RetiredPlayers.Org

WASHINGTON, Aug. 21 (UPI) — Gene Upshaw, the Hall of Fame guard who became the NFL Players Association executive director, has died at 63.

Upshaw’s death, apparently due to pancreatic cancer, was announced Thursday by Jeffrey Kessler, a lawyer who has represented the NFLPA in labor negotiations, USA Today reported Thursday.

Kessler said Upshaw was not diagnosed until Sunday night “and he didn’t tell anybody.”

Upshaw is survived by his wife, Terri, and sons, Justin, Daniel, and Eugene Jr.

Upshaw played 16 seasons for the Oakland Raiders. He was a seven-time Pro Bowl selection and an five-time all-pro and played on two Super Bowl champions. He was inducted into the Pro Football Hall of Fame in 1987.

The role of an actuary is vital in the administration of retirement plans. Actuaries are counted on to manage assets, determine the liabilities of the plan, calculate contributions to be made, and examine the feasibility of benefit increases.  The actuary also analyzes data to determine the likelihood of an event taking place.  One event likely to be examined by an actuary is the probable number of workers who will likely collect disability benefits available through a retirement plan.  The financial health of a retirement plan and ultimately its’ participants is dependent on the work conducted by the plan actuary.

Who serves serves as actuary to the Bert Bell/Pete Rozelle NFL Player Retirement Plan? According to the plan’s filing with the Internal Revenue Service and the Department of Labor, Aon Consulting serves as the plan actuary.  Patrick Ryan is the founder and Executive Chairman of the Aon Corporation, while Andrew McKenna is a member of Aon’s Board of Directors.  SportsBusiness Journal reports that Ryan and McKenna bought 20 percent of the Chicago Bears in 1990.

It is a conflict of interest for Ryan and McKenna’s company to determine the amount that NFL owners must contribute to fund NFL players’ pension and disability benefits. Both Ryan and McKenna are owners of a team who must make contributions into the Bert Bell/Pete Rozelle NFL Player Retirement Plan. The NFL Retirement Plan’s filing with the Internal Revenue Service and Department of Labor does not acknowledge this relationship.

There are six voting members of the NFL Retirement Board. Three of the members are appointed by the NFL Management Council and three members are appointed by the NFLPA. Why would the three NFLPA appointed members of the Retirement Board agree to delegate their power to the Aon Corporation, a company founded and directed by an NFL team owner? If the three NFLPA appointed trustees opposed delegating their power to the Aon Corporation a new retirement plan actuary would have to be chosen.

It is the responsibility of current players, the NFLPA’s Board of Player Representatives, to select the NFLPA’s three Retirement Board members. It is clear that the NFLPA’s current three members of the Retirement Board are not acting in the active players nor the retired players best interest by choosing an NFL team owner to act as the retirement plan actuary. The NFLPA will be relying on actuarial data when negotiations for benefits take place during the next round of collective bargaining. It is a necessity to have a truly independent actuary in place so players can negotiate with the owners on a level playing field.

• Charles Chandler of The Charlotte Observer reports that Congresswoman Linda Sanchez, “who chairs the House subcommittee probing the concerns of NFL retirees, says she isn’t satisfied the league and union have done enough to assist former players and that she would ‘absolutely’ support threatening removal of the league’s antitrust exemption if necessary to spur action.”

On May 20, 2008, the NFL owners voted unanimously to opt out of the current collective bargaining agreement. The current labor deal the owners have with players will now end in 2011 instead of 2013. If there isn’t a new CBA in place by the 2010 season, the 2010 season will be played without a salary cap.

In an uncapped year there would be restrictions which limit teams’ spending in the free agent market. To become unrestricted free agents NFL players would need six years of service instead of four. The final eight teams in the playoffs would be restricted in their activity in the free agent market. Also, in an uncapped year, teams will not have to fund numerous player benefit programs. Contrary to what the NFLPA staff has told them, going into an uncapped year isn’t necessarily attractive to NFL players.

Negotiations for a new NFL collective bargaining agreement will take place before the 2010 season. Article VI of the NFLPA Constitution details how the union will conduct itself while negotiating a collective bargaining agreement. Article 6.02 of the constitution states that the eleven members of the NFLPA Executive Committee and the NFLPA Executive Director will serve as the Negotiating Committee during collective bargaining negotiations. This article of the constitution has been in place since at least March of 1994.

In direct conflict with the NFLPA Constitution, not a single active NFL player served on the negotiating team during the last round of CBA negotiations in March of 2006. Many members of the NFLPA Executive Committee, including then-NFLPA President Troy Vincent, were attending the NFL Business Management and Entrepreneurial Programs held at the Stanford Graduate School of Business and the Kellogg School of Management while CBA negotiations were taking place. Article 4.10 of the constitution states that it is the responsibility of each member of the Executive Committee to attend the collective bargaining sessions. The only permissible excuse for absence being a close family illness, or other personal emergency. The excuse must be approved by two-thirds vote of the Executive Committee.

In October of 2006, after the Major League Baseball Players Association had just agreed to a five-year labor contract, MLBPA Executive Director Donald Fehr stated, “Nearly 100 players participated in negotiating meetings, and many times that number in internal discussions.”

In his book, A Whole Different Ball Game, former MLBPA Executive Director Marvin Miller wrote, “I wasn’t comfortable about meeting management without players as participants and as witnesses.”

Why doesn’t the NFLPA have the same level of player participation in CBA negotiations as the MLBPA?

One NFL agent told SportsBusiness Daily of the NFLPA, “Players are sick of the way they’re being treated. The arrogance is out of control.” The agent commented on the NFLPA staff saying, “The guys on top have been there for so long. They think everyone is an idiot and there is no communication with the membership. Management is always defensive and runs roughshod.”

The only way NFL players will be able to address the issues they feel are important in a collective bargaining agreement is if they are present for negotiations. Players should not just be asked to give a “yes” or “no” vote in approving the CBA when negotiations have concluded. However, this is what was done in 2006.

While Gene Upshaw has stated, “We’ll never agree to a rookie wage scale.” Many players, including NFLPA President Kevin Mawae, have commented on the need for a rookie wage scale. NFL players need to take control of their union. The only way player’s voices will be heard during CBA negotiations is if they are present. It is the union staff who works for the players and not vice versa.

A copy of the entire NFLPA Constitution may be viewed by clicking HERE.

Congressional Report Identifies Serious Health Concerns
Not Addressed by NFL and Players Union

House Judiciary Committee to Hold Further Hearings;
Examine Possible Legislative Remedy

(Washington, DC)- House Judiciary Committee Chairman John Conyers, Jr. (D-MI) and Commercial and Administrative Law Subcommittee Chairwoman Linda Sánchez (D-CA) today announced the release of a 144-page report from the nonpartisan Congressional Research Service (CRS) recommending legislation to address the health problems faced by professional football players, and also released the responses to questions posed by the Committee to the NFL and NFLPA.

Initiated by a bipartisan request, the CRS report examined the types and severity of health problems suffered by current and former National Football League (NFL) players focusing on the disability benefit programs and the health and safety initiatives of the NFL and NFL Players Association (NFLPA).

“I commend the NFL and NFLPA for having taken some affirmative steps since our last hearing, but in my view they still fall short of the goal line,” said Conyers. “This report identifies major concerns about the long-term health of NFL players that demand further attention. The Committee intends to hold hearings and explore possible legislation to address this matter.”

“This report clearly demonstrates that the NFL and NFLPA need to make serious efforts to collect data on player injuries and eliminate the conflict of interest by team doctors who place the financial interests of their teams ahead of players’ health. The NFL cannot expect to simultaneously be team owner and referee,” said Sánchez. “After further reviewing the proposals suggested by CRS, I plan to work with my colleagues on legislation addressing several of the issues raised in the report.”

The report concluded that:

• The injury rate for NFL players was nearly eight times higher than that of any other commercial sports league, including hockey and auto racing.(See footnote #1)

• Neither the NFL nor the NFLPA maintain data on the number or percentage of players who retire because of injury.(See footnote #2)

• Former players find access to health benefits very difficult.(See footnote #3)

• The current system is subject to a variety of conflicts of interest which appear to be detrimental to players — Medical care provided by the team for its players raises serious conflict of interest concerns as a team physician must balance the players’ health concerns with those of the coaches and owners who expect players to play injured.(See footnote #4)

• The NFLPA has very limited authority and capabilities regarding health and safety issues, devoting only a part-time advisor to attend to these matters.(See footnote #5)

The Committee requested the CRS report and documents in response to the testimony at the Commercial and Administrative Law Subcommittee’s June 26, 2007 hearing, “The National Football League’s System for Compensating Retired Players: An Uneven Playing Field?” In that hearing, former players Mike Ditka, Harry Carson, Curt Marsh, and Brent Boyd detailed injuries sustained during their playing days that continue to hamper them today. They also recounted the complex process that deters many former players from receiving disability benefits.

The full text of the CRS Report may be found HERE. The Committee has posted on its website the full text of the NFL and NFLPA responses to the Committee’s questions as well as supplemental documents from the NFL and the NFLPA.

1. “Reportedly, the 2003 NFL injury rate was nearly eight times higher than that of any other commercial sports league, according to the U.S. Department of Labor – and that includes the National Hockey League, the National Basketball Association, and professional auto racing.” CRS Report p. 8; Carl Prine, “Bloody Sundays,” Pittsburgh Tribune-Review, Jan. 9, 2005, available at [http://www.pittsburghlive.com/x/pittsburghtrib/news/
specialreports/specialnfl/s_291033.html].

2. “Comprehensive data about the health of former players apparently are not collected and maintained, either by the NFLPA or the NFL, or by a third party. Neither the players association nor the league collects data on number or percentage of players who retire because of an injury or injuries.” CRS Report p. 4.

3. “Overall, from July 1, 1993, through June 26, 2007, 1,052 individuals applied for LOD [Line-of-Duty] or T&P [Total and Permanent] disability benefits: 428 applications were approved; 576 were denied; and 48 are pending. The approval rate, which does not include the cases that are pending, is 42%.” CRS Report p. 82.

4. CRS Report p. 115. The NFL has also consistently selected individuals and organizations that are affiliated, either directly or indirectly, with the NFL to conduct research on subjects and issues related to player health. CRS Report p. 123.

5. “The extent of the NFLPA’s authority and capabilities regarding health and safety issues, and its position on such issues are, at times, unclear. For example, the NFL has a number of committees that deal with injuries, safety, and health. Apparently, the NFLPA does not have any similar committees or entities, although, along with the NFL, it is part of the joint committee on player safety and welfare. The NFLPA has a medical advisor; but, apparently, this is not a full-time position.” CRS Report pp. 111-112.

ESPN.com reports Baltimore Ravens union representative, Matt Stover, sent an e-mail to other NFLPA player representatives on Monday which outlined a plan to have a new union Executive Director in place by March of 2009.  The following is a copy of the e-mail sent by Stover:

Executive committee and reps,

After the conference call on Wednesday, April 4th, I believe that the NFLPA is ready to begin a national search process to find a new Executive Director. As you are completely aware of our election process, Gene’s contractual situation, and our looming battles against the owners in the coming years, I feel that the Board must begin to prepare for a change in leadership immediately. I believe we have the proper environment with our teammates and leadership within the board to execute the process of this selection. To be “Open and Transparent” is critical for the body to back our possible selection, as well as our outside critics.

I want to make this clear: I have no personal agenda as I would hope everyone else would as well. I only want what is best for the Union and our teammates and my intentions are to establish a healthy leadership for years to come. I believe that whoever the candidate would end up being has the opportunity to gain valuable insight and experience to lead future generations of players.

With that being said, I would suggest to the Executive Committee to:

1. Form a sub-committee (3-5 members) to lead the process. The members should have the time and resources to fully commit to this all-important process.

2. Use Board Designated Funds to hire an outside consultant, Executive Head Hunter or Search Firm to aid in the collection of candidates from both the outside and within the NFL world.

3. Form a list of 8-10 candidates by no later than the start of training camp.

4. Use any means necessary (personal meetings in home cities or another city or teleconference) to interview candidates, with completion by the end of the 2008 football season.

5. Form a final list of 3 candidates by Jan. 1, 2009 that will be interviewed by the entire Executive Board from Jan. 1-Feb. 15 (6 weeks to interview 3 candidates again, by any means).

6. The entire Executive Committee select 1 candidate to be recommended to the Board of Reps. at the 2009 March NFLPA meeting.

As I recommend this process, I fully realize this is just 1 man. However, I was on that conference call and I am not the only Rep. who listened and felt that it is time for a change. As I make this suggestion, I will only hope that every one of us will put any personal agenda aside and remember who each of us represent. Both the old and young players in our locker rooms have voted us in because they trust our judgment. This is about the future of our organization. Not now … not 1 or 2 years from now, but 5, 10, 15 years from now. Thanks.

— Matt Stover

In response to Stover’s email, Upshaw told ESPN, “Matt Stover has no clue. Whoever is pulling his chain is doing a disservice to the union. I could understand the idea that they need to get rid of me if I wasn’t doing a good job but, shoot, the owners are mad because they think I’ve done too good of a job.”

It is promising to see these words from Stover.  Players should be encouraged to think independently about their labor situation.  Upshaw obviously thinks Stover is unable to think for himself and believes someone is “pulling his chain.”

Based upon a seven day account of CBA negotiations in 2006 by the SportsBusiness Journal, no active players were involved in the negotiation process between the union and the NFL management council.  Not even the NFLPA President attended the negotiation meetings.  Many union representatives, including members of the NFLPA Executive Committee and then-NFLPA President Troy Vincent, were attending the NFL Business Management and Entrepreneurial Programs held at the Stanford Graduate School of Business and the Kellogg School of Management while an agreement on the latest CBA was reached.

• Just days after NFLPA Executive Director Gene Upshaw told the SportsBusiness Journal there would not be a second in command at the NFLPA, Upshaw announced the promotion of Clark Gaines to Assistant Executive Director, the number two position within the NFLPA.  Gaines has been an employee of the NFLPA for 22 years.

• While vacationing with his family in Hawaii following the NFLPA annual meeting,  Upshaw stated in an e-mail to the SportsBusiness Journal, “There is only a No. 1 and there will not be a No. 2. Number 2 is always trying to become No.1 and never wants to wait. They can always do it better, they are like backup [quarterbacks]. There is a reason they are backups.”

An amendment made to the Bert Bell/Pete Rozelle NFL Player Retirement Plan, which was made effective April 1, 2007, reduces the monthly pension benefit of plan participants who elect the Qualified Joint and Survivor Annuity Option or the Life and Contingent Annuitant Pension Option.  The reduction can be as large as an 5% decrease of the monthly benefit.
A vested player may elect to receive his benefit in one of the following five forms as described in the official retirement plan document:

Life only pension – Equal monthly pension payments payable during the Player’s lifetime only.

Qualified joint and survivor annuity – A monthly annuity for the life of the Player with a monthly survivor annuity for the life of the Spouse equal to 50% of the amount of the monthly annuity payable during the life of the Player, which will be the Actuarial Equivalent of the life only pension form of the benefit.

Life only pension with Social Security adjustment – Monthly pension payments payable during the Player’s lifetime adjusted such that the sum of the pension payment plus the Player’s expected Social Security benefit beginning at age 62 is the same before and after age 62, and further adjusted such that the Player’s monthly pension from the Plan will not be less than $50.  This option may only be elected by a Player who has at least one Credited Season prior to the 1993 Plan Year.  This option is not available with respect to Benefit Credits for Credited Seasons prior to 1959.

Life and contingent annuitant pension – Equal monthly pension payments payable to the Player during his lifetime, and if the Player predeceases the person designated by him as his contingent annuitant, all or a fraction of his monthly pension, as designated in writing by the Player, will continue for the life of the contingent annuitant.  The contingent annuitant must be the Player’s Spouse, parent, child, brother, sister, or Dependent.

Life and 10-year certain pension – Equal monthly pension payments payable for the greater of 120 months or the Player’s lifetime, with any remaining guaranteed payments being continued after the Player’s death to his designated beneficiary or, if none, the Player’s estate.

The amendment effects players who have elected either the Qualified joint and survivor annuity or the Life and contingent annuitant pension with their spouse named as their beneficiary and began drawing a pension after April 1, 2007.  This group includes players who have yet to begin drawing a pension, including all active players.

The qualified joint and survivor annuity and the life and contingent annuitant pension are popular forms of payment for married players.  Under these two forms of payment, if the player dies before his spouse, the spouse will continue to receive a benefit for the remainder of the spouse’s life.  When choosing either of these two options, the benefit amount received during the player’s lifetime is reduced actuarially to account for the continued survivor benefit after the player’s death.

With the April 1, 2007, amendment, the NFL Retirement Plan implemented a “pop-up” provision.  What is a “pop-up” provision?  The pop-up provision affects those players who have elected a qualified joint and survivor annuity or a life and contingent annuitant pension, which is the majority of retirees married at the time of payout election.  If the player’s spouse dies before the player, the pop-up provision allows the retiree to go back and reclaim his “life only pension” benefit amount.

The pop-up provision seems like an improvement at first glance.  However, monthly benefits for players electing a qualified joint and survivor annuity or a life and contingent annuitant pension after April 1, 2007, have decreased.  If you began drawing your pension after April 1, 2007, or you have yet to draw your NFL pension, you can see how the pop-up provision has affected your benefit amount by comparing the pre-pop-up provision table with the new pop-up provision table.

By comparing the two tables it is clear that players who begin drawing their pension after April 1, 2007, receive lower monthly payments and are essentially subsidizing the pop-up provision for all retirees that began drawing their pension before that date.  While union officials have recently preached the virtue of waiting as long as possible to draw your NFL pension, it is those who have waited longest that are being penalized the most.  Furthermore, assuming the player predeceases his wife, she will continue to draw the lesser amount for her lifetime.

NFLPA Executive Director Gene Upshaw recently told ESPN.com, “We are not going to take a pension from guys that have one coming and give it to someone else.”

However, with this amendment, that is exactly what is being done.

How many players will ever utilize this pop-up benefit?  On average, women live approximately 5 years longer than men in the United States.  How many NFL wives will die before their husbands?  Statistically, not many spouses will predecease their husbands.  It seems the majority of players will never utilize the pop-up provision.  The reduction in benefits being paid out to most players seems to be a windfall to the NFL Retirement Plan and the owners funding it.

If you have any questions regarding any of your NFL benefits you should contact the NFLPA Benefits Department.  According to the NFLPA website, “The mission of the Benefits Department is to empower past, present and future NFL Players with the knowledge of their Benefits in order to make informed life stage decisions.”

NFLPA Director of Player Benefits Miki Yaras-Davis is the NFLPA representative who signed the pop-up provision amendment into effect.  All questions regarding the amendment and its’ effects should be directed to her.  She may be reached at (800) 372-2000.

• Chiefs’ offensive tackle Kyle Turley, who donated an entire NFL game check to aid the needs of retired NFL players, was a guest on The Morning After Show on March 27, 2008.  The show is broadcast on 1380 AM in St. Louis.  Host Tim McKernan remarked that Turley should be the Executive Director of the NFLPA.  Turley replied, “Anyone could do better than Gene Upshaw.”

Edit: In an earlier version of this post the reduction in benefits was incorrectly listed to be 6.3 percent.  The actual reduction in monthly benefits can be as large as 8 percent.

The National Football League and National Football League Players Association announced an “expanded disability benefits program” through a press release on February 29, 2008.  A copy of the release may be viewed by clicking HERE.

The changes to the disability plan were reviewed at a downtown Washington law office during a meeting of the NFL Alliance on Thursday, February 28, 2008.  Ten “former players” attended the meeting, according to the press release, including Troy Vincent, who currently serves active players as NFLPA President. Other attendees included Roger Goodell, Gene Upshaw, NFL Alumni President Frank Krauser, and Pro Football Hall of Fame President and Executive Director Steve Perry.

Through the press release, the NFL and union announced four agreements which they claim would “significantly expand eligibility for disability benefits and increase the amount of the benefit paid to certain recipients.”

Here are the four agreements listed in the press release along with analysis:

• Agreement #1: A doubling of the minimum benefit post-career, non-football “total and permanent” disability from $20,000 to $40,000 per year for retired players who become disabled unrelated to football. Players would otherwise receive the full amount of their pension, if greater.

Analysis: The first agreement is unclear.  It appears this agreement refers to the “inactive” benefit, which is the lowest paying total and permanent disability benefit.  Section 5.1(d) of the Bert Bell/Pete Rozelle NFL Player Retirement Plan currently lists this benefit to be no less than $1,500 per month, which equates to $18,000 per year.  The NFLPA White Paper, which was created in 2007 by the Groom Law Group, also lists the minimum benefit as $18,000, not $20,000 as listed in the press release.

This increase will double the benefit to former players collecting total and permanent disability benefits for “post-career, non-football” disabilities.  It only applies to players who become disabled outside of the game of football.  This change does nothing to address the needs of players who become disabled due to their NFL related injuries.

• Agreement #2: Players who took their NFL pension early, and are therefore ineligible to apply for and receive disability benefits, will be offered a new one-time opportunity to apply for total and permanent disability benefits. These players may establish their disability through either a medical examination or by a total and permanent disability determination from Social Security. The opportunity to apply for benefits will begin on April 1, 2008. Applications will be accepted through July 31, 2008.

Analysis: Many times players are forced to pay the medical bills related to their NFL injuries after their football careers have ended.  This financial burden is a cause for players to take an early pension.  In 2005, Carl Prine of The Pittsburgh Tribune-Review reported that former Raider great and NFL Hall of Famer Jim Otto spent more than $500,000 of his own money to treat his post-NFL health issues. Former Pro Bowl player Dave Pear reports that he has also spent over a half million dollars out of his own pocket treating his NFL related health issues.  This second agreement will give some former players an opportunity to apply for disability benefits within a four month window.  These players would not have had this opportunity under current NFL Retirement Plan rules.  It is critical that the NFL and the union spread the word about this brief four month window as quickly as possible to the players it may affect.

During a recent interview, NFLPA Executive Director Gene Upshaw gave incorrect information telling The Washington Post that such an agreement would be illegal.  “Once he took that pension, that was it: He can’t get a disability [benefit]. That’s not only the rule of the retirement plan — it’s the law,” Upshaw stated referring to former NFL player Dave Pear.  If Upshaw is not aware of what can be negotiated at the bargaining table it puts all players, active and retired, at a disadvantage during negotiations.

• Agreement #3: Players who have received a total and permanent disability determination from Social Security will not need to separately establish disability under the NFL plan. Players who were denied benefits under the NFL plan but have subsequently been found disabled by Social Security may have their NFL cases reconsidered. The other good news for retired NFL players is that NFL disability awards are not offset by the amount of any award paid by Social Security.

Analysis: This agreement was first announced in June of 2007 and, hopefully, it will be applied to NFL disability applicants in the near future.  The wording of the agreement number three is not as strong as the wording used by NFL and union representatives during the congressional hearings of 2007.  In June of 2007, NFLPA representative Doug Ell testified to the Subcommittee on Commercial and Administrative Law that the NFL and NFLPA “recently agreed to immediately grant T[otal]&P[ermanent] benefits to players already receiving social security disability benefits.”

The press release states that “players who were denied benefits under the NFL plan but have subsequently been found disabled by Social Security may have their NFL cases reconsidered.”  Reconsidered does not mean “to immediately grant”.  Is this third agreement consistent with the congressional testimony given?

Current NFL Plan rules allow up to 42 months of retroactive benefits.  Will the NFL plan pay up to 42 months of retroactive benefits to former players who have been approved for Social Security disability benefits in the past, but denied their NFL disability benefits?  Will players who qualify for Social Security disability benefits be awarded “football degenerative” benefits or will these players be awarded the lowest paying “inactive” benefit?

It can often take years to be approved for Social Security disability benefits.  Under the Employee Retirement Income Security Act of 1974, the NFL Plan must make determinations on disability applications and appeals in a far shorter time period than decisions are usually made on Social Security Disability applications.  How will the NFL Disability Plan address the difference in the length of time in which they are mandated to reach a decision on an NFL disability application versus the often longer period of time it can take to receive a decision on Social Security disability?

Les Carpenter of The Washington Post penned an article on June 21, 2007, which describes how the NFL Disability Plan spent more than $140,000 of plan assets to prevent the Social Security standard from being applied to NFL disability claims.

• Agreement #4: The time within which to apply for line of duty disability benefits has been lengthened from the current 48-month period to 48 months or the player’s actual number of credited seasons. For example, a 10-year veteran would have 10, rather than, as previously, four years, to apply for this benefit.

Analysis: The last of the four agreements should help some players who played longer than four seasons and choose to apply for “line of duty” disability benefits.  This agreement will not effect the majority of players since the average NFL career lasts about three and a half seasons, according to the NFLPA website.

The Retirement Board could use this expanded time frame to the detriment of disabled players.  The “line of duty” benefit is a partial disability benefit.  In the past, the NFL plan could only award the partial disability benefit if the application was filed within 48 months.  Now, depending on the length of an NFL player’s career, there is a potentially longer period of time in which the partial disability benefit could be awarded.  The minimum partial disability award for the “line of duty” benefit is $12,000 per year.

Prior to the announcement of these four agreements, the only disability benefit a former player under age 45 could receive after 48 months of ceasing to be an active player for injuries arising “out of League football activities” was the “degenerative” benefit.  This benefit pays $110,000 per year.  Instead of awarding the larger “degenerative” benefit to a player who applies for disability benefits after 48 months with football related injuries, the Retirement Board could now award a former player the lower paying “line of duty” disability benefit, which lasts a maximum ninety months.  This agreement gives the NFL Disability Plan more opportunities to award a partial disability benefit when the possibility exists that an award for the higher paying “degenerative” benefit would be more fitting.

It is hoped that these four changes will provide some aid to retired players.  There are many questions left to be answered before a true assessment can be made on these changes.  Currently, only 2% of retired players receive any type of NFL disability benefit, partial or permanent. This is a major area of concern.  There is speculation that these changes are being made to create the appearance that no legislative action is needed for the NFL Retirement Plan to operate in an equitable fashion.  The House Judiciary Committee has requested a Congressional Research Service report which is due to be completed soon.  Any legislative action to be taken will likely be based on the results of this report.

The four changes to the disability plan should be some source of inspiration for players who have voiced opinions of the current NFL Retirement Plan.  The changes indicate that players voicing their opinions can initiate change.  However, the problems will not be corrected merely with amendments to the Plan document.  The administration of the plan must be addressed as well.

Also:

• In his new book, Dr. Bennet Omalu, a forensic pathologist, states “about one in every 1,500 Americans between 60 and 69 suffers from dementia.  In contrast, approximately one in every 170 of the nearly 10,000 living retired players are registered with the NFL’s ’88 Plan,’ which contributes up to $88,000 per year to veterans suffering from dementia.”

RetiredPlayers.Org recently received the following message via email:

Gentlemen,

As you are aware, the NFL management council and NFLPA announced last June – just before the Congressional hearing that the Bell/Rozelle Plan agreed to adopt “Social Security disability standards” to help streamline disability applications.  Dennis Curran and Doug Ell then testified to that effect; and at the Senate hearing in September, Roger Goodell testified that these standards had been applied in applicable cases.

It’s just another scam.

They have not yet adopted or applied any Social Security standards, and heaven only knows if and when they might.

I have written numerous letters requesting information on this issue to everyone from the NFL’s media guy, to Curran, Ell and Sarah Gaunt.  No replies.

Today, one of the former NFL players I am advising – who is currently on Social Security disability – told me that Paul Scott told him yesterday that no Social Security standards have yet been adopted, and he doesn’t know what they are doing in that regard, nor when any such guidelines may be adopted.  He was told that perhaps there would be some news after the next full retirement board meeting in April. (Probably just to put him off.)  This former player’s claim is on hold in the meantime, and Scott told him that “…his desk was piling up with other cases (in the same situation)…”

These guys should be cited for contempt of Congress!

In any event, I wanted to pass this along for you to disseminate if and as you see fit.

Best regards,

John Hogan

Disability Law Attorney

The relevant testimony of NFL Commissioner Roger Goodell, NFL Senior Vice President Dennis Curran, and Bert Bell/Pete Rozelle NFL Player Retirement Plan Counsel Doug Ell regarding the application of the Social Security standard to NFL disability claims may be viewed by clicking on each of their names.

On January 14, 2008, the United States Court of Appeals for the Fourth Circuit awarded former NFL linebacker Wilber Marshall approximately $72,000 in disability benefits, plus attorney fees and court costs.  Marshall filed suit against the Bert Bell/Pete Rozelle NFL Player Retirement Plan after the NFL Retirement Board denied him benefits for eight months in 2001.  The Fourth Circuit found that when benefits were finally reinstated “the Board abused its discretion in selecting the onset date.”

Marshall first applied for disability benefits in 1997.  His initial application for benefits was denied.  Upon appeal, Marshall was awarded benefits retroactive to April 1, 1997.  In 2000, Marshall was examined by Medical Advisory Physician, Dr. Bernard Bach, who reported that Marshall did not meet the requirements for his existing disability benefits.  The NFL Retirement Board terminated Marshall’s benefits as of April 27, 2001.  Marshall’s appeal of the termination of benefits was denied by the Board on August 2, 2001.

On November 13, 2001, Marshall reapplied for disability benefits through the NFL.  He was examined by Dr. Walter Doren on December 7, 2001.  According to court documents, Dr. Doren reported “that Marshall was unable to work and that based on a review of Marshall’s medical records, his symptoms had remained consistent since his initial evaluation in 1997.”  The Retirement Board then referred Marshall to Medical Advisory Physician, Dr. Alfred Tria.  On February 21, 2002, Tria reported Marshall was totally and permanently disabled.  The Retirement Board eventually reinstated benefits retroactive to January 1, 2002.

Marshall disputed the effective date of the reinstatement of benefits.  Dr. Doren reported “his symptoms had remained consistent since his initial evaluation in 1997.”  The Retirement Board terminated Marshall’s disability benefits from May to December, 2001.  This dispute led to Marshall’s lawsuit and, ultimately, a victory in the Court of Appeals for the Fourth Circuit.

A copy of the opinion may be viewed by clicking HERE.

Articles of Interest:

• Five-time Pro Bowl player, Michael Irvin, and Miller Brewing Company announce donations to provide financial aid and social services to retired NFL players.

According to the National Football League Players Association’s latest tax filing with the Department of Labor, Executive Director Gene Upshaw was paid at least $6,664,577 for his union related activity for the time period from March 1, 2006, to February 28, 2007. The union’s tax filing shows that Upshaw received a Gross Salary Disbursement of $4,264,577, which includes a bonus of $3,600,000.  Upshaw also received a bonus of $2,400,000 from Players Inc, for a total of $6,664,577.

The USA Today NFL Salary Database shows only 83 of the 2,486 current NFL players the NFLPA reportedly represents had “total salaries” more than Upshaw’s $6,664,577 during the 2006 season.  A list of the total salaries of those 83 players as listed in the USA Today salary database can be viewed by clicking here. Upshaw’s union related compensation was greater than 96 percent of current NFL players total salaries for the 2006 season.  Information for the 2007 NFL season is not yet available.

Donald Fehr, Executive Director of the Major League Baseball Players Association, was paid $1,000,000 for the time period from January 1, 2006, to December 31, 2006, according to tax filings.  Billy Hunter, Executive Director of the National Basketball Players Association, was paid $2,318,259 for the period from July 1, 2006, to June 30, 2007.  Both Fehr and Hunter’s pay was greater than the salaries of roughly 50 percent of the players they represent in their respective unions.  About half of the players in Major League Baseball and the National Basketball Association made more than their union Executive Directors.  Major League Baseball and National Basketball Association salary information is available on the USA Today salary database.

RetiredPlayers.Org has spoken to several current NFL players, including former union represenatatives, who did not know Upshaw made at least $6,664,577 during the 2006 season.  If today’s players do not know what they are paying Upshaw, there is not enough transparency in his compensation package.  For instance, there is no way to determine the amount of Upshaw’s salary from Players Inc by looking at the NFLPA’s tax filings.  According to the union’s latest LM-2 filing, Upshaw’s Players Inc salary is some unknown portion of $14 million of deferred compensation.

NFL player salary and contract information is available to the general public through publications such as USA Today; shouldn’t the players who employ Upshaw be informed of the exact amount he is paid?

Please check out:

• An article from August 20, 2007, in which Yahoo Sports’ Mike Silver discusses the potentially deadly conditions of NFL training camps.

• Joe Henderson of The Tampa Tribune penned two articles regarding the use of drugs to cope with pain.  One article focuses on current NFL players using painkillers to play through injury and the other focuses on the methods retired NFL players use to cope with chronic pain.

• Retired player advocate Bruce Laird named Stan’s Man of the Year.