By: Kelly Fitzgerald
The National Football League (NFL) has experienced increased scrutiny in recent years regarding the protection of its players and lack of education surrounding the dangers of injuries, such as concussions. The NFL has attempted to address this criticism by taking steps to better protect current players through certain programs such as the NFL Game Day Concussion Diagnosis and Management Protocol.[1] This program, most recently updated in 2018, provides NFL medical professionals a step-by-step procedure to identify and treat concussions.[2] Additionally, during games independent neurotrauma consultants monitor broadcast feeds in order to identify possible concussions.[3] Though these procedures are a step in the right direction, these changes have done little to assist former players suffering with serious injuries.
The minimal support for former NFL players can be seen through the NFL disability benefits. There are three types of benefits laid out in the disability plan: Total and Permanent Disability, Line of Duty Disability, and Neurocognitive Disability.[4] There are huge differences in the classification of a disability. Line of Duty Disability Benefits last only for a maximum of 90 months while Total and Permanent Disability Benefits are long term.[5] Neurocognitive Disability Benefits are only awarded for players that are not receiving any other form of disability benefits.[6] What the NFL does not acknowledge is how difficult it is for former players to meet the criteria to receive these benefits.
The NFL disability plan is governed by the Employee Retirement Income Security Act (ERISA).[7] The NFL Retirement Board is the decisionmaker regarding whether the former players will receive benefits regarding their disability claims.[8] There are six members of the NFL Retirement Board who are appointed by the NFL owners and the NFL Players Association.[9] There is no representation of former players on the board. The benefit plan uses a point system that allocates points for injuries and medical procedures in order to determine if a player is eligible for disability benefits.[10] For example, in order for a former player to obtain Line of Duty Benefits, he needs to total ten points.[11] The Retirement Board has the final say on how many points a former player’s injury totals in order for him to receive benefits.[12]
If the former player is not satisfied with the Retirement Board’s decision he can appeal to Federal Court in accordance with his rights under ERISA.[13] However, the odds of reversal are slim. “Since 1993, the courts have upheld 96 percent of the Retirement Board’s decisions in lawsuits filed by retired players.”[14] This was seen very recently in August 2020 when a Texas federal judge upheld the decision to deny disability to former Buffalo Bills and Jacksonville Jaguars defensive back, Ashton Youboty.[15] The Retirement Board decided not to count a January 2019 football injury-related surgery, stating that the procedure occurred after the statute of limitations for plan eligibility had expired.[16] If the Retirement Board had allowed this surgery to count, benefits would have been awarded. The judge stated that although he did not agree with the Retirement Board’s decision to deny the benefits, the denial was a use of the Board’s broad discretion.[17]
Though the NFL seems to be making strides to make the game safer for current players, it seems to have left behind the veterans of the game. The large amount of discretion and power given to the NFL Retirement Board has made it difficult for former players to obtain benefits for the injuries they sustained during their careers. As the pressure mounts for the NFL to take accountability for the injuries that players sustain during their careers, it will be interesting to see if the NFL re-evaluates its attitude toward its retired veterans.
[1] How the NFL is Advancing Player Health and Safety, NFL Player Health & Safety, at 1 https://www.playsmartplaysafe.com/wp-content/uploads/2019/10/nfl_factsheet_healthandsafety_093019b2.pdf
(last updated Apr. 2019).
[2] Id..
[3] Id. at 2.
[4] Overview of NFL Player Benefits, NFL Player Health & Safety, https://www.playsmartplaysafe.com/resource/nfl-benefits/ (last updated Mar. 2020).
[5] NFL Player Benefits, NFL Player Disability & Neurocognitive Benefit Plan 26 (2019).
[6] Id. at 29.
[7] Id. at53.
[8] See Oversight of the National Football League (NFL) Retirement System: Hearing Before the S. Comm. on Commerce, Sci., and Transp., 110th Cong. 10 (2007).
[9] See Id.
[10] See NFL Player Benefits, supra note 4, at 60.
[11] See id. at 22.
[12] See id. at 46.
[13] See Oversight of the National Football League (NFL) Retirement System, supra, note 7, at44.
[14] Id. at 49.
[15] See Katie Buehler, Texas Judge Laments Dismissal of Ex-NFLer’s ERISA Suit, Law 360, (Aug. 18, 2020) https://www.law360.com/benefits/articles/1302266/texas-judge-laments-dismissal-of-ex-nfler-s-erisa-suit.
[16] See id.
[17] See id.
The L•E•Jer 