[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
NATIONAL FOOTBALL LEAGUE'S SYSTEM FOR COMPENSATING RETIRED
PLAYERS: AN UNEVEN PLAYING FIELD?
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HEARING
BEFORE THE
SUBCOMMITTEE ON
COMMERCIAL AND ADMINISTRATIVE LAW
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
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JUNE 26, 2007
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Serial No. 110-88
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Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
U.S. GOVERNMENT PRINTING OFFICE
36-344 PDF WASHINGTON DC: 2008
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
MAXINE WATERS, California DANIEL E. LUNGREN, California
MARTIN T. MEEHAN, Massachusetts CHRIS CANNON, Utah
WILLIAM D. DELAHUNT, Massachusetts RIC KELLER, Florida
ROBERT WEXLER, Florida DARRELL ISSA, California
LINDA T. SANCHEZ, California MIKE PENCE, Indiana
STEVE COHEN, Tennessee J. RANDY FORBES, Virginia
HANK JOHNSON, Georgia STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois TOM FEENEY, Florida
BRAD SHERMAN, California TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
Perry Apelbaum, Staff Director and Chief Counsel
Joseph Gibson, Minority Chief Counsel
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Subcommittee on Commercial and Administrative Law
LINDA T. SANCHEZ, California, Chairwoman
JOHN CONYERS, Jr., Michigan CHRIS CANNON, Utah
HANK JOHNSON, Georgia JIM JORDAN, Ohio
ZOE LOFGREN, California RIC KELLER, Florida
WILLIAM D. DELAHUNT, Massachusetts TOM FEENEY, Florida
MELVIN L. WATT, North Carolina TRENT FRANKS, Arizona
STEVE COHEN, Tennessee
Michone Johnson, Chief Counsel
Daniel Flores, Minority Counsel
C O N T E N T S
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JUNE 26, 2007
OPENING STATEMENT
Page
The Honorable Linda T. Sanchez, a Representative in Congress from
the State of California, and Chairwoman, Subcommittee on
Commercial and Administrative Law.............................. 1
The Honorable Tom Feeney, a Representative in Congress from the
State of Florida, and Member, Subcommittee on Commercial and
Administrative Law............................................. 2
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, Chairman, Committee on the
Judiciary, and Member, Subcommittee on Commercial and
Administrative Law............................................. 4
WITNESSES
Mr. Dennis Curran, National Football League, New York, NY
Oral Testimony................................................. 8
Prepared Statement............................................. 11
Mr. Douglas W. Ell, Plan Counsel to the Bert Bell/Pete Rozelle
NFL Players Retirement Plan, Washington, DC
Oral Testimony................................................. 16
Prepared Statement............................................. 18
Martha Jo Wagner, Esquire, Venable LLP, Washington, DC
Oral Testimony................................................. 38
Prepared Statement............................................. 40
Mr. Cyril V. (Cy) Smith, Zuckerman Spaeder LLP, Baltimore, MD
Oral Testimony................................................. 50
Prepared Statement............................................. 52
Mr. Brent Boyd, retired NFL player, Reno, NV
Oral Testimony................................................. 72
Prepared Statement............................................. 74
Mr. Mike Ditka, former NFL coach, Chicago, IL
Oral Testimony................................................. 90
Prepared Statement............................................. 91
Mr. Harry Carson, retired NFL player, Franklin Lakes, NJ
Oral Testimony................................................. 93
Prepared Statement............................................. 95
Mr. Curt Marsh, retired NFL player, Snohomish, WA
Oral Testimony................................................. 97
Prepared Statement............................................. 99
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared Statement of the Honorable Steve Cohen, a Representative
in Congress from the State of Tennessee........................ 5
Article written by Barry Gordon, M.D., Ph.D., submitted by the
Honorable Linda T. Sanchez..................................... 80
Submission list on file with the Committee on the Judiciary,
Subcommittee on Commercial and Administrative Law, from former
National Football League players............................... 122
APPENDIX
Material Submitted for the Hearing Record
Answers to Post-Hearing Questions from Dennis Curran, National
Football League................................................ 132
Answers to Post-Hearing Questions from Douglas W. Ell, Plan
Counsel to the Bert Bell/Pete Rozelle NFL Players Retirement
Plan........................................................... 135
Answers to Post-Hearing Questions from Martha Jo Wagner, Esquire,
Venable LLP.................................................... 137
Answers to Post-Hearing Questions from Cyril V. (Cy) Smith,
Zuckerman Spaeder LLP.......................................... 140
Answers to Post-Hearing Questions from Mike Ditka, former NFL
coach.......................................................... 141
Answers to Post-Hearing Questions from Harry Carson, retired NFL
player......................................................... 289
Answers to Post-Hearing Questions from Curt Marsh, retired NFL
player......................................................... 290
Answers to Post-Hearing Questions from Brent Boyd, Retired NFL
player......................................................... 291
Letter from Douglas W. Ell, Plan Counsel to the Bert Bell/Pete
Rozelle NFL Players Retirement Plan, to Linda T. Sanchez,
Chair, Subcommittee on Commercial and Administrative Law....... 309
NATIONAL FOOTBALL LEAGUE'S SYSTEM FOR COMPENSATING RETIRED PLAYERS: AN
UNEVEN PLAYING FIELD?
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TUESDAY, JUNE 26, 2007
House of Representatives,
Subcommittee on Commercial
and Administrative Law,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to call, at 1:07 p.m., in
Room 2141, Rayburn House Office Building, the Honorable Linda
T. Sanchez (Chairwoman of the Subcommittee) presiding.
Present: Representatives Sanchez, Conyers, Johnson,
Delahunt, Cohen, Cannon, Feeney and Franks.
Also Present: Representative Waters.
Staff Present: Eric Tamarkin, Counsel; Stewart Jeffries,
Minority Counsel.
Ms. Sanchez. This hearing of the Committee on the Judiciary
Subcommittee on Commercial and Administrative Law will now come
to order.
I will recognize myself for a short statement.
Due to the numerous press accounts concerning the National
Football League's treatment of its retired players and the
injuries many former players have suffered, we are holding
today's oversight hearing to provide Congress the opportunity
to consider the complex process that must be navigated in order
to obtain disability benefits.
Specifically, the hearing will explore whether the process
can be improved or streamlined. Additionally, we will explore
the various requirements of the Retirement Plan, including in
certain circumstances, arbitration-determined benefits.
This hearing is also part of the Subcommittee's larger
examination of the role and impact of arbitration as an
alternative dispute resolution process. In the 109th Congress,
Mr. Cannon chaired a Subcommittee hearing examining how sports
agents representing NFL players can be decertified under the
NFL's collective bargaining agreement and how a neutral
arbitrator ultimately presides over a sports agent's appeal;
and earlier this month we held a hearing on mandatory
arbitration agreements in consumer contracts.
After announcing this hearing and subsequent research, it
has become clear that the NFL disability and pension benefits
plans have sparked a significant amount of passionate critics.
The various stories relayed by the retirees demonstrate concern
not only with how the plan is structured but also about how it
is administered.
The NFL is considered to be the most brutal major American
professional sports league. Half of all players retire because
of injury, 60 percent of players suffer concussion, at least
one-fourth of players suffer multiple concussions, and nearly
two-thirds suffer an injury serious enough to sideline them for
at least half a football season.
To be sure, these retired football players not only choose
this career but they actually dedicate themselves to training
and competing for jobs in this elite sports league, knowing
full well about the game's violent nature. I have heard from
many former players who said they would still choose to play
football, even knowing of the physical toll that the game took
on them. However, only 284 former players out of nearly 10,000
currently receive long-term disability benefits. That
translates to less than 3 percent of retired players, a very
small number for any industry, much less one as physically
demanding as professional football.
The fundamental question then becomes whether this
disability process is fair for the retired employees of the
NFL. The evidence suggests that the vast majority of former
players needing benefits do not receive them. What is even more
troubling is that through projects such as the NFL films, the
NFL continues to profit off those very same players who are
denied benefits. Essentially, is the NFL, a multibillion dollar
organization, fairly treating the employees who helped build
it?
I was heartened to learn last week that the NFL and the
NFLPA have reportedly taken steps to make it easier for some
disabled players to collect disability benefits. As initially
reported, a retiree who has qualified for a Social Security
disability benefit would automatically qualify to receive an
NFL disability benefit as well. While I hope this eliminates
some red tape in the process, I am reserving judgment as to
whether retired players will actually benefit until I have had
an opportunity to carefully review this change.
To help us learn more about this issue, we have several
witnesses with us this afternoon. We are pleased to have Dennis
Curran, Senior Vice President and General Counsel for the NFL
Management Council; Douglas Ell, a principal at Groom Law Group
and today's representative for the NFL Players Association;
Martha Jo Wagner, a member of the Employee Benefits and
Executive Compensation Group, Venable LLP law firm; Cyril
Smith, partner at Zuckerman Spaeder and lawyer for the late
former NFL player Mike Webster; Mike Ditka, television
commentator and former NFL player and coach for the Chicago
Bears; Harry Carson, former NFL player for the New York Giants;
Curt Marsh, former NFL player for the Oakland Raiders; and
Brent Boyd, former NFL player for the Minnesota Vikings.
Accordingly, I look forward to hearing today's testimony;
and, at this time, I would now like to recognize my colleague
Mr. Feeney, for the minority opening comments. Mr. Feeney.
Mr. Feeney. Thank you, Madam Chairman; and I am grateful
for this opportunity.
I am sitting in for the Ranking Member, Mr. Cannon, who
would like me to read into the record Mr. Cannon's opening
statement.
Today marks the second time in 6 months that the
Subcommittee on Commercial and Administrative Law has met to
hear complaints by current or former NFL players about their
union representation, the NFL Players Association, or NFLPA. I
say that not to take sides but only to note the frequency with
which these concerns seem to arise.
Today's hearing is about the process former NFL players
must undergo to receive disability compensation under the NFL's
Bert Bell/Pete Rozelle Retirement Plan. Those former players
have a number of complaints including that the NFLPA only
represents the current players' interests, often at the expense
of former players. They argue the disability payments to former
employers are very low, particularly in a league that makes
billions of dollars annually. They also contend that the
disability application process is unnecessarily complicated and
that it encourages doctor shopping by the NFL and NFLPA.
For their part, the NFL and NFLPA contend many of the
procedural hoops and hurdles that the players are concerned
about are required by the Employee Retirement Income Security
Act of 1974, otherwise known as ERISA. Broadly speaking, ERISA
and the regulations promulgated by the Department of Labor
provide minimum due process requirements that employers are
required to develop in establishing their plans.
ERISA is a highly complicated area of the law and one over
which the House Judiciary does not have jurisdiction. I am
pleased, however, that we do have an expert on ERISA here today
to testify, Ms. Wagner. Ms. Wagner can speak to the NFL
compliance with existing ERISA laws and regulations and also
provide some context as to the other types of procedures,
including the use of arbitration, that are permissible under
ERISA, the use of disability plans, the use of arbitration that
gives rise to the Committee's jurisdiction.
It seems that these former players' complaints have already
begun to have some effect, as the NFL and NFLPA have recently
announced they have a plan to help streamline the disability
claims process. I look forward to hearing their testimony in
this regard.
I am also pleased that the league has started to take steps
to limit the kind of traumatic brain injuries that afflict
former players such as Mr. Mike Webster and Mr. Brent Boyd. How
the NFL and NFLPA choose to compensate past players for their
injuries, however, is a different matter and one that we will
hear a lot about today.
Finally, I want this hearing to obtain the facts in this
situation. It is understandable that this issue can engender
strong feelings on both sides of the argument, but it is not
helpful for either side to say, as Mr. Upshaw reportedly did
recently of a certain former player, that he was going to
quote, break his damn neck, end of quotes.
With any luck, all parties can learn something from this
hearing and move forward with a plan which is satisfactory to
all involved and will help take care of the needs of all former
players.
With that, I yield back the balance of my time.
Ms. Sanchez. I thank the gentleman for his statement.
I would now at this time like to recognize Mr. Conyers, the
Vice Chair of this Subcommittee and the Chairman of the
Committee on the Judiciary.
Chairman Conyers. My congratulations to you, Chairwoman
Sanchez, for holding this hearing in which we look at the
compensation system for retired football players and raise the
question, an uneven playing field?
Arbitration is supposed to give parties an alternative
means of settling differences with the help of an impartial
decision making at less burden and expenses than full-blown
litigation, but, to work effectively, the process has to fairly
protect everybody's rights. Last December, this Subcommittee
examined issues concerning whether the arbitration procedures
employed by the National Football League Players Association
meets this standard. Today, we examine how the League's system
compensates its retired players and further considers the
potential impact of arbitration not being readily available in
cases of disability claims.
Now, there are three disturbing concerns I would raise to
all of our distinguished witnesses. First, the NFL's treatment
of its retired players with respect to disability and pension
benefits is problematic. As many of us know, the average
football athlete is not a marquee player but plays in the
league for less than 4 years and often retires because of
injury. Upon retirement, he receives only $14,500 in pension
benefits, less than half the amount received by an average
retired Major League baseball player.
Of 10,000 retired NFL players, it is estimated that less
than 300 receive long-term disability payments. Several recent
well-publicized cases highlight the resulting problems.
For example, Pittsburgh Steelers center Mike Webster. The
court recently awarded his estate more than $1.1 million in
disability payments that the NFL's Retirement Plan
administrators claimed he was not entitled to receive.
Or take Brian DeMarco, former offensive lineman for the
Jacksonville Jaguars. According to the Denver Post, Mr.
DeMarco's back was broken in 17 places and he retired due to
severe health problems after the 1999 season. But he has never
been able to get NFL disability benefits. His disabilities were
so extensive that he can't hold a telephone to his ear. In the
last 4 years, Mr. DeMarco and his family have been homeless on
three occasions.
Then there is the problem of brain concussions suffered by
NFL players, which have justifiably received significant recent
attention just last week. Sporting News ran a cover story on
this distressing problem. According to a leading
neuropathologist, brain damage resulting from numerous
concussions suffered by Philadelphia Eagles safety Andre Waters
during his career led to his depression and suicide.
Former Chicago Bears linebacker Larry Morris suffers from
severe dementia, largely as a result of concussions suffered
while playing football. Mr. Morris is a former teammate of one
of our witnesses today, Mr. Ditka.
Finally, I am concerned about the extent to which these
issues are attributable to the administration of the NFL
Retirement Plan, and I am troubled by the fact that arbitration
is not readily available in cases of disability claims. The
process for resolving disputes concerning player benefits and
submission of disputes to a benefit arbitrator does not usually
apply to retirement or disability benefits. Rather, the plan's
Retirement Board hears appeals of its own decisions instead of
submitting appeals to an arbitrator, and this practice has
drawn significant criticism.
So this Subcommittee has recognized the importance of
arbitration as an alternative dispute mechanism and has
considered its use in other contexts as well, and the problem
we are considering today may present an opportunity for
expanded use of arbitration.
I welcome all of the witnesses, and I lift my hat in a
salute to those players who have given their blood and sweat
and tears to the National Football League, and I thank the
Chairwoman for her indulgence.
Ms. Sanchez. I thank the gentleman for his statement.
Without objection other Members' opening statements will be
included for the record.
[The prepared statement of Mr. Cohen follows:]
Prepared Statement of the Honorable Steve Cohen, a Representative in
Congress from the State of Tennessee
Football is almost as hallowed a national pastime as baseball. Much
of the sport's status and popularity is due to the athleticism and
talent of professional football players, and the growth of professional
football as a business can be attributed to their hard work. Sadly,
evidence suggests that many older retired players--like some of our
witnesses today--are not being adequately taken care of by the groups
that they helped to grow, like the National Football League and its
Players Association. Many of these retired players suffer from physical
injuries that they sustained during the course of their professional
football careers, yet the NFL's disability and retirement plans do no
sufficiently support these retired players' needs. I look forward to
hearing from our witnesses today to determine how we can improve the
compensation system for retired players.
Mr. Delahunt. Madam Chair?
Ms. Sanchez. Yes, Mr. Delahunt.
Mr. Delahunt. I don't want to make an opening statement,
but I note the presence of our colleague from California who
serves on the full Committee, as you are aware, but is not a
Member of the Subcommittee. I would ask for unanimous consent
that she be allowed to participate in the Subcommittee hearing
today and be given the privileges of a Subcommittee Member for
the purposes of this hearing.
I would also note for the record that I note her
distinguished spouse is here, and I am aware of the fact that
he was a former player himself in the NFL.
Ms. Sanchez. Without objection, so ordered.
Mr. Feeney. Madam Chairman, I object. As the Chairman has
been advised----
Ms. Sanchez. The gentleman will state his objection.
Mr. Feeney. The objection is that the rules of the full
Committee provide that only Members of the Subcommittee can
participate without unanimous consent. The position of the
minority has been so far this year and on behalf of the Ranking
Member of the full Committee, Mr. Smith, I am objecting today
to the participation. This is certainly not, as the gentlelady,
my friend from California, knows, anything personal. I know she
has a keen interest in this.
But the truth of the matter is that we had a practice from
the beginning of the year to objecting to the participation of
any Member. Setting a precedent that would allow one Member of
a Subcommittee to participate could lead to a situation where
10 other Members might also want to participate. That would not
serve the Committee well.
And, again, this is a rule adopted by the full Committee,
Republicans and Democrats; and we are simply asking that the
rules be followed today. House rule----
Chairman Conyers. Would my colleague yield to me?
Mr. Feeney. I would be happy to yield.
Chairman Conyers. Thank you, Mr. Feeney.
I just wanted to remind you that in most of the other
Subcommittees in Judiciary, this is a routine courtesy that we
extend to Members who have a deep concern and interest; and in
the case of the gentlelady from California, Maxine Waters, her
husband is a former professional football player. I mean, give
me a break.
Mr. Feeney. Well, Mr.----
Mr. Delahunt. Would the gentleman yield to me for a moment?
Mr. Feeney. Not until I respond to my friend, the Chairman
of the full Committee.
The truth of the matter is, as I stated earlier, I have
been asked by the Ranking Member of the full Committee to
enforce their objection of the rules today. I don't have any
authority to undermine his request of me, because I promised
him that I would do my job and uphold his understanding of the
Committee rules.
In addition, I understand that, while I am not a Member of
every Subcommittee, that the precedent may or may not be as you
described it. In fact, every opportunity that we have needed to
object to the participation of any Member--so this is not
directed at anybody today--every opportunity the minority has.
Again, at the request of the Ranking Member, we have
objectively asked that the rules be followed.
So, with that, I would ask that the Committee sustain my
objection.
I would be happy to yield to my friend from Massachusetts.
Mr. Delahunt. I can assure the Ranking Member that--he
alluded to the fact that maybe 10 other Members would show up
to participate; and if that would be the case, I would register
an objection myself. But I think for the reasons that I and the
Ranking Member articulated, that as a matter of common
courtesy, and given--I am sure presented with these facts to
the Ranking Member of the full Committee, one can assume that
he would extend that courtesy to Ms. Waters, and I would hope
that you would----
Mr. Feeney. Reclaiming my time to answer my good friend
from Massachusetts. I would hope that there would be a
possibility that if a specific Member in a unique situation
had, knowing full well the Ranking Member of the full
Committee, Mr. Smith, had objected repeatedly, that they would
go make that request. Because I have been asked to enforce the
Committee rules today. I don't have any authority--having
committed to do that--to do anything else.
As the gentleman from Massachusetts knows, we don't play 11
on 11 here. The minority has very few things that can protect
it, and the rules are about it. So we are in the routine of
enforcing the rules, this being one of them. And if the
gentlelady in the future would like to go speak to the Ranking
Member, I certainly would yield to the discretion of the
Ranking Member.
Ms. Sanchez. The Chair is prepared to rule. The Member
correctly states the House rule and the interpretation of the
House rule by the House parliamentarians. I am going to sustain
your objection. But I do, however, want to point out a few
things that I think are noteworthy.
Mr. Feeney. Before the Chairman goes, could I make one--
what I have asked is that if the gentlelady from California
would like to either propound questions in writing or make a
statement that I would not object to that request because I
know she does have a specific interest here. It is more the
process of the Committee in the 5 minutes and the time
constraints and the fact the minority can't be everywhere at
once. We have had to play zone defense. So if somebody would
make that motion, Madam Chairman, I would not object to that.
Ms. Sanchez. Do I have a motion from a Member of the
Committee? Okay.
Then I would ask unanimous consent that the gentlelady from
California, Ms. Waters, be allowed to participate in the form
of a written statement and questions to the witnesses, although
she will not be allowed to participate verbally in the
proceedings today.
Before we move on, though, I do want to note for the record
that I did receive prior consent from the Ranking Member of the
Subcommittee to allow Ms. Waters to participate in the hearing
today. She obviously has an interest in this issue, as her
husband is a former NFL player. And no pun intended, but I
think that the minority doesn't seem to be playing in a very
sportsmanlike manner today. But the objection is a proper
objection, and it is sustained.
We will allow, as I said, Ms. Waters--there was no
objection to the unanimous consent request that she be allowed
to participate in the form of written questions and written
statement.
Without objection, the Chair will be authorized to declare
a recess of the hearing; and I am now at this time pleased to
introduce the witnesses for the first panel of today's hearing.
The first witness on our panel is Dennis Curran, Senior
Vice President and General Counsel for the NFL Management
Council, the bargaining representative of the 32 members of the
NFL. Mr. Curran and his staff administer the various player
benefit plans, including the NFL severance plan, annuity plan,
retirement and disability plans and second career savings plan.
Prior to being appointed General Counsel, Mr. Curran--am I
pronouncing that correctly?
Mr. Curran. Yes, you are.
Ms. Sanchez. Thank you--served as Labor Relations Counsel
to NFL Management Council from 1980 to 1990, and he was Labor
Relations Counsel to National and then Pan American Airways.
We thank you for your presence today.
Our second witness is Douglas Ell, a principal at Groom Law
Group. Mr. Ell specializes in legislative tax fiduciary and
collective bargaining issues arising from the design and
management of employee benefit plans. Mr. Ell has also aided
the NFL Players Association in improving player benefits in
four collective bargaining agreements.
Our third witness is Martha Jo Wagner, a member of Venable
LLP's Employee Benefits and Executive Compensation Group. Ms.
Wagner focuses her practice on benefit and fiduciary claims
resolution and litigation, process review and redesign and
lawful plan compliance. Ms. Wagner currently serves as the
management co-Chair of the ABA section of Labor and Employment
Law Employee Benefits Committee.
We welcome you, Ms. Wagner.
Our final witness on our first panel is Cyril Smith. Mr.
Smith is a partner in Zuckerman Spaeder LLP, specializing in
complex civil, criminal cases and employment and labor
litigation. Mr. Smith has handled a variety of plaintiffs'
cases including the lawsuit of Mike Webster, former NFL player
for the Pittsburgh Steelers and the Kansas City Chiefs, against
the National Football League for disability payments.
I want to thank you all for your willingness to participate
in today's hearing. Without objection, your written statements
will be placed into the record in their entirety; and we would
ask that you limit your oral remarks to 5 minutes.
You will note that on the table there we have a lighting
system that starts with a green light. At 4 minutes, it turns
yellow. That is your warning that you have a minute. Then it
will turn red when the 5 minutes are up. If you should still be
testifying by the time the red light comes on, please finish
your last thought to wrap up your testimony so that all of the
witnesses will have a chance to testify.
And I want to remind our witnesses that, although we are
not requiring sworn testimony, the criminal penalties relating
to false statements before Congress do apply to your comments
today. So keep that in mind.
After each witness has presented his or her testimony,
Subcommittee Members will be permitted to ask questions subject
to the 5-minute limit.
So, with that, everybody understands the rules.
One more rule that I will impose is, when you begin your
testimony, make sure that you turn your microphones on so that
the proceedings can be recorded.
Mr. Curran, you are up first. Would you please proceed with
your testimony.
TESTIMONY OF DENNIS CURRAN,
NATIONAL FOOTBALL LEAGUE, NEW YORK, NY
Mr. Curran. Congresswoman Sanchez, Congressman Feeney and
Members of the Committee, I appreciate the invitation to be
here on behalf of the National Football League today.
My name is Dennis Curran, as was just mentioned. I have
been with the League for 27 years. As a Senior Vice President,
I have been in charge of negotiating player benefits for the
League with the Players Association, beginning in 1982 and then
in 1993, 1998, 2002 and 2006.
With me today is Valerie Cross, our Director of Player
Benefits, who has been with the League 25 years. She is also
very familiar with the administration of our plans, and I hope
between the two of us we will be able to answer any questions
you might have.
If you take a look at how this is set up, all these
retirement and disability benefits are sent through collective
bargaining. The Management Council of the League sits down with
the union, and in each of these years we negotiate these
benefits, and we have continuously improved them.
They are set by, again, the bargaining parties. The
trustees that administer the plans have no discretion to change
those rules. They couldn't say that age 55 is the wrong year;
let's make them wait until 60. They can't say that this
disability criterion is wrong; let's ignore it. The trustees
have to follow what collective bargaining gives them, and we
think they do that very well.
The NFL is proud of its comprehensive post-career benefits,
a lot of which you just mentioned, Madam Chairwoman, in your
opening statement. From leaving football when you receive
severance pay to age 55 when you receive your retirement, there
is a variety of post-career benefits now available to our
players.
If you look back at the collective bargaining history, what
comes through again and again is that this union and this
League continue to improve existing benefits and add benefits
to the post-career funds. As an example, if you look at the
Bert Bell Plan, which is the funding vehicle for retirement and
disability benefits, in 1982, when I started, there was $88
million in there. Now there is $1.1 billion done through club
contributions. We don't require player contributions to
retirement or disabilities. Why has it gotten so big? Because
we keep on taking on more and more.
Before, players that played before 1959 had no pension, and
there was no legal obligation to give them a pension. But this
union and this League brought them into the Retirement Plan and
have continuously improved their benefits over time.
You look to see how the players qualify in the first place.
Initially, you had to have 5 years in the League. This union
and this League brought down the qualifications to 3 years. So
those players who have 3- and 4-year careers are now covered
for pension and for disability benefits.
We have continuously raised the amount of the retirement
credits, most recently by 25 percent, for those people in the
League before 1982 and by 10 percent thereafter. And although
not in the Bert Bell Plan, it bears mention that we have
established a dementia plan called the 88 Plan which gives
benefits for medical conditions dealing with dementia both at
home and in institutions.
Now all of the funding for these things, all the funding
that goes into this plan comes from the NFL clubs. We put in
$126 million for pensions and disabilities last year; and, over
the next 6 years, we are going to put $700 million more into
this plan in order to fund those benefits that we promised to
give.
That $826 million is committed dollars. That is what it is
going to take to fund these benefits over time, and we are
happy to do that.
And it should be pointed out that, once the money is in the
fund, it cannot revert to the League. The monies in these funds
must go for the benefit of the participants. The money we put
in again under no circumstances comes back to us. There is no
motivation for us not to give benefits or retirement because it
never returns to us.
Nor is this fund static. Last year alone, $55 million in
pension was given out and about $20 million in disabilities.
And if you look at the level of the disabilities
themselves, they have been continuously improved. The active
football has gone from $100,000 to $224,000; active nonfootball
from $90,000 to $134,000; and football degenerative from
$75,000 to $110,000.
Again, we fund all these benefits willingly, and we are
happy to do it, and we think that that is a very generous
overall system for our former players.
To talk briefly about the red tape that has been discussed,
the alleged red tape in the application process, again, it is
run by six trustees which are fiduciaries of the plan. None of
them are current players. Three appointed by the NFL, three
appointed by the Players Association. Their job is to see the
money is spent, but it is spent correctly on players who are
either eligible for retirement or eligible for disabilities.
The fiduciary duty that they exercise is a personal one.
They have to determine a series of classifications to see if
disabilities are appropriate. They have to look a lot of times
at the medical to see whether a person is able to play or
whether he gets the requisite level of percentage disability.
They have to look at why that occurred; was it football related
or not? They have to look to see what time the benefit is
appropriate. All those things they do with a fiduciary
responsibility.
I think you will hear today from everyone here that the
time limits that are observed are well within ERISA, well
within Federal laws. Now, from time to time, some cases do
require more time. What happens is that the medical evidence
isn't clear. Perhaps the causation isn't clear. And sometimes
experts have to come in or more than one doctor.
So if you don't qualify at the initial level, we appeal to
the Retirement Board. You will have another doctor by Federal
law. So now we have two doctors, and if it is still vague or
confusing or not clear, then we have what is a tiebreaker, a
medical advisory physician who will be binding on the trustees
as to the medical condition.
Unfortunately, when it gets----
Ms. Sanchez. Mr. Curran, your time has expired. It goes
quite quickly. But if you could finish that last thought.
Mr. Curran. Can we improve? Yes. We are trying to look at
ways of speeding up the process. We have adopted the Social
Security T and P standards, and we are looking to form an
alliance with many other funds, the Players Assistance Trust,
the Dire Need Fund, and NFL Charities to get money to those
players who don't qualify for total and permanent disabilities
but have financial needs, either medical or nonmedical.
Ms. Sanchez. Thank you, Mr. Curran.
[The prepared statement of Mr. Curran follows:]
Prepared Statement of Dennis Curran
Ms. Sanchez. Mr. Ell, your time begins now.
TESTIMONY OF DOUGLAS W. ELL, PLAN COUNSEL TO THE BERT BELL/PETE
ROZELLE NFL PLAYERS RETIREMENT PLAN, WASHINGTON, DC
Mr. Ell. Good afternoon. My name is Douglas Ell. I am with
the Groom Law Group, and I have the privilege of serving as
Plan Counsel to the Bert Bell/Pete Rozelle NFL Player
Retirement Plan. I am here today on behalf of the NFL Players
Association. We appreciate the opportunity to appear and
provide testimony.
I am also pleased to have here with me today Michele Yaras-
Davis, head of the Benefits Department of the NFLPA, who has
helped players get benefits for many years.
I also wish to acknowledge the presence here today of David
Duerson. Mr. Duerson serves as one of the six voting members of
our Retirement Board. Mr. Duerson played 11 seasons in the NFL;
four of those years he was all pro. He has two Super Bowl
rings. Mr. Duerson is a successful businessman and has a
Masters from the Harvard Business School.
Madam Chairwoman and Members of this Committee:
Unfortunately, much of what has been said or written about the
benefits available to NFL players is either wrong or
misleading. I have described the benefits in some detail in my
written statement, which also contains a variety of data. I
hope we will answer many of your questions.
In my brief time here now I would like to just go over some
brief points.
First, benefits from NFL players come from collective
bargaining. Together, the Players Association and the NFL
decide on the formula for benefits and the eligibility
requirements and benefit levels for disability benefits. The
collective bargaining agreement allocates a percentage of
revenues for players' salaries and benefits, and all of the
player benefits come out of that piece of the pie.
But the parties do not run the plans themselves. Claims are
decided by the fiduciaries of the benefit plans. In other
words, when someone says that the NFL refused to pay disability
benefits or that the Players Association rejected a disability
claim, you know immediately that statement is not accurate.
Perhaps that person does not know that the plans exist.
Let me just offer a few comments on retirement benefits.
Players receive a monthly pension based on the years that
they play, not on how much they earn. If they are paid for
three or more games in a season, they earn a credited season;
and if they have three or more credited seasons, they are
vested and entitled to a pension. I understand there are 2,387
retirees currently who get an average of $1,536 a month, or
$18,440 a year.
Since 1993, the Players Association has fought for and
achieved benefit improvements in bargaining. In 1993, the
Retirement Plan was expanded to include the League's founding
members, the Pre-59ers, over 700 strong, who were not
previously in the plan.
Pensions were increased in 1993, 1998, 2002, and 2006. In
each case, the older players got the largest increase. These
increases are unprecedented.
In 2002, when the pensions of the older players were
doubled, the head of the Pension Rights Center noted that
``nobody has reached back and given a pension raise to retired
workers of anything approaching this magnitude.''
It is true that a number of former players receive small
pensions; and when you look at the individual cases, I think
you will find that it is often because of the voluntary choices
they made. Many started at age 45, many elected to take the
lion's share of their pension prior to age 62, and some have
had all or a portion of their benefits assigned to their ex-
spouse in divorce.
Please let me turn now to disability benefits. We believe
these are the most generous disability benefits in professional
sports, perhaps in the entire business world. Vested players
can get total and permanent disability benefits if they are
unable to work for any reason at any time, even decades after
their career ends. Benefits can be as large as $224,000 a year
for life.
I will let Ms. Wagner describe ERISA's rules for processing
and claims.
We have 317 players on disability. I would like to
emphasize that Mr. Duerson and his fellow fiduciaries are
required by Federal law to follow the terms of the plan. They
get to interpret the rules. They don't get to make them up.
I am amazed by some of the things written about our
disability benefits. The collective bargaining process is an
ongoing process, and the parties are looking for ways to
improve benefits in the system. Our new 88 Plan for players
with dementia is one example. Of over 45 decided cases so far,
more than 90 percent of the players have received the benefit.
Allowing Social Security determinations as a separate,
alternate way to get total and permanent disability benefits is
a second improvement.
I would like to conclude with three points.
First, all injured players are strongly advised to file
claims for workers compensation. The Players Association has a
panel of lawyers to help them.
Ms. Sanchez. The time of the gentleman has expired. If you
could just wrap up the final thought.
Mr. Ell. My final thought is that there are many players
and beneficiaries who are grateful for what has been done here;
and in that regard I would like to note the presence today of
Stan White, Brig Owens, Doc Walker, Jean Fugett, Andre Collins
and Ray Schoenke.
Thank you. I will be pleased to answer questions.
Ms. Sanchez. Thank you.
[The prepared statement of Mr. Ell follows:]
Prepared Statement of Douglas W. Ell
Ms. Sanchez. Ms. Wagner, you are up.
TESTIMONY OF MARTHA JO WAGNER, ESQUIRE,
VENABLE LLP, WASHINGTON, DC
Ms. Wagner. Thank you.
Good afternoon, Madam Chairwoman, Members of the
Subcommittee. Thank you for inviting me to testify today.
As noted, my name is Martha Jo Wagner and I am a partner in
the Employee Benefits and Executive Compensation Group of
Venable LLP in Washington, DC. I have practiced law in the area
of employee benefits for 25 years. Throughout that period, I
have advised plan administrators about their responsibilities
under the laws and regulations that apply to benefit claims
review and have litigated benefit claims cases nationwide.
I was asked to testify today regarding whether the
disability claims procedures described in the Bert Bell/Pete
Rozelle NFL Player Retirement Plan and the NFL Player
Supplemental Disability Plan were required by the Employee
Retirement Income Security Act of 1974, as amended. My written
testimony addresses the review procedures in both the
retirement and supplemental disability plans, but my oral
testimony today will address only the disability claims
procedures described in the current Retirement Plan documents.
Neither my oral nor written testimony addresses how the
disability claims procedures have been implemented.
My oral testimony will cover two areas: first, the claims
procedure required by ERISA and the claims procedure regulation
promulgated by the Department of Labor; and, second, several of
the significant claims review procedures in the Retirement
Plan.
ERISA sets out very broad parameters for reviewing and
granting or denying claims for benefits. ERISA requires a
benefit plan to provide adequate written notice to every
claimant whose claim for benefits has been denied. ERISA also
requires that every claimant whose benefit claim has been
denied be provided a reasonable opportunity for a full and fair
review of the denial by the appropriate fiduciary named in the
plan. Finally, ERISA requires benefits be granted or denied
only in accordance with the terms of the plan and other
governing plan documents.
Effective January 1, 2002, for plans such as those at issue
here, the Department of Labor issued a significantly revised
claims procedure regulation setting forth minimum requirements
for claims review, including at least two levels of mandatory
review. The regulation includes detailed time frames for
decision making, detailed requirements for the contents of
adverse benefit determinations and other detailed procedural
requirements. In addition, ERISA permits plans to supplement
the claims procedure required by the regulation and, for
practical reasons, plans generally do so.
I will now briefly highlight five of the significant
provisions of the Retirement Plan relating to disability claims
review.
First is arbitration of certain deadlocked disputes. The
Retirement Plan includes a two-step review process involving
initial review of a disability claim by a Disability Committee
and review on appeal by the Retirement Board. If the two voting
members of the Disability Committee are deadlocked, the claim
is deemed to be denied. In contrast, if the six voting members
of the Retirement Board deadlock, three members of the
Retirement Board can affirmatively vote to submit the matter to
binding arbitration.
These arbitration positions are not specifically required
by ERISA or the regulation. However, I believe the Labor
Management Relations Act of 1947, commonly referred to as the
Taft-Hartley Act, requires arbitration of trustee deadlocks
concerning administration of a benefit fund.
Second is retroactive limits on claims. Under the
Retirement Plan, disability benefits will not be paid for
certain periods that precede receipt of a written application
for benefits unless the player is physically or mentally
incapacitated in a manner that substantially interferes with
the filing of the claim. Such limits are not specifically
required or precluded by ERISA or the regulation.
Third is required medical examinations. A player may be
required to submit to periodic medical examinations by a
medical dispute arbitrator or a competent physician selected by
a reviewing entity. These provisions are not required by ERISA
or the regulation but are commonly included in disability
plans.
Fourth is a claims review process. The Retirement Plan
includes detailed timetables for review of claims, detailed
requirements for the content of adverse benefit determinations
and other procedural requirements. These provisions conform to
the minimum requirements of the regulation with two exceptions
which are discussed in my written testimony.
Fifth is the application of the standard of review.
Reviewing courts either apply the de novo standard of review or
the abuse of discretion standard of review, depending in part
upon the language of the plan and other governing plan
documents. Based on the grants of discretionary authority to
both reviewing entities under the plans, I would expect their
determinations to be reviewed under the abuse of discretion
standard of review. Neither ERISA nor the regulation require or
preclude such grants of discretionary authority.
In summary, the initial claims review process and the
review process on appeal described in the Retirement Plan is
for the most part specifically required by the ERISA claims
procedure regulation. The provisions requiring arbitration of
certain deadlocked disputes, retroactive limits on claims,
required medical examinations, and grants of discretion in the
Retirement Plan are not specifically required or precluded by
ERISA or the regulation. However, arbitration of certain
deadlocked disputes in the Retirement Plan may be required by
the Taft-Hartley Act, and other plan provisions may be
necessary for practical reasons.
I thank the Subcommittee for its time and attention, and
will be happy to take questions when appropriate.
Ms. Sanchez. Thank you for your testimony, Ms. Wagner.
[The prepared statement of Ms. Wagner follows:]
Prepared Statement of Martha Jo Wagner
Ms. Sanchez. I would like to welcome Mr. Smith to begin his
testimony at this time.
TESTIMONY OF CYRIL V. (CY) SMITH,
ZUCKERMAN SPAEDER LLP, BALTIMORE, MD
Mr. Smith. Madam Chairwoman, Ranking Member Cannon, Members
of the Subcommittee, thanks for the opportunity to testify
today.
As you know, I am Cy Smith; and I am an attorney in private
practice in Baltimore at the firm of Zuckerman Spaeder. I have
represented a number of individuals and pension plans in
disputes over pension benefits under ERISA, but for the last 3
years I have had the honor of representing the family of Mike
Webster, his estate, in finally obtaining full disability
benefits from the NFL's pension plan.
I note that Mike--who is no longer with us--that Mike's
son, Garrett, is with us today.
As many of you probably know, Mike played center for the
Steelers. He was on their Super Bowl teams. He was named to the
NFL's all-time team, and he was both a great player and person.
It was very clear the violent world of NFL football had
given him repeated concussions and disabling brain injuries.
Unfortunately, it took him 7 years from the time that his first
application was filed with the pension plan to a final court
ruling which awarded him full benefits. Four years of that were
just to get a final decision from the plan, even before he got
to Federal court, to the point that he died in 2002 before he
actually got a final decision from the plan.
In his case, there was unanimous medical evidence about
whether he was totally and permanently disabled, why that
happened and when it happened. A psychologist, a psychiatrist,
a neurologist who were appointed by the pension plan all found
that he had multiple head injuries.
But, despite this overwhelming evidence, the pension plan
refused to pay him full benefits. They refused to credit what
his treating physician said. They relied on observations by
Mike's oncologist, his cancer doctor, about whether he had a
brain injury. They tried to discredit their own doctor, who is
a board-certified neurologist.
The bottom line in my experience was that at every turn the
plan delayed and erected barriers to prompt and fair
consideration of his claim. He had no choice but to go to
Federal court in Baltimore in 2004.
Over the next 3 years, four different Federal judges agreed
that the plan was not just wrong but had abused its discretion.
One judge said that, given the overwhelming evidence, the
plan's decision indicates culpable conduct, if not bad faith.
Mr. Ell said that statements that he had heard about the plan
were wrong or misleading. I will let the judicial record speak
for itself.
Another judge said it would require a leap of faith to rule
for the plan.
In the end, Mike Webster won, although he died before he
could actually enjoy that victory. But, along the way, the plan
spent hundreds of thousands of dollars for attorneys fees, both
their attorneys fees and Mike Webster's. That is money that
could have gone to player benefits but was used to try and
defend against Mike's meritorious claims.
It would be terrific if I could say to all of you today
that the NFL's pension plan learned a lesson from this review,
that it is on the way to reform. Sadly, that is not the case.
The day after the Fourth Circuit Court of Appeals ruled in
favor of Mike and his estate, Gene Upshaw, who picks one-half
of the members on the Retirement Board--the other half are
picked by the NFL--said that he would do exactly the same thing
the next day. It is unfortunate that Mr. Upshaw can't be here
today to explain his remarks.
Since the courts ruled in Mike Upshaw's case, I have
reviewed dozens of other claims. All too often, I see the same
pattern of obstruction by the plan in the case, in many cases
much worse than other disability benefit schemes that I have
reviewed: lengthy delays, doctor shopping, a system whereby one
objection can deny benefits for an individual, a refusal to
consider the testimony of treating physicians or a clear
majority of the medical evidence.
Ms. Wagner in her remarks properly noted that she wouldn't
address implementation of the plan, but that is one of the big
problems that we have here. In many ways, Mike Upshaw's case
was a warning sign, a warning bell and a loud one, that the
disability plan here is broken, badly broken and that it
urgently needs repair, as the former players who will testify
today will tell you.
How can the plan be fixed? There are some basic changes
that are needed for starters.
One would be a short deadline for the plan to decide
claims, not 4 years but maybe 45 days. Many other disability
plans are able to do that. They should give deference to what
treating physicians tell them, and they should increase the use
of neutral arbitrators to decide issues.
With respect to changes that have been recently discussed
in the way the plan works, the Social Security standard, the
devil is always in the details. Of course we don't know what
those details are. But let me tell you one thing. It is
absolutely clear that if you had the Social Security standard
in effect, it wouldn't have changed the result in Mike
Webster's case because it is a question of how the plan is
implemented.
What is really needed is something that can't be
accomplished through either litigation or legislation, and that
is to have new leadership on the Retirement Board that is
genuinely committed to giving players a fair shake here.
Whatever it costs, it costs. The NFL can afford to honor the
commitments that are in the plan document already without
having to change them.
Let me just sum up by saying that I am here on a panel with
other lawyers. Some of my best friends are lawyers. Many of you
are lawyers, and I like practicing law. And there are going to
be more lawsuits, there is going to be more litigation, but
nothing will change the fundamental problem here until the
league and the union decide that they want to come through on
the commitments that are already there in the plan document,
spelled out in the plan document. I hope that this Committee's
hearings are an important first step in that effort, and I
would be happy to answer any questions. Thank you
Ms. Sanchez. Thank you, Mr. Smith.
[The prepared statement of Mr. Smith follows:]
Prepared Statement of Cy Smith
Ms. Sanchez. The Chair is going to declare a brief 5-minute
recess, which will be 5 minutes, so don't wander off, so we can
impanel our second panel of witnesses. So we will be in recess
for 5 minutes.
[Recess.]
Ms. Sanchez. I would please ask the media to clear the well
so we can begin.
Mr. Cohen. Madam Chair?
Ms. Sanchez. Yes.
Mr. Cohen. I would like to request that Congressman Waters
be allowed to be on the taxi squad.
Ms. Sanchez. Pardon me? The Chair is unfamiliar with the
term ``taxi squad.'' could you enlighten her?
Mr. Cohen. Well, that is for folks who can't officially be
on the team, but they kind of hang around the team, and if
there is an injury, they get to come in sometimes.
Ms. Sanchez. I believe that that issue will be allowed
shortly, if you will indulge the Chair.
Mr. Cohen. Thank you, Madam Chair.
Ms. Sanchez. It is now my pleasure to introduce our second
panel of distinguished witnesses. We have with us this
morning--this afternoon rather, Brent Boyd, who will be our
first witness. Mr. Boyd was drafted by the Minnesota Vikings in
1980 and remained with the team until 1986. Mr. Boyd has sought
disability payments from the NFLPA for injuries suffered during
his football career, and has become an advocate for fellow
players with problems resulting from head trauma.
Mr. Ditka was inducted into the Pro Football Hall of Fame
in 1988. He is a former NFL player and coach. He is the only
person in the 75-year history of the Chicago Bears to have won
Super Bowl championships as both a player and a head coach. He
is currently a commentator on ESPN's NFL Live and CBS Radio
Westwood--pardon me, CBS Radio Westwood One's Monday Night
Football Pregame Show. I want to welcome you.
We also have with us today Harry Carson, former NFL player
for the New York Giants. During his 13-year stint with the New
York Giants, one of the longest tenures in club history, Mr.
Carson won the NFL Super Bowl championship in 1986 against the
Denver Broncos. He is currently a member of the New York Giants
preseason broadcasting team, and is a regular season broadcast
analyst and cohost of Giants Game Plan.
Lastly we have with us Curt Marsh. In 1981, Mr. Marsh was a
first-round draft pick of the Oakland Raiders, and with that
team won the Super Bowl in 1983. Mr. Marsh's career was cut
short in 1987 due to a severe ankle injury, which eventually
led to the amputation of his right foot and ankle in 1994.
Following his NFL career, Mr. Marsh worked for the city of
Everett in Washington, retiring from that service as
superintendent of recreation. He is currently a motivational
speaker and writer.
I want to thank all the witnesses on our second panel for
their willingness to be with us this afternoon and testify
today.
Mr. Boyd, would you please proceed with your testimony at
this time?
TESTIMONY OF BRENT BOYD, RETIRED NFL PLAYER,
RENO, NV
Mr. Boyd. I can try to work this. Madam Chairwoman, Ranking
Member, and Members of the Committee, hopefully before my clock
starts, I would like to take a moment for explanation. I do
have brain damage, and when under stress the damaged part of my
brain receives less instead of more blood. And this qualifies
as being under stress, testifying before Congress. But as the
doctors say, the harder I try, the harder it gets. So I beg for
your patience and understanding. I have a lot to tell you. It
shouldn't be much more than 5 minutes. So am I on the clock?
Ms. Sanchez. We understand. We will begin your time now,
and if you need a little extra time, be assured that you will
receive it.
Mr. Boyd. Thank you.
Well, now that they put the lipstick on the pig, I want to
tell you what the reality is for the NFL disabled players.
First of all, thank you for inviting me, and thank you for
having the courage to take on the rich and powerful NFL. It is
my hope that these are the first of many hearings, with the end
result being a punishment of the corruption of Gene Upshaw, Tom
Condon, and Groom Law, and drastic changes ordered upon the
National Football League.
My name is Brent Boyd, and I played for the Vikings from
1980 to 1986. I am on Social Security disability for football-
related concussions. I am here today with my wife Gina, a
mechanic for the U.S. Postal Service, and my 18-year-old son
Anders couldn't make it. He is a firefighter in training, and
is fighting wildfires this summer for the BLM. And I think he
is up at that big Tahoe fire right now, so I am more scared
about that than anything else. My son, however, has been the
biggest victim of this crime.
Tom Condon and Doug Ell have purposely, maliciously caused
great harm to us, using their tactics of delay, deny, and hope
that I put a bullet through my head to end their problem. My
written statement gives great detail about the travesty of this
fraud and corruption, so I hope you read it, and I recommend to
those listening to read my written statements.
I was always an overachiever, straight A student in La
Habra, California, graduated with honors from UCLA. I was
drafted in the third round by the Vikings. These
accomplishments took a great deal of hard work and dedication,
and full mental capacity, qualities that would be washed away
by NFL concussions.
The NFL is hoping I go away and die, delaying and delaying
benefits, while all the reports were in my favor. Meanwhile, I
want to point out to everyone it was a group of Major League
Baseball players who came together to keep a roof over my son
and I when my son was in elementary school and then kept us
alive. Baseball agent Barry Axelrod gathered a group of
baseball greats, including Mark Grace, Rick Sutcliffe, Jeff
Bagwell, as well as former Bruins Bill Walton of the NBA and
his brother Bruce. And I was kept spiritually alive by North
Coast Presbyterian Church of Encinitas, California.
There are too many details to fit in this 5 minutes, but it
took in 1999 for doctors to link my symptoms to concussions.
Brain scans have located the exact location of that brain
damage. The NFL is trying to distance themselves from liability
for all the carnage left behind by our NFL concussions, just as
tobacco companies fought like hell to deny links between smoke
and cancer. I filed my claim, and I was told by the NFLPA not
to bother filing, and here is the quote, because the owners
will never open that can of worms by granting a claim for
concussions. Shortly after that statement, my Vikings medical
files disappeared. I believe Groom Law had destroyed any
contemporary--that word----
Ms. Sanchez. Contemporaneous.
Mr. Boyd [continuing]. Contemporaneous evidence to clear
the path for their manipulation of this process. Just for time
I am going to leave out--I hope you ask me details of the first
two NFL doctors they sent me to, because they both
enthusiastically approved my claim. So I will cross that out
because of the time. But they sent me to their own neurologist;
totally approved my claimed, checked the boxes, yes, that my
concussions were NFL-caused. And the second psychiatrist was
equally enthusiastic. And I understand their own neurologist
voluntarily called me back for a second day of testing because
he suspected I had vertigo as a result of my concussions, and
on his own he brought me back a second day and confirmed that I
do have vertigo.
Condon and the NFL were told that, but that meant
absolutely nothing to the Disability Board. They only seek
reasons to deny a claim, not to approve a claim. They did agree
on I am totally and permanently disabled, but despite the
overwhelming evidence before them to the contrary, they only
gave me the lowest nonfootball-related disability.
After an 8-month lull, which I was reliant on charity, they
insisted I see Barry Gordon of Johns Hopkins and only Barry
Gordon of Johns Hopkins. They wanted this expert in autism to
act as a concussion expert and give me a very complex
neuropsychological exam. But Gordon didn't give me this exam I
was flown coast to coast for. Instead, this is important, this
was a test that was going to decide the fate of me and my son.
It was given to me by a young linguistic student named Laura
Atalla, who told me she had never seen this neuropsychological
test until the day before, took it home and practiced it on her
boyfriend. This is a test that should be given by a Ph.D. and
neuropsychologist. Her tests were paired with Barry Gordon's
written opinion, ridiculous as it is, that concussions could
not cause headaches, concussions could not cause depression,
dizziness, or fatigue.
Now my case, which at this point had stretched out for
years, while all doctors' opinions were in my favor, was denied
within days. After the ninth circuit, I found a medical journal
from 1990 with an article by our same Barry Gordon of Johns
Hopkins. This time he wasn't paid by the NFL. This was an
independent medical research. His research says that my same
symptoms, right there in the first paragraph, are the most
common symptoms of concussions. And he makes it easier for you
by creating table 1, a chart, and all my symptoms that he wrote
for the NFL weren't possible to be caused by concussions, when
he is writing for a review by his medical peers are now
suddenly the most common symptoms of concussion. If that is not
proof of fraud and corruption, then we need to remove the words
``fraud'' and ``corruption'' from our vocabulary.
I hope to answer questions and thank you.
Ms. Sanchez. Thank you, Mr. Boyd.
[The prepared statement of Mr. Boyd follows:]
Prepared Statement of Brent Boyd
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 onto
the NFL leadership. It's high time to expose the corruption of the NFL
Disability Board, especially with Groom Law Firm'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's an issue, then they have to fix it,''
Montana said. ``As long as they never admit that there's 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.''
End quote
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 nine 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 nine 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 seven
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 eight 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 1990's, 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 97, 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 1980's and 1990's
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 80's, 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 '90's 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,
one 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 $1500/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 eight 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 PhD, . . . 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% 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 VanNote, 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
VanNote. And it was all masterfully orchestrated by Doug Ell of Groom
Law Firm, 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 emails. 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
Grooms Law Firm's secret intervention in Supreme Court ``Nord v Black
and 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.''
End quote
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 emailed several attachments to my testimony and ask that
they all be officially included in the record.
Thank You,
Ms. Sanchez. And I am going to ask unanimous consent that
the article that was written by Dr. Gordon be included in the
record as well.
[The information referred to follows:]
Article written by Barry Gordon, M.D., Ph.D., submitted by the
Honorable Linda T. Sanchez
Ms. Sanchez. At this time I would like to recognize Mr.
Ditka for his testimony. You may begin.
TESTIMONY OF MIKE DITKA, FORMER NFL COACH,
CHICAGO, IL
Mr. Ditka. Thank you, Chairwoman Sanchez and Ranking Member
of the Subcommittee.
Listen, I am Mike Ditka. I am here on behalf of one thing:
the retired players that need help, in dire need. Mike Ditka
Hall of Fame Assistance Trust is one part of it; the Gridiron
Greats is another part of it. There is other parts of it. All
we did was put together a couple groups to try to help people
who need help.
It came to my attention that we had a lot of Hall of Famers
who were in dire need, including John Mackey, which they
finally implemented the '88 plan, and, before he passed away,
Ernie Stautner. And I can go on and on with people, Joe Perry,
Doug Atkins, Pete Hollis, all basically dementia.
I am not a newcomer to the game, as some would like to say.
I started in this game 47 years ago as a player, an assistant
coach under Coach Landry, a head coach, and then now I guess I
am an expert because I am an analyst for TV. So I am not a new
player in the game. And that was brought up by somebody else. I
have been around for a long time. I have seen the changes. I
saw the beginning. I understood why the organization called the
Players Association was put in place in the first place. My
roommate, Mike Powell, was one of the first presidents of that
union. And we know why it was put in place. So when we talk
about that, we understand that.
All we are here for is to see that the system gets fixed.
The system does not work. Now, you can talk about all the terms
you want to. There is a difference between perception and
reality. What is perceived to be means absolutely nothing
unless it is real. The reality of the situation is if you make
people fill out enough forms, if you discourage them enough, if
you make them jump through hoops, eventually they will say,
gees, I don't need this. I can't do all this. This is
ridiculous. And they are going to walk away from some of these
situations.
And this basically is a lot of what has happened to these
people. They are frustrated. These are proud people. They
played in this game. They played this game heroically. And they
have as much right to say that they are a part of this game as
anybody playing in the game today, anybody who played in the
1980's, anybody who played in the 1970's.
You can go back through history. The people in the game
today are not the makers of the game. They are only the keepers
of the game. The game was made a long time ago, and it will be
made after these people are gone. And hopefully these players
today understand that the treatment former players are getting
could come to them, regardless of what they may think.
So, you know, the disability system to me is broken. Fix
it. Do the right thing. That is our model. Just do the right
thing.
Why did this all start? I don't know why it all started.
Why are we in front of Congress? I think we are in front of
Congress because we feel something is wrong, and it can be
fixed. And there is a lot of people involved in this. Every
party understands what the problem is. Now we got to find a
solution.
We got the NFL. We heard all the kind words that were said
about the NFL Management Council. Whether they are right or
wrong, I don't know. We know about the owners. The owners have
made a lot of money recently. We know about the Players
Association. That has been documented. There has been a lot of
money put in there. What we don't know about is why do retired
players who have disability needs are not being taken care of?
Why can't this be taken care of?
That is all we are asking. I don't care whose fault it is.
We are not pointing the finger at one or the other. There is
money, there is resources there. Take care of the people who
need it, and that is all we are asking.
In closing, you know, I don't know that you can find fault
with what we want to do. I mean, there is those who point the
finger. There are those who attacked us individually. They will
talk attack Brian DeMarco. This is not what it is all about.
You know, God forbid any of these people who are doing the
attacking would get in the position where they would need this
kind of help, and we would hope that somebody would have some
compassion and understanding.
Now, I hear all this stuff about all the laws. Hey, gang,
you know, laws are laws, and we understand that, but it is time
for some solutions. It is time for some action.
I appreciate your time. I hope some of what I said made
sense. But this is not about Mike Ditka. Football owes me
nothing. Nothing. I owe my whole life to football, and I want
you to understand that. I am not asking on my behalf. I am
asking on behalf of people who really need help. Thank you.
Ms. Sanchez. Thank you, Mr. Ditka, for your testimony.
[The prepared statement of Mr. Ditka follows:]
Prepared Statement of Mike Ditka
Mr. Chairman and esteemed members of the Committee, I am Mike
Ditka, and I thank you for the opportunity to appear before this
committee today.
Professional Football is an American institution and I am here to
represent the players who built the NFL, which is now a billion dollar
industry. Many of these former NFL players have late onset football
related injuries and many exhibit a pattern of symptoms consistent with
repeated serious brain injury over time, primarily pugilistic dementia
and short term memory loss, along with other related traumatic medical
injuries. They are currently suffering in silence with inadequate
levels of help from the institutions that were put in place to help
them. These players are not being appropriately protected or materially
assisted by the NFL player's union.
I find it incomprehensible that the common man and the common fan
knows that these former NFL players are being treated like dogs in a
callous and uncaring manner while the NFL Player's Union endlessly
debates the issue and does nothing material to help these guys. I feel
that this is a real problem that has not gotten the attention or the
resource allocation it deserves.
As a result of seeing multiple examples of this grave injustice
firsthand, the The Mike Ditka Hall Of Fame Assistance Trust Fund was
created in 2004 to help former NFL Hall of Famers and players,
especially those with acute financial, medical, and other needs. The
remainder of our funds are dedicated to disabled children at
Misericordia.
The Mike Ditka Hall Of Fame Assistance Trust Fund and the Gridiron
Greats Assistance Trust Funds share the same goals and have the same
serious concerns for the well being of former NFL players, many of whom
suffer from a wide range of football related ailments that we believe
are directly or indirectly responsible for their current conditions.
Furthermore, we believe that the institutions (NFL Player's Union) that
have been put in place to help them have fallen short in the past
despite the fact that they have more than adequate resources to help.
We feel they can do more than they currently do to help.
Many former NFL players with the most acute current needs played in
the early days of league, where documentation of medical problems was
less diligent than today.
Recognizing that former players are hurt should not be seen as an
attempt to point fingers or blame anyone in particular. Our goal is to
be part of the solution rather than accept the status quo, which is the
problem. It is our goal and our mission to create public awareness
which helps us raise the funds that can then be directly allocated to
help these guys who need assistance. Our mission is to stand up for the
guys who are no longer able to stand up for themselves in order to act
in a timely manner on their behalf. Endless debate, running in circles,
studies and meetings have accomplished little to help while former
players suffer.
Constructive goals are frustrated by a closed Player's Union
bureaucracy that seems out of touch with the real day to day needs of
the oldest of former NFL players upon whose blood, sweat and pain the
league has built a billion dollar industry.
The Mike Ditka Hall Of Fame Assistance Trust Fund and the Gridiron
Greats Assistance Trust Fund are working for the same goal and believe
that the NFL Player's Union's prior lack of attention on this matter
represents a substantial step backwards and abdicates the NFL's
leadership in representation, communication and concern for the well
being of its current and former players.
The following summarizes our concerns with the issue at hand. We
believe members of the Subcommittee should examine the following points
closely in order to gain a better understanding of this issue and take
the appropriate steps to rectify this unacceptable state of affairs.
1. Why and where did this all start and why are we in front of
Congress?
2. The numbers of former players in need is documented and
identified--there are under 300--with the collective resources
of the parties involved why can't we solve this problem?
3. There are the resources and numbers--the problem has been
identified and the problem can be rectified if the powers that
be want to solve it--it can be done.
Please help us relieve burdensome circumstances.
In addition, to ensure that former players in need get the support
and are provided with the resources they need, the Mike Ditka Hall Of
Fame Assistance Trust Fund recommends that the U.S. House of
Representatives:
1. Investigate the circumstances of former NFL players with
specific focus on why they are experiencing such serious
problems being turned down for disability/medical care when
they need it.
2. Investigate delayed onset dementia, short term memory loss
and the causality, correlation and relationship to repeated
prior head injuries like those commonly experienced in
football.
3. Investigate why this problem hasn't been solved in light of
the tremendous financial resources of the NFL owners and
Player's Union.
4. Investigate why there is a 12 year statute of limitations
on player disability claims.
5. Investigate who made the determination that 12 years should
be the limitation on claims for disabilities.
6. Investigate why so many former players are being turned
down when they apply for help.
It all boils down to the difference between what is right and what
is wrong. These are our people and we are asking for your support for a
group of proud, dignified men who suffer greatly as a result of their
injuries, many of which are directly or indirectly related to their
careers in professional football.
We thank Congressmen Conyers and Smith and all members of the
Committee, particularly Congresswoman Sanchez of California, for their
leadership on these issues and look forward to working with members of
the Subcommittee and the Full Committee to resolve the important,
outstanding issues of health of former NFL players.
In summary, The Mike Ditka Hall Of Fame Assistance Trust Fund
supports proactively addressing this issue. However, we have serious
concerns with the NFL Player's Union's lack of action on behalf of
injured former players who need help. It seems to me that we need a new
approach.
Our objective is not find fault and lay blame. It is to have an
open an honest discussion with all concerned parties and to create a
solution that helps these guys today. In our view, the challenge is for
all parties to recognize the situation and take appropriate actions to
help the guys in need. Certainly between the resources all of us bring
to bear we can find a solution that works for these guys.
I am proud to be part of this dialogue and my foundation and I want
to continue to engage in productive dialogue with all parties
interested in being part of the solution.
All that matters is seeing these guys get the help they need. The
current structure has does not meet the needs of these guys and time is
of the essence--now is the time to act, before it is too late.
Football does not need Mike Ditka. Mike Ditka needs football, and
it has propelled me into places I never thought I would go in my life.
With that, ladies and gentlemen of Congress, I submit to you that I'm
not here for myself, which I have just expressed. Please take it upon
yourself to help these people in need.
It's up to you.
I thank the Subcommittee again for its interest in this important
issue. We look forward to working with Congress and the members of this
committee on this issue.
Thank you very much.
Ms. Sanchez. Mr. Carson, you are now recognized for your
testimony.
TESTIMONY OF HARRY CARSON, RETIRED NFL PLAYER, FRANKLIN LAKES,
NJ
Mr. Carson. Thank you, Madam Chairwoman. In the interests
of time, you have my statement, I am going to abbreviate it so
that I can fall within the 5-minute time frame. On August 5th,
2006, I joined the ranks of the greatest football players to
ever play the game with my induction into the Pro Football Hall
of Fame. While it was a very proud moment for my family and my
friends, I viewed it as a culmination of a journey that began
many years ago as a youth growing up in Florence, South
Carolina. My football career was great. I enjoyed the
experience. I enjoyed the relationships that I built.
Since the end of my professional football career almost 19
years ago, I tried to live the best life that I could,
accepting the aches and pains that come along with what I did
as an athlete. Occasionally I have to deal with back pain
brought on by degenerative disks in my neck and lower back that
press against my spinal column that causes me pain in my lower
back and legs. But the one area that causes me the greatest
concern is living with postconcussion syndrome, a condition I
was diagnosed with 2 years after leaving football.
Aside from the physical wear and tear on my body, I
sustained many concussions during my career that I was able to
play through. I was very good at what I did as a player. Others
might say I was the best inside linebacker and goal line
linebacker to play the game, but there is a price that you pay
for being the best. Part of the toughness of being able to play
the game is to be physical with opposing linemen and running
backs at the point of attack on the football field. A player
risks his body and limbs to make the big tackle or to make the
big play to win the game, not always understanding the
cumulative effects on his body afterwards.
I knew something was wrong with me while I played, but I
was so in tune with my physical body, I just couldn't put my
finger on what the problem was. I, like many other players at
that time, ignorantly laughed when we saw someone get hit so
hard that they didn't know where they were on the field during
the game. I was one of those players who played hard and clean,
but tried to make opposing running backs know that they were in
for a long, hard day when they faced the New York Giants
defense.
While making big hits I was never knocked out, but I can
remember seeing stars or losing my vision, with everything
fading to black sometimes after hard hits given or received.
In playing the game, I would at time times reflect on my
high school physical science knowledge of Newton's third law of
physics, which simply states for every action there is an equal
and opposite reaction. Those hard hits that I was giving as a
player on the field were hits that equally affected me.
When I think of Mike Webster, I think that the demise of
Mike Webster was due largely in part to linebackers like me
just playing the game. In the 1970's and 1980's, when I played,
when much attention was focused on the more visible sustained
injuries, like knees and ankles, few focused on dings or the
concussions players sustain now.
There are many studies taking place to determine whether
concussions in football can lead to dementia or Alzheimer's in
older former players. When you look back on the equipment that
was used, especially the helmets worn, some might wonder if the
inferior products could have contributed to concussions that
might lead to future balance or neurological disorders in
players.
It is my opinion that it is the pure nature of the game of
football that causes traumatic brain injury. Concussions or
dings have always been a part of the game and probably will
always be a part of the game. When you have the speed of
massive bodies colliding, and with the surface of the brain
hitting the inner shell of the skull, causing a bruising on the
brain, an athlete is going to be affected in some way that
might not easily be detected.
I played the game at a very high level and was proud that I
was able to leave on my own accord. In making my transition to
life outside of playing, I became more aware of various
neurological events that created problems for me. Areas of
concern were depression, occasional headaches, blurred vision,
and short-term memory loss, difficulty concentrating and
staying focused, sensitivity to bright lights and loud noises,
among many other issues. These problems were highlighted
because I chose sports broadcasting as a vocation after my days
of playing football.
I sought the help of my physician when I realized I was
having some problems in my personal and professional life. I
underwent 2 days of extensive testing and was diagnosed with a
mild postconcussion syndrome. The condition affected my ability
to perform my job effectively, with the inability to perform or
process information quickly, and was partly the cause of the
dissolution of my first marriage. Since my diagnosis in 1990, I
have learned much about the condition. I have spoken with
various groups around the country on traumatic brain injury in
sports and have begun to write my memoirs on the subject as it
relates to my life.
I just want to say as I was inducted into the Pro Football
Hall of Fame, I chose to use the occasion to highlight the
plight of retired players. Attention needed to be brought to
bear on pension and disability issues that many retirees felt
were being ignored by the NFL and the Players Association. I
considered myself to be very fortunate to have had the
opportunity to be part of a fraternity of men who are made of
the best stuff and were able to exhibit their talents at the
highest level to play on the professional level. I also
consider it an honor to speak today for many who do not have a
voice here. I look forward to answering any questions that you
might have.
Ms. Sanchez. Thank you for your testimony, Mr. Carson.
[The prepared statement of Mr. Carson follows:]
Prepared Statement of Harry Carson
On August 5th, 2006 I joined the ranks of the greatest football
players to ever play the game with my induction into the Pro Football
Hall of Fame. While it was a very proud moment for my family and
friends, I viewed it as the culmination of a journey that began many
years ago as a youth growing up in Florence, South Carolina.
Before my induction I reflected back on my days playing sandlot
football with my friends and then trying out for the high school team
as a 9th grader. On that first day of practice I realized early that I
did not have what it took to do so much running, agility drills and
especially take part in live contact drills. Before the conclusion of
the practice session I turned in my helmet and pads to the equipment
manager. The combination of the very hot and humid August day, wearing
the many pounds of equipment and the screaming of coaches barking out
orders was a complete shock to my system. Up to that point I thought
football was easy and anybody could play. I was wrong and I discovered
that I was not quite tough enough to play.
For a year (9th grade) I lived with the humiliation of being a
quitter in the eyes of some but more importantly I had to live with the
bitter taste of quitting in my own gut. I came back the next year
determined to rid myself of that taste of giving up. The next time I
stepped on the football field I was better prepared for what I knew I
was going to face and I knew I was going to have to push myself
mentally and physically to stick and stay if I was going to make the
team. As much as I did want to quit again I forced myself to do
whatever it was going to take to survive practice. Making it through
that first day of practice and then the next day and the next taught me
that playing football was not a game for everyone. To play football you
have a special toughness but you also have to be committed and
dedicated to the team and the game. I made the team and went on to
finish my high school years and then my college years at South Carolina
State University.
Before my induction on August 6th I reminisced about being drafted
to play for the New York Giants. Being chosen to play professional
football was probably the dream of every player who plays the game. It
was no different for me but I knew the likelihood of making it was not
great. These men that I was going to be competing against were seasoned
veterans and I was a kid out of Carolina being asked to play a position
I had never played before. I took on the challenge knowing that if I
didn't make it as a Giant I had a backup plan. I graduated with my
college class and was qualified and prepared to teach in South Carolina
and move on with my life.
I relied on those early lessons of commitment, giving my all and
the will to be the best to make the transition to professional
football. From the beginning I knew it was very temporary, I had no
idea how long I would play but I learned very quickly that a career
could be over in the blink of an eye. The speed, quickness and power of
the players were things that I rarely saw in high school or college. To
compete on that level you really had to be good!
As a young naive player with the Giants, it hit me early in
training camp that the football that I was now playing was not just a
sport but was very much a business. I had never been a part of teams
that cut players; the training on teams I played on was so rough that
players usually cut themselves by quitting. As a rookie I saw that if a
player was injured or could not perform on the field he was waived or
cut. To play on this level you had to be able to practice and you had
to be able to play to your maximum on Sunday afternoons. Players would
talk about it but I grew to understand that the team was a machine and
all of the players were bit parts of that machine that made it function
effectively. If a part was broken it was easily replaced with another
to keep the machine running.
With the enormous amount of physical contact most people saw on
television coupled with the amount of contact in practice drills it
would be hard for most players to remain unaffected by muscle strains
and sprains, pulls, tears, etc. Many of the players I played with had
some type of knee, ankle, hip, back, shoulder, elbow or neck injury
they had to contend with to play football. Most were able to recuperate
sufficiently enough to get back on the playing field to compete while
others ended their football careers with an injury that prohibited them
from playing. I watched many quality players clean out their lockers
because an injury cut their playing careers short.
As a linebacker I had more than my share of injuries. Elbows,
fingers, ankles, back, nerve damage in my right shoulder resulting in
the atrophy of my posterior deltoid muscle and four knee operations are
a part of my football resume. I firmly believe that every player who
plays professional football walks away from the game with some ache or
some pain. Some are able to live relatively normal pain free lives
while others have to live their lives with an understanding that they
may never know what feeling ``normal'' is all about.
Since the end of my professional football career almost 19 years
ago I've tried to live the best life I could accepting the aches and
pains that come along with what I did as an athlete. Occasionally I
have to deal with back pain brought on by degenerative disks in my neck
and lower back that press against my spinal column that causes me pain
in my lower back and legs. But the one area that causes me the greatest
concerns is living with Post Concussion Syndrome, a condition I was
diagnosed with two years after leaving professional football. Aside
from the physical wear and tear on my body, I sustained many
concussions during my career that I was able to play through. I was
very good at what I did as a player. Others might say I was the best
inside linebacker and goal line linebacker to play the game, but there
is a price that you pay for being the best. Part of the toughness of
being able to play the game is to be physical with opposing lineman and
running backs at the point of attack on the football field. A player
risks his body and limbs to make the big tackle or to make the big play
to win the game not always understanding the cumulative effects on the
body afterwards. I knew something was wrong with me while I played but
because I was so in tune with my physical body I just couldn't put my
finger on what the problem was.
I, like many other players at that time ignorantly laughed when we
saw someone get hit so hard that they didn't know where they were on
the field during the game. I was one of those players who played hard
and clean but tried to make opposing running backs know that they were
in for a long hard day when they faced the NY Giants defense. While in
making big hits I was never knocked out but I can remember seeing stars
or losing my vision with everything fading to black sometimes after
hard hits given or received. In playing the game I would at times
reflect on my high school physical science knowledge of Newton's Third
Law of Physic which simply states ``For every action there is an equal
and opposite reaction''. Those hard hits that I was giving as a player
on the field were hits that equally affected me.
In the 1970s and 80s when I played much attention was focused on
the more visible injuries sustained by athletes but very few focused on
the ``dings' or the concussions players sustained until now. There are
many studies taking place to determine whether concussions in football
can lead to dementia or Alzheimer's in older former players. When you
look back on the equipment that was used especially the helmets worn
some might wonder if the inferior products could have contributed to
concussions that might lead to future bouts of neurological disorders
in players. It is my opinion that it is the pure nature of the game of
football that causes traumatic brain injuries. Concussion or ``dings''
have always been a part of football and will probably always be a part
of the game. When you have the speed of massive bodies colliding and
with the surface of the brain hitting the inner shell of the skull
causing a bruising on the brain an athlete is going to be affected in
some ways that might not be easy to detect.
I played the game at a very high level and was proud that I was
able to leave on my own accord. In making my transition to life outside
of playing I became more aware of various neurological events that
created problem for me. Areas of concern were depression, occasional
headaches, blurred vision, and short term memory loss, difficulty
concentrating and staying focused, sensitivity to bright light and loud
noises, among many other issues. These problems were highlighted
because I chose sports broadcasting as a vocation after my days of
playing football. I sought help from my physician when I realized I was
having some problems in my personal and professional life. I underwent
2 days of extensive testing and was diagnosed with a mild post
concussion syndrome. The condition affected my ability to perform my
job effectively (inability to process information quickly) and was a
partial cause of the dissolution of my first marriage. Since my
diagnosis in 1990 I have learned much about the condition, have spoken
with various groups around the country on traumatic brain injuries in
sports and have begun to write my memoirs on the subject as it relates
to my life.
Over the years since I played I have come to understand that there
are many former players who have had similar problems adjusting to life
after ending their careers from the NFL with many of the same symptoms
I've experienced and have concluded that many of my fellow retirees are
effected with Post Concussion Syndrome. I consider myself fortunate to
at least know what my condition is because I was examined by an expert
in that field. I feel for those who might be affected by the lingering
long term effects of concussions they sustained as players but have no
clue because they were never examined. As I see the many older retirees
of the NFL who are now battling dementia and other mental and
neurological disorders I unfortunately see what may eventually become
my future. I feel that I must speak very openly and candidly about this
condition from a player's perspective. In all probability the NFL and
the NFL Players Association will dispute my testimony and will attempt
to present evidence to the contrary to shoot down any correlation
between those neurological conditions and a player's career in the
National Football League.
As I was inducted into the Pro Football Hall of Fame I chose to use
the occasion to highlight the plight of the retired NFL players.
Attention needed to be brought to bear on pension and disability issues
that many retirees felt were being ignored by the NFL and the Players
Association. I considered myself to be fortunate to have had a very
unique opportunity to be a part of a fraternity of men who are made of
the best stuff and were able to exhibit their talents at the highest
level to play on the professional level. I also consider it an honor to
speak today for many who do not have a voice here.
I look forward to answering any questions your might have.
Ms. Sanchez. Mr. Marsh, you are recognized for your
testimony.
TESTIMONY OF CURT MARSH, RETIRED NFL PLAYER, SNOHOMISH, WA
Mr. Marsh. Thank you, Chairwoman Sanchez and Members of the
Committee. My name is Curt Marsh. I am 47 years old. I live in
Snohomish, Washington. I was selected in the first round of the
1981 NFL draft by the Oakland Raiders and played offensive
guard for 7 years.
I have had a total of 31 surgeries due to injuries suffered
in my career. They include four low back, one neck, two open
reductions, two hip replacements, seven arthroscopies, and 14
ankle surgeries, including an amputation, to list a few.
In the NFL, most injuries were just played through in the
old days, and on the Raiders, because our doctor, who was in
his eighties, was old school, when you got hurt, you simply got
a shot of cortisone and Novocaine in the injured area and
played. However, there was no warning of the damage cortisone
injections did to your joints later in life, and in 1994 I
found out that the injections had caused me to need both hips
replaced due to joint disease.
The injury that ended my career, however, occurred at the
beginning of my seventh season. It was an ankle injury
misdiagnosed by our team doctor as a sprain. And I finally saw
a second doctor outside the team who found I had been playing
on the ankle broken, and this injury ended my playing days for
good. I had 11 more surgeries over the next 6 years before I
finally had no choice but to amputate.
NFL physicians are not like regular doctors, who are
committed to making a person well. An NFL doctor's only job is
to make a player well enough to play, and the further you go
back in NFL history, the worse it was. In 1996, I found out
about the new disabled player benefit for degenerative
disabilities. I applied, was told I needed to see a doctor of
their choice at my own expense, to be reimbursed if I
qualified. The physician would make a recommendation to a board
who meets once every 6 months.
First doctor was in Everett, close to my hometown. He said
that I was the worst case he had seen and recommended approval
to the board. The board voted, a result 3-3 tie. I was seen by
Dr. Smith in Seattle, the next one they referred me to, who
said I was the worst he had seen. Again the vote was 3 to 3.
Then I was referred and told I would have to see a third doctor
in Los Angeles, who would be the final word. No more votes. At
my own expense I went to see Dr. James DeBone, the MAP, medical
advisory physician you heard about, in August 19 97. He, too,
said I was the worst he had seen, and he was going to recommend
I receive the disability.
The board had no choice but to approve the benefits. The
whole process took about a year and a half. I believe that the
procedure is much too cumbersome. I went through it and
experienced it firsthand. And I find it very interesting when I
hear those in the process itself say that I must be confused
about my own experience. They tell me it didn't take that long;
it only took a few months. And they send me pieces of paper
showing I applied in 1997 and got it in 1997, which is
ridiculous. I was a football player, but I am not stupid. Most
people would be surprised at my IQ, and I have no problems with
my memory.
To prepare for today, I read the transcript of the Mike
Webster case and was extremely disappointed. It reminded me of
the feelings I experienced when going through my application
process. I felt as though some members of the board reviewing
my case were looking for the smallest loophole to not grant
disability, rather than trying to find people who truly
qualified. I had no leg, no hips, no back, and the rest of my
body was falling apart, and the doctors recommended that I
receive the disability. And I thought to myself if I don't
qualify, who does?
I appreciate that the NFL CBA introduced the degenerative
disability plan at all, but more needs to be done. The
suggestion I read to rely on the Social Security standard for
qualification is as good a place to start as any, but the
process must be open to scrutiny and streamlined. In addition,
the benefit is currently a monetary benefit only, and never
being able to work again means you will never qualify for
health insurance either. I believe the disability plan should
have a health insurance component as well.
In closing, I would like to add that the players who came
before us are the foundation of all that came after us. They
deserve our respect and compassion. Their medical treatment
they received during their playing days was far inferior to
that of today's million-dollar athletes, and they are suffering
from consequences in the here and now. It is easy for those who
are dealing in the world of the high-finance NFL on a day-to-
day basis to get caught up in how important, who they are and
what they do seem to be, so much so that it is easy to forget
the suffering of those trailblazers who have no voice today.
I may be in the minority, but I believe that the union
should fight for the players of the past and make the
improvements that are required to serve their needs. Regardless
of who is in leadership, the NFL must do more.
Thank you very much for the time.
Ms. Sanchez. Thank you, Mr. Marsh.
[The prepared statement of Mr. Marsh follows:]
Prepared Statement of Curt Marsh
Ms. Sanchez. We are now going to take a brief recess so
that we can assemble both panels for our round of questioning.
Members are advised we will be in recess for a brief 5 minutes.
Don't wander too far.
[Recess.]
Ms. Sanchez. Okay. At this point we would like to begin our
round of questioning for the witnesses. The same rules apply to
your testimony. You will see the light. It will turn green when
the time has begun. At 4 minutes it will turn orange, and at 5
minutes it will turn red. If you are in the middle of answering
a question, please feel free to wrap up your final thought
before we move on to the next Member for questioning.
At this time I would like to recognize myself for 5 minutes
of questioning, and I would like to begin with Mr. Curran. At a
certain point in your testimony you said that the league was
not really required to provide pensions to players who played
prior to 1959, although it did. What about morally? Whose
obligation or responsibility do you think it is to help former
NFL players?
Mr. Curran. They are part of the NFL family. We all try to
help as best as we can. Twenty million dollars in benefits for
disability went out just last year alone from these plans.
So we all have an obligation to help, and as with the pre-
1959ers, we are constantly looking to improve the manner in
which we do it, either by speeding up the process, as we tried
to do with the Social Security benefits, or through this new
alliance with all these other funds in order to take care of
players who do not qualify for total and permanent disability,
but may qualify for other medical needs.
So I believe that we all have an obligation, and I think
the NFL is fulfilling it.
Ms. Sanchez. Mr. Ell, I am interested, you talked about the
fiduciaries of the plan. And I want to talk about the six
members on the board who review these applications for
disability benefits. My understanding is that three of the
members who serve as fiduciaries of that plan are picked by the
owners, and three are picked by the current players. Are there
any retired players, or do the retired players have a say in
who sits on that six-person board?
Mr. Ell. Thank you. On disability decisions, under the
rules of the Department of Labor, there is a different
committee that makes the initial decision. Under the plan, it
is called the Disability Initial Claims Committee, and each of
the sides appoints one person to that. Appeals----
Ms. Sanchez. Do retired members have a say in who sits on
that?
Mr. Ell. The union appoints one person. That person is not
a retired player. But there are three retired----
Ms. Sanchez. Does the union represent retired players?
Mr. Ell. I think I would have to defer to the labor
lawyers, but I believe under the labor law the union is
required to represent active players. The union has fought very
hard for the retired players. The motto of the NFL----
Ms. Sanchez. The answer to my question would be no, there
is no retired players who sit on that board then.
Mr. Ell. There are three retired players who sit on the
Retirement Board.
Ms. Sanchez. The Retirement Board, but not the Disability
Board.
Mr. Ell. That is correct.
Ms. Sanchez. You also mentioned that the fiduciaries of
this plan, they don't get to make the rules, they just get to
interpret the rules.
Mr. Ell. Yes.
Ms. Sanchez. As an attorney it makes a great deal of
difference oftentimes to cases depending upon who is
interpreting the rules or how the rules are being interpreted.
And I wanted to ask Mr. Smith about that. You maintain that
basically the languages of the plans are okay, or the proposed
changes to the language where the Social Security disability
standard would apply may not make any deal of difference
because it is all in what? It is all in the interpretation of
those rules.
I want to ask you, particularly because I know you probably
have a lot of experience with this, about the review that
courts have over these decisions of arbitrators. It is my
understanding that 24 of 25 cases that were brought before the
Federal court the retired players lost because of the
difficulty in overcoming the arbitrary and capricious
standards. Could you clarify that or elaborate on that for us?
Mr. Smith. The Supreme Court has said, in a 1989 decision,
that if the plan document gives that sort of discretion to the
Retirement Board or the plan administrator, then a review of a
decision will be for abuse of discretion. That doesn't mean
that the plan administrator or the Retirement Board was right;
it just means they weren't shockingly wrong. And the courts
have said very often that there might be decisions they don't
agree with, they would have made different decisions, they
could even be against the weight of the evidence, but as long
as they are not an abuse of discretion, then the fiduciary will
be sustained.
So to say that the plan has won a number of these cases
just tells you that the barrier for review is very high. The
fact that there have been that many cases suggests that there
is something broken in the system.
Ms. Sanchez. Thank you.
I want to ask the retired players about health insurance
and how expensive it would be to purchase health insurance,
considering the preexisting conditions that most of you suffer.
Anybody want to take a stab at that?
Mr. Marsh. I quit looking. Ten or eleven years ago, when I
was looking, when I left the city of Everett and I could not
work anymore, it was going to cost me around $700 a month at
that point to get health insurance for me and my wife and three
children, and it would have been just hugely expensive for me.
And I am sure it is a lot more than that. Over $1,000 a month
it would probably cost me to have health insurance.
Ms. Sanchez. Anybody else?
Mr. Carson. Well, you know, I had the opportunity to shop
for insurance as well. I found it to be a bit more than I could
pay, because after my football career ended, and also dealing
with the postconcussion syndrome, my life sort of took a hit.
It didn't hit rock bottom, but it took a hit, and I had to make
a decision as to what essentials I was going to spend my money
on, whether it be my mortgage or whether it be my utilities or
whatever. At that point, buying insurance was not something
that I could do. If I had to go to a doctor, I basically would
pay out of pocket. And God forbid if I had come down with some
catastrophic illness, I would have had to mortgage my house and
whatever investments I had had.
Ms. Sanchez. Mr. Marsh?
Mr. Marsh. I would just like to make one more comment, if I
may.
Ms. Sanchez. Briefly.
Mr. Marsh. I just want to clean up one misconception that
many people may have. When you hear that someone like me was a
first-round draft pick, I was drafted in 1981. And just to make
it clear, I played for 7 years. I was the 23rd player picked in
1981. In my entire career over that 7 years, I did not make $1
million if you add all the money I made together in my NFL
career. So I retired with enough money to buy a house and
invest in a business, and now--and then I had to find a job.
Ms. Sanchez. Okay. Thank you. My time has expired.
I will now recognize my distinguished Ranking Member Mr.
Cannon for 5 minutes of questioning.
Mr. Cannon. Thank you, Madam Chair. Was my opening
statement included in the record?
Ms. Sanchez. It was.
Mr. Cannon. Thank you. I appreciate that. And I apologize
not having been here. I needed to be on the floor, making an
amendment to the Interior appropriations bill.
I want to thank our panel for being here. This is actually
a pretty interesting group of people, and surprisingly
articulate. Maybe I shouldn't be surprised, but you guys have
made a case that I think is very thoughtful.
This Committee is about the rules, and we were actually
having a discussion about the rules on our side of the aisle
here. And so without jeopardizing any future ability to object
to the rules, we actually have a Member of the Committee who
has a special interest in these issues, and so I would--if she
is interested, I would be pleased to yield to the gentlelady
from California for the period of my time.
Ms. Waters.
Ms. Sanchez. Ms. Waters.
Ms. Waters. Well, thank you very much. I think that is very
generous. I am a Member of the Judiciary Committee, but not
this Subcommittee, and I thank you for yielding time to me.
I do have a very special interest. My husband was a former
football player, and I have learned an awful lot about what
happens to retired football players. I want to thank Mr. Bernie
Parrish for having dedicated his life to trying to get some
justice for former and retired football players. And I want to
talk about a case that I worked on.
My husband had a friend who was a football player. His name
was Jim Shorter, and he died an awful death. When he died, he
had received several amputations. He was blind. He was on
dialysis. He was broke. He had nothing. And I had to work on
the case.
I called the Players Association on many occasions, and I
think some people down here can remember those calls. And I
will never forget that I was not treated kindly. And I had been
warned that that would be the case by the wife of Mr. Jim
Shorter. But I was persistent, and I followed it all the way to
showing up at one of the meetings of the representatives who
had the fiduciary responsibility to make a decision about Mr.
Jim Shorter and whether or not he would receive some kind of
disability benefits.
I have learned through all of this that he had taken early
retirement at that time, and he was not eligible for any
disability benefits. That is something that I am told may have
been worked on since that time. But I have to tell you for
these players who played years ago who didn't make a lot of
money and who ended up retiring and not having much in the way
of money to live on, they did take early retirement in order to
have some income, but they didn't know, they truly did not
know, that this would eliminate their ability to get disability
benefits no matter what was discovered about their medical
condition and whether or not it was connected to the time that
they played.
Having said that, I think it was Mr. Ell or Mr. Curran who
mentioned that there are 317 players now on disability. Is that
correct?
Mr. Ell. Yes, that is correct.
Ms. Waters. What is the number of players that have played
for the NFL, and what percentage is represented by this 317,
out of how many players?
Mr. Ell. I think if you count terminated vested players,
that is players who played at least 3 years and entitled to a
pension and potential disability, and then we have about 3,000
people currently collecting a benefit, and about 2,100 active
players, you can add it up in different ways, that adds up to
about 10,000 people roughly.
Ms. Waters. You are saying there are 10,000 people who have
played in the NFL?
Mr. Ell. Including current players. I think----
Ms. Waters. Total?
Mr. Ell. Without the current players it is about 8,000.
Ms. Waters. I beg your pardon?
Mr. Ell. Without the current players it is about 8,000
terminated vested players.
Ms. Waters. So in one of the most dangerous sports in the
history of mankind, only 317 players are receiving disability
from this sport. Is that correct?
Mr. Ell. Only 317 players have been found to meet the
plan's eligibility benefit requirements, that is correct.
Ms. Waters. And you mentioned that $20 million figure.
Would you tell the Committee exactly what that represents?
Mr. Ell. I think that was Mr. Curran's----
Ms. Waters. Mr. Curran, what does that 20 million
represent?
Mr. Curran. It is the amount of money that was going out
last year for people on the various disability categories that
I mentioned earlier: active football, active nonfootball,
football degenerative, inactive, and line of duty. There are
also some death beneficiaries or surviving spouse
beneficiaries.
Ms. Waters. About how many people would that represent?
Mr. Curran. I think that is the same number we are talking
about.
Ms. Waters. The 317?
Mr. Curran. That is correct.
Ms. Waters. Twenty million dollars.
Ms. Sanchez. The time of the gentleman has expired.
Mr. Curran. That is correct.
Ms. Sanchez. I am going to ask unanimous consent to give
Ms. Waters an extra minute to finish up that line of
questioning if she so chooses.
Ms. Waters. Yes, thank you very much.
Mr. Feeney. Madam Chairman, if I could.
Ms. Sanchez. Yes.
Mr. Feeney. What I would like to do is give unanimous
consent to give Mr. Cannon an additional minute, which he can
yield as he pleases, so I can be faithful to the commitment
that I gave to my Ranking Member.
Ms. Sanchez. A very well-thought-out plan, Mr. Feeney.
Mr. Feeney. There is more than one way to skin a cat, Madam
Chairman.
Ms. Sanchez. That is correct. And we are doing it very
nicely here. I will ask unanimous consent that Mr. Cannon be
given an additional minute of questioning.
Mr. Cannon. I thank the gentleman for that clarification,
and appreciate the extension of the extra minute, and would be
pleased to yield it to the gentlelady.
Ms. Waters. Thank you very much, and I appreciate that.
So the $20 million comes from the fund for the NFL Players
Association. How much is in that fund?
Mr. Curran. 1.1 billion.
Ms. Waters. $1.1 billion, and you spent $20 million last
year on 317 players total.
Mr. Curran. The rest of the funds are committed for future
retirements. It is funded for those people that are going to
retire in the future and have disabilities in the future. So
that money is not discretionary. It is already committed.
Ms. Waters. So you don't differentiate between disability
and retirement. You have to have the money there for
retirement. So all that money that is spent on disability takes
away from the retirement money; is that correct?
Mr. Curran. No, that is not correct.
Ms. Waters. How does it work?
Mr. Curran. Both the retirement and the disability future
needs are in one fund, except for a supplemental disability
fund, which even gives more. But as far as the Bert Bell fund
is concerned, both disabilities and pensions are funded for
what is anticipated----
Ms. Waters. How much is in the disability fund?
Mr. Curran. It is one fund. It is the 1.1 billion.
Ms. Waters. That is what I thought, and that is what I
said. It is all in one fund. So to the degree that you give out
money or you pay out money for disability, it reduces the
amount of money for retirement; is that correct?
Mr. Curran. No, that is not correct. We will always have to
pay the full amount of retirement to which we have committed.
And if the money is insufficient to do that, we would have to
put in more money. It would never revert.
Ms. Sanchez. The time of the gentleman has once again
expired.
At this time I would like to recognize the gentleman from
Massachusetts Mr. Delahunt.
Mr. Delahunt. Thank you, Madam Chair.
Mr. Curran, you indicated in your opening remarks that you
were funding this willingly. I almost drew the inference that
this was out of altruism and a sense of compassion. I presume
this is achieved as a result of negotiations, it is a
collective bargaining agreement.
Mr. Curran. That is correct.
Mr. Delahunt. The NFL didn't do this because they wanted to
be kind and good. They sat down and in negotiations and they
reached an agreement; is that a fair statement?
Mr. Curran. We reached an agreement with the union on
disability, that is correct.
Mr. Delahunt. Thank you.
You know, 20 million out of 1.1--I mean, you say it in a
way that makes it seem like it is a significant amount of
money. That 1.1--presumably is professionally managed.
Mr. Curran. That is correct.
Mr. Delahunt. Right. And I presume that there is a return
on investment that is somewhat equal to what we see in an index
fund, for example?
Mr. Curran. Yes.
Mr. Delahunt. So if the index fund should achieve a growth
of 15 percent a year, it is earning $150 million a year. Is my
math pretty well?
Mr. Curran. Our target is 7.25 percent actually.
Mr. Delahunt. Yeah. I hope you do better than 7.25.
Mr. Curran. It depends on the markets. Three years ago we
didn't.
Mr. Delahunt. Right. You know, if I could do better than
that, I would think the NFL pension system could do better than
that. But, you know, it seems to me--and I can understand the
frustration of the retired players here--there is a quote that
I came across by the president of the players union, and let me
read it into the record. It's from a New York Times article.
And this is Mr. Gene Upshaw. He told a North Carolina
newspaper, the bottom line is I don't work for the retired
players. They don't hire me, and they can't fire me. They can
complain about me all day long, but the active players have the
vote. That is who pays my salary.
I guess that clarifies your confusion, Mr. Ell, as to
whether the retired players are part of the union or they are
not, if we can accept that statement as being accurate.
Mr. Ell. If I may, I think that statement was clearly taken
out of context. Over the----
Mr. Delahunt. I am not asking about that statement.
Mr. Ell. All I am saying is I don't think it is an accurate
statement at all of how Gene Upshaw and the union leaders have
operated over----
Mr. Delahunt. I am not asking how they operated. I am
asking whether the retired players are part of the union.
Mr. Ell. Legally, no.
Mr. Delahunt. Legally, no.
Mr. Ell. Correct.
Mr. Delahunt. Maybe it was taken out of context. But I am
sure that retired players who read that particular quote are
not encouraged to believe that they are being adequately
represented on the issues that directly impact them. It doesn't
go to build confidence.
Mr. Ell. I understand that, but legally under the law----
Mr. Delahunt. I understand, but we can change the law here.
That is what we are doing. And we see, at least I see, okay, a
sense of disenfranchisement on the part of the retired players.
Now, that might be perception, that might be accurate, I don't
know, but I think it would behoove the NFL and the NFL Players
Association to consider, you know, either absorbing the retired
players into the Players Association so that they have a sense
that they are being adequately represented. Do you have a
problem with that, Mr. Ell?
Mr. Ell. Absolutely not.
Mr. Delahunt. Okay.
Mr. Ell. The retired players have an association, and Mr.
Fugett here is the head of the Retired Players Association
associated with the NFLPA. Mr. Fugett attended the----
Mr. Delahunt. I am sure that he does a terrific job. I am
not even commenting on that. What I am saying is when it comes
down to decisions and issues that impact how they live and the
quality of their life, they want to be at the table represented
by an association that they have confidence in.
I think it was Mr. Ditka that said let us fix the problem.
How do we go about fixing the problem? There is enough money,
you know, sloshing around. What does the industry generate now
in terms of income, 7-, 8-, $9 billion a year?
Mr. Ell. I heard 7-. I don't know.
Mr. Delahunt. I don't know either, but what I am saying is
I think in terms of respect and dignity, you know, there is
enough there in terms of the size of the pie to address what I
believe to be legitimate concerns when you have retired players
who come before this Congress and say that they can't get
health insurance.
Ms. Sanchez. The time of the gentleman has expired.
At this time I would like to recognize the gentleman from
Florida Mr. Feeney for 5 minutes of questioning.
Mr. Feeney. Thank you, Madam Chairman.
Mr. Smith, given your experience and your relationships
with others that have represented players with disabilities, is
there a bias in the selection of the physicians that do the
review in terms of the eligibility for disability?
Mr. Smith. Some of the physicians appear to be neutral;
some of them do not. It depends. A much bigger problem is the
phenomenon of doctor shopping, where the plan will send an
applicant to multiple doctors, until they have at least one
report that they can use to create a division in the medical
evidence, and then rely on that same abuse of discretion that I
was being asked about earlier to find that the applicant is not
disabled.
Mr. Feeney. Well, given that, Ms. Wagner, this Committee
has no jurisdiction over ERISA, and you are an expert in ERISA.
We do, the full Committee does, have jurisdiction, not this
Subcommittee, over antitrust issues. And there are antitrust
exemptions for the NFL Players Association. Mr. Smith has said
he thinks that this is an attitudinal problem, that new
legislation can't fix it. Do you agree with that? And is there
anything that you can think of that we can do?
I mean, we just heard the president of the union Mr. Upshaw
suggest that he doesn't represent, at least in his opinion, the
former players. Obviously, the owners have some differing
interests than former players that are asking for disability
that they are going to have to in part fund. So if nobody is
there representing, as they appoint these three people on the
review boards, you got three appointed by Mr. Upshaw, who says
he doesn't represent the former players, three appointed by the
owners, is there something that we need to do legislatively, or
do you agree with Mr. Smith that this is a mere attitudinal
problem of the people making the decisions?
Ms. Wagner. Well, I think a couple things. First of all, I
think one of the questions you are asking is outside of my
jurisdiction, which is ERISA. The joint boards are, in fact,
required, as I understand it, and I am not a labor lawyer, by
the Labor Management Relations Act of 1947, the Taft-Hartley
Act, so I think you need to talk to somebody else about the
makeup of that Board.
But I think that, although obviously I don't know about the
implementation here, it strikes me that looking at the plan
documents, they seem to follow exactly what they should do.
They seem to say the right things. They seem to be approaching
the problem the right way from an ERISA perspective. But some
of the delays, and apparent by long delays, concern me without
knowing, frankly, from my perspective, whether people have
filed serial claims and that is the reason for the long delays;
whether people have agreed to the delays, which the plan allows
them to do; or whether or not there is something else happening
here. It is really an implementation question, I think, rather
than a structural or design question.
Mr. Feeney. If there is nobody aggressively protecting the
interests of former players who may have disabilities, either
at the front end, when we are deciding how much money to put
aside, or on the back end, when we are deciding who is
eligible, and we have a group that should be protected that is
not protected, and isn't there something legislatively you can
think of we need to do to fix that?
Ms. Wagner. No, I don't really think so. And let me tell
you my experience is mostly with single-employer plans, not
multiemployer plans like we are talking about here. In a
single-employer plan the employer decides, period, how the plan
is designed. You don't have collective bargaining, you don't
even have the input of the active players. So this already
takes the process a step further from the perspective of where
I sit most of the time. You don't have input of retired people
in single-employer plans either.
Mr. Feeney. But this is a little different than your
typical employer. It is a dangerous work environment, even for
those of us that are among the most avid football fans. We
don't send OSHA onto the practice field every day to make sure
everybody is getting the right amount of hydration and being
treated--we don't do that. We actually give an antitrust
exemption from a lot of Federal laws.
Coach Ditka, you indicate in your testimony that there are
300 players that have been documented and identified as in need
of disability assistance. I assume that is in addition to the
317 that the NFL and the NFLPA collective bargaining agreement
is paying?
Mr. Ditka. Yeah. Mr. Feeney, I am not sure that is 100
percent right. It is somewhere in that area. And, you know, I
just think to go back and pick up these people and take care of
them, it is not that big a problem. I go back to, you know, we
hear the NFL talk about what they do, we hear the owners, but
what do they really do? Don't they have a responsibility and an
obligation as owners who have made a heck of a lot of money?
Believe me, nobody is going broke. Players Association, sure
they fought for what they had to get, for benefits, and I
understand all that. They got a lot of money in the coffers
also.
The responsibility has to go back to the league and the
owners as well as anybody else to take care of these people.
That is what it is all about, just right versus wrong, period.
You know, do the ethical thing or do the wrong thing. So far
they have chosen a path of the wrong thing.
Now they come up with this idea we are going to form
another committee, but this time we are going to put Mr.
Upshaw, the Commissioner of the National Football League, NFL
Charities, NFL this, NFL that, and they had the audacity to say
would you take the money in your trust, which is minute, and
put it into our fund so we can administrate it? Come on. You
got to be kidding. That is exactly what they don't do. They
don't administrate anything. It is a bunch of red tape and a
bureaucracy. That is all it is.
Now, listen, when people have needs, they come to us, and
we say, what are your needs? You need money? You got to pay the
bill? Bang, you get a check. What the hell is the matter with
that? Why is that wrong? I don't understand it. Take care of
them. Then go out and make them fill out the forms. And then go
talk to all your other lawmakers, the ERISA, or everybody else.
And I don't know all these terms. I am not that intelligent to
know all this stuff. I am just saying I know what is right, and
I know what is wrong. What is happening now is wrong, period.
Mr. Feeney. Madam Chair, I don't want to quarrel with Coach
Ditka.
Ms. Sanchez. I wouldn't recommend it.
Mr. Feeney. I yield back the balance of my time.
Ms. Sanchez. Thank you, Mr. Feeney.
At this time I would like to recognize the gentleman from
Georgia Mr. Johnson for 5 minutes.
Mr. Johnson. Thank you, Madam Chairwoman.
On Sunday evenings, Sunday afternoons and evenings, you
know, the American public puts on that TV, big screen TV,
sometimes two or three games on at one time, and sits there and
watches the games, and we see the warriors out there who are
playing through injuries that any mortal man would take a few
weeks out and let the recuperation process set in. But they get
out there anyway because they got the finest of medical care,
they have the gentle urging of their coaches, Coach Ditka, to
play through the pain. There is always somebody in the
background ready to take their spot if they don't, and it is a
very competitive situation.
We watch all of the ads, we go to the games, we drink the
beer. It is all so many people making money. And the athletes
on Monday morning go into rehab and try to get ready for the
next week's game. And then after the season is over, you know,
it all begins once again to get ready. And so superhuman
dedication by these players.
And then once they finish their careers, after having been
smacked around in the head with closed head injuries that don't
start manifesting until some point later, they start knocking
on doors, wanting to consider disability payments, and so they
make application. Who do they make application to but a
Disability Initial Claims Committee, a two-person committee,
one person appointed by the NFL, the other person appointed by
the NFL Players Association. And I guess these individuals who
make up that Disability Initial Claims Committee are paid for
their work. Is that not correct?
Mr. Ell. One of them is an employee of the NFL, one is an
employee of the NFLPA. They are not paid by the plan.
Mr. Johnson. They do get compensation for rendering their
service and adjudicating the claims, correct?
Mr. Ell. Correct.
Mr. Johnson. And they like to get called back so that they
can adjudicate more claims, and I guess so that they can make
money, too.
Mr. Ell. Actually----
Mr. Johnson. Hold on now. I guess the numbers that have
been cited that were revealed by Congresswoman Waters show a
great gaping disparity between the former players and those who
are receiving disability benefits. And just looking around this
room I see there is so many interested people here today that
appear visibly they are injured. I can see that they are
injured.
But at any rate, the claim gets denied at that process, at
the Disability Initial Claims Committee, and then the poor old
slob has to appeal to a six-member Retirement Board; again,
three of those persons appointed by the NFL and three appointed
by the NFL Players. And those people get paid, too, to decide
the claims; do they not?
Mr. Ell. That is not true. They never received a penny in
compensation for being fiduciaries or deciding claims.
Mr. Johnson. Maybe we should pay some professional folks,
and those folks might even go to work, because this review
board doesn't work but four times a year to handle the claims.
And then there is no ability of the poor player to appeal the
decision, isn't that correct, once they get denied?
Mr. Ell. Once they get a final denial from the Retirement
Board----
Mr. Johnson. There is no appeal to an independent body.
Mr. Ell. The Retirement Board is a second body. After
that----
Mr. Johnson. And there is no further appeal after that
body.
Mr. Ell. Generally, unless sometimes the Retirement Board
allows another appeal if----
Mr. Johnson. The door is closed.
Mr. Ell [continuing]. If there is a concern that the player
hasn't had a chance to put enough evidence in.
Mr. Johnson. The door is then slammed shut on the player.
And then as a result we have got the players who are here today
who complain that as a result of all of this money that has
been made on their backs, their blood, sweat and tears, that in
their time of need the door is shut. And there is no one there,
and they have to resort to the baseball players to help them
out, to give them a hand-out. And that to me, for a proud
warrior who has given their service, is quite a tragedy. My
heart cries for those who are afflicted, and I know that there
is something that we must do in order to correct this
injustice.
Ms. Sanchez. The time of the gentleman has expired.
At this time there is enough interest in a second round of
5-minute questioning, if you would indulge us. I will recognize
myself.
Mr. Ell or Mr. Curran, can either of you tell me why there
is a 12-year statute of limitations on disability claims? I am
interested in knowing why and who set the timeline. And
particularly given the serious nature of the injuries that can
be sustained over the course of a football career, why would
there be a process that was structured so that there is a
limited time frame when benefits can be claimed, when the
immediate effects or aftereffects of some very serious injuries
can last a lifetime?
Mr. Ell. Thank you. There is no 12-year statute of
limitations. If you are unable to work 25 years after leaving
the NFL, for whatever reason, you can get disability benefits.
I think you may be referring to a provision in the plan that
says you can't get the higher football degenerative disability
benefits. Right now the period for that is 15 years.
Ms. Sanchez. Why is that?
Mr. Ell. I believe the problem that I believe was
considered is that the longer after a player leaves the game,
the harder it is to figure out whether it was football-related
or not. And the collective bargaining parties decided to put
their--spend the higher dollars on the people who became unable
to work sooner, because they had a greater confidence that that
was caused by football.
Ms. Sanchez. I am curious to ask some of the retired
players whether they think that that is a good idea or not to
have a 15-year statute of limitations for which a player can--
is then barred from going back and getting the higher football-
related injury benefits.
Mr. Carson. Personally I think it is unfair, because I
played 13 years in the National Football League, and having
been out of the league almost 19 years now, I am starting to
feel things that I experienced when I played, the injuries, the
knees, the ankles, the hips, my back. The whole postconcussion
thing has manifested itself over the years, and it hasn't
really gone away. When I was diagnosed 2 years after leaving
football, it was deemed to be permanent in nature. And I just
can't help but think that I went--I got tested because I knew
something was wrong with me. There are a whole bunch of other
players who are walking around, and they don't know what is
wrong with them because there is no reason for them to be
tested, because perhaps physically they feel fine.
Neurologically they may be off somewhat. And I think this is
the same problem that many of the soldiers who are coming back
from Iraq are dealing with, postconcussion syndrome.
And so in my opinion, I think players should have lifetime
health coverage, because the things that you put your body
through on the football field, they never go away. You are
going to take those things to the grave with you, whether it be
knees--and there are so many of my friends now who are having
knee replacement surgery. I am 53, and these guys, some of them
are in their forties having knee and hip replacement surgeries
right now. And so 15 years is really a joke. It should be
lifetime.
Ms. Sanchez. Let me ask Mr. Ell or Mr. Curran, because of
medical advances specifically, and an increased understanding
of the symptoms of concussions, do you guys think that there
should be a statute of limitations that precludes claims by
older players who suffered concussions in the past?
Mr. Curran. Well, again, as Mr. Ell indicated, there is no
statute of limitations. It is a question of what the level of
benefits would be. And in the plan itself there is a----
Ms. Sanchez. Is there not a significant difference between
the benefits received by a, quote/unquote, football-related
injury versus just a regular disability?
Mr. Curran. Yes, there is. There is a significant
difference. And as Mr. Ell indicated----
Ms. Sanchez. So why should players who maybe don't see the
aftereffects for many years after their careers end be
precluded from claiming the higher benefit?
Mr. Curran. Well, the reason it was put in, as Mr. Ell
indicated earlier, was to make sure that we could connect up
more closely to football people who would be 45 years old, if
they retired at 30, and therefore be sure the benefit was
football-related. Now, is that an arbitrary time? It is a
little bit. Perhaps we could revisit that. However----
Ms. Sanchez. Perhaps you should revisit that.
Mr. Smith, do you believe that arbitration should have a
more prominent role in the disability benefits process? Because
some current critics of the system have suggested that allowing
an arbitrator to hear all appeals and benefit denials, rather
than the current system under the Retirement Board, might be a
better approach. Do you agree with that?
Mr. Smith. I think there is some merit to that, Madam
Chairwoman. Right now your appeal is from this two-person
Disability Initial Claims Committee to the Retirement Board. It
is all inside the same box. And I don't believe that anyone on
the Retirement Board has medical expertise, unless it is by
coincidence. There would be room, I think, for truly neutral
arbitrators, that is to say people who are not beholden to the
Retirement Board or the NFL plan, that the parties have a role
in selecting or maybe selecting a neutral arbitrator. That, I
think, would be a big improvement on the present system. And it
is certainly something that is within, as I understand it, the
Subcommittee's jurisdiction. Right now there is no neutrality
and not a lot of knowledge at the appeal level. The appeal is
an appeal in name only.
Ms. Sanchez. Thank you.
Did you want to add something to that, Mr. Boyd?
Mr. Boyd. Yeah, I did about that, because there is no
medical people involved in this disability process at all.
There is three team owners, who are businessmen. There is three
ex-football players, who are friends and appointees of Gene
Upshaw. There is no doctors in the room when they have these
board meetings. Doug Ell and Groom Law, they take all the
medical information, and it is all filtered through Doug Ell,
and it is presented to the six voting members of the Disability
Board, and they vote on Doug's recommendation. There is not a
doctor in the room, there is not a medical person in the whole
process from start to finish.
Ms. Sanchez. Thank you. My time has expired.
I would now like to recognize our generous and
sportsmanlike Ranking Member Mr. Cannon for 5 minutes of
questioning.
Mr. Cannon. The sports goes back a long, long time, almost
as much as some of you guys, and not nearly so distinguished.
Thank you, Madam Chairman.
Now, the jurisdiction of this Committee relates to the
arbitration provisions of these disability issues. The full
Committee has antitrust jurisdiction, which is often delegated
to this Committee, but which this year or this Congress has
been put in a task force. But many of the Members of this
Committee serve on this task force and are involved, as I am,
in these issues of antitrust.
And it seems to me that--I mention that to put some teeth
into what I am about to say, which is that there is some
serious concern. I think it is fairly clear that there is some
dissatisfaction and a lack of a clear response, except the
legalistic response to the fact that the interests of retired
players are not considered in the process maybe as much as they
should be, and that I suspect is because of a failure or
because the National Labor Relations Act precludes the
representation of retirees. But the sports situation, because
it is unique, has antitrust provisions. But also because it is
unique, you may want to consider some other kind of adjustment
perhaps beyond the scope of this Committee. But that would be
that most employers have people that are young who have just
started the workforce at 20 or 30 and others at 40 or 50 and
others at 60 or even beyond 60 who are getting ready to retire,
and their judgment matures as they stay in the profession and
therefore as they look at the retirees, they have a slightly
different perspective than I think may be the case in sports.
So Mr. Ell, Mr. Curran, should we be looking at an
adjustment to the NLRB that would allow for a difference for
players who tend to be very young and therefore not all the
perspective that they might have as they get older so that we
can create some justice out of what appears a fairly unjust
system or at least a system which is hard to make just because
of the lack of representation by the retired players through
the union? Should we get a special exemption that allows a
change in the way the union is able to represent retirees?
Mr. Ell. That is quite a question. The money for all these
benefits comes out of the active players, and I think that is
what the law currently recognizes. I am not an NLRB expert. I
do think it is unfair to say that the Players Association and
Gene Upshaw is not concerned about the retirees. Hundreds of
millions of dollars----
Mr. Cannon. That is not what I said. The point is that the
retirees are not represented in the process in large part
because the union can't represent the retirees, not that any
person is bad or wrong or evil but rather the process produces
results that I think are pretty clearly incongruous.
Mr. Curran. Well, I don't personally believe that a law
change is necessary. I think that the former players that have
been appointed by the union are well able to exercise their
fiduciary responsibilities on behalf of all former players. The
trustees have changed over time since 1982, many times, and
they have all stepped up to the plate and done their fiduciary
duties. So I don't accept that the process is broken.
I believe that what Gene Upshaw has done for former players
is well beyond what he had to do legally, as I said earlier,
and the League is happy to make those retired players raise
their benefits and retirement and raise the disability
benefits. I don't believe a law change is necessary.
Mr. Cannon. I actually thought I was working from a fairly
common presumption here. But I think I heard you say that the
players are adequately representing the interests of the
retirees.
Mr. Curran. I believe that the trustees appointed by the
Players Association, former players themselves, are adequate to
represent them in the retirement process. If you are talking
about collective bargaining, then that is the union which is
made up of the current members.
Mr. Cannon. But the trustees are elected by the members of
the union.
Mr. Curran. They are appointed by the union. That is
correct.
Mr. Cannon. The union is made up of people--unlike any
other industry--it is made up of people who are very young and
who lack a certain perspective on the future. In fact, I don't
think you can get anybody but young people to do the kind of
self-destructive things that happen in football.
Mr. Curran. It is a young workforce. That is correct. The
trustees are not appointed by the workforce but by the union
itself, which has a very historical view.
Mr. Cannon. But the union itself represents the people who
are active.
Mr. Curran. That is correct.
Mr. Cannon. And that union is elected by the people who are
active who are very young.
Mr. Curran. That is correct.
Mr. Cannon. I see my time has expired but think the point
is fairly clear, that there is an inequity here, Madam
Chairman, and perhaps there ought to be a legal solution. I
yield back.
Ms. Sanchez. That is what we are here today to determine.
Thank you, Mr. Cannon.
I am going to ask unanimous consent to be entered into the
record a number of articles that we have received and the staff
has received with respect to the subject matter of today's
hearing, as well as letters and e-mails that we have received
regarding the NFLPA. And without objection, so ordered. Those
will be entered into the record.
[The information referred to follows:]
Submission list on file with the Committee on the Judiciary,
Subcommittee on Commercial and Administrative Law, from former National
Football League players
Ms. Sanchez. I also want to recognize again Congresswoman
Waters for participating with us today and we were also joined
by Congresswoman Sheila Jackson Lee from Texas as well. I do
want to thank again all the witnesses for their testimony
today. It has been very helpful.
Without objection, Members will have 5 legislative days to
submit any additional written questions, which we will forward
to the witnesses and ask that you answer as promptly as you can
to also be made a part of the record. Without objection, the
record will remain open for 5 legislative days for the
submission of any other additional materials.
Again, I thank everybody for their time and their patience,
and this hearing of the Subcommittee on Commercial and
Administrative Law is adjourned.
[Whereupon, at 3:15 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
Answers to Post-Hearing Questions from Dennis Curran,
National Football League
Answers to Post-Hearing Questions from Douglas W. Ell, Plan Counsel to
the Bert Bell/Pete Rozelle NFL Players Retirement Plan
Answers to Post-Hearing Questions from Martha Jo Wagner, Esquire,
Venable LLP
Answers to Post-Hearing Questions from Cyril V. (Cy) Smith,
Zuckerman Spaeder LLP
Answers to Post-Hearing Questions from Mike Ditka, former NFL coach
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Answers to Post-Hearing Questions from Harry Carson, retired NFL player
Answers to Post-Hearing Questions from Curt Marsh, retired NFL player
Answers to Post-Hearing Questions from Brent Boyd, Retired NFL player