NFL Player Disability Fiasco, Don’t Get Hurt! Op-ed: by Bernie Parrish

If you current NFL players suffer a disabling injury this week or this season, chances are remote that you will ever collect a dime in disability from the Bert Bell/Pete Rozelle NFL Player Retirement Plan.Out of 7,561 who have played in the NFL since the 1960’s only 90 retired players receive football related disability benefits today. The supplemental disability Plan IRS form 5500 for 2005 reports that 106 participants draw disablity payments but some of them are for other than football injuries. It shocked me to find out these statistics.

It is absurd to think that only 1% of those who have played the violent sport in the NFL are disabled by it. In fact it is unbelievable. A 0.01% disability rate makes professional football, one of the safest occupations in the America. 8.7% is average and the Social Security Administration says that 3 of 10 working 20 year olds in the USA today will suffer long term disabilities before they are 67.

This is just another set of skewed facts and figures that defy logic compiled and influenced in the mendacious way the NFLPA-NFL and our Retirement Plan does business.It is safer to cover kick offs, tackle 250 lb running backs, block 300 lb defensive linemen, catch passes over the middle in the NFL than to work in McDonald’s warehouse. I have to repeat it. Professional football is according to the 0.01% disability rate one of the safest occupations in America.

I cannot understand how this Groom Law/Taglieabue/leased pet disability scam got implemented and can continue to be carried out right under the noses of the government.

Here is an example of a nit picking attack by a Plan attorney provided by Wall Street Journal writer Ellen Schultz, who on 12/3/05 also furnished the figures above. “A year later, (retired NFL player) Mr. Victor Washington learned about the case of another ex-player who'd also been told his disability wasn't football-related because it didn't stem from a single injury but several. That player, Donald Brumm, had sued, and in 1993 an appellate court declared the NFL's decision to deny benefits arbitrary and capricious. Said the Eighth Circuit Court in Minneapolis: "To require that a disability result from a single, identifiable football injury when the relevant plan language speaks of 'a football injury while an active player' is to place undue and inappropriate emphasis on the word 'a.' "

“Mr. Washington himself now sued, asking a court to set aside his settlement on the ground that the NFL had breached a fiduciary duty by not telling him of the Brumm decision five years earlier.”"The NFL (Groom Law Group) keeps changing the rules of the game while it's in play to keep former players from collecting benefits,” says Susan Martin, a lawyer at Martin & Bonnett in Phoenix, who is representing Victor Mr. Washington. "And it drags these cases out so long that people give up, or die."

The Groom Law Group/our Plan Retirement Board has filed an appeal of the Phoenix judge's decision in the Victor Washington case Susan Martin is handling.Mr. Washington faces another peril: The NFL plan has indicated in court documents that if the trustees determine Mr. Washington is not totally and permanently disabled as a result of football, it could demand that he repay the $400,000 with interest.

This situation became the strange mess that it is in 1993 when the Taglieabue and Gene Upshaw “made a bargain.” The Groom Law Group was hired to replace two law firms one that represented the owners and one that represented the players. Now Groom represents 1) the Bert Bell/Pete Rozelle NFL Player Retirement Plan, 2) the NFLPA, 3) the Owner Retirement Board Members, and 4) the Player Board Members, 5) and Groom rewrites and amends the Plan at will and collects $2,500,000 a year to beat up on injured players in court who file for disability for their football injuries. Those are five different legal entities whose interests are rarely if ever the same. Conflict of interest seems the order of the day for Groom.

In addition Groom sets up investment and insurance plans that compete with the Retirement Plan for funding that also generate fees for both Groom Law and player’s agents.Doug Ell is Groom Law Group’s lead NFLPA attorney. Groom’s web page says about Ell, “But it is his work with the National Football League Players Association that has garnered the most attention for him and the firm. “I helped to design and implement the 1993 collective bargaining agreement that is the foundation of the current success of pro football as a business, largely because it got management and the union working together,” Doug recalls. “I drafted the new plans, including the first 401(k) in sports, and branched out into disability benefits and annuities to help the players with their retirement.” His work with the NFL players is ongoing—and still immensely rewarding. “There is always something new, like the great new web site that we are designing for the players, and I continue to enjoy the intellectual challenges of litigation, ” he says, and adds with a smile: “It also helps that we have won more than twenty cases on motions for summary judgment without trial.” (the litigation he is talking about is the 20 cases against retired injured NFL players)

What a twisted sentence. Think about this. Doug recalls. “I drafted the new plans, including the first 401(k) in sports, and branched out into disability benefits and annuities to help the players with their retirement.” “BRANCHED OUT INTO DISABILITY BENEFITS…TO HELP PLAYERS WITH THEIR RETIREMENT.” Ell’s and Groom take great pride in defeating retired players in court when they seek their disability benefits. How does that “HELP PLAYERS WITH THEIR RETIREMENT? Twisted and cynical are too nice of words to describe this sleazy sentence.

In an on-going attempt to be able to deny players disability claims more easily, Groom Law Group’s Doug Ell intervened in a Supreme Court Case, Black and Decker vs Nord 02-469 to try to block the “treating physician rule” where a player’s doctor who is treating your injury, gives his determination on your disability and his report is given precedence, because your doctor knows your situation and disability state better than anyone.

The Social Security Administration allows this “treating physician rule” but Groom Law and Black and Decker argued to the Supreme Court that the doctors that their Plan Retirement Board picks should have the power to over-rule your treating doctors opinion. One of Grooms objections was that your treating physician was ethically bound by the American Medical Association to advocate your position as his patient.

Groom wants a physician the Retirement Board picks to determine your disability, a physician like the ones who have helped the Retirement Plan to deny all disability claims by retired players except for the 90 who receive disability payments for football injuries today. That is 90 out of 7,561 in 45 years, which again is only 1% of those who have played since the 60’s. This statistic shows that pro football, perhaps the most dangerous occupation in America, is instead the safest occupation. Absurd, ABSURD! Yes, it is that screwed up.

Approximately 50 players were injured this week and can’t play. Another approximately 50 will be injured next week and every week throughout the season. Many others are doubtful to play from injuries. Some will return to action in a week others in 2 or 4 weeks, etc others will be disabled and never play again. Tampa Bay quarterback Chris Simms had to have his spleen removed. Those who are disabled this week and every week from here out, will face the gauntlet of the Groom Law Group and Retirement Board Trustees and hand picked physicians whose record of denying disabled players is why only 1% of the 7,561 who have played are collecting disability today.

The NFLPA Gene Upshaw, Doug Allen, and your agents will tell you that the system is fair because you have three “Player Board Members” representing the player’s interests who the NFLPA picked. But that 0.01% is a clear demonstration of the non-existent results of claims that Tom Condon (Upshaw's agent), Jeff Van Note (Atlanta Falcon announcer), and Len Teeuws (deceased) displayed instead of the “aggressive advocacy” for disabled players as claimed by Plan attorney’s.

Today’s player should think about this fiasco before going out and getting hurt this week under the current skewed disability system where the Groom Law Group not only will be trying to defeat you in court but will be amending the Plan Documents at will in the back room, while your trial is going on, to make it nearly impossible for you to collect your disability even if you are hurt badly enough to need it.

Haven’t Gene Upshaw and Doug Allen or Troy Vincent or your Player Reps told you about this surprise you have coming when you become a “retired player” in 3.5 years, or less, if you get hurt? Why haven’t they told you? 90 guys in 45 years, 1% of 7,561 what are your odds of fair treatment under this Taglieabue/leashed pet/Groom Law disability system that they somehow
“bargained” into existence in 1993.

It was written into the CBA as if it was a new "perk" instead of a $1 billion liability shifted to the retirement Plan from the owners. And the retired players got nothing for it but we gifted the current players free agency in the "bargain."

On top of this plan attorney’s warned in an August 29, 2006 letter that “Had the results in those cases gone the other way – and they did not in over 90% of the cases, thanks in part to The Groom Law Group’s defense—the Plan assets would have been depleted, thereby affecting all beneficiaries of the Plan.” DEPLETED Joesph Yablonski attorney for the NFLPA said DEPLETED. Why are the assets of our Player Retirement Plan at risk of being depleted by anything except payment of retirement benefits to the retired players? They were not at risk before the 1993 Tagliabue/Upshaw/Groom Law "bargain."

Our Bert Bell/Pete Rozelle Plan says page 10 Plan Document Article 3.3 Exclusive Benefit of Contributions. "All contributions under this Plan will be held by the Trust for the exclusive benefit of Players and their beneficiaries." Article 11.1 Use of Assets. "All amounts contributed to the Trust will be irrevocable contributions, and under no circumstances will any amounts contributed to the Trust, or any assets of the Trust, ever revert to, or be used or enjoyed by, an Employer or the League, nor will any assets ever be used other than for the benefit of the Players and their beneficiaries and the payment of reasonable Plan expenses."

Player (employee) disability benefits should be paid by the NFL (employers) not by our retirement plan.

Most employers have disability Insurance against disability claims but because of that infamous 1993 deal, “the bargain” between Taglieabue and Gene Upshaw our retirement plan is now the owner’s insurance policy against disability claims.

Nothing about this disability scam makes any sense. It certainly isn’t a “perk” and the true amount of the liability we Retirement Plan beneficiaries face is uncertain. Will it deplete the Plan if it is operated fairly? Why do we retired players even have this liability to worry about?

Guys ask did Upshaw get a raise that year? I don’t have that answer, but clearly the retired vote less players were the big losers?