NFL Disability Plan Draws Congressional Attention

Hogan, who has taken Dykes's case to U.S. District Court in Atlanta to get degenerative disability benefits, successfully obtained disability benefits for another player a few years ago after filing a lawsuit on the player's behalf. The player has said he does not want to be identified or details of his case to be divulged. But in his battles with the disability plan, Hogan said he is shocked that the union does not provide legal advice to the players who are trying to get benefits and wonders why the players don't have a shop steward.

The NFLPA bristles at the implication it doesn't support its members. Union spokesman Carl Francis said that any player looking for help in getting disability payments would be directed to the benefits department and would be given the proper forms to fill out. They would also be told how to file the application.

"It's ridiculous to think we are denying disability claims to our players," Francis said.

But Dykes, 40, has been fighting for disability pay for nearly a decade. He left football after his second NFL season with a broken kneecap. But as time went on, other ailments surfaced. His hips began to ache with the pain moving to his back. In the late 1990s he went to see a doctor near his Texas home who had treated him before. The doctor ruled him disabled based on his damaged knees.

When he applied for disability, he was told to see a doctor in Chicago who declared him fit to work without even asking him to take off his pants. Another doctor told him he had a stress fracture in his back but said he could do sedentary work. A physician in Seattle also said he could do sedentary work but could not say what kind of work that would be or how many hours a week he could do that work.

"Every time a doctor approves me I get denied and when I get turned down by a doctor I get denied," Dykes said in exasperation.

Finally last year he applied again after the original doctor who examined him said his back was too bad to allow him to work. The plan sent him to a neutral physician they provided. That doctor also said he was disabled. But the claim was still denied -- his fourth denial -- and after the retirement board did not provide a detailed explanation, Hogan sued.

Dykes and his attorney have been told that the claims committee is deadlocked on the issue of his disability and a member of the committee has found the medical evidence inconsistent.

"Hart was not asking for retroactive benefits and they gave him a functional capacity test where the report indicated he couldn't even do sedentary work on a daily basis," Hogan said. The fact that they were not looking for retroactive benefits should have removed all previous examinations from consideration, Hogan said, leaving two doctors both concluding on his most recent application that he is disabled.

The NFLPA concedes there are problems with the disability process. It rejects the demands of retired players who want the football pension to match baseball's, which is significantly higher. But the union's executives say disability must be improved.

Last week, the NFL and the NFLPA quietly agreed to use Social Security guidelines to determine eligibility for the NFL's disability plan. The reason, the union explained, is to streamline the process, making it simpler for a player to get his payments. If a player has been awarded Social Security disability benefits he can apply to the NFL's retirement plan and get a disability benefit.

The biggest advantage for players is that Social Security heavily relies on an applicant's primary physician in determining eligibility. This would seem to eliminate the need for players to travel around the country to be examined.

But the agreement is short on details. For instance, would all Social Security rules apply? If so, the plan and the lawyer it shares with the players association, the Groom Law Group, could be bogged down in mountains of paperwork. Also, in order to be eligible for Social Security an employee usually has to file within five years of leaving the job. Most NFL players who file often don't do so until they have been out of the league closer to 10 years, when old injuries begin to manifest themselves.

Dykes, for instance, would not have qualified for the Social Security disability benefit because he didn't apply until five years after he retired.

Even worse, Social Security has a backlog of cases. Many are taking two to three years to get through the system. The wait with Social Security might even be longer.

"Perhaps [Commissioner Roger] Goodell and Mr. Upshaw are unaware of this fact," Hogan wrote in a letter to the House committee. "As the NFLPA has long taken a stance that Social Security standards should not be applied to their plan, I am all the more skeptical that this may be some sort of ruse to take the heat off of them."