How the NFL avoids paying disabled players — with the union’s help – The Washington Post

Hobbled by arthritis and herniated discs, Ashmore found air travel excruciating, his lawyer told plan employees. Instead, the NFL plan scheduled Ashmore to meet doctors in Atlanta. After his lawyer complained, the NFL plan canceled Ashmore’s appointments altogether. Then it denied his claim, falsely accusing him of failing to attend scheduled medical exams.

In 2017, the NFL plan cut off payments to Tyrone Keys, a retired defensive end, arguing that disabling arthritis in his back, shoulder and knees had been caused not by football but by a minor car accident. A federal judge later ruled the NFL plan “cherry-picked” evidence to avoid paying Keys, and the plan settled the case.

The judge disagreed, ruling the NFL plan violated federal law when it denied Cloud’s claim. Then she went further, arguing the plan’s treatment of Cloud was part of “a larger strategy engineered to ensure that former NFL players suffering from the devastating effects of severe head trauma are not awarded” full disability payments. The NFL plan has appealed the decision.

The 2022 NFL season will be remembered, in part, for two shocking scenes that renewed focus on the damage America’s most popular sport inflicts on its players. One was the sight of Miami Dolphins quarterback Tua Tagovailoa writhing on the field after suffering a concussion, bringing a Thursday night game to a halt. The other was Buffalo Bills safety Damar Hamlin collapsing with cardiac arrest, ending a Monday night game and briefly bringing the sport to a standstill.

But beyond the glare of national television, debilitated former NFL players continue to encounter a benefit plan, jointly managed by the league and union, that fights aggressively to deny claims and repeatedly shirks legal obligations to fairly review cases, a Washington Post investigation found.

Over the past six months, The Post reviewed thousands of pages of medical records, denial letters and other plan documents produced in lawsuits since 2008, the year after former players went to Congress to complain of onerous red tape, biased doctors and a rigged claims process. League and union officials disputed those allegations but promised reforms.

In the 15 years since, though, eight players have successfully sued the league’s plan, triggering tense and protracted legal fights that have revealed repeated instances in which the NFL’s plan seized on technicalities, ignored medical evidence and flouted federal judges to justify denying claims.

The NFL declined to make any official available for an interview. In a statement, the league dismissed the plan’s losses in court as a small fraction of the thousands of cases it has handled. And even in cases where federal judges ruled the plan wrongly denied a claim, the NFL asserted, the judges were wrong.

“There have been roughly 10,000 claims considered since 2008,” wrote league spokesman Brian McCarthy. “Even if those less than a dozen cases were improperly decided — and they were not — the less than one dozen cases hardly amount to a pattern.”

“There will be an estimated $3 billion, specifically in disability benefits alone, paid out to former players under the current deal,” the NFLPA said. “The record and the numbers reflect the largest increases to former player benefits in NFL history directly resulting from the union’s negotiations with management.”

The NFL’s plan is unique, making it difficult to compare its record in the courts to peers. A typical disability insurer manages plans for many companies, covering millions more customers than the NFL plan. But playing in the NFL is also far more likely to leave players with potentially disabling injuries than perhaps any other job in America, increasing the likelihood of lawsuits.

Several experienced disability attorneys who have battled the NFL’s plan in court, in interviews, said the league’s plan stands apart in how vociferously it fights claims. And they expressed outrage that the NFL maintains every judge who has ruled against the plan was mistaken.

“When a federal judge tells you multiple times you’ve broken the law, your response should be to change your ways and follow the law. Attacking the courts instead shows just how little the plan has learned … and how lightly they take their duties to NFL retirees,” said Cy Smith, partner at Zuckerman Spaeder firm in Baltimore, who has represented several former players in lawsuits against the NFL plan, most notably former Pittsburgh Steelers center Mike Webster, whose estate won the first judgment ever against the plan, in 2005.

Federal law requires disability plans to carefully review each case, and Groom lawyers have claimed to the Department of Labor that NFL plan board members often review “voluminous records” before deciding claims, “hundreds or thousands of pages.”

Smith, now a broadcast analyst for Fox Sports, declined to comment. The only document relating to Cloud’s claim that Smith recalled reading, he testified, was a one-page summary prepared by a paralegal at Groom. In her ruling, the judge identified omissions in that summary that weakened Cloud’s claim.

For years, former players have accused Groom of aggressively contesting claims — and reaping financial benefits in the process. The firm’s revenue from the NFL plan steadily increased from at least $5.7 million in 2016 to at least $8.5 million in 2020, according to public financial disclosure forms.

In litigating Cloud’s case, Groom charged the plan more than $3.5 million, a sum that could’ve paid Cloud’s disability benefits for 27 years if the plan had approved his claim, according to argument at trial from Cloud’s attorney, Christian Dennie.

Former players can qualify for monthly payments that can range from $60,000 annually to $135,000 or more, according to 2019 plan documents, regardless of whether their disability was caused by football. Players permanently disabled as a direct result of their NFL careers can qualify for the most generous payments, known as “Active Football,” which paid at least $265,000 in 2019. Payments last as long as a player’s disability, potentially for the rest of his life.

The board has six voting members, split evenly between the NFL and union. Federal law requires this split, to give management and labor an equal say. But disabled former players have complained for years that this process is stacked against them, because both the NFL and the union have incentives to suppress disability costs. Every approved claim cuts into revenue that would otherwise flow to league owners or player salaries.

Goodell and Gene Upshaw, then NFLPA head, disputed accusations the plan mistreated players. But they said the claims process could be improved, and Goodell highlighted a new policy: any player the Social Security Administration ruled disabled would automatically qualify for NFL disability payments, with no need to see an NFL plan doctor.

Groom lawyer Ell also rejected allegations of wrongfully denying claims. Players upset about denied claims could sue, Ell noted. But they were usually unsuccessful, he wrote to lawmakers: Out of dozens of lawsuits filed by former players through 2007, only one had ended with a judgment against the NFL plan. Goodell and Upshaw also cited the plan’s record in court as proof of its fairness.

The upcoming season had carried great promise for Moore, 24, who’d grown up poor in South Central Los Angeles. An undrafted free agent defensive back out of Morgan State University, Moore spent most of his rookie season on the Bengals’ practice squad. As the 1999 season approached, however, coaches told reporters they expected Moore to compete for a starting job.

Moore had broken the top vertebra in his spine. The game was delayed for 12 minutes while medical personnel loaded him onto a backboard and carted him off the field. After the game, a Bengals trainer said of Moore: “He’s lucky to be alive.”

Three years later, however, the plan cut off his payments. Moore was still afflicted with chronic pain in his neck and fatigue spells every two or three hours. But two NFL plan doctors believed he could work, under specific conditions.

“While Mr. Moore is significantly limited in his activities and physical abilities, I feel he is capable of gainful employment,” wrote NFL plan medical adviser, Dr. Allen W. Jackson, in a report. Jackson believed Moore could handle a “modified, sedentary type job … with intermittent breaks,” he wrote.

Pursuing a lawsuit against an insurance plan with billions in assets and high-priced lawyers would be daunting enough. But Moore faced an even more difficult challenge because of a complex federal law known as ERISA, short for the Employee Retirement Income Security Act.

ERISA sets rules for benefit plans provided by employers, ranging from pension plans to disability programs. Many of those rules help ensure plans are adequately funded and treat employees fairly. But according to experts, rulings by a Supreme Court perceived as pro-business in the 1980s created protections for these plans in the courts.

In cases challenging the denial of benefits under an ERISA plan, legal experts said, judges rarely allow two tactics that plaintiffs in other civil suits use to collect evidence: seeking documents via discovery and deposing witnesses. And to win an ERISA case, plaintiffs usually must convince a judge that a plan “abused its discretion.” A judge can’t simply disagree with a plan’s decision, experts said, but must find the plan abusively ignored its own rules or evidence.

Moore didn’t drop the case, though, and in 2008, he scored a rare victory against the plan in court. The U.S. Appeals court in Pasadena, Calif., ordered the plan to reconsider, calling the medical evidence in his favor “unanimous.” The plan and Moore later settled, according to documents provided by the NFLPA, restoring his payments, with back pay.

Examining Stewart in 2009, one plan doctor found him disabled by arthritis caused by injuries he suffered in the NFL, including a broken hand, a torn ACL, and a torn Achilles’ tendon. A second plan doctor, however, reviewed Stewart’s records and argued injuries he suffered in the CFL contributed, which reduced his payment.

Jimmie Giles, who played 13 years in the league as a tight end, also successfully fought back. Giles suffered from chronic back pain that stemmed from his playing career, which the league’s plan acknowledged. But it tried to blame part of his disability on obesity it claimed in court filings “was not related to football,” reducing his payment.

But when the NFL plan approved Solomon’s claim in 2011, it argued his disability actually hadn’t begun until after 2010 — more than 15 years after his career ended — a cutoff date that reduced his payment.

For Darryl Ashmore, the problem wasn’t what NFL plan doctors concluded, but where they were located. Ashmore lived in Palm Beach, Fla. But when he applied in 2015, the NFL plan scheduled him for evaluations in three cities in six days: a neurological exam in San Antonio, followed by an orthopedic exam in Palm Beach, and then a neuropsychological exam in Tampa.

Ashmore’s “chronic back issues and radicular symptoms preclude him from flying, especially flights over an hour as he experiences a significant exacerbation of pain,” wrote Frank Conidi, who advised the plan find doctors close to Ashmore’s home.

Ashmore’s lawyer pushed for a compromise over travel arrangements but reached an impasse when a plan doctor refused to conduct his eight-hour evaluation over the course of two days. The NFL plan employee canceled Ashmore’s appointments and told his lawyer the plan would review his case.

In June 2018, a federal judge in West Palm Beach ordered the NFL plan to approve Ashmore’s claim. “It defies all reason and common sense to deny benefits to a player for a missed medical examination when neither party was under the impression that examination would go forward,” wrote U.S. District Judge Kenneth Marra.

In the case of Tyrone Keys, a former defensive end for the Chicago Bears, the NFL plan blamed disabling arthritis in his shoulder, back and knee on a minor car accident, and not the physical toll of six seasons of professional football. After paying Keys for 13 years, the plan cut off his payments in 2017, accusing him of failing to disclose a rear-end collision in 2002 the plan argued worsened his condition.

Keys, too, sued. In a 2020 ruling, U.S. District Judge Charlene Honeywell agreed Keys should have provided more information about the car crash in his application. But she still sharply criticized the NFL plan for ignoring reports from doctors who found Keys was already disabled before the accident.

Perhaps no former NFL player fought longer to win his disability payments than Charles Dimry. A former cornerback for the Atlanta Falcons and four other teams over 12 seasons, Dimry first applied for disability payments in 2014, after his doctor determined he was disabled because of football injuries including spinal disc degeneration that required surgery. An NFL plan doctor, however, believed Dimry was able to work, and the plan denied his claim.

The plan’s rationale? To qualify for the higher payment, Dimry needed to have become disabled within 15 years of his retirement in 2000. While the Social Security Administration ruled him disabled as of 2012, it didn’t actually make that ruling until 2016 — 16 years after Dimry retired. The plan chose the later date when determining Dimry’s payment.

“I have practiced in this area of disability insurance for nearly 30 years, against every major insurance company, and this was the worst conduct I have ever seen,” Coleman said in a phone interview. “The problem is, their strategy works. They fight, and appeal, and drag cases out for as long as possible, and many players just give up.”

“He said, ‘Jimmie, we just do what we’re told … the Groom law firm gives us the names and tells us how to vote,’” Giles recalled. In 2011, Duerson died by suicide, and was later found to have been suffering from chronic traumatic encephalopathy, the brain disease believed to be caused by repetitive head trauma.

Giles and other former players, and their lawyers, have for years believed Groom lawyers held heavy sway over union board members who should have been fighting for their cases, keeping them from having to sue. But they didn’t have much evidence to support these theories. Until Michael Cloud got involved.

A Rhode Island native, Cloud set school rushing records at Boston College while earning a degree in sociology. In the NFL, he played primarily as a backup for three teams over seven seasons, attaining his most success with the New England Patriots, where he won a Super Bowl ring in 2003. Off the field, he was perhaps best known for a nickname bestowed on him by ESPN broadcaster Chris Berman, a play on the title of a Rolling Stones song: “Hey, you, get off of Mike Cloud.”

Like thousands of retired NFL players, Cloud played before the league took the dangers of concussions seriously. He sustained at least four concussions that he was aware of, he later told doctors, and as many as 20. In October 2004, when playing for the Giants, Cloud was knocked out of a game against the Minnesota Vikings with a concussion so severe that days later he did not recall how he had gotten back to New York. As was standard at the time, however, the Giants rushed Cloud back into action.

After football, Cloud’s memory problems made it hard for him to keep a job. A stint in broadcasting ended because he couldn’t remember the names of players and coaches. Attempts to work as a personal trainer and a state trooper also ended in failure. In 2008, Cloud lost his house in foreclosure. The next year, he applied for NFL disability payments, citing memory problems, vertigo, and pain caused by leg and foot surgeries.

The NFL plan initially denied his claim, but after Cloud applied again in 2010, the plan approved him for partial disability, based on his orthopedic injuries, paying about $39,000 per year. Cloud continued to see doctors about his cognitive problems, however. In 2012, a doctor diagnosed him with a neurocognitive disorder. Two years later, the Social Security Administration ruled him disabled due to his cognitive problems. Citing this decision, Cloud reapplied for NFL disability payments in 2014.

The plan approved Cloud for Inactive Football benefits, meant for players who become disabled within 15 years of retiring, which paid about $120,000 per year. Cloud’s lawyer thought he qualified for the plan’s highest level of payments — Active Football, for players disabled within one year of the end of their NFL careers, which paid $250,000 per year.

When Cloud retired from the NFL, his lawyer later explained in court filings, players were still largely unaware that concussions could increase risks of brain diseases and cognitive disorders. The NFL didn’t publicly acknowledge any long-term risks of concussions until 2009.

For instance: She ordered NFL plan board members to testify in depositions and at trial — both firsts. And in their testimony, two board members revealed a claims review process much less thorough than required by federal law, the judge found.

When a disability claim decision is appealed, federal law requires plans to conduct a “full and fair review,” completely independent from the original decision, taking into account all relevant information. And attorneys for Groom have claimed that the NFL plan board, which handles disability appeals, does just that. The plan’s board members often review “voluminous records,” Groom lawyers wrote in a 2016 letter to the Department of Labor produced as evidence in the Cloud case.

But when former Vikings running back Smith, one of the union’s board representatives, was deposed in November 2021, he described a much less painstaking process. Before he voted to deny Cloud’s claim, Smith testified, he didn’t review any documents from Cloud’s 1,800-plus-page file, and neither did other board members.

Smith did identify one document he reviewed: a one-page summary of the case, written by a Groom paralegal. The bottom of the page read: “THIS IS A SUMMARY ONLY. The Player’s complete file … should be reviewed prior to making a final determination.”

The Groom summary left out evidence, the judge found, that supported Cloud’s claim. To win his claim in 2016, according to plan rules, Cloud needed to show that his condition had changed since he last applied. The Groom memo incorrectly claimed that one of the new medical reports Cloud submitted had been included previously, and it failed to mention several new symptoms Cloud listed in his 2016 application, all giving the appearance nothing had changed. In fact, the judge found, Cloud’s condition had deteriorated.

“Active Football’s really for the catastrophic-type injuries. Darryl Stingley,” said Smith, referencing the former New England Patriots wide receiver whose career ended at 26, after a spinal cord injury that left him paralyzed. But that’s not the case, the judge found: The plan, as written, stated that any player disabled shortly after retiring — by anything related to their NFL career — should qualify.

Before the trial, as Cloud’s lawyer sought documents relating to his case, he ran into pushback from a surprising source: the NFLPA. The union, which was not a party to the case, fought a subpoena from Cloud, court records show, as did attorneys at Groom.

The judge ordered the union to turn over records, expressing confusion at what she termed “stonewalling” that she suggested was coordinated with Groom lawyers. The union eventually complied, turning over hundreds of pages of records.

At the trial, Cloud’s lawyer highlighted one critical email exchange that demonstrated just how little attention had been paid to Cloud’s claim. In an email, an NFL plan employee described the meeting during which the board denied Cloud’s claim “was done in like 10 minutes.” The board reviewed 114 claims that day, other records show.

Judge Scholer felt differently. She ordered the NFL plan to pay Cloud the Active Football sum — $265,000 annually — as well as more than $1 million in backpay to 2014, when he first applied. The payments are on hold pending the outcome of the plan’s appeal.

When she delivered her order, Judge Scholer accused the NFL plan and Groom of applying an “evolving, and sometimes tortured interpretation” of plan terms and rules to justify denying claims like Cloud’s.

“If … Active Football benefits are not to be awarded to, undisputedly, totally and permanently disabled players who suffer from debilitating, progressive, chronic brain disease caused by their playing for the NFL, why in the world does the Plan not say so? Two sentences, it can say that,” she said.

The NFL plan would no longer automatically approve payments for a player ruled disabled by the Social Security Administration. Every player seeking disability payments would need to be evaluated by an NFL plan doctor. And many disabled retired players also getting Social Security payments would see their NFL payments cut by the amount they also get from the federal government.

That July, two retired players sued the NFL, the NFLPA and the NFL benefits plan over the changes. The case was later dismissed, but amid the uproar, the league and the union agreed to put the payment deductions on hold until 2024, pending further negotiations.

Cloud declined several interview requests for this story. During his deposition in 2021, a Groom lawyer asked Cloud why he felt he had been mistreated by the NFL disability plan. Cloud meandered in his response, mentioning missing medical reports and holes in his brain.