Hours before American-styled football’s biggest kickoff, a group of former players filed a class-action lawsuit alleging the league runs a “sham” disability compensation system.
The suit, filed in Baltimore this week, is seeking class-action status and names both the National Football League’s Commissioner, Roger Goodell, and the league’s Disability Board as defendants and comes as sports fans, players and league officials gather in Phoenix for the Super Bowl this Sunday.
The 10 plaintiffs are retired players: Willis McGahee, Jason Alford, Daniel Loper, Michael McKenzie, Jamize Olawale, Alex Parsons, Eric Smith, Charles Sims, Joey Thomas and Lance Zeno. According to the suit, the former players are “seeking redress for the wrongful denial of benefits, the denial of statutorily mandated full and fair review of benefits denials, violations of plan terms or governing regulations, and breaches of fiduciary duty.”
This complaint is just the latest in a slew of class-action lawsuits against the league over the past few years and follows headline-grabbing cases such as the class-action suit, initially filed by Brian Flores, accusing the NFL of being racially biased in its hiring process and the continuing hostile-workplace saga involving the re-branded Washington Commanders and the team’s current owner (for now), Daniel Snyder. In fact, the latter was so egregious Congress was forced to intervene after several high-profile firings, including Jon Gruden, and the league’s refusal to cooperate with outside investigators.
The latest lawsuit accuses the league’s Disability Board of breaking the Employee Retirement Income Security Act of 1974 by not fairly or fully reviewing all denied claims while utilizing biased assessments from physicians paid by the league for denied claims.
The latest complaint specifically points out several alleged conflicts-of-interest with doctors responsible for evaluating former players and accuses the league of purposefully incentivizing those doctors to purposefully minimize — or outright lie — about players’ complaints about disabilities or injuries to avoid payouts.
The suit acutely points out an alleged correlation between lower compensation rates and doctors who document more disabilities. One painful example comes from a doctor who evaluated Eric Smith who, the lawsuit states, was never paid less than $72,765 by the NFL in a single year over an 11-year period but, in 2017, was paid just $16,711 after he found 20 impairment points during an examination. That examination ultimately allowed Smith to be approved for disability benefits.
In addition to issues surrounding examinations and doctor compensation, the complaint is littered with heartbreaking anecdotes from former players like Smith, who played for seven seasons, stating he currently struggles to play with his young sons and fears what may happen during what he calls “dark moods.”
“There were times I would blackout and wake up … and I’m bleeding, there are holes in the wall. My wife and kids are crying,” Smith, 39, said on a videoconference call when the lawsuit was announced. “I went down a dark path. If I ever hurt one of them, in one of these cases, that’s probably the end. Like, I’m done.”
Willis McGahee is perhaps the most notable former player involved in the suit and was also on the videoconference with Smith and their attorneys. McGahee was drafted in the first round out of the University of Miami and played for 11 seasons. Despite the fact he has had more than a dozen documented surgeries due to football-related injuries and often needs help getting out of bed, he has been denied disability compensation since his retirement in 2014. He is 41 years old.
The suit also mentions that a doctor performing an evaluation for McGahee declared him unimpaired, despite the fact he has several tests showing impaired cognitive function. The suit also alleges that when evaluating McGahee, the doctor used demographic information, including his race, to estimate his IQ prior to the injury. Demographics such as education level, race and IQ are considered unethical and are not allowed to be used, per the collective bargaining agreement, when evaluating players for benefits associated with disabilities.
The lawsuit also alleges that the doctors who examine players for the league’s disability plan have a financial interest in denying the claims, as it makes them more likely to get future referrals from the program. The complaint notes one neuropsychologist who was paid more than $800,000 by the program for examining 29 former players. Not one was found to be disabled.
The lawsuit also points out that physicians are supposed to be neutral, but the league does not have a system in place to audit the physicians’ reports and has no data on how many claims are approved or denied nor are there any penalties or consequences for doctors who make inaccurate or incomplete evaluations.
Commissioner Goodell sits on the Player Disability Board and the league’s Neurocognitive Benefit Plan and said earlier this week that about $2.5 billion of the league’s $10 billion player compensation package this year is for player benefits.
According to a story by ESPN in 2019, the annual disability compensation for retired and injured players can range from $65,000 a year to $265,000 a year, depending on how old the injury is and if the injury was sustained while performing activities for the league. However, the new lawsuit states that out of the thousands of applications from former players requesting disability compensation filed over the past 30 years; only 30 have been awarded the system’s top award.
The NFL Player Disability & Neurocognitive Benefit Plan, as the plan is officially known, came out of the collective-bargaining agreement between the players and the union more than a decade ago and, at the time, was hailed as a successful effort, by both sides, to pay increased benefits to retired players hurt by the game.
While it is unfair to paint the 2011 disability program as a complete failure, the latest complaint shines a spotlight on a much larger problem for the league in its inability to outsource some of its liability through third-party insurers … not to mention myriad unethical accusations and straight-up alleged capital fraud encouraged by the league and perpetrated by the doctors the contract to do the assessments.
The ESPN story pointed all of this out, and a fantastically detailed report from the same year by Villanova’s Jeffery S. Moorad School of Sports Law dug deeper into the leagues inability to insure itself. The Villanova report states that prior to the 2011 agreement more than a dozen insurance carriers contracted with the NFL to provide general liability and worker’s compensation insurance coverage. However, the Villanova and ESPN stories both agree that due to the complexity and financial burden associated with head-trauma litigation and the subsequent long-term treatment, the NFL lost its last general liability insurer, Berkley Entertainment & Sports, sometime between 2019 and 2020.
The future of the NFL appears in danger despite record earnings and ratings, due to the league’s inability to insure its players. Both reports point to the success of past concussion litigation (as of 2019, nearly 5,000 suits had been filed against the league) as a potential liability to personal-injury suits, specifically “those relating to head-trauma injures and cognitive problems associated with concussions,” the Villanova report says.
The general conclusions, from lawyers anyway, is the only true way to mitigate the injury liability is to completely change the way the game is played. From limiting or out-right eliminating contact in practices to literally increasing the surface area of the playing field in order to possibly reduce the risks of an inherently violent and trauma-inducing game.