Testimony

• Mr. Daryl Johnston

  FOX Sports Broadcaster

  and former NFL Player, Dallas Cowboys
  Read statement

  Testimony

  Mr. Daryl Johnston

  Testimony of Daryl Johnston
  Before the Senate Committee on Commerce
  Hearing on Oversight of the NFL’s Retirement System
  September 18, 2007

   

  Chairman Inouye, Subcommittee Chairman Dorgan, Ranking Member Stevens, Subcommittee Ranking Member DeMint, Members of the Committee and distinguished guests, my name is Daryl Johnston. I had the privilege of playing professional football for the Dallas Cowboys for 11 years as a Running Back. I was forced to discontinue playing when a neck injury sidelined my career.  I am here today to help implement positive change to the NFL’s existing disability system, which is in dire need of reform.  As a member of a fairly recent generation of retirees who ended his career in 1999, I want to assure you that this problem is a crucial concern for anyone who has ever played or will play professional football.

   

  Growing up, I knew I always wanted to play football. My heroes were Larry Csonka, Rocky Blier, and Roger Staubach because of their unwavering courage and love of the game. They played with their hearts, they played with passion, and these men were my heroes. As a Pop Warner player, I always considered football a contact sport. At the college level, my coach taught us football is not a contact sport—that if you want a contact sport, then take ballroom dancing. Football is a collision sport.  I was also taught the difference between pain and injury, which are quite different concepts in the world of the NFL.  If you are not injured, the emphasis is to get back out on the field and perform your job. You play through the pain – and thus put yourself at greater physical risk for life after football. With the size and speed of the players today, and with the nature of new equipment design, the collisions have become more violent every year. The severity of collisions was evidenced once again just recently when Kevin Everett with the Buffalo Bills suffered a catastrophic spinal injury. A career ending injury is every player’s worst fear when he steps onto a football field.

   

  In the late 1960’s and early 1970’s, the players competed on a new experimental surface called Astroturf. Astroturf basically consisted of a thin, carpet-like cushion between the playing surface and the concrete. NFL organizations chose to put down a low-maintenance, synthetic surface to allow for revenue producing events in their stadiums without regard for the damaging effects this hard surface would have on the players’ bodies. For decades, the NFLPA has knowingly misled players to believe that artificial turf posed no more threat to injury than natural grass. As a player, one knows and experiences firsthand on Monday morning, from the aches, pains, bruises, and abrasions that result from playing on an inferior artificial surface the day before.   And this type of surface is responsible for as many concussions—probably more—than the actual collisions you see on the field.

   

  I recently met Conrad Dobler, a 10-year veteran Offensive Lineman for the St. Louis Cardinals. He has had multiple knee and hip replacements from playing on Astroturf. He has had as many as seven surgeries in one year, and he’s spent nearly 100 days in the hospital this past year. He has been denied disability benefits numerous times by the NFL Players Union, yet has been told by doctors he is severely disabled. He’s never received a penny of disability money from the union or the league. The NFLPA has nothing in place to take care of players suffering these medical challenges from the physical abuse of an NFL career. Another issue unaccounted for under the NFLPA’s disability plans are the degenerative nerve conditions that result from the violent collisions associated with the game of football. As a player, you always believe the Union will be there for you at the end of your career.  However, as I learned, that is not the case. The union is only obligated to represent and protect active employees – not retired players. Therefore, they only focus on the interest of active players.

   

  Highly recognizable players are suffering heart-wrenching setbacks and near hopeless predicaments.  Mike Mosley, a receiver for the Buffalo Bills from 1982-84, experienced knee, neck, and back injuries that shortened his career and left him permanently disabled.  Mosley played 20 games in 3 seasons as a wide receiver. He received full disability payments for 6 years, and then a doctor assigned by the NFL ruled sedentary work was possible so, in 2004, all his disability payments were immediately cut off without warning.  He has lost his house, his truck, his savings, and his entire quality of life.  He’s had to move in with his 75 year old Mom (living off a $306 social security check), and has sole custody of a 14 year old daughter he’s trying to raise – for whom he cannot even buy clothes.  He also has no health insurance and cannot afford any medical care.  It has ruined his life.  In a medical emergency, he will no doubt become the responsibility of the state.  So, much as you and I send tax money that should pay for our schools and teachers to build NFL stadiums, we will pay for Mike’s care someday because the NFL doesn’t want to pick up their own check.

   

  Brian DeMarco, a former offensive lineman for the Jacksonville Jaguars and Cincinnati Bengals, is damaged so badly from his five years playing pro football that he is only a fraction less disabled than a quadriplegic at age 35. He has had so many injuries that only people who have been in horrendous car crashes might understand - all from playing America’s favorite sport. DeMarco’s career ended amid severe health problems after the 1999 season. After 4 attempts over several years to navigate the NFL’s disability system’s red tape, he was unable to even get his application process started and be assigned a doctor for evaluation - even though his back was broken in 17 places. He’s been homeless 3 times in the last 4 years, and has lived in storage units for 5 months with his wife and 2 children.  He has constant pain from his crushed spine, numerous physical ailments, and is unable to hold a job. This is a man who’s given up his quality of life for this sport. Because of injuries and runaway medical bills and an inability to work or get any kind of health insurance, the once proud and well-off DeMarco was as down and out as you can get in this country.  The NFL Players Association has given him virtually no help.  He has called the NFLPA over 100 times in the last year but has experienced no success in getting a claim opened.  At one point, he was actually told that he needed to help himself before the NFLPA could help him and he was told to get a job and sent bus fare to search for one by an NFLPA representative.  And, finally, whenever he has had the temerity to raise his discuss his problems in public, the NFL’s and NFLPA’s representatives have branded him a fraud.

   

  The urgency and demand in the NFL to get back on the field creates a greater risk.  The cumulative effect of multiple surgeries throughout your career is damaging to the body.  This toughness, a sign of the times in that NFL era in the early 1960’s explains why Larry Morris, a linebacker for the Bears from 1959 to 1965, once returned to action 6 weeks after knee surgery, removed a cast on his broken thumb during a game and played through 4 concussions. After one such knock in the head during the 1964 season, the NFL encouraged Larry to ignore dizzy spells and ringing in his ears so he could play.  Larry is best known for being the most valuable player for the Bears in the 1963 NFL Championship game. Larry now suffers from dementia at age 73 and cannot be left unattended. His health care expenses have sapped more than $200,000. His wife of 50 years, Kay Morris is still waiting for the full benefits to which Larry is entitled under the new “88 Plan”--named after the number of Baltimore Colt great John Mackey--but the award to date is at a lower level and administrative difficulties with that Plan have prevented her from obtaining adequate support.  It has been proven that almost all medical claims coming from brain trauma due to concussions are denied or only given lesser benefits stating that the injuries and mental issues such as depression and early onset dementia cannot be proven that they are a direct result of football.  (In a recent article in the Charlotte Observer, an NFL Plan attorney divulged that there have only been four such claims made successfully in the history of the Plan—only four concussion cases!)   It is difficult for families who are technologically challenged and struggling to afford food and healthcare to navigate this bureaucratic maze.

   

  My own career was ended prematurely. I had five remaining years of a seven-year contract.  I suffered a herniated disk at C-6 and C-7. After surgery, I battled my way back onto the field and played one year and one game.  I herniated a disk again at C-5 and C-6.  I had an agreement with my doctor that, if this happened, I would retire and walk away from the game.  I chose quality of life with my new family moving forward under the impression that the union would provide financial assistance in lieu of the money I left on the table with my contract.  I discovered by going through the NFLPA Disability process that this system was put in place to deny claims by former players. The only concern that they had was that I could maintain another job—any other job--and generate income with no regard to the injuries that were a direct result of playing the game of football. 

   

  The doctor I met with is considered a neutral physician but, in reality, he was a physician designated by the NFLPA. I was not allowed to bring in x-rays, MRI’s, and the doctor could not consult with the trainers from my team or the doctor who performed my surgery.  He denied my claim. His only interest was whether I was capable of holding another job. He showed little interest in my physical condition and the injuries sustained from an 11 year NFL career.

   

  Upon appeal, to another designated NFLPA physician, my claim was denied as I walked into the office. He did not examine me, nor did he interview me. My impression was the decision was made long before I walked through the door. I am not the first to have experienced this routine treatment of injured players. When I talked to other colleagues about my case, their instructions to me were to just

   

  keep fighting and, eventually, I would be accepted. The system has no set standards that instill confidence and trust with any player going through the process that they will be granted disability benefits.

   

  Former NFL players are hurting physically, emotionally, and financially.  There is a tremendous amount of pride in NFL players. We don’t ask for much but we will beg for nothing. This system forces us to beg for benefits that we have earned and to which we are rightfully entitled.  The League needs to take care of these legendary players who made the game of football what it is today. 

   

  The NFL claims to have paid benefits to 284 former players – only about 3 or 4 percent of the estimated 7,000 NFL retirees who have received disability payments (this is the Plan’s own figure; it has also used 8,000 in testimony before the House of Representatives and 9,000 in public statements afterwards, but I’ll use the lower number to give the most flattering picture of their efforts).  A meager 3 or 4 percent at most who have received disability payments is not nearly enough for a game that takes the unique toll on human bodies that football does.  That this discrepancy should exist in a game that realizes over $7 billion in annual revenue is a stain upon the game’s integrity.   The issue of former NFL players’ needing financial and medical assistance is hardly is a new one. The story of former Pittsburgh center Mike Webster, a Hall of Fame player, came to light a decade ago.  Crippled by the constant banging during his career, Webster became homeless.  He applied several times for disability, but was unanimously turned down each and every time.  He died of a heart attack in 2002, and his family sued the NFL for benefits the league had denied him.  They won $1.5 million. 

   

  In recent months the league has taken positive measures to acknowledge those realities by implementing “The 88 Plan” into the most recent labor agreement in honor of former Baltimore Colts tight end John Mackey. Like Morris, Mackey suffers from dementia – but on a more severe level.  The “88 Plan” provides up to $88,000 a year for families to put toward a residential care facility or up to $54,000 for home care.  In the case of Kay Morris, Kay doesn’t believe a nursing home is the best place for her husband, and the $54,000 allotted for home care just isn’t enough money to pay for nursing help and necessary medical attention.  This added program is a step in the right direction; however, it is not enough.  Moreover, since the Mackey Plan is administered as a reimbursement plan, many qualifying players do not have the front money to participate and obtain care.

   

  To protect their economic interests, the NFL and the current players’ union have allowed the Plan’s procedures to become an obstacle course for former players in order to prevent them from getting benefits. They have not published or prescribed rules or standards for the determination of benefit eligibility. There are documented cases, such as Brent Boyd’s, in which the Plan has disregarded the medical opinions of its own “Plan Approved” doctors when the Board does not want to pay benefits. In order to minimize the amount owners must pay, the Board denies many former players’ claims. This is an inherent conflict of interest that favors the owners and active players and has led to tragic results for many severely disabled NFL retirees. 

   

  The Retirement Board created a 42-month limit on retroactive disability amounts for retired players, which is not only against the retired player’s best interests but also a direct violation of the ERISA law. The imposition of a limitation on the amount a player is able to recover reduces the accrued benefit. Degenerative conditions do not always show up within 42 months. Therefore, this makes applying for this benefit impossible due to the time limitation. 

   

  The NFL Retirement Board, not the NFLPA, determines disability claims.  Representatives are appointed by the NFL owners and the NFL Players Association.  There is no one on the board looking out for the interests of former players. This six-member board votes unanimously almost every time.  The Groom law firm who established the pension fund in the 1993 Collective Bargaining Agreement also serves as counsel to defend the distribution of disability payments.  They have earned $3.15 million for defending claims in the past year—about one-sixth of what the Plan says it pays out in disability benefits.  This is an obvious conflict of interest. The emphasis is only on the current player. The players who built the NFL have been left behind. 

   

  The retired player has no voice in the current system. The salaries paid to players who built the NFL pale in comparison to the salaries the players receive today. The NFLPA, however, continues to focus on the current player and his financial stability. In 1993, the Collective Bargaining Agreement (CBA) added many new benefits in addition to the pension. It added a severance, a 5 year Cobra Health Plan after retirement, a 401K Plan, and a second career savings plan - none of which was retroactive before 1993 and there had been no changes in benefits for the previous twenty-three years.

   

  Delvin Williams, who played 8 years as a running back in the NFL, experienced this firsthand.  After 8 years, 6 surgeries, 2 concussions, broken ribs, a dislocated thumb, knee and spinal injuries, as well as numerous other joint and vertebrae injuries, his professional football career ended in 1981, when the Green Bay Packers released him.  He was one of approximately 285 out of 7,000 retired NFL Players who received degenerative disability benefits. However, it did not come without a fight and persistence.  He started the process in 1983 and was awarded a football degenerative disability benefit in July of 1995 – 12 years later!  In 12 years, he was turned down twice and lost at arbitration before being awarded the disability pension benefit. 

   

  The NFL may be concerned about the small number of players who might abuse the system, but in ostensibly protecting against this small problem, they are turning their backs on literally hundreds of players who need assistance. The NFLPA looks at this as protecting themselves against a player, however, this is destroying the family unit and quality of life– families are divorcing, players are losing custody of their children, losing their houses, living in homeless shelters, etc.  There are lots of players in dire need.  They were the foundation of the NFL. The league and active players are making millions of dollars. These former players are losing their health, homes, and dignity.  Even the great Johnny Unitas was denied disability.

   

  The retirement plan has been contorted into a way for the players association to aid the active players. They have cut out the retired players and diverted this money into new plans for active players. Major League Baseball, which draws annual revenues of $4.3 billion, pays out an average of $36,700 in benefits to its participating players. Compare that to the NFL, which is currently drawing $7.1 billion in annual revenues, yet its average benefit payout is $13,000. This is an incredible injustice.

   

  These disabled football players helped build the NFL into a multi-billion dollar industry that continues to grow.  Many of these individuals are suffering from debilitating injuries, post-traumatic stress, and dementia after sacrificing their bodies and minds for the League--for the NFL’s success. They face mounting medical problems and financial hardships and the League must do more to assist them. The league has not only forgotten them, but has attempted to strangle their quality of life through an unwieldy retirement and disability benefit system.  This disability plan is grossly inadequate for those who need it the most – the former players.

   

  Why am I here?  I am not here to cause controversy, but to affect positive change.  We want to fix this issue. As Senators, you have the ability to make a difference and the power to create change immediately. After presentation of these facts, my hopes are high that this situation will be resolved.  There is an excessive amount of money generated by the NFL – the money is there to solve this problem.  This is a $7 billion dollar industry. Why is it not being funneled into the right areas and why is it not being administered to accomplish what it was set up to do?   I implore you to make educated decisions and take care of those retired players – the heroes that have made the game of football the number one spectator sport in America.  These retired players are being denied benefits while the NFL continues to profit off their work.  These are the giants that helped build the league.

   

  I am asking the Senate Commission for oversight to ensure the NFLPA is working towards correcting the problem in good faith. I would like to request the NFLPA be fiscally responsible in paying disability claims. Claim information needs to be publicly divulged so all can see the record of disability claims that have been paid. A major frustration has been the lack of openness on the part of the NFLPA to share the financial aspects of the Plan. The Plan completes a valuation once a year, which compares the assets to the liabilities for the past year. There is nothing confidential or privileged about the information included in this report.  If copies of this report for the past 5 years were made available to retired players, a huge increase in trust could be achieved. Why has this not happened before now?  This simple request for information should be volunteered by the NFLPA with openness as evidence of proper administration of the plan.

   

  What do we hope to accomplish? Our hope is to bring a measure of fairness to the relationship between the League and retired disabled football players. We would like to rework the structure of the disability system.  The system must be neutral to all parties. The framework must include a designated group of retirees from each decade of the NFL in order to provide a voice for forgotten players.  The voices that need to be heard are those of retired players who are suffering medically and financially from the harsh realities of their post NFL careers. It is necessary they be voted in by their peers, not appointed or hand picked by the NFL Committee. The league needs to take a hard look at doing more for veteran players, and address the core issue of overhauling the current disability system.  My goal is to help create a system that addresses the needs of former players that are in dire straights because of the injuries they suffered as a direct result of playing professional football. There are unique circumstances to some of these individuals that the system must account for and take into consideration.  The retired players from the previous era must be provided a voice as the NFL moves forward.

   

  Roger Goodell, the Commissioner of the NFL is forming its first alliance to improve medical services for ailing retired players.  As a form of recognition that a serious problem exists, this is a step in the right direction, but the alliance was devised and announced without gaining sufficient input from advocates who have represented the interests of retirees for years.  A better negotiation process would have produced a better alliance.  To his credit, Mr. Goodell is cleaning up the NFL regarding the actions of certain contemporary players, but now he needs to restore the dignity of the Players who built this league, which has been robbed from many of them by the disability process.  According to the Integrity Clause of the NFL, “The Commissioner is in charge of the integrity of the game, its management and its players.” Webster defines the term “integrity” as “a noun . . . [that] means honesty . . . A trustworthiness and incorruptibility to the degree that one is incapable of being false to an agreement, contract, responsibility or pledge.”  We have an ethical and fiduciary responsibility to the Public – the people who drive the “engine of success” of the NFL.  The fans and retired players are counting on the Commissioner and the Senate to be truthful and honest, and to make a difference in the lives of these broken heroes and past football giants that made football the number one spectator sport in America.

• Mr. Dave Duerson

  Trustee for the Burt Bell/Pete Rozelle Retirement Plan

  and former NFL Player, Chicago Bears
  Read statement

  Testimony

  Mr. Dave Duerson

  Statement of Dave Duerson,

  Trustee

   

  before the

   

  Committee on Commerce, Science and Transportation

  United States Senate

   

  on

  Oversight of the NFL Retirement System

   

  September 18, 2007

                                                                                                                                                             

       

       

  Chairman Dorgan and Members of the Committee, I am David R. Duerson, an 11-year retired NFL Veteran.  It is my privilege to serve as a Trustee of the collectively bargaining plans covering NFL players.

   

  I was born in Muncie, IN, in 1960, to Arthur and Julia Duerson, Jr.  My parents were married for 59 years, until my mother’s death, of almost 4 years.  My father is my hero!  He has 2 Bronze Stars from WWII, having fought in The European Theatre, yet the medal he is most proud of is his Medal of Conduct!  He also believes that every male child should do two years in The Armed Services!  My dad spent 38 years with General Motors, and was an active member in The UAW.  I stood along side of him, as a very small child, on many picket lines.  I can still remember the day, in 1974, that we became a 2-car, and then 3-car family.  I asked my dad “what changed?”, and he said that GM had just given him the job in 1974 that he was qualified to do in 1945, upon returning from the War.  My dad also told me that he was not raising any “average kids!”  He proved it to me, by taking Baseball (my best sport) away from me one summer, because I brought home less than acceptable grades!  GOD, Integrity, and Education forms the foundation from which the Duerson name is built upon.

   

  I attended The University of Notre Dame (1979-1983) on a Football/Baseball Scholarship, graduating in May ’83 with a BA in Economics.  I was a 4-year starter, 2-time All-American, Captain and MVP of The Fighting Irish, and was drafted by The Bears in 1983, as the 64^th player overall.  I also graduated from McDonald’s Hamburger University in ’94, and am an Alum of Harvard Business School’s Owner/President/Management Program (OPM30), finishing in May 2001.

   

  Since retiring from NFL football in April 1994, I have been in the private sector.  While finishing my career in Phoenix, with The Cardinals, I would play on Sunday and be behind a McDonald’s counter on Monday and Tuesday…which ultimately led to my having 3 McDonald’s restaurants in Louisville, KY for 6 months, before moving to the supply-side.  From April 1995-December 2006 I owned 2 world-class, 1st-tier meat processing companies, serving internationally the likes of McDonald’s, Burger King, The Olive Garden, and Sara Lee, as well as, The USDA’s National School Lunch Program and military bases throughout The European Theatre, and others.  In 1998-99, we were the 44^th largest African-American owned and operated company in The United States.  Our 2002 revenue was in excess of $63M.

   

  I had an extremely blessed NFL career, which included: 4 consecutive Pro Bowls, All-Pro 3-times as a Strong Safety and once as a Free Safety, 2 World Championships (Chicago Bears SB XX, and NY Giants SB XXV), 1987 NFL Man Of The Year and 1988 NFLPA Humanitarian Of the Year.  My service to The NFLPA has been uninterrupted, since the end of my rookie year (’83) with The Bears, when I was voted Assistant Player Representative, until today as a Trustee.   I represented both The Bears and The Giants in the role of Player Rep and The Arizona Cardinals as Rep and as a member of The NFLPA Executive Committee.  I was also a named plaintiff, in The Federal Lawsuit which brought Free Agency to The NFL, in 1993, along with Reggie White, Michael Buck, Hardy Nickerson, and Van McElroy.

   

  I personally observed Gene Upshaw and his staff take our union from insolvency to an organization with a For-Profit wing that generates millions of dollars for the players.  I also watched him take us through Decertification and Recertification (of the exact same union)…the first time in the history of Organized Labor that that occurred!  It was I who moved to give Gene and his staff a Vote Of Confidence…it was unanimous!  I also recall during those lean years the number of times that Gene and his staff would not cash their pay cheques, because there was not enough money to pay them…they kept their cheques in their desk drawers!  It was Gene who coined the phrase, our motto and mission statement: “Past, Present, Future!”  The focus has always been on honoring those players, who played before us!

   

  I became team Player Rep in 1987, the year of our strike.  I am very proud of the role my teammates had in leading the strike, and we were the last group of men to return to the practice field, when the strike was called off, and no one crossed the picket line!  The union meeting to strike was held in Chicago.  I will never forget the comment that our Head Coach, Mike Ditka, made when we returned for our first meeting.  As a result of the strike, The League brought in replacement players (SCABS) who played (3) games in place of the striking players.  Mike kept 4 of those replacement players, when we returned, and he told all of us that “Those guys (the 4 SCAB players) are THE REAL BEARS!”    Mike’s comments furthered my resolve, which ultimately led to my role as a plaintiff in U.S. District Court.  It stung my conscience, as much as my dad’s comments regarding GM and the 29 years it took them to give him the job he was qualified to do in 1945.  And also of my first meeting with Buddy Ryan, my rookie year, who asked me: “Golden Domer, you one of those doctors or lawyers?”  I said “yes sir!”  He said “well, you won’t be here too long, because I don’t like smart Niggas!”  I called my dad and told him that “I didn’t graduate from college to go through this!!!”  My dad said: “It sounds to me like you’re in The Army!”  It was a very short phone call.  From that, I learned to persevere.

   

  Fighting for players’ rights became a passion for me and it’s even stronger today.  I was honored when I received an invitation, upon retiring from the NFL, to become Alternate Trustee of the player plans, to serve along side of Tom Condon, Jeff Van Note, and the late great Len Teeuws.  Each man has operated with absolute integrity and with great resolve, in carrying out their fiduciary responsibility.  In fact, during the years that we played without a union representing us, those men were totally naked, in terms of liability, without any financial backing from the players, had a suit arisen!!!

   

  I recall receiving my first set of documents with players’ applications and renewals, with all of their medical records, and turning to my wife and saying: “I now know far more than I care to know about these men and their financial & family situations.”  Our meetings with the NFL Trustees have oftentimes been spirited and on occasion contentious, but always with both sides operating within ERISA Guidelines.  I can say, without question, that Tom, Jeff, Len, and I have fought for every individual player who has filed an application for benefits.  Len was a tireless champion for the men who served in The Armed Services, to get accredited seasons for them, during those years when they were serving our country.  In replacing Len, as a full trustee, upon his retirement, I have continued that fight.  Trace Armstrong now serves as the Alternate.  We are even more diligent in our efforts to gain benefits for any and all players who are deemed totally & permanently disabled!  In all cases, federal law requires us to follow the terms of the Plan, which states that if an individual is “employable”, he does not qualify for total and permanent disability.  That is not an arbitrary decision being made on the part of the Board…It Is The Law!

   

  1993 was a pivotal year, in regards to player salaries and benefits.  As a result of collective bargaining, in Dallas, TX, a new CBA was agreed to.  The very first thing negotiated was Benefits, and I immediately left the room to go and call Daryl Stingley to let him know that his benefits were tripling!  In that same meeting, the Executive Committee moved to create a Pension Benefit for The Pre-59’ers…those men who played prior to the creation of benefits, who had not received one from the guys who came after them.  We got there with Mike Kenn as President and an 11-membered Executive Committee, and a few strong player reps who wouldn’t bend!  Since 1993, every negotiation and extension of the current agreement, the players have reached back (out of their pockets to the tune of $82K per year, per player this year) to fund increases in PAST PLAYER’S BENEFITS!

   

  Can the process be improved?  Absolutely!  Can the process be sped up?  It must be!  But remember, we are bound by federal law and the terms of the Plan, and quite frankly, the only reason the players have a seat on the Board is because it was collectively bargained…just as with my companies, I as management could run the benefit portion without employee input!  Can more be placed into the coiffures for Disability Benefits?  Absolutely!  But, those decisions are made by the current players who, by the way, are putting 6% of their collectively negotiated package into total benefits.  That $82K per player per year comes directly from additional salary they could realize!

   

  I have seen our benefit numbers grow from under $7M to over $2.5B, since the year I became a rep.  Gene and his staff have done yeoman’s work, on more than one occasion.  I pay tribute to all of those player reps, who over the years, sacrificed time with family and oftentimes, careers, to join in this fight.  I can personally recall numerous men who lost their jobs because of their union involvement.  Today, we are as close to labor peace as we’ve ever been…The “Poison Pill” at the end of the agreement, placed their by The Special Magistrate is responsible for that.  The day is coming when the agreement WILL run out, and a system very much like pre-1993 becomes a possibility, again, with salaries being set and no Free Agency.  On that day, benefits will be frozen or simply taken away.

   

  I can uniquely relate to the players, both current and retired, as well as, management, since I had as many as 252 employees…I paid their benefits out of my pocket.  I can also relate to the players who are feeling a significant financial crunch, as I lost my business in 2006 to receivership, due to cash flow challenges, associated with a late startup, after construction.  I won a Federal Lawsuit in October 2004 for $34.592M, but because the company is based in The Netherlands, I have been unable to secure any of the individual’s assets, as of yet, but I will.  The Hedge Fund wasn’t concerned with my challenge, nor my family’s.  It has cost me my business and my home, and I’m exhausting assets as I speak.  But, GOD has been good, and HE has been good to those men who take issue with where they find themselves today.

   

  I have had some great coaches:  Terry Hitchcock, Dan Devine, Jim Johnson, Mike Ditka, Buddy Ryan, Bill Parcells, and Bill Bellichek.  I’ve had and have great mentors and known great leaders. 

   

  This (Capitol Hill) is not the proper venue for this discussion, of how do we improve disability benefits.   I am a retired player, and every man playing today will very soon join our ranks.  The place for this discussion is with the current players, at their Annual Player Rep Meeting, in March.  Retired Players need to go there 300+ strong!  It’s there that the decisions are made, and it’s there that our voice will be heard and influence felt!  ”Eight men thoroughly immersed in true unionized spirit are far greater assets, than eighty, with lukewarm enthusiasm!”

   

  The game is better than it has ever been, and the players are compensated at unprecedented levels.  Salaries and benefits skyrocketed as a result of Reggie White, Michael Buck, Hardy Nickerson, Van McElroy, and myself, and others.  I didn’t realize the impact of it, but one of my sons might, or their children (when they have them).  I’m excited about what we’ve accomplished so far and it’s been a very fair life.

   

  Thank you.  GOD Bless You!

• Mr. Brent Boyd

  former NFL Player, Minnesota Vikings
  Read statement

  Testimony

  Mr. Brent Boyd

   

   

   

   

  Testimony of Brent Boyd

  before the

  Senate Committee on Commerce

  Science and Transportation

   

  September 18, 2007

   

  At a Hearing on

  Oversight of the NFL Retirement System

  
  

   

  Introductory Statement

   

  Dear Members of the Senate Committee on Commerce:

   

  I am Brent Boyd, disabled former National Football League player. I am here for double duty…to explain to you the corrupt NFL Disability process in general, and to also address the more controversial issue of concussions. The NFL would rather you not look into the topic of head injuries, their liability is huge.

   

  I want to thank you for inviting me to testify, I have an incredible but true story that is guaranteed to open your eyes in anger. I thank you for your interest in this issue on behalf of thousands of hurting former players, I tip my hat to your courage on taking on this $7-8 BILLION sports league. While they have owned the legal process, today is our time for justice.

   

  I am 50 years old, a native of Southern California and currently reside in Reno, NV. My wife Gina, a US Postal mechanic, and son Anders, a firefighter in training, could not accompany me today. My neurologist prefers I don’t travel alone, and I am honored to be escorted cross-country by one of America’s highly decorated Marines from Vietnam, Retired Colonel John “Jack” Kelly, USMC.

   

  For your convenience, and edification, I have broken up my testimony into 3 parts. One, my written testimony from the June 26th House hearing, for which I was also a witness. This is invaluable to walk you through the NFL disability process and makes clear as day the false disability claim denials and doctor shopping. This testimony spells out clearly what happened in my case, and I pray you ask plenty of questions because 5 minutes is not near enough time to explain the crime committed against me.

   

  Also, you will see how fiercely the NFL is fighting to avoid full liability for our concussions. Another issue is the generations who served as guinea pigs for the horrible Astro-Turf playing surfaces. We literally played on concrete, and many concussions did not involve hitting another player but just the ground, and it ruined knees and bodies as well as minds.

   

  The second section, entitled “Delay, Deny, and Hope We Die” (after the NFL’s famous delay tactics hoping for the OSHA life expectancy of 52 years or the destitution and depression to force suicides) describes the problem in a more general sense, with facts and figures that will outrage you. This is a presentation first written for Senator Harry Reid’s staff on August 20th 2007.

   

  Only 4 players in the history of the NFL qualify for disability due to concussions. Only 121 TOTAL are receiving any benefits for any reason, according to their 2006 tax return. $3.1 million per year spent on legal fees out of our own retirement fund solely to alter the plan and fight us in court..Baseball spends approx. $170,000 by contrast. This section also tells you why not to be tricked by the boasts that we lost in court...once the process has been corrupted in the early stages, all courts are hogtied by “full discretion” wording, courts do not rule on medical evidence. For the NFL to claim we had a fair day in court is disingenuous.

   

  But I am not here only to complain…I have written the only comprehensive solution to this process, “The Boyd Plan”, the final section. This is a response to chair Linda Sanchez’ written follow up question after last June’s House hearings. The Boyd Plan is a simple solution to solving the “Process” players must go through to receive a claim, how to streamline, make transparent, add actual medical professionals to interpret stacks of doctor’s reports instead of the plan’s attorneys. The Boyd Plan at worst is a starting point for debating the answers to how to fix the “process” side of the problem.

   

  The current process is so corrupted, so rigged against disabled players, and is done in medieval secrecy. Doctor shopping is flagrant and in the open, the NFL, with their absolute power, are like war criminals in that they once had total power and never dreamed they would be caught, exposed, and held accountable for so many unforgivable offenses. That includes needless homelessness and suicides. Doug Ell and Groom Law can manipulate the legal process, but they can’t fool the distinguished members of this Commerce committee.

   

  I am fighting for my life here today, for benefits for my family – in full and fully retroactive – we do not expect half-measures or partial settlements. There are countless proud men who are destitute, homeless, on the brink of suicide from the pain and financial shame.

   

  Lastly, it is important for all of you to know that I received over a hundred emails in the last 2 weeks, each from a different player with a different injury and a different story. But each has a common thread, the thread of a rigged system, of doctor shopping, of a union that doesn’t care.

   

  Because I have received so many letters, which will be made part of the record, and the fact I authored the “Boyd Plan”, I ask you to exhaust me with questions. Not just anecdotal regarding my own experience, but perhaps on the general nature of the widespread problem for which I can speak with confidence. And because “the Boyd Plan” offers solutions, I ask to be also included in questions and answers regarding what to do next.

   

  Please allow me to help you understand this NFL disability issue and how to fix it.

   

  Respectfully,

   

  Brent Boyd

   

  I

   

   

   

   

   

   

   

   

   

   

   

   

  Testimony of Brent Boyd

  Disabled Former NFL Player

   

  TO THE SUBCOMMITTEE ON COMMERCIAL AND

  ADMINISTRATIVE LAW OF THE

  U.S. HOUSE OF REPRESENTATIVES’

  COMMITTEE ON THE JUDICIARY

   

  Hearing on the National Football League’s System for Compensating Retired Players: An Uneven Playing Field?

   

  June 26, 2007

   

   
  

  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.”

   

  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,

  Brent Boyd

   
  

  “THE BOYD PLAN”

   

  BRIEF OUTLINE:

   

  1)    FIRE GROOM LAW – THERE CAN AND WILL BE NO TRUST UNTIL GROOM IS REPLACED. GROOM LAW IS A SYMBOL OF YEARS OF TOO MANY UNFAIR DECISIONS, QUESTIONABLE TACTICS, DOCTOR SHOPPING, NEEDLESS SUFFERING, NEEDLESS HOMELESSNESS, NEEDLESS DEATHS, NEEDLESS SUICIDES – GROOM LAW MUST GO BEFORE ANY HEALING BEGINS!

   

  2)    ELIMINATE THE “FULL DISCRETION” WORDING OR IMPLICATION IN OUR PLAN; INVESTIGATE ETIOLOGY OF “FULL DICRETION” INTO OUR PLAN;  FULL DISCRETION EQUALS ABSOLUTE POWER; ABSOLUTE POWER CORRUPTS – AND PREDICATABLY WE HAVE SEEN THAT ABUSE AS THE OUTCOME OF ALLOWING FULL DISCRETION TO NFL DISABILITY BOARD. WE NEED CHECKS AND BALANCES.

   

  3)    DEFINE THE PLAN’S DEFINITION OF “DISABILITY” IN TERMS SET IN STONE AND EASILY UNDERSTOOD BY ALL, IN DEFINITIVE TERMS THAT WILL BE EASILY INTERPRETED THE SAME WAY BY PLAYERS, THE BOARD AND EVERY COURT - NOT OPEN TO GROOM’S MANIPULATION (FULL DISCRETION – AND GROOM - WILL BE GONE SO THAT WILL HELP) AND REMAKE THIS NEW DEFINITION OF DISABILITY SO THAT IT IS NOT SO OVERWHELMINGLY PROHIBITIVE TO APPROVAL OF CLAIM – DON’T CONTINUE WITH GROOM’S EVER CHANGING AND IMPOSSIBLE TO MEET DEFINITION.

   

  CURRENT UNWRITTEN BUT STRICTLY ADHERED TO DEFINITIONS OF DISABILITY INCLUDE THE INFAMOUS “CAN HE SELL PENCILS ON THE STREET CORNER” QUOTE OR “WASH WINDSHIELDS”  CRITERIA , WHICH ARE OBSCENE AND MUST BE ELIMINATED ALONG WITH ALL THOSE WHO SUPPORT THESE DRACONIAN STANDARDS.  THE MEN WHO BUILT THIS MULTI-BILLION DOLLAR LEAGUE DESERVE DIGNITY IF NOT WEALTH.

   

  AND ELIMINATE THE “15 YEARS AFTER PLAYING” LIMIT FOR FULL BENEFITS, MOST DISABILITIES DON’T DEGENERATE INTO FULL DISABILITIES UNTIL LONG AFTER THAT PERIOD.  IT IS WHEN GUYS ENTER THEIR 50’S AND BEYOND THAT THESE DISABILITIES BECOME DEBILITATING AND THEY CAN’T LIVE ON THE LESSER BENEFIT AMOUNT… AND REMEMBER, OSHA SAYS NFL LINEMEN LIFE EXPECTANCY IS 52 YEARS.

   

  4)    ENSURE TRANSPARENCY – SHINE THE LIGHT! PRINT THE MINUTES OF BOARD MEETINGS, RECORD ALL DEBATES, REPORT EACH VOTE – ALLOW CONGRESSIONAL REPRESENTATIVES TO SIT IN ON ANY MEETING AT WILL. THE NFL DISABILITY BOARD SHALL NO LONGER ACT AS A SECRET MEDIEVAL ORGANIZATION.

   

  5)    TREATING PHYSICIAN RULE- GIVE MORE WEIGHT TO OUR OWN DOCTORS WHO TREAT US REGULARLY FOR YEARS THAN IS GIVEN TO OPPOSING DOCTORS WHO SEE US FOR 30 MINUTES. REIMBURSE THE PLAN FOR ALL FEES PAID TO GROOM LAW WHEN THEY COVERTLY HELPED REMOVE TREATING PHYSICIAN RULE FROM ERISA – BY JOINING NON-FOOTBALL RELATED COURT CASES (e.g., Nord v Black & Decker in Supreme Court) THOSE FEES PAID TO GROOM WERE  TAKEN OUT OF OUR OWN PENSION FUNDS - USING OUR OWN MONEY TO TAKE OUR OWN RIGHTS AWAY, ALL WITHOUT OUR KNOWLEDGE!

   

  6)    IF NFL’S OWN CHOSEN PHYSICIANS AGREE WITH A PLAYER’S CLAIM, SO SHOULD THE DISABILITY BOARD.

  DOCTOR SHOPPING CARRIES “DEATH PENALTY” – SIMILAR TO NCAA FOOTBALL PROGRAMS IN VIOLATION OF CERTAIN RULES - OR GAMBLING IN NFL –

   

   IF NFL’S OWN CHOSEN DOCTOR AGREES WITH PLAYER’S CLAIMS, NO MORE IGNORING THAT DOCTOR AND SENDING PLAYERS TO ENDLESS DOCTORS UNTIL FINALLY ONE SUPPORTS DENIAL. IF BOARD CLAIMS A DOCTOR TO BE “EQUIVOCAL’, SIMPLY PICK UP PHONE AND CLARIFY INSTEAD OF DELAYING FOR MONTHS AND DOCTOR SHOPPING.

   

   ANY KNOWLEDGE OF OR CONNECTION WITH DOCTOR       SHOPPING OR FRAUDULENTLY DENYING A PLAYER HIS RIGHTFUL BENEFITS WILL RESULT IN NO FURTHER ASSOCIATION WITH NFL   IN ANY CAPACITY, EVER  –THIS MUST BE CONSIDERED A SACRED  INTOLERABLE OFFENSE!

   

  7)    LET RETIRED PLAYERS SELECT OUR OWN 3 ADVOCATES TO THE BOARD, NOT SELECTED BY NFLPA EXECUTIVE DIRECTOR. REPLACE ALL EXISTING BOARD MEMBERS.  ACTIVE PLAYERS’ AGENTS AND ACTUAL OR DE FACTO EMPLOYEES OF NFL ARE NOT ACCEPTABLE AS PLAYERS REPS BOARD MEMBERS, THEY HAVE BLATANT CONFLICT OF INTEREST.

   

  DESTROY THE LONGSTANDING MENTALITY OF BOARD THAT DEFINES “FIDUCIARY DUTIES” TO MEAN ONLY TO PROTECT THE “POT OF MONEY”. PLAYERS RIGHTS AND DISABLED PLAYERS RECEIVING THEIR RIGHTFUL BENEFITS HAVE EQUAL OR GREATER WEIGHT TO THE FIDUCIARIES AS DOES THE “POT OF MONEY”.

   

  THE BOARD MUST LOOK EQUALLY AS HARD FOR REASONS TO APPROVE A CLAIM AS THEY LOOK FOR REASON TO DENY A CLAIM. “FIDUCIARY DUTIES” DO NOT MEAN SOLELY TO AUTOMATICALLY REJECT A PLAYER’S CLAIM AND SAVE THE PLAN’S MONEY.  GIVE PLAYERS’ RIGHTS EQUAL ATTENTION, EQUAL RIGHTS, AND EVEN MORE PROTECTION THAN THE “POT OF MONEY.”

   

  8)    ALLOW PLAYERS AND/OR REPRESENTATIVE TO ATTEND BOARD MEETINGS – THAT’S NOT CURRENTLY ALLOWED (AT LEAST NOT AT TIME OF MY CLAIM) – ESPECIALLY ALLOW THEM TO ATTEND THE FINAL APPEALS MEETING.

    

      STOP HOLDING BOARD MEETINGS AT 5-STAR RESORTS, MEET AT MORE PRACTICAL LOCATIONS SO PLAYERS CAN AFFORD TO ATTEND; ALSO IT WILL STOP WASTING OUR PRECIOUS PLAN MONEY! (AREN’T THEY CLAIMING WE ARE SHORT ON CASH?)

   

  9)    ADD 3 MEDICAL PROFESSIONALS TO BOARD, NOT JUST TO EXPLAIN COMPLEX MEDICAL ISSUES TO THE OTHERWISE ALL-LAYMEN BOARD – BUT GIVE THESE DOCTORS VOTES! THIS WILL ELIMINATE THE 3 TO 3 VOTES THAT LEAD TO DOCTOR SHOPPING.  PAY THESE DOCTORS OUT OF A BLIND TRUST FAVORING NEITHER SIDE, ROTATE THESE DOCTORS OFTEN TO PREVENT THE BUYING OF DOCTORS BY THE LEAGUE THAT HAS BEEN SUSPECTED IN THE PAST.

   

  THE DOCTORS ON THE BOARD SHALL HAVE NO INFORMATION AS TO THE FINANCIAL HEALTH OF THE PENSION FUND, AND SHALL LEAVE THE ROOM WHEN ANY ISSUES OTHER THAN MEDICAL ARE DISCUSSED.

   

  10)   WRITE THE RULES. ONCE AND FOR ALL. THIS SOUNDS SIMPLE BUT HAS NOT HAPPENED SUCCESFULLY. CURRENTLY GROOM LAW UNILATERALLY MAKES UP OR CHANGES RULES ON THE FLY TO SUIT THEIR NEEDS, AT THE EXPENSE OF PLAYERS’ RIGHTS. RIGHT NOW RULES AND REGULATIONS ARE A MOVING TARGET

   

  11)   NO MORE LENGTHY, STRATEGIC, AND PAINFUL DELAYS. KEEP THE CLAIMS PROCESS AND VOTING A FLUID PROCESS

   

   HOLD MEETINGS MONTHLY INSTEAD OF EVERY 90 DAYS – MORE OFTEN USING MODERN TECHNOLOGY. SEND PLAYER TO A DOCTOR IMMEDIATELY AFTER HE FILES A CLAIM. SEND ALL DOCTOR’S REPORTS IMMEDIATELY TO PLAYER/ATTORNEY TO ALLOW SPEEDY RESPONSE. USE TODAY’S TECHNOLOGY TO KEEP THE PROCESS MOVING.

   

  12) THE CURRENT SYSTEM OF TWO “GATEKEEPERS” WAS NOT IN PLACE AT TIME OF MY CLAIM, BUT LIKE MOST ELEMENTS OF GROOM LAW’S CHANGES TO OUR PLAN, ALL WITHOUT VALID PLAN PURPOSES, THIS ONE DOESN’T PASS THE “SMELL TEST” EITHER. A ONE TO ONE TIE MEANS DENIAL? THIS IS OBVIOUSLY DOUG ELL’S IDEAL VISION OF A PLAN, THE PLAYER HAS NO CHANCE FROM THE GET-GO.

   

  13) THIS ONE IS FOR CONGRESS ONLY – REMOVE “FULL DISCRETION” AND “DEFERENCE” FROM NOT ONLY THE NFL PLAN BUT FROM ERISA; SIT IN ON NFL DISABILITY BOARD MEETINGS AT YOUR PLEASURE;

   

  SET GOALS AND EXPECTATIONS FOR THE DISABILITY BOARD TO MEET ANNUALLY IN ORDER TO KEEP ANTI-TRUST AND OTHER CONGRESSIONAL GIFTS, WITHOUT WHICH THEY COULD NOT EXIST.

   

  DO NOT ALLOW CERTAIN DISABILITIES – ESPECIALLY CONCUSSIONS! –TO BE CONSTANTLY DENIED AS DISABILITY CLAIMS. CONGRESS MUST STEP IN TO PERMANENTLY PROTECT THE BRAIN DAMAGED PLAYERS.

   

   FOR THE SAKE OF ALL AMERICAN WORKERS EVERYWHERE, REWORK ERISA! ERISA IS A MESS.  ERISA IS A DISASTER FOR AMERICAN WORKERS, A GOLD MINE FOR ATTORNEYS.

   

  KEEP CONGRESSIONAL OVERSIGHT AND PRESSURE ON THE NFL DISABILITY BOARD…PLAYERS DESPERATELY DEPEND ON YOUR PROTECTION!

• Mr. Garrett Webster

  son of NFL Player Mr. Mike Webster, Pittsburgh Steelers
  Read statement

  Testimony

  Mr. Garrett Webster

  Testimony of Garrett Webster

   

  BEFORE THE COMMITTEE ON COMMERCE, SCIENCE AND TRANSPORTATION

  UNITED STATES SENATE

   

  Hearing on Oversight of the NFL Retirement System

   

  September 18, 2007
  

  The following people all helped Mr. Mike Webster in his final years, and I would like to include their names on this document--

  Bob Fitzsimmons

  Sunny Jani

  Devin jani

  Alexis Jani

  Dr. Charles Kelly

  Dr. Jim Vodvarka

  Freddy Shaheen

  Sam Nuci

  Terry despoy

  Cy Smith

  Pamela Webster

  Brooke Webster

  Colin Webster

  Garrett Webster

  And the entire Pittsburgh Steelers Family

  
  

   

  Ladies and gentleman, before I begin my testimony, I would like to express my gratitude for being included in today’s proceedings. I am humbled to be able to appear here today, in the capitol of the greatest country in the world, to share the story of a great football player and a great man who was abandoned by the league he helped build.

   

  Because I am proud of the way my father lived and still agonized at the way he died, I may struggle in my oral presentation of this testimony against being inappropriate.  I hope I am at my best for you Members of the Committee who have kindly taken oversight of the great injustices of the NFL’s disability system, and for the men who have suffered, and who continue to suffer, under it.  I know that, for their sake and for the memory of my father, whom I represent today, that I must try to put hurt feelings aside and coolly expose the deceptions in that system that will rob other children of fathers, mothers of sons, and wives of husbands if it is allowed to continue. I ask you to listen with open hearts and open minds with concern not for icons, superstars, quarterbacks, lineman, or football players, but for your fellow human beings.  In return, I will try to be as brave before my task as my father was in life.

   

  Today you will hear, first hand, from former players about what it’s like to try and obtain relief for their disabilities from the NFL. You will hear what its like to be in constant pain. You will hear what its like to fear the loss of your mind, body, and perhaps even your very soul while you are still relatively young.  But that is not my story. I cannot tell you what its like to wake up and not be able to walk to the shower without being in constant pain. I cannot tell you what its like to fear the loss of your mind and to feel it actually happening.  I cannot tell you what its like to become a stranger even to yourself.  However what I can tell you, and what I will tell you, is what its like to standby, helpless, as your father’s life is turned into a constant living hell that most people would take their own lives to escape.

   

  My father was Iron Mike Webster.  He played 17 years and was perhaps the most widely respected player in the league during the 1970’s and 80’s for his strength, for his work ethic, and for his devotion to his team, the Pittsburgh Steelers.  He was the Steeler the fans viewed as one of them--a regular man who would dedicated hundreds of hours to helping raise millions of dollars for spina bifida, who would stay long after autograph shows so everyone got a souvenir signed, who greeted everyone with a handshake from those massive hands and made them feel like they where a personal friend. Ask all of these people who Mike Webster was and they will tell you that he is the definition of an all time great.

   

  I would love to tell you that Iron Mike Webster lived out his remaining years, a proud man, sharp as a tack, humorous, warm, and caring, a wonderful husband and father.  But I cannot lie and, because I care about my Dad’s memory and I care about the people that here today who are suffering under the same system that failed him so miserably, I must try to tell the truth as I saw it,  through the eyes of a surviving son.

   

  I’m proud of my father, and as all sons are, I think my dad was the greatest dad in the world. When I was young, I remember my dad wrestling with my brother Colin and I in the pool, chasing robins with my sisters Brooke and Hillary in our front yard and reading stories into a tape recorder so we could hear his voice when he was away on road trips.  My Mother, who could not be here today, remembers my dad as a good father and husband who could remember the street layouts of Chicago after taking one look at a map, and who would play practical jokes on the neighbors, not limited to putting a few rubber snakes in Mrs. Gregg’s mailbox.

   

  But, as I grew older, I grew more and more aware that the Mike Webster I knew was dying.  I remember the day I knew something was wrong when, on my 10^th birthday, my dad was nowhere to be found.  I didn’t even receive a phone call, which was not like him.  Later that month I found out why, when our family discovered “Iron Mike” bloated to over 300 pounds, shivering in a bed at a rat infested motel. At his side were not pictures of his kids, nor his super bowl rings, but a bucket of human waste because he was too weak to make it to the bathroom.

   

  As time passed, my dad’s condition only got worse. I have lived through things I would not wish on my worst enemy.  Have any of you had to shock a family member with a tazer so he could be without pain for a few moments, have any of you, at the age of 13, received a phone call from your father in which he tells you he is about to kill himself?  Have any of you witnessed a once strong, proud man, reduce himself to begging for Kentucky Fried Chicken?  I hope not.  I have and I cannot forget.

   

  My father is gone, now.  I cannot help him.  But I can do what he would do for his teammates and fellow football players if he were here, and healthy, and the man he was before repeated head injuries suffered on the football field took his mind and body from him at an early age, and took him from me far too soon.  What I’m asking is that the NFL Players Union and the National Football League as a whole look beyond the bottom line and help the modern day gladiators in every way they can to find peace, self respect and a measure of health when there very short time in the game is over so they don’t end up relieving themselves in an oven in a flash of dementia as my father did once. Believe me, there are millions of kids who play this beautiful game of football who have no idea of the risks. I’m calling on the League, the Players Union, the Commissioner, the retired players, and the United States government to put aside egos and hurt feelings and work on a way to educate people about the health risks involved with playing the game, and to take care of those athletes who got hurt while playing it in a fair and balanced way, whether that be with healthcare, social workers, insurance or whatever help can be provided by a multi-billion dollar corporation.

   

  The final plea I will make is to you, Commissioner Goodell.  I personally think that you’re a good man who wants to promote positive change and in today’s game. You have shown good leadership with things such as making sure NFL players are accountable when they break the law, so they are good role models for kids today. I’m making a plea to you, not as the son of Mike Webster, not as a 23 year-old kid who has lost his best friend and father, but as a young man who desperately wants no one to ever feel the pain that I feel every morning, to feel the loneliness when I feel when I need to turn to my father for advice and he is not there, to feel the heartbreak that I feel when I hear about Chris Beniot, Andre Waters, Reggie White, Justin Strylzick and the web of people connected to them, that have had there life’s destroyed by repeated concussions and head injuries.  I ask you, Mr. Goodell, to use your position as NFL Commissioner to lead the charge to educate the public about brain injuries and show them how to rehab and take care of someone that is slowly becoming a stranger to himself and those around him. I pledge to offer whatever help I can in support.  My father would like that, I know.  I would give my life to never see another family end up like mine.  I am ready to help.  Please join me.

   

  Ladies and gentlemen of the Senate, I thank you for your time.

   

• Mr. Bill Bain

  former NFL Player, Los Angeles Rams

• The Honorable Maxine Waters

  Member

  U.S. House of Representatives

Witness Panel 2

• Mr. Gene Upshaw

  Executive Director

  National Football League Players Association
  Read statement

  Witness Panel 2

  Mr. Gene Upshaw

  Statement of Gene Upshaw,

  Executive Director

   

  National Football League Players Association

   

  before the

   

  Committee on Commerce, Science and Transportation

  United States Senate

   

  on

  Oversight of the NFL Retirement System

   

  September 18, 2007

                                                                                                                                                             

        

       

  Chairman Dorgan and Members of the Committee, I am Gene Upshaw, Executive Director of the NFL Players Association (“NFLPA”).  I appear today at the Committee’s invitation to discuss the benefits provided to players in the National Football League (“NFL”).   Prior to becoming Executive Director in 1983, I played 16 years in the National Football League.  I know the risks and rewards of the game.    

   

  I am distressed when I hear about any former player who is hurting and in need.  Remember I played with a lot of these guys.  I have spent my entire professional career fighting for the rights of players.  I also recognize these are very emotional issues but we cannot overlook the facts.  The facts are the facts.  I ask permission to submit for the record our detailed “White Paper,” which describes the retirement, disability, health care, and other benefits currently available to NFL players.

   

  Our benefits were forged in collective bargaining.  In 1993, as part of my first collective bargaining agreement as Executive Director, we dramatically improved both pension and disability benefits for all players.     

   

  I want to make three simple points.

   

  First, the NFLPA is proud of the job we have done for NFL Players both active and retired.  NFL Players are well compensated and enjoy an outstanding benefits package.  Unlike many businesses, where benefits have been reduced, benefits for NFL players have been maintained and repeatedly improved.  We represent the best practices of labor relations.

   

  Second, we are not finished.  I think all of the active players  respect and empathize with the emotions and concerns expressed by retired players.  This is why we established a Retired Players organization as a division of the NFLPA in 1984.  And, in 1990, we established the Players Assistance Trust (PAT), funded by the active players to help former players in need.  In the past 18 months, this fund has disbursed over $1.5 million to former players in need of financial assistance.

   

  When I became Executive Director in 1983, about 30% of NFL revenues went to the players.  That has now doubled, to 60% of all revenues.  Our union went through some dark times.  We had to renounce our union status – "decertify" – to bring the legal challenge that ultimately led to our present success.  I don't think any other union had ever done that; everyone said we were crazy.  But we made it work.  We shifted the battle from the picket line to the courtroom, and forged the partnership with the owners we are proud to have today.  With labor peace, the game has grown enormously, and all have benefited – players, owners, and fans.

   

  This success has allowed us to win against the prevailing trend of reducing benefits to workers.  Before we get into the hype, let's look at the facts.   The NFLPA has fought hard to increase benefits -- especially pensions, disability, and health care. The charts behind me, and our more detailed White paper, speak the truth. 

   

  Chart I shows in 1993, we reached back and included the “pre-59ers” for the first time in the Pension plan and reduced the vesting period.  These changes extended coverage to over 900 former players and their beneficiaries.  In each succeeding extension of the CBA in 1998, 2002 and 2006, the benefit credits for pension purposes of former players were increased.

   

  Let’s turn to disability.  I want to begin by emphasizing that the Players Association, its members, staff and me personally, are sensitive to the medical, financial and emotional needs of professional football players – both retired and active.  We are distressed when a former player is in need, and we are committed to responding to the needs of all players.

   

  But we reject charges that the present NFL Disability Benefit system treats veteran players harshly or denies them access to benefits. The factual record disproves those charges.  Of course, the system can be improved, and Commissioner Goodell and I are determined to simplify and expedite the processing of claims.

   

  Chart II summarizes disability decisions from 1993, when the present disability categories were established, through June 2007.

  Of the 1052 applicants for disability benefits since 1993, many were ineligible because they were not vested or were already receiving a pension.  Since 1993, 428 players, or 42.6% of those who applied, have received disability benefits. Forty eight cases are still pending, and there will be more approvals.  This compares to a 47% approval rate for Social Security disability.

   

  Another recent disability benefit added by agreement between the NFLPA and NFL is the establishment this year of the “88 Plan”.  “88” was Hall of Fame John Mackey’s number and the plan is named in his honor.  It was negotiated and agreed to between Paul Tagliabue and myself during our 2006 CBA extension talks.  This benefit was extremely important to me and our union because of how much John Mackey meant to us.  He was the first President of the NFLPA after the merger of the old NFL Players Association with the American Football League Players Association in 1970.  John put his name on the line in a major antitrust suit which we won in the mid-70’s, and he has long been an inspiration to the officers and staff of the NFLPA.  I know John well and he is always in our thoughts as we continue to make improvements. 

   

  Chart III shows  that since February of this year we have distributed 130 applications to players.  Of those applicants, we have received 79 back from players and 60 of the applications have been approved.  Of the remaining 19, only 4 have been denied and 15 are pending.

   

  Commissioner Goodell and I do not decide disability claims.  Disability claims must first go  to a two-person Disability Initial Claims Committee (required by Department of Labor regulations since January 2002).  If the Committee deadlocks or a player is not satisfied with its decision, the player may appeal to the full Retirement Board.  The Board has six voting members; three appointed by the League and three appointed by the NFLPA.  The 3 members appointed by the NFLPA are retired players: Tom Condon, former President of the NFLPA, played 11 years in the NFL; Jeff Van Note, former President of the NFLPA, played 18 years for the Atlanta Falcons; and Dave Duerson, who played 11 years,  and was an All-Pro safety.  The NFL appointees are team owners William (Bill) Bidwell (Arizona Cardinals), Clark Hunt (Kansas City Chiefs) and Dick Cass (President, Baltimore Ravens).  If a player is dissatisfied with the Board’s decision, a player may seek review in federal court.

   

  More recently the NFLPA/NFL formed an “Alliance” bringing together an initial $7 million fund to pay for joint replacement surgery and address other financial hardships of retired players.  The joint replacement surgeries will be available at no cost to retired players without insurance at designated hospitals across the country.

   

  All of these benefits and improvements are paid for by the active players. 

   

  Chart IV shows what the current players give up to help those who came before them.  Our CBA allocates a fixed percentage of Total NFL revenues for player salaries and benefits.  As you can see, last year alone the current players voluntarily gave up $147.5 million to help former players.  None of this $147.5 million went to current players.

   

  That's $96.5 million to fund pensions, $20 million to fund disability benefits, and $31 million to fund medical benefits.  Just for former players.  And these numbers are growing.  Because of the pension increases in the 2006 CBA, the cost of funding pensions alone for former players more than doubled --from $39 million to $96.5 million -- a 147% increase in one year.

   

  In the process each active player essentially reduced his salary by $82,000.

   

  My third point is that Congress can help.  I have three suggestions for legislative action. 

   

  First, we need federal standards for workers compensation.  The current state-by-state system often causes the vast majority of hurt workers, not just NFL players, to settle for a lump sum, and give up their rights to lifetime medical care for their injuries on the job.  Congress should impose federal standards that allow injured workers to get immediate medical help and keep lifetime coverage.

   

  Second, Federal law does not allow unions to manage their own plans, even when, as here, the negotiated contribution by employers is fixed and plan actions cannot impose extra liability.  By proposing this I do not suggest that any of the six trustees have not acted in good faith and in accordance with their fiduciary duty.  But since the NFLPA has been criticized when applications are denied (even though a majority vote of the six trustees is necessary for a decision), and since current players are funding the system, it makes sense for the players to be the ones making the disability decisions. 

   

  Third, in 2002, the Department of Labor imposed an extra level of decision-making in disability decisions – a new Initial Claims Committee – before our six trustees can hear the evidence about a particular player’s disability.  I ask Congress to eliminate this requirement.  I opposed the creation of this extra committee when the Department of Labor proposed it.

   

  CONCLUSION

  After 16 years as a player in the NFL and another 24 years as NFLPA Executive Director, be assured that no one cares more than I do about the disability issues and other facing my fellow players.  We have made great progress and we are not finished.  Congress can help.

  I welcome any questions the Committee may wish to ask and will do my best to answer them.  

• Mr. Gale Sayers

  NFL Hall of Fame Player, Chicago Bears
  Read statement

  Witness Panel 2

  Mr. Gale Sayers

  Testimony of Gale Sayers
  Before the Senate Committee on Commerce
  Hearing on Oversight of the NFL’s Retirement System
  September 18, 2007

  
   
  
  

  Chairman Inouye, Subcommittee Chairman Dorgan, Ranking Member Stevens, Subcommittee Ranking Member DeMint, Members of the Commerce Committee and distinguished guests, my name is Gale Sayers.  I was a running back for the Chicago Bears from 1965 to 1971, when my career ended as a result of a knee injury.  I have since had rewarding careers in athletic administration and sports marketing, until I launched a business in 1983, which has grown into a major provider of technology products and services.  In short, I am a man truly blessed by God and life, like my friends Mike Ditka and Gene Upshaw.  Like them, as well, I am not at all a typical NFL retiree who suffered a career-ending injury and then suffered again through the current disability process that is the subject of today’s hearing.  But my own blessings bring responsibilities, and I am here for those who were not as lucky as I was, many of whom have gone through that unfortunate experience.  As a board member of a charity that helps retired players, I have heard many of their horror stories and I want that system reformed.  Moreover, as Mike has often said, football owes us nothing and we owe football everything.  I agree.  So, as I see it, I am here for football, too—a game I love and a family I love.  As a member of that family, I am worried about the effects our broken disability system is having on the fabric of the entire game.

  I call football a family because that’s what it has always been at its best.  Now, families don’t always get along perfectly.  Ask my old friend and teammate, Dick Butkus, about negotiating a contract personally with our old coach and owner, George Halas, as was the common custom in my day, and you might hear a response that I would not dare put in writing before the eyes of the Senate.  If, however, you were to speak harshly of Mr. Halas yourself, Dick would jump to the defense of “Papa Bear” the way any of you would respond if a stranger criticized a member of your own family.  The violent nature of our game makes us pull together like family members.  When someone is playing hurt, we all know in the locker room.  We protect the secret so he won’t be vulnerable, and we watch his back during the game in an effort to protect him from further injury.  Like a family, we watch out for one another.

   

  Extreme financial success can put strain on any family’s relationships.  The football family is no exception.  Today, the NFL is a seven-plus-billion-dollar-per-year industry, yet it still struggles to do right by the retired players whose blood, sweat and sacrifice built the game.  Sometimes it seems as if football has been torn apart by its own success.  I believe that is what has happened with the NFL today.  I also believe that the failure to address this disability issue is at the core of a more general crisis in the game.  You’ve been hearing about the symptoms of that crisis almost every day recently.  But what family can remain healthy if its senior members are thought of as a useless burden on its budget?  Or if its younger members accept the idea that every dollar spent on the health of their elders is a dollar out of their pockets?  Will that family engender respect among its generations and a sense of authority to support rules of good conduct or common sense?  If this disrespect for the history of the game, which is embodied in its retired players, is allowed to continue unchallenged, if generations of older players continue to be seen as expensive and irrelevant, can anyone be surprised if the recent displays of selfishness, irresponsibility, even of criminality, continue to be exhibited by growing numbers of young players?  When families break down in this way, such behavior is always the result.

   

  When I came into the league, older players and retired players were, generally, treated with respect and seen as sources of authority and wisdom.  Reverence for them inspired reverence for the game itself, its history, its rules and the need to project some image of integrity to the fans who, believe it or not, look to football as more than just a game on the field. This reverence for the people who built the game is no longer common and the results are on display everywhere.  I’m not saying my generation of players was a bunch or angels or that the current one is the opposite—far from it.  I see a young man like Ladanian Tomlinson or Peyton Manning and I know there is still a sense of stewardship and honor alive among the current generation.  But that ethic is coming under greater attack today than ever before and exclusive worship of the bottom line is eroding the strength the game derives from the extended family culture it was founded upon generations ago.  We need to turn that around and we must begin that effort today.

   

  We at this table, all members of football’s family, must pull together and fix this disability problem.  If we fail to do so, I believe we will continue to see more and more signs of moral and social decay in our game.  If we succeed, however, I believe many good things will follow.  I truly believe we can pull together as a family and save our game, but I am also certain that we will need the help of this Committee to do so, as I will explain.

   

  The current disability system routinely bars retired players from fair access to disability payments that offer a minimal standard of care.  The word often heard is that the inconvenient “problem” of disability will eventually pass away--a nice way of saying that the retirees themselves will conveniently die.  This is not the way a family should work and it is not the face the NFL should present to the world—to the other families that pay for all the tickets, the TV subscriptions, the hot dogs and the jerseys.  A game worth over seven billion dollars per year owes the fans that support it something more than just a mirror held up to all of society’s problems.  Much is given to this game, so much should be expected of it, I would argue, and the game and its players should be held up to a higher standard.  My friend Charles Barkley once famously said, “I am not a role model.”  He meant that as a caution to society at large not to hold up athletes up as heroes.  I agree with that warning wholeheartedly, but I do not agree that athletes, as public figures, and the games that benefit from presenting their images to the world, do not have a special burden of responsibility to the public.  This is not something we choose, it is something that is thrust upon us as and we must accept some sense of responsibility because, frankly, children are watching.  Their parents should pay heed to Charles’ warning and teach their children accordingly, but it is our responsibility and the game’s to act as if they cannot.

   

  The image this disability issue projects to the public is beneath the dignity of the NFL and it must come to an end before damages our relationship of trust with the fans.  I do not blame any single person for this failed system, whether at this table or elsewhere, but we will all share the blame if we don’t pull together and fix it now, while these players are still alive and in need.  If we do not do so, if we simply allow this problem to “solve” itself by waiting for a generation of gravely injured retirees to die before they can succeed in claiming disability support to which they have a right, then the stain upon the game and it’s history will never be removed.

   

  I have heard Gene speak of his efforts to obtain more benefits for retirees.  I take him at his word.  But whatever has been done to date has not been enough because the problem is still with us.  He, the NFLPA and today’s players must do more to fund this system adequately.

  I have also heard a statement attributed to Mr. Goodell that the owners consider their 40-60 revenue split with the active players to be so generous that they cannot do more regarding disability for retirees.  I want to believe that this was a misunderstanding or misquote and I hope he will correct it here today.  But if it is a true reflection of the owners’ sentiments, then it is an absolutely inadequate response and an evasion of responsibility to the game and the people who built it into the financial success the owners enjoy today.  As Gene has often pointed out, neither the ownership nor the NFLPA directly represented the interests of retired players in collective bargaining, so the revenue split produced by that bargaining offers the owners no shield whatsoever from their responsibilities to disabled retirees.

   

  No, this problem belongs to the entire NFL family and the owners are not exempt from their proportionate share.  I’m glad the NFL has hired a “crisis manager,” but I disagree with their definition of this “crisis” if it simply means that they might have to spend some more money on health care for the men who helped build their fortunes.  The crisis, to me, is this broken system that dishonors our game by compounding the injuries suffered in honest competition by its retired players, and “managing” this crisis must not mean finding ways for the NFL owners to evade their responsibilities.  This is not just another stadium that will be built with public money if the owners threaten to leave town.  This is a system that demoralizes, shames, bankrupts, injures and, at the extreme of it’s cruelty, even kills people.  Everyone is responsible for a share of curing this misery.

   

  I thank the NFL and the Players Association fro proposing their new “Alliance” plan.  It is an important step in that it is a public recognition that this serious problem exists.  As a substantive response to the problem, however, it falls far short.  That was predictable since, unfortunately, virtually none of the people on the retirees’ side of the ball who have worked on this issue for years were invited to contribute to that proposal.  Perhaps because the collective bargaining process has habituated them to think this way, the NFL and the NFLPA are, unfortunately, accustomed to keeping the retirees locked out of actual discussions concerning their fate.  As such, as was done with this plan, they simply hand us a plate that we didn’t order and tell us to eat it with full enjoyment.  This is not an adequate way to construct a plan for the retirees care and, therefore, this plan is not as good as the one we could have hammered out together.  We must do better.  We can.  To do so, we must come together and negotiate.  For that, as I said, we will need the help of the Senate.

   

  As for the charitable efforts in which we retired players have engaged for the sake of our NFL family members, as Mike has said, they will continue.  We must do more, too, and we will.  But such private charity is a mere band-aid upon this enormous systemic problem.  It cannot ever substitute fully for responsible engagement with the problem on behalf of the rest of the NFL family, the owners and the NFLPA, which are obviously not doing enough.   We will all know when we’ve done enough because the problem will simply not exist anymore.  Till then, there is responsibility to take and work to do.

   

  But funding this system adequately is not the only problem that must be addressed.  The unfairness of the system’s procedures must be reformed immediately, before they do further harm to retirees and their families.  Inconsistent and arbitrary administration of retirement benefits is common under the Plan and the tragic consequences are everywhere.  Because of weaknesses in the Employee Retirement Income Security Act, which is the federal employee benefits law regulating employee benefit plans, including the Plan, and the federal Labor Management Relations Act, which regulates collective bargaining, those practices have been allowed to continue.  I would direct the Committee’s attention to the letter provided it by my fellow Kansas Jayhawk alumus and running back for the San Francisco 49ers. Miami Dolphins and Green Bay Packers, Delvin Williams, for a fuller discussion of these issues and an example of the punitive lengths to which the representatives of the disability plan have gone in litigation against a disabled player who dared to pursue his rights in court.  Because that letter treats these issues in detail, I have attached it to this testimony as an “addendum” and ask the Committee to accept it into the record as an extension of my own remarks.

   

  Here are but some of the problems I see in the Plan, as it exists today, which I hope can be addressed in negotiation or, failing that, through legislative action:

   

  1. There is no one on the Retirement Board of anyone with a sufficient incentive either adequately to represent the interests of the disabled retired players or to ensure that benefits are provided uniformly and objectively. Indeed, there are inherent conflicts of interest among members of Retirement Board in favor of the owners of the NFL teams and the active players.

   

  2. Many severely disabled retired players have had their valid disability benefit claims denied because there is no objective oversight over the actions of the Retirement Board and its staff and the members of the Retirement Board have inherent conflict of interests in their service to the participants in the Plan.

   

  1. Representatives on the Retirement Board who are appointed by the owners of the NFL teams recognize that denying benefits to the disabled retired players will minimize future contributions to the Plan by the NFL teams. 

   

  2. Representatives on the Retirement Board appointed by the Union have included among them agents of active players who do not represent retired players. If the executives of the union are inherently more concerned with the active players who re-elect them as executives, they lack sufficient incentive to look out for the best interests of the disabled retired players, which is their charge under ERISA.  If those Union representatives are more concerned with the pay for the active players, they will also recognize that denying benefits to the disabled retired players will minimize current and future payments for their clients.

   

  3. Gene has often said that the Union has negotiated new benefits for retired players, even though he does not represent them, and that the active union employees have “subsidized” those benefits.  He has not, however, sufficiently emphasized that these benefits are, in fact, also for the current players and that, once those benefits are established, the Union has a moral and legal obligation to ensure that they are administered objectively and uniformly among both current players and retirees. That has not happened.  If the Committee would request and obtain data concerning the actual relative distribution of these funds, the full picture would become clear and public, as it should be.

   

  3. The Retirement Board and its staff have not been required to prescribe, publish or adhere to objective standards for determining the eligibility for benefits under the Plan or to publish Plan changes in a timely manner.

   

  4. There is no adequate administrative help for applicants, many of which have brain injuries and corresponding short-term memory loss due to multiple concussions, to fill out applications and proceed through the process.  Simply posting application information on a website, without the availability of objective, real-time human help, is a particularly egregious shortcoming in the context of such injuries, which are common among ex-NFL players.  Moreover, since the NFL has frequently argued that players have not sent in their paperwork (a claim which stretches credulity when referring to totally disabled people who have little else to depend upon but a successful application, but which is nevertheless conveniently impossible to disprove in the absence of better recordkeeping safeguards), these interactions should be recorded and an evidentiary chain firmly established to keep the process honest.

   

  5. The time for processing of claims is inordinately long.  Plan representatives have often quoted an “average” processing time of 18 months, which is interminable in itself if one is disabled, but if the Committee could look behind this “average” time to a true distribution of processing times (considering that many claims are disallowed almost instantaneously), I believe it would find that the processing of claims actually meriting the largest levels of compensation takes a much longer period.  Those that cannot be denied immediately are, thus, often delayed inordinately.  This, again, is particularly egregious because, by the NFL’s own computations, the average ex-player lives to an age of only 55, with linemen averaging only 52.  [It should be noted that these figures have been used historically by the Plan’s representatives to urge ex-players to take retirement at an earlier age, which results in dramatically lower levels of compensation].  This convergence of facts has given rise to a popular characterization of the Plan’s tacit strategy as “Delay, Deny and Hope They Die.”

   

  6. There is no adequate deference given to medical opinion in the entire process.  As noted above, Plan medical experts are routinely undermined and circumvented after they have made a disability finding in favor of a retired player.  Moreover, as in the case of Brent Boyd, non-Plan experts have been specifically enlisted to overturn the decision of Plan doctors who made disability findings.  Medical expertise functions as sword to deny disability, but it is no shield against the aggressive strategies of administrative denial and, if necessary, litigation by the Plan staff and the Groom Law Group.

   

  7. All numerical data associated with the Plan is non-public and inaccessible, making misrepresentations by the Plan’s representatives common and not immediately arguable.  How many retirees are there?  The Plan’s own representatives have given numbers ranging from 8,000 to 13,500, seemingly dependant upon which number was more advantageous under the circumstances.  How many receive disability payments?  At a hearing earlier this year before the Administrative Law Subcommittee of the House Judiciary Committee, Plan representatives said 317.  Later, they amended this to 428.  On information and belief, which is as good as we can get with respect to such unpublished data, the number is actually less than 200.  Crucially, at what levels have people been compensated?  (Again, like the “average” claim processing time, what is the distribution?).  This has never been answered.  How many have applied for disability predicated upon brain injuries resulting from concussions?  As recently as this Friday, Plan representatives told Senate staff that they did not know this number—this even though the NFL is supposedly seeking to implement a new, progressive policy to protect players from the effects of concussions. How many have been successful in obtaining disability based on concussions?  According to a statement by Attorney Douglas Ell of the Groom Law Group to a reporter, that number is four (4)—for the most violent game since the Roman Arena, often played on a surface consisting of concrete covered with a quarter-inch layer of indoor-outdoor carpeting called “Astroturf”, which was incorporated in stadium construction to save on grounds-keeping bills, without regard to the havoc it visited on men’s bodies.  If that number is accurate, the Committee can draw it’s own conclusions about the adequacy of the Plan’s protections.  I implore the Commerce Committee, consistent with its oversight function, which is the reason for this hearing, to seek extensive and complete data on all aspects of the Plan, its procedures and its funding.  The truth, which has been artfully and thoroughly hidden to date, is in these numbers.  Without the thorough examination and publication of these data by the Committee, any private negotiations held in an attempt to solve this problem cannot bear fruit.

   

  7. The NFL Retirees have no bargaining power to negotiate an end to this inequitable situation without the continuing oversight of the Senate.  The collective bargaining entities, the NFL and the NFLPA, do not and cannot represent the retired players.  Indeed, as noted above, the Plan representatives have not even fulfilled their fiduciary and representative duties to the retired players with respect to the distribution of pension and disability distributions.  The light of common day and, with it, the power of public and governmental scrutiny of this process is the only bargaining power available to the NFL Retirees.  Nevertheless, if the Committee would continue its oversight of this issue and demand regular reports of negotiating progress by the parties represented at this hearing, the NFL Retirees would like to engage the collective bargaining entities in a true negotiation in an effort to settle this matter privately, without the need for specific legislative relief.  I therefore ask the Committee to exhort the parties to come together in such a negotiation immediately after this hearing and to subject that process to your regular oversight in the form of such periodic reports, which we propose be produced to the Committee every 30 days from the date of this hearing.
      

  Some legislative actions might help this situation but today I want to make a more immediate appeal to the Members of the Commerce Committee:  please help us pull together as a family and try to fix this problem ourselves.

   

  You’ve called this an “oversight” hearing.  I like that word.  I think that’s just what we need.  As I’ve said, at its best, football is a family, with no need for an overseer, where “bargaining power’ is not an issue.  But in this new rich NFL bargaining power is crucial and the retired players have none without your help.  I don’t ask you to play for our side, only to keep the game fair and keep it going until the job is done.  We need a referee.  I think that if this Committee would ask the parties to come together, starting tomorrow, and negotiate a true solution to this problem, and if it would take oversight of a bargaining process among the owners, the Players Association and representatives of the retired players, with each party making periodic reports to the Committee about the progress of those negotiations every thirty days or so, we should be able to get this job done ourselves.  I ask this Committee to take such oversight and to request and publish all numbers and data necessary to a fair negotiation, so that one can go forward.  I am told the most effective mechanism to obtain such data is a study and report by the Government Accountablity Office.  I respectfully request that such a study be performed and such a report be written.  If you do these things, I think we in the NFL family can get this job done and clean an ugly stain upon our great game before it becomes permanent.  For my part, if you will be referees, I promise you my best game.
     
  Thank you for your consideration and for your oversight of this important subject.  

   

• Mr. Mike Ditka

  ESPN Sports Broadcaster

  and NFL Hall of Fame Player and former Head Coach, Chicago Bears
  Read statement

  Witness Panel 2

  Mr. Mike Ditka

  Testimony of Mike Ditka
  Before the Senate Committee on Commerce
  Hearing on Oversight of the NFL’s Retirement System
  September 18, 2007

   

   

  Chairman Inouye, Subcommittee Chairman Dorgan, Ranking Member Stevens, Subcommittee Ranking Member DeMint, Members of the Committee and distinguished guests, my name is Mike Ditka.  I played for the Chicago Bears and the Dallas Cowboys from 1961 to 1972.  I also was an assistant coach for the Cowboys and the head coach of the Bears 1985 Super Bowl championship team.  Since 1992, I have been involved in broadcasting of NFL games as a color commentator and analyst, as well as other business ventures.  I have been fairly successful and, at the outset, I’d like to clarify that nothing could interest me less than the size of my own NFL pension.  I am here today on behalf of many other retired NFL players who have not been as fortunate as I in the years since their retirements because the injuries they received playing the game of football prevented them from making a living.

   

  For some time, now, I have been involved in charitable efforts to aid disabled and economically challenged NFL retirees through nonprofit organizations such as the Gridiron Greats and the Mike Ditka Hall of Fame Trust.  For some time, these and other organizations have picked up the slack left by an NFLPA that does not do enough for disabled retired players and an ownership that seeks to avoid doing anything at all, both of which seem to have handed the operations of the Plan to an aggressive litigation firm charged with delaying or denying every legitimate claim that players bring forth.  What these charities do, all they can do, is place a band-aid upon the huge wound these other groups are, at best, ignoring by minimizing it’s gravity and keeping it’s true extent secret.  We will continue to do this work as long as the problem exists.  But we will also continue to point out the responsibility the other parties I’ve mentioned have for perpetuating and worsening this problem, and their corresponding duty to shoulder the burden of fixing it before those who suffer under the current system conveniently die and reduce the excess financial burden upon the Plan’s funds.

   

  I’d like to address the question of disability pensions under the Bert Bell Retirement Plan.  It is hard to say what is more disturbing:  what we know, or what we don’t know.  What we know is bad enough.  To start with, the Plan provides disability benefits to too few players (no more than 200 or so, although this statistic often goes up or down in statements by the Plan’s lawyers).  According to the Plan, there are more than 7000 retired players who are entitled to receive some kind of retirement benefit.  (The actual number is probably significantly higher, but I’ll use 7,000 here to describe the Plan as generously as I can.)  This means that, at most, 3 or 4 percent of retired players are receiving any kind of disability benefit.  And this is in a game that pushes most players out of the league within a few years – often due to injury (the average playing career is around 3.5 years).  It is a collision sport, not merely a contact sport, which is probably the most violent public spectacle since the gladiatorial games.  So the idea that only three or four out of every 100 retired players are entitled to ANY kind of disability benefit (not just the top level, but any kind at all) just clashes with common sense.

   

  On top of that, look at the number of retired players who have received disability benefits for brain injuries caused by multiple concussions.  Again, according to statements by the Plan’s lawyer in Sunday’s Charlotte Observer, there have only been four – ever, in history!  One of them was Mike Webster.  And the Plan’s representatives claim not to know the number of players who have applied for disability due to such injuries.  Anyone who has played the game, especially in the recent past when it was often played on a concrete parking lot covered with a quarter-inch layer of indoor-outdoor carpeting called “Astroturf”, will tell you that NFL football often results in concussions and that players commonly receive multiple concussions over the course of their careers.  Again, the idea that only four men who have ever played pro football have had disabling brain injuries just doesn’t make a lot of sense.

   

  Why don’t more players receive the disability benefits they need?  There are lots of answers, starting with the bargaining process between the union and the NFL.  Gene Upshaw described his attitude towards the retired players last year, when he told a newspaper that retired players “don’t hire me and they can’t fire me.  They can complain about me all day long.”  It’s possible that the union leadership doesn’t push harder for fair disability benefits because they think it might mean less for current players.  But part of the job of union leadership is to explain to current players that they could be ex-players next week or next month, as a result of injuries or salary cap decisions.  It’s actually in the interests of current players to push hard for fair, generous disability benefits – and to get that money from both the team owners and from current players.

   

  Look at it this way:  the Plan says that retired players receive only $20 million per year in disability benefits today.  The players’ share of revenues under the salary cap system is about $4 billion a year.  Tripling the disability payments to $60 million – an increase of $40 million – would be only 1% of the players’ total share.  If the players and the owners each gave an extra .5% of the player’s current share for disability pensions, they could easily cover this amount.

   

  Another big barrier to fair disability benefits is the way the Bert Bell Plan is run.  We’ve heard the same stories from too many retired players to chalk this up to complainers, the way the Plan would like to have it.  All claims are reviewed by two office staff who possess no relevant skills for reviewing disability claims.  If they deadlock, the claim is denied.  None of the members of the Retirement Board have any medical training, and several of them have close ties to the union president – including the agent who negotiated Mr. Upshaw’s $7 million contract.  The Plan will delay decisions over and over again – Mike Webster’s case took four years before he had a final decision.  Often these delays are so that the Plan can request multiple reports from doctors in the same specialty or closely related ones – “doctor shopping” is the right word for it.  We all know that if you ask for enough medical opinions, someone will eventually find that there is no disability, or disability at a lower level.  And the Plan spends extraordinary amounts on its attorneys -- $3.15 million last year.  In fact, that’s almost one sixth of what the Plan claims it spent on all disability payments.  Once again, those numbers just don’t add up. 

   

  All of this suggests that, under the Bert Bell Plan, the main emphasis is on minimizing the benefits paid out, not on making sure it’s done fairly.  The website for the Plan’s lawyers has boasted about how many times they have defeated claims by retired players.  But the number of lawsuits suggests that something is broken in the Board’s procedures.  According to the Plan’s attorneys, it has been sued by almost one quarter of the retired players whose claims were denied.  This is not the sign of a healthy process.

   

  If you want to get an idea of how the Plan really works, take a look at the Mike Webster case.  Here was a guy who started almost 250 games for the Steelers, and played every offensive down for six straight seasons.  He wasn’t called “Iron Mike” for nothing.  He played when the head slap was legal, and probably had thousands of serious hits to his head and dozens of concussions.  He couldn’t work after he retired, and was hired by the Kansas City Chiefs as a favor.  His friends told the pension plan’s investigator that he wasn’t right mentally and never held a job.  But the Bert Bell Plan told Mike that his brain injuries weren’t the direct result of playing football, and told him that he wasn’t disabled until years after he retired.  They ignored the opinion of their own doctor, and refused to look at the evidence from Mike’s doctors.  And it took so long to decide his claim that he died in 2002 before the Plan had made a final decision.

   

  After he filed suit, the first judge who looked at the case said that given the overwhelming evidence, the Bert Bell Plan had probably acted in bad faith.  Did the Plan pay Mike’s children then?  No.  They appealed.  And this time it was three judges in a Court of Appeals that said the Plan had ignored the unanimous medical evidence.  They said it would require a “leap of faith” to agree with the Plan.  And so the Plan paid hundreds and hundreds of thousands of dollars in attorneys’ fees to fight the case, and also paid for the time that Mike’s attorneys spent pursuing it.  That helps explain why the Bert Bell Plan ran up a $3.5 million bill for attorneys last year – money that could have gone to injured players.  And even today, just a week ago, representatives of the Players Association claimed that Mike Webster was actually working after he retired from football.  That’s not true, and they know it.

   

  I’ve talked about some of the things we know about the Bert Bell Plan.  But it’s just as important to point out what we don’t know, and what I hope this Committee can help find out through the hearing and oversight process.  Right now, the Plan gives out virtually no information about the number of players receiving disability benefits, how many people get each type of benefit, even the total dollars paid out each year for disability.  The information that gets handed out by the Plan– only in response to Congressional and media scrutiny – is fragmentary and unreliable.  What we really need is full disclosure by the Bert Bell Plan of all the key information behind the disability benefits, so that the retired players, and the union, can negotiate for better procedures, changes in the way the Plan is administered, and more money for disabled retirees.  I hope that this kind of necessary disclosure is one result of this Committee’s work, and I look forward to working with you so that the great men who built this league can lead lives of dignity after their retirement.

• Mr. Roger Goodell

  Commissioner

  National Football League
  Read statement

  Witness Panel 2

  Mr. Roger Goodell

  TESTIMONY OF ROGER GOODELL

  COMMISSIONER

  NATIONAL FOOTBALL LEAGUE

  BEFORE THE

  COMMITTEE ON COMMERCE, SCIENCE AND TRANSPORTATION

  UNITED STATES SENATE

  September 18, 2007

  
  

   

  TESTIMONY OF ROGER GOODELL

  COMMISSIONER, NATIONAL FOOTBALL LEAGUE

  BEFORE THE

  COMMITTEE ON COMMERCE, SCIENCE AND TRANSPORTATION

  UNITED STATES SENATE

  SEPTEMBER 18, 2007

   

  Chairman Dorgan, Chairman Inouye, Vice-Chairman Stevens, and Members of the Committee:

   

              Good morning and thank you for inviting me to appear today and testify on this important subject.  I do not believe that this subject is, or should be, immune from Congressional scrutiny.  To the contrary, the National Football League has always strived to conduct itself in the public interest, and to do everything in a first-class way.  We can only benefit from objective, thoughtful reviews of our policies and programs.  And so I welcome the opportunity to be with you today.

   

              I am joined here today by Harold Henderson, our Executive Vice President of Player Programs, and Dennis Curran, our Senior Vice President and labor relations counsel.  Both Mr. Henderson and Mr. Curran have been deeply involved for the past two decades in collective bargaining, including on player benefits, and in the administration of these benefit programs by the joint NFL-NFL Players Association Retirement Board. 

   

              I recently completed my first year as Commissioner of the NFL.  During that year, I have spent a considerable amount of time with retired players and on the concerns raised by a number of them.  And while I would candidly acknowledge that we have more work to do, I want to outline both the steps taken thus far, and the framework within which we are approaching this issue going forward.

   

              In that context I should add that I cannot comment on the specifics of any individual case.  In my role as Commissioner, I have not read the disability claims files, and I am not qualified to speak to the medical and legal issues raised in any individual case. Although I appoint one half of the Trustees on the Retirement Board, those Trustees act in a fiduciary capacity and I never discuss pending cases with them.   Insofar as you may have questions regarding individual cases, I am certain that Mr. Henderson or Mr. Curran, or one of Mr. Upshaw’s colleagues, could respond better than I can today.

   

              In considering the subject of benefits for retired players, I begin from a premise which I think no one seriously disputes – the men who played professional football decades ago deserve our respect and recognition, and their contributions to our game must never be overlooked.  I honor them and their achievements and neither I nor the NFL clubs will turn our backs on them.

   

              Second, while it might be tempting to say – as some have – that this is Gene Upshaw’s problem to solve, that is neither fair nor accurate.  The responsibility for addressing the needs of retired players belongs to all of us.  The retired players, the current players, the clubs, Gene as head of the Union, and I as the Commissioner – all of us have a role to play.  We will continue to address this issue in a way that is compassionate, creative, and realistic.

   

              Third, just as it would be wrong to say this is Gene Upshaw’s problem to solve, it would be wrong to say that the NFL can or should solve the problem by itself.  While some may not believe this, the fact is that we cannot solve every problem of every type that has been identified, and certainly not in a way that will satisfy everyone.  NFL clubs currently spend close to 60 percent of their gross revenues on player benefits and salaries.  Our clubs contributed almost $150 million last year to finance medical, disability, and retirement benefits for former players, and during the term of our current collective bargaining agreement, we project that our clubs will spend more than $700 million to fund just this package of player benefits.  Owners are responsibly addressing these concerns, but they are simply not in a position to absorb significant incremental costs.

   

              In meetings with Committee and personal staff, our office and the NFLPA have provided you with a comprehensive summary of the benefits provided to retired players. Those benefits have steadily improved over time, and among the benefits available to a player who retires from the NFL today are all of the following:

  • A defined benefit pension plan with a benefit that is geared only to years of service, not to the player’s earnings.  If a player with ten years of service begins to receive his pension at age 55, he receives $56,000 per year; if he waits until age 65, he receives $147,000 per year.  These amounts have grown steadily, and pension benefits have been increased in each new collective bargaining agreement over the past 15 years.  For example, a player who retired 25 years ago – in 1982 – and who begins to receive his pension at age 55 has seen his pension benefit credit more than double since he retired as a result of increases agreed to in collective bargaining. At a time when companies all over America – many of which are considerably larger than the NFL – have terminated their pension plans or turned them over to the federal pension guaranty board, we have both negotiated steady increases in our benefits, and agreed to apply those increases on a retroactive basis.  In our most recent agreement in 2006, we agreed to increase pension obligations by more than $200 million.  In the last ten years, we have increased those obligations by roughly $400 million – virtually all of which has been for the benefit of retired players.  I think everyone would agree that this is a substantial additional commitment by our member clubs to former and current players.
  • We also offer a 401(k) plan, in which player contributions are matched on a 2:1 basis by the clubs up to $20,000 per year.  Players have access to these funds as early as age 45.
  • A player annuity plan, under which eligible players receive an NFL contribution of $65,000 per year to provide transition income to players.  They have access to these funds as early as age 35.
  • Five years of post-career medical care and a health reimbursement account of up to $300,000 for use later in life
  • A lump sum severance benefit paid upon retirement from the NFL based on the number of seasons played.

  We also, as the Committee knows, have a disability plan which offers a range of benefits, including Total & Permanent, Football degenerative, and “Line of Duty” benefits.  We recently added another benefit, known as the “88 Plan,” which provides up to $88,000 per year for former players suffering from dementia, without requiring proof that the dementia is football related.  For other categories of disability, the benefits range from $18,000 per year to $224,000 per year, depending on the nature and severity of the disability.  These benefits are in addition to any state workers’ compensation.  In addition, not all disability benefits are based on a complete inability to work. 

   

  Benefits available under the disability plan have also grown substantially over the past 15 years.  An active player who qualifies for football-related Total & Permanent disability has seen his annual benefit increase from $48,000 in 1993 to $224,000 today.  An active player whose Total & Permanent disability is not related to football has seen his annual benefit grow to $134,000.  And former players with football-related “degenerative” disabilities have seen their annual benefit grow from $75,000 in 1993 to $110,000 today.  These are annual amounts paid to the player as long as he remains disabled.

   

  Our disability plan has a number of features that make it unique and superior to many other plans.  I am told that most American workers have no employer-provided disability benefits.  A report released last month by the Labor Department showed that barely 3 out of every 10 workers in the private sector have access to long term disability coverage.  In certain sectors of the economy that might be perceived as higher risk, the rate of coverage is ever lower.

   

  The NFL Plan covers all players with at least three seasons of experience (four years for players retiring before 1993) and provides for benefits even if the disability is not football-related.  With as few as three years of NFL experience, a former player can receive benefits from the NFL disability plan even if his disability results from a car accident, a fall at home, or some other everyday cause.  Moreover, eligible players can still apply for football degenerative benefits for up to 15 years after they retire from the NFL. 

   

  The NFL Plan provides for payment of disability benefits on a retroactive basis, so players are not prejudiced by delays in the application and administration process.  A player who is approved will receive benefits retroactive to his date of application.  If the disability precedes the application, the player can receive up to 42 months of benefits on a retroactive basis.  And, finally, NFL disability benefits are not offset by medical or workers’ compensation payments, or any other NFL benefits, such as injury protection or severance pay.  As the Committee knows, the workers’ compensation system provides lifetime medical and other benefits to players.  NFL disability benefits are in addition to any payments received from those systems.

   

  We believe these features, far from being exclusionary, demonstrate our commitment to providing fair and generous benefits to players and their families.  And the record bears that out – since 2000, we have paid more than $110 million to players from the 1960s to the present who qualified for disability benefits.

  Like you, I have heard concerns expressed about “red tape” and the complexity of the application process.  We have taken recent steps to address that problem, and I think there is more we can do. One area of frustration is the Plan’s “Initial Claims Committee.”  This arises out of new regulations adopted by the Labor Department in 2002.  At the time these regulations were being considered, we filed comments with the Department noting that these regulations would likely have the effect of slowing down decisions on disability claims, and urged that they not be adopted.  As we said at the time, because of the sometimes complex nature of disability decisions, including the need to have medical examinations completed by neutral physicians, and the reports analyzed within 45 days, the new rules “will only force faster denials.”  The requirements imposed by the Labor Department have had the unintended consequence of making the application process longer and more complex, as our people feared at the time they were proposed. 

   

  In the future, we can look more closely at how we decide which cases need to be reconsidered.  The statistics show that an overwhelming number of recipients are approved to continue their benefits, which rather strongly suggests that we may not need to review and reconsider cases as often as we have in the past.  We have begun that process by reducing the frequency of medical re-evaluations from annually to once every three years for players receiving Total & Permanent disability payments. 

   

  When decisions need to be reconsidered at the Board level, we will begin making decisions outside of the Retirement Board’s quarterly meetings.  Thus once an application is complete, or additional medical evaluations have been received, the Board can consider and vote on the application by fax or email.  This simple change will allow more expedited processing of applications. 

   

  Finally, we have tried to ensure that the standards by which disability claims are evaluated are clear and understandable, and therefore more easily applied.  As one example, decisions regarding “Line of Duty” disability, which is a partial disability arising from football, are based on standards developed by the American Medical Association.  We also recently agreed to expand the standards for determining Total & Permanent disability by incorporating the medical findings of the Social Security Administration.  If a player has been determined to be eligible for disability benefits by Social Security, no separate medical assessments will be needed.  Instead, the determination of the Social Security Administration will govern the former player’s medical eligibility for NFL disability benefits.  Our retirees have my personal commitment to continue the effort to identify and implement any reasonable procedural changes that would allow disability determinations to be made more quickly and reliably.   To that end, we have enlisted the assistance of independent counsel and benefit consultants to advise us on best practices with respect to disability plans and to recommend steps we can take to improve the administration of the Plan.

   

  This does not mean that every person who seeks disability benefits will, or should, receive them.  That needs to be understood by all parties.  Disability benefits are meant to assist people who cannot work, not simply that they can no longer play professional football.  No disability plan, whether sponsored by a private insurer, by an employer, or by the Federal government, provides benefits to anyone who applies.  And it does not mean that, even if approved, every applicant will receive the amount he requests.  But we will continue to strive to do better, and to be seen as doing better.

   

  I now want to address certain allegations about the manner in which decisions are made on disability applications. The administration of the disability plan is governed by federal law and by regulations established by federal agencies.  The Plan operates as required under those regulations, including the use of an Initial Claims Committee, neutral physicians, and the associated time limits.  The people who make decisions act as fiduciaries, who are obligated to follow the law and the terms of the Plan.

   

  There are those who claim that disability applications are nonetheless denied as a result of some sort of grand labor-management conspiracy.  This claim assumes that an extraordinary number of people – myself, my predecessor, Gene Upshaw, the Trustees, the Plan Administrator, the neutral doctors, Plan counsel, and their various staffs – have all agreed to deny benefits without regard to whether an applicant actually qualifies. 

   

  Those who adhere to this theory also dismiss that federal courts throughout the country have upheld the Retirement Board’s decisions in 24 of the 25 cases that have been litigated.  The critics explain that away by saying that the standard of review is too deferential, ignoring that the standard is set by federal law, not by the NFL, and is consistently applied in reviewing decisions by benefit plan administrators and fiduciaries in all sectors of the American life.

   

  But no matter how deferential the standard of review may be, no court would defer to a decision tainted by collusion or conspiracy.  The simple reality is that no such claim has ever been proved and no court has ever made such a finding.  These charges are as cynical as they are unfounded, and the Committee should not dignify them here.

   

  There is one other myth about decision-making that should be dispelled – that being that many players are either denied benefits altogether, or forced to endure extraordinary delay, because the Union and management trustees routinely divide 3-3 on applications.  There is no basis whatsoever for this suggestion.  In fact, since the Initial Claims Committee was put into place in 2002, it has deadlocked on only six claims in a line-of-duty disability and only 32 cases of Total & Permanent Disability.  Every other claim filed – almost 600 claims – was decided unanimously, one way or another.

   

  Where claims are appealed to the Retirement Board, the same is true.  The Board seldom splits in its votes.  And even if there is a split in the Retirement Board, the case is referred to a neutral physician, called the Medical Advisory Physician.  That doctor’s report is final and binding.  That report decides the case – not the Union trustees or the Management Trustees.

   

  Apart from addressing the workings of the disability plan, we have recently taken some additional steps to address specific needs of former players.

   

              Earlier this year, we joined with the NFL Players’ Association, the NFL Alumni Association, and the Pro Football Hall of Fame to establish an “Alliance” to bring together the different groups seeking to help retired players.  As a first step, we have agreed to create a fund, set initially at $7 million, to fund two specific medical initiatives.

   

              First, to provide full or partial funding of hip, knee or shoulder replacement surgery and related rehabilitation for former players at a network of leading hospitals throughout the country.

   

              Second, to provide an expanded national program of cardiovascular risk screening, and education for former players.

              Apart from these two programs, we are also exploring ways of providing support for players in need of assisted living arrangements, and other specific medical needs.

   

              Finally, we are expanding our outreach efforts to better identify former players with special needs, so that our Alliance can provide financial assistance to those proud former players and their families who are sometimes hesitant to ask for assistance.

   

              We recognize that this is not a short-term problem.  Some of the leaders addressing this issue – former players like Jerry Kramer or Hall of Famers Willie Lanier and Merlin Olsen – have met with us and continue to do so.  I am sure that together we have the resources, creativity and determination to make a real difference in the lives of our former players. 

   

              There are today approximately 8000 active and retired NFL Players.  Like many groups of 8000 people, their circumstances vary widely.  We are proud of the comprehensive and improving package of benefits provided to players, and we will continue working to do as much as possible to help those in need.

   

              Thank you for the opportunity to testify before your Committee today.