[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]



 
   NATIONAL FOOTBALL LEAGUE'S SYSTEM FOR COMPENSATING RETIRED 

                     PLAYERS: AN UNEVEN PLAYING FIELD?

=======================================================================

                                HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON
                   COMMERCIAL AND ADMINISTRATIVE LAW

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               ----------                              

                             JUNE 26, 2007

                               ----------                              

                           Serial No. 110-88

                               ----------                              

         Printed for the use of the Committee on the Judiciary


   Available via the World Wide Web: http://judiciary.house.gov



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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
                                 ------                                

           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

                              ----------                              

                             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?

                              ----------                              


                         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

                              ----------                              


               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




































                                

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

















                                 
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