DETROIT -- Hail the Super Bowl. The National Football League's celebration of its own grandeur and opulent display of its multibillion-dollar enterprise has a pervasive hold on American life. The unofficial national holiday is the official forum for corporations and merchandisers to hustle their products and polish their images with the most vast and expensive audience on earth.
This year the hucksters will be especially aggressive, looking to grab some of the tax rebates the government will be sending taxpayers to stimulate the faltering economy. It's a great deal for the politicians. The Bush "stimulus package" is simply borrowing money from our grandchildren and using the obscene swindle to bolster our spending and enable our excesses.
We must buy the products that pay the corporations for their advertising costs and give the TV networks the revenue they need to pay the billions of dollars to the NFL to pay the wealthy team owners and athletes that provide us with the entertainment. The bookies thrive, too.
It seems nearly everyone makes out. Except several hundred men whose battered bodies and bruised brains leave them struggling to survive. Disabled former NFL players, including many who made the Super Bowl the extravaganza it is today, are neglected and left to fend for themselves in a system that screams out for reform.
While we endure two weeks of hype and hoopla before the Super Bowl, John Hogan will be busy in his office putting the finishing touches on his white paper exposing the grave injustices in the NFL disability plan that leaves so many players without benefits and forces them to struggle for years to get their cases reviewed.
Hogan is an attorney in Sugar Hill, Ga., a suburb of Atlanta. He is a nationally known expert on Social Security and disability laws and he represents several former NFL players.
For full disclosure, I've known John since we were kids. He is a Niagara Falls native and the son of the late Judge John V. Hogan, who served for years as the Niagara County judge and surrogate. The judge would be proud of his son's hard work, guts and determination.
Hogan's paper is aptly titled "Illegal Procedure: NFL Disability Claims." In it he describes in detail how the league's plan is structured to deny and delay disability claims and force former players to jump through endless bureaucratic hoops to get benefits. Members of Congress who sit on House and Senate committees investigating the NFL disability issue will soon be sent the paper.
Hogan uses football analogies to describe the flawed system:
"Imagine playing a football game where the other side chooses the referees and those referees have only one or two rules to guide them. Imagine playing a football game where the opponent keeps moving the goal line and adding time to the clock when it suits their fancy. Imagine the other side having the authority to take away a touchdown without any justification -- just because they can. This sounds ridiculous -- but it is the type of game many former NFL players find themselves in when applying for disability benefits from the NFLPA (The National Football League Players Association)."
The federal Employee Retirement Income Security Act of 1974 (ERISA) governs the disposition of disability claims, and Hogan analyzes how "total and permanent" disability claims by former NFL players are being improperly denied in procedures that skirt the spirit and intent of the law.
I spoke with John Hogan on the phone about his work and the flaws he sees in the NFL plan, and how former players suffer as a consequence. John has spent 25 years digging through the labyrinths of disability rules and the mountain of paperwork required for every claim. He's dealt with insurance companies and corporations across the country.
"What's the worst organization you deal with?" I ask.
"The NFL, without a doubt," John replies in a flash. "I don't think they really understand what total disability means. The plan allows each physician assigned to a player's case to decide what constitutes total and permanent disability." In his paper, John writes:
"Surely it means different levels of impairment among different physicians. Does it mean being a total invalid? In a wheelchair? Does it mean impairment to the point of being unable to engage in full-time, competitive employment? Until and unless the Plan further defines 'total' disability, different doctors will continue to offer different opinions on whether the same former player is 'totally and permanently' disabled."
The NFLPA describes its plan as the "most generous and flexible disability" benefits in professional sports. While that's true on paper, Hogan found "it has often been very difficult for former players to obtain the benefits offered." The NFLPA brags about the generosity of the plan, while systematically assuring very few former players will actually receive help.
Active players suffering debilitating injuries have the advantage of having easy access to current medical records documenting the cause and extent of their disability. But as Hogan argues, "For former players seeking the rather generous football degenerative benefits after becoming totally disabled some years after leaving the League, the task becomes much more difficult."
Last September, at a Senate committee hearing, former player and coach Mike Ditka urged respect for the players who helped make the NFL the multibillion-dollar business it is.
"Don't make these proud men beg," Ditka said. "Don't make then jump through hoops. Let then live out their lives with a little respect."
At the same hearing, former Minnesota Viking Bill Bain was close to tears when he asked the senators to bear with his slow halting words "because I have brain damage." Many former Super Bowl players suffer from dementia and severe orthopedic disabilities.
Players seeking disability first go before the Disability Initial Claims Committee (DICC), made up of two individuals, one appointed by the NFL Management Council and the other by the NFLPA.
While ERISA rules require a initial determination within 45 days, with permitted extensions up to 105 days, Hogan found "the DICC has frequently exceeded those time frames." Players are left in limbo waiting to learn whether they will receive replacement income and disability benefits. The appeal process to the full retirement board also moves at its own pace as the players wait for a decision.
Former players are routinely sent for a "neutral physician examination," and even when the "neutral physician" supports the claim, that doesn't mean it will be approved. The claim is denied if one member of the DICC says no. This happens frequently, and Hogan sees the obvious pattern.
"Needless to say, the dissenting member of the DICC is always appointed by the NFL Management Council," he says.
ERISA requires that former players be informed why their claim is denied and what additional information may be required to win an appeal. But the way the NFLPA plays the game, the player is simply told one DICC member rejected the claim and the way to proceed with an appeal is by submitting to another "neutral exam." Hogan's report exposes the flaw:
"What ERISA regulations clearly require is that the former player receives detailed notice which sets forth and discusses all of the evidence which was considered, what weight was given to various opinions about the player's limitations and why the evidence considered was not supportive of the claim. In many cases, the players are unable to tell whether the DICC member(s) have actually read all of the evidence submitted, as assurances that are contained in the file do not necessarily equate with a guarantee that all was read and considered."
Hogan likens appeals to the full retirement board to the desperate "Hail Mary pass," where "the success depends on luck." Medical opinions are tossed around and an "advisory physician" is brought in for another look-see, so "the player's claim then hinges upon this one examination, regardless of the number of other favorable reports and examinations."
The league and owners don't like the image of the violence of the game and the broken lives that follow. But many former players lay the blame for the disability horror stories squarely on their own union. NFLPA executive director Gene Upshaw "is not an advocate, he's an adversary" according to NFL Hall of Famer Joe DeLamielleure.
One of the greatest offensive linemen to ever play the game, the former Buffalo Bills great says, "It is a disgrace how the people who made the league are treated."
I spoke to him on the phone Saturday while he was at his home in Charlotte, N.C.
Joe's one of the lucky ones. He has his share of aches and pains but he's not disabled and does some promotional work for the Seneca Niagara Casino in Niagara Falls.
"We played the most dangerous game in the world and we have the worst pension and disability benefits," he says.
Joe says Upshaw is "beyond cozy" with the owners, and his relationship with them is "insanity" and leaves former players coping with disabilities out in the cold. Joe points to Upshaw's salary topping $6 million and his longevity. Upshaw has been the union boss for 25 years.
"Only Castro has lasted longer," Joe cracks.
He says if Upshaw forced the issue, more would be done for disabled former players. He argues that if NFL players got the pensions Major League ballplayers do, they wouldn't need disability benefits.
Joe's barbs got to Upshaw so much that he told the Philadelphia Daily News he "would break DeLamielleure's neck" as a response to his criticism. Joe says Upshaw approached him at an Hall of Fame event and brushed off his words as "football talk."
Joe's not buying it. He wants reform now to help "the guys who built the league." He sees Upshaw as the major obstacle.
"It's a matter of justice and fairness," Joe says.
The average life expectancy of former NFL players is age 55, and that's the age when they are eligible for full pension benefits.
"That's like starting Social Security benefits at age 77," John Hogan said.
I'll be watching the Super Bowl with renewed interest this year, rooting for my beloved New York Giants, thinking about the players who made it what it is, and about John Hogan and Joe DeLamielleure, people who still remember them and fight for their cause.
| Niagara Falls Reporter | www.niagarafallsreporter.com | Jan. 22 2008 |