By Les Carpenter
Washington Post Staff Writer
Thursday, June 21, 2007
The NFL and NFL Players Association have taken steps in recent days to make it easier for some injured former players to collect disability money by agreeing to automatically allow a retiree who has qualified for a Social Security disability benefit to receive NFL disability payment as well.
Union leaders say the agreement eliminates red tape from the process because Social Security disability relies heavily on the advice of a former player's treating physician to determine the severity of injuries. But for years the NFLPA's law firm has defended a government system that kept players from using those same treating physicians in making disability claims.
In a document obtained by former Miami Dolphins star Mercury Morris from a Freedom of Information Act request, the Washington-based Groom Law Group spent $140,336.14 to write amicus curiae briefs for two Supreme Court cases in which judges ruled that the opinion of a patient's treating physician should carry greater weight in determining disability benefits. Groom was acting as counsel for the disability benefit plan, which is a joint venture between the NFLPA and the NFL Management Council.
The plan, as governed by the rules of the Employee Retirement Income Security Act, allows administrators to choose the doctors the players see.
Many former players complain the plan sends them to doctors hundreds of miles from their homes at their own expense and has them see specialists who know nothing of their condition. Often these doctors' findings are in contrast to the treating physicians' and the disability claims are denied.
Currently, 284 former players are receiving NFL disability payments, a figure several former players figure to be extremely low.
"It makes no sense that they paid money out of our own disability plan to make it harder for us to get benefits," said Bernie Parrish, the former Cleveland Browns cornerback who helped strengthen the NFLPA in the 1960s and now leads the retired players in a fight against the union and its executive director, Gene Upshaw.
On Tuesday, a congressional subcommittee will hold a hearing on the league's pension and disability programs.
The NFLPA works closely with Groom Law Group, paying it millions of dollars in fees each year. Groom attorney Douglas Ell, the plan's lead counsel, did not return a telephone call yesterday requesting comment. The NFLPA also did not return a call seeking comment.
Amicus curiae ("friend of the court") briefs are submitted by outside parties in disputes who often have an interest in the case and hope to influence the ruling.
Groom took a particular interest in a 2003 case, Black & Decker Disability Plan v. Nord, in which the Ninth Circuit Court of Appeals ruled the tool company's disability plan should have given the heaviest weight to the opinion of an employee's treating physician in trying to get benefits. The ruling was later overturned by the Supreme Court.
"The structure intended by the [NFL Management Council and the NFLPA] will be replaced by a requirement of deference to the views of a treating physician selected by the player. Litigation will increase and different rules will apply in different circuits," the 17-page Groom brief said.
Groom also wrote a brief for a similar case, Regula v. Delta Family-Care Disability Survivorship Plan.
The firm contacted the Employee Benefits Security Administration, an arm of the Department of Labor, to determine the "reasonableness" of the $140,336.41 expense. It argued the cost was necessary because "paying for an additional participant [in the disability plan] would cost the plan $224,000 a year."
The EBSA concluded it was indeed justified "considering the high level of economic impact on the plan if the treating physician rule came into effect."
On Tuesday, NFLPA President Troy Vincent spoke favorably of the looming Social Security agreement with the NFL. "Obviously it puts more people in the plan and becomes a more expensive plan, but it's our responsibility."
Disability experts are skeptical about how many more players will really benefit from the Social Security agreement since employees are usually ineligible to receive the disability payment more than five years after they stop working. Many NFL disability cases don't arise until the players are at least 10 years out of the league and their ailments worsen.