits. (They may also seek workers'
compensation benefits.) As I testified, we are considering further
measures with respect to partial disability benefits, including
expanding the time in which retired players may apply for Line of Duty
benefits to make that benefit available to a greater number of retired
players. In addition, the Plan offers a total and permanent disability
benefit based on football degenerative conditions, so if a player
becomes unable to work within 15 years of his retirement from the NFL,
he may still apply for and receive a total and permanent disability
benefit.
Question 8. Former players have said that they have insufficient
input into the benefit programs that affect them. Understanding that
they are not parties to the Collective Bargaining Agreement because
they are not members of the bargaining unit, will you establish a
process by which the concerns of former players can be expressed and
heard?
Answer. As the question recognizes, Federal labor law requires the
clubs to bargain with the NFL Players Association as the representative
of current employees. Nonetheless, the parties to the NFL-NFLPA
Collective Bargaining Agreement have an admirable and consistent record
of steadily increasing benefits and of applying those increases on a
retroactive basis. In the last ten years, the clubs have assumed
additional retroactive benefit obligations of nearly $400 million.
We are acutely aware of the concerns of retired NFL players. We
have consulted with them and will continue to do so, through the
Alliance, the Hall of Fame, the Alumni Association, the many former
players who currently work in and around the NFL, and in other ways.
While it may not be possible to satisfy all of the desires of retired
players, we will continue to work to ensure that we have a complete
understanding of their concerns. We are committed through these and
other mechanisms to listen to the concerns expressed by former players.
Question 9. What are the current and accurate figures regarding the
number of players who have applied for disability benefits, and the
number who have been approved?
Answer. The information set forth in the NFLPA ``White Paper,''
which was filed as part of the hearing record, shows that from July
1993, roughly 1,052 people have applied for disability benefits. Of
that number, 428 applications have been approved, 576 applications have
been denied, and the remaining 48 applications are pending.