On Monday, 142 retired NFL players filed a lawsuit in federal court in Fort Lauderdale against NFL teams and the League. The purpose of the suit is to require the NFL to recognize CTE (in living players) as an occupational hazard, and thereby allow former players to file workers’ compensation claims against the NFL.
Tim Howard, the lawyer for the plaintiffs said "The workers' compensation relief that plaintiffs are seeking will be based upon their claims that they have now become permanently and totally disabled by CTE as a result of repeated traumatic head injuries that were, in fact, sustained while they acted in the capacity of employees for the defendant." He went on to say that"The intentional delay in diagnosis and treatment of living CTE and repeated head trauma causes avoidable injury and death. Justice requires that the NFL be held accountable for this occupational hazard."
The lawsuit could help players who may not qualify for financial help under the terms of the proposed NFL Concussion Settlement, which is currently under appeal to the U.S. Supreme Court.
Retired NFL wide receiver Tony Gaiter, the lead plaintiff in the case, told reporters Monday that he has been diagnosed with CTE. Gaiter, who played for the Patriots and the Chargers, said he is unable to work. "I'm depressed more than anything," Gaiter said at Monday’s press conference. "I'm just getting by, man."
Here is a newscast regarding the new lawsuit.
Here are some of the retired players included as plaintiffs in this new lawsuit:
Tony Gaiter; Sedrick Irvin; Kevin Harris; Lawrence Jones; Shevin Smith; Santonio Thomas; Warren Williams; Henri Crockett; Jamie Nails; Leon Searcy; Marquis Johnson; Larry Webster; Corey Fuller; Mike Finn; Ernest Givins; Ben Coleman; Dedrick Dodge; Damon Gibson; Michael Gaines; Warren Williams; Dexter Carter; Shockmain Davis; Tracy Scroggins; Darryl Ashmore; Victor Floyd; Corey Simon; Kelvin Kight; Tony Bryant; Albert Bentley; Tobiath Myles; William Floyd; Chidi Ahanotu; Quinn Gray; Charlie Clemons; Wally Williams; Jeffery Hunter; Anthony Fieldings; Dwan Epps; and James Johnson.
If the plaintiffs succeed, they could qualify for 500 weeks of pay that would amount to millions of dollars each.
While the Hall of Fame players and their wives continue to lobby the NFL on increasing the pensions of pre-1993 players, I thought you might like to know what has already been done to increase the pensions and other retirement type benefits for post-1993 players - and why we believe that their needs to be a more equitable distribution of funds. In this article I will focus on the PAP (Player Annuity Plan) which went into effect in 1998.
Before I talk about the PAP, please keep in mind that the average annual salary of a current player is now over two million dollars. Total salaries and "guaranteed" bonuses for 1,700 players are now over 5 Billion annually. On top of that, Pensions for players will increase 3 times under the current CBA and top out at $760 per credited season in 2018.
So, with that said, here is some basic information about the PAP, but please read my comments immediately after the fold.
The PAP provides deferred compensation to players. The Annuity Plan invests the players’ collective deferred compensation. The Annuity Plan is divided between a Qualified Account and a Non-qualified Account. The Qualified Account includes the maximum amount of compensation that can be deferred on a pre-tax basis pursuant to IRS rules. The maximum amount that could be deferred on a pre-tax basis in 2016 was $53,000. The amount contributed to the Annuity Plan above this amount is the Non-qualified Account portion and must be taxed before being invested as part of the Annuity Plan.
Eligibility: A current or former player - since 1998 - with at least one Credited Season. A player does not vest in his Qualified Account until he has earned at least three Credited Seasons.
When Eligible: A player can elect to receive a distribution at any time after he is done playing, provided the player is at least 45, or is at least 35 and five years have elapsed since the player last earned a Credited Season. Distributions must begin no later than the first day of the month after the player turns 65.
How much is the club contribution? A player receives a small $5,000 contribution in their 2nd and 3rd credited seasons and then in their fourth season and each additional season the amounts go up dramatically. From 2011-2013, each vested player will receive $65,000 per year. From 2014-2017, each player will receive $80,000 per year and from 2018- 2020 each player will receive $95,000 per year.
Payment Type: Players may elect different distributions forms and different dates for payments to begin. Payment forms include: (1) annual installments until the player reaches 45; (2) an annuity for life; (3) a reduced annuity for your life, with a survivor annuity beginning after the player’s death; (4) a lump sum, if the former player is at least 45 when the lump sum is to be paid; and, (5) a partial lump sum, if the player is at least 45 when the partial lump sum is paid, with the remainder paid in one of the other payment forms.
How is the Annuity allocation invested? Contributions are paid into a trust administered by the Annuity Board. Program participants are the sole beneficiaries of the trust. The trust is the owner of a group annuity contract with the NFL Player Insurance and Annuity Company. The Annuity Board, with the assistance of Mike Lipper of Lipper Analytical Services, will develop and implement an appropriate investment policy.
Total benefit amount: The benefit the player receives depends on: the value of the player’s account; the player’s age; the player’s marital status; and, the type of payment plan selected by the player.
So let’s look at what a player might expect to receive based on their portfolio of investments. I used a modest 7% annual return on investments to calculate the total. So let’s look at the example of a vested player who will play over the 10 year course of the current CBA. For example, someone like Drew Brees who currently earns 23 million a year and may eventually play until 2020. Obviously, Drew is not your typical player, and this calculation would be at the extreme end of the scale, but it doesn’t hurt to show how this one benefit can make someone very comfortable in retirement.
Here are the contributions into this hypothetical player’s Annuity Plan each year beginning in their 4th year (this does not include the $10,000 they would have received in their first three years 2008-2010):
This player would receive approximately $800,000 into their Player Annuity Plan. If they waited until age 65 – about 30 years - to draw on their funds, they would have over 6 million dollars – which they can take as a lump sum or in monthly payments! You can use this calculator to see what the total would be if the Annuity was taken at age 45 or 55. You can also reduce the total contribution and/or adjust the interest rate.
Remember, this is a very rough estimate. It doesn’t take into consideration the fact that the $800,000 is received over a 10 year period – which would make the total amount go up even higher. Nonetheless, it is probably not far off the mark.
As of March 31, 2015 there was over 1 Billion dollars in the Player Annuity Plan and 4,710 players have qualified for the PAP. The NFL is currently paying out over 102 million in annual benefits to just 223 players that are currently drawing on their PAP - or have taken a lump sum from their PAP. Remember, this is just one of the retirement type benefits that post-1997 vested players will receive in addition to their regular pension plan benefits. I haven’t even talked about the Second Career Savings Plan which has over 1.8 Billion in assets payable to players that played from 1993 and forward.
By the way, if you haven’t signed the NFL Legacy Fund Equitable Pension Parity Petition, you can print it out (below) and send it in the mail to Tom Mack at the following address: 52 Grand Miramar, Henderson, NV 89011
You can also send him an email at firstname.lastname@example.org and let him know that you support the Petition.
The Washington Post interviewed Dr. Anne McKee who recently conducted the post-mortem autopsy of Kevin Turner's brain and said that his death was caused by CTE and not ALS. The Post also interviewed Deepak Gupta, one of the attorneys representing former players who have appealed the case to the Supreme Court.
Unfortunately, Mr. Gupta created a whirlwind of confusion by making it sound like Kevin’s family would receive nothing from the Settlement as a result of Dr. McKee's finding.
"The one thing the settlement had going for it was that it delivered compensation to a player suffering present injury — people with a ‘qualifying diagnosis’,” Gupta said. “This means that the one person put forward as a representative for all the players with present injuries isn’t even in that category.”
That's a Bad Statement because it's totally false and irresponsible!
He goes on to say “Like Ken Stabler, it turns out that Kevin Turner is actually in the group that this settlement leaves out in the cold — players who die with a CTE diagnosis after the settlement”
That's an Ugly Statement because it's totally misleading and inaccurate!
Kevin’s Turner’s case is nothing like Ken Stablers. Kevin received a diagnosis of ALS before he died and therefore, he is entitled to the highest award under the Settlement. If Ken Stabler had received a qualifying diagnosis before he died, he too could have been eligible for an award.
Anne McKee also conducted the post-mortem examination of Ken Stabler's brain and said “He had moderately severe disease. His changes were extremely severe in parts of the brain like the hippocampus and amygdala, and those are the big learning and memory centers. And when you see that kind of damage in those areas, usually people are demented."
Now here's a Good and brutally honest statement from Christopher Seeger, co-lead counsel for the retired NFL players in the concussion-related lawsuits:
“We believe the Supreme Court should deny the appellants’ petitions, as these objections have now been exhaustively examined and overruled by both the District Court and the Third Circuit. Despite the fact that the claims process has not opened due to delays caused by these appeals, more than 11,000 retired players have sought enrollment in the settlement’s benefits. These appeals come with devastating consequences for the thousands of retired NFL players suffering from neurocognitive and neuromuscular injuries, and effectively stand between truly injured retired players and their sole prospect for obtaining benefits while still alive."
“While we are pleased several appellants have decided against petitioning the U.S. Supreme Court, it is clear the few lawyers still objecting to this settlement have motives other than what is in the best interest of the retired NFL player community. This is illustrated by their inaccurate and irresponsible portrayal of Kevin Turner’s recent brain study findings. These objectors ensured that Kevin, who spent the last years of his life fighting for this settlement, could not see it implemented.
“The settlement was specifically designed to compensate those exhibiting symptoms of the most severe conditions associated with CTE — dementia, Alzheimer’s, Parkinson’s and ALS. Kevin was diagnosed while living with ALS, and is therefore eligible for its benefits. The post-mortem examination of his brain that found CTE is important research, but has no bearing on his eligibility for settlement benefits. The BU Brain Bank today issued a statement; confirming that Kevin died of ALS."
“We hope the Court will reject this appeal and affirm the settlement so former players can finally receive the care and support they urgently need.”
Hopefully this statement will clarify any confusion regarding Kevin Turner’s specific situation and shed additional light on why the appeals should be dismissed by the US Supreme Court. If you would like to see the entire Brief in Opposition to the Appeals, you can read it at this link: Brief in Opposition