Introducing ALREADY LOCKED OUT: The NFL and NFLPA’s Rejected Disability Claims

Ever since Dave Duerson’s suicide last month, I have been talking – I believe so far all by myself – about his role on the six-person joint management-union NFL Player Care panel reviewing ex-players’ disability claims, which included applications for acute care expense reimbursement for dementia under the John Mackey “88 Plan.”

Though this is a sore point for those who loved or knew or admired Duerson, I don’t see how we can responsibly flinch from it. The generation of broken brains in pro football is a microcosm of a national problem for amateur athletes, their parents, and all of the rest of us who for too long have turned a blind eye to the human toll of our entertainment. There are larger stakes here than Duerson’s bruised feelings, which by definition he no longer has.

The current collective bargaining impasse, which has led the National Football League Players Association to decertify as an AFL-CIO affiliate so that individual players can litigate, and precipitates a lockout threatening the 2011 season, highlights all the issues dividing the two sides. But the one issue the public should most care about is on the back burner of the contract negotiations: the history of the league’s investment in the now ascendant concussion issue.

With that in mind, I am endeavoring to find detailed data on the 11 reported rejections of 88 Plan claim applications. This is not because I necessarily think all or even any of these individual cases deserve to be independently championed; each has a unique set of facts to which none of us is privy. Focusing on the 88 Plan’s rejected 11 further ignores that not all disabled players’ claims are about head injuries, and that not all head injuries lead, or at this point have already culminated in, dementia.

Still, the journalism on this huge subject has to start somewhere. We pretty much know that Duerson was brain-damaged, and we know that he participated in reviewing a cluster of claims by brain-damaged colleagues’ families with negative outcomes. More information on those cases will facilitate “reverse-engineering” the history of the NFL’s response to the concussion crisis.

The league would like everyone to believe that chronic traumatic encephalopathy was invented the day before yesterday, but I don’t think we should let Commissioner Roger Goodell and his employers off so lightly. The narrative goes back at least 15 years, and the players’ union, slow to respond to the constituency of maimed ex-players, has been a league partner in that unfortunate process in measures large and small.

Disclaimer: I’m not sure Duerson participated in all 11 88 Plan claim rejections. The NFL spokesman referred me to the NFLPA, which appointed Duerson, and the NFLPA has not returned my messages.

Nor do we know how Duerson voted (notwithstanding his heated confrontation with ex-player Brent Boyd at a Congressional hearing). I had an illuminating exchange about all this with John Hogan, a leading disability attorney in the Atlanta area who represents many former players.

Hogan said he has explained to several clients that the challenge of the Duerson wild card, in a court of law, would be showing that Duerson had ever sided with the three NFL-appointed members of the review committee. It is believed that the three NFLPA reps almost always voted together. This is all speculation, and under privacy law neither the committee members nor even Hogan can disclose names.

The NFL disability system “is pretty much illegitimate, regardless of the Duerson situation,” Hogan told me. “However, I have no doubt that the many medical reports of brain injured players seeking line of duty, disability, and 88 Plan benefits weighed heavily upon him.”

But all of the above does not mean that the names don’t exist and that their stories shouldn’t be daylighted – here, or even better, at the football helmet safety hearings that are being bruited about on Capitol Hill. Anyone with more information is invited to contact me at tips@muchnick.net.

The lockout is on, but nearly a dozen retired NFLers are already locked out – denied mental disability claims by a panel that included someone who himself should have had a mental disability claim. Let’s find out why.

Irv Muchnick

SEE ALSO:

Dave Duerson NFL Suicide Story You’ll Read Nowhere Else – In FiveParts