An almost unbelievable pattern of deception and misrepresentation has defined the NFL’s approach to compensating disabled former players. And players argue that their union has been in on the plot.
A familiar ERISA story
The Washington Post has published an exhaustive account, citing numerous former NFL players and their lawsuits against the league, which will sound familiar to anyone that has struggled with violations of the Employee Retirement Income Security Act of 1974 (ERISA).
The article names too many cases to recount here, but even the broad strokes are damning. Like so many ERISA claims, the NFL’s plan evolved into a quagmire of dizzying requirements, severely biased and frighteningly brief case reviews, and occasionally jarring departures from reality.
Even after the NFL plan belatedly but encouragingly recognized the long-term cognitive harm caused by repeated concussions in 2009, disabled former players were still being denied compensation. The NFL plan was able to ride on the coattails of a misguided, allegedly pro-business 1980s ERISA Supreme Court ruling that de-fanged long-term disability claims and handicapped anyone brave enough to file a lawsuit over claim denials. Only the most egregious cases were able to circumvent this precedent.
A prime example of this abuse of discretion was the case of retired offensive tackle Darryl Ashmore. The NFL scheduled Ashmore, who lives in Palm Beach, Florida, for “evaluations in three cities in six days: a neurological exam in San Antonio, followed by an orthopedic exam in Palm Beach, and then a neuropsychological exam in Tampa.” Notably, Ashmore’s condition made travel virtually impossible due to chronic pain. When Ashmore’s lawyer complained about the whirlwind travel needed to attend these appointments, the NFL plan canceled the appointments and denied his claim for failing to comply with the absurd arrangements.
Charles Dimry, who was declared disabled by his doctor for spinal disc degeneration, was denied disability payments by an NFL plan doctor who reasoned that the former cornerback could still work with exceptional accommodations. Dimry’s lawyer, during the eight-year marathon case, said, “I have practiced in this area of disability insurance for nearly 30 years, against every major insurance company, and this was the worst conduct I have ever seen.”
A shocking revelation
Citing decades of dishonest actions and decisions, players and their attorneys alleged that the claims review process was deeply flawed. Alleged, that is, until the Michael Cloud case, which exposed the NFL plan’s outrageous inner workings. Among the evidence presented to the court was the revelation that the claims review board zapped through 114 claims in 10 minutes at one meeting. That’s an average of 5.26 seconds spent considering each case, some with over 1,000 pages of documents and medical records that were clearly never even opened, much less read.
Cloud was awarded the maximum annual plan payment of $265,000 per year, plus more than $1 million in backpay, which is currently on hold while the NFL plan appeals the ruling. The judge in the Cloud case made the following observation about the duplicitous nature of the NFL plan’s tactics: “The [NFL plan] seems to argue to the Court that if their system ain’t broke, don’t fix it. Well, based on the mountain of evidence set forth in trial, it is clear to me that the plan is broke and it’s time to fix it.”