By Paul D. Anderson, Editor, Concussion Litigation Reporter
(Note: In addition to serving as editor of Concussion Litigation Reporter, Paul Anderson is also founder and editor of NFLConcussionLitigation.com, where this article originally appeared.)
UPDATED – December 11
As part of the 2011 Collective Bargaining Agreement, the parties agreed to create a neuro-cognitive benefit plan. I applaud the NFL and NFLPA for getting the plan finalized.
The timing of the benefits is intriguing, and they may have an impact on the players in the NFL concussion lawsuits.
Here’s a quick breakdown of the benefits. The following should not be construed as legal advice, and it is provided for educational purposes only.
Who is eligible for the benefits? (A player must meet all of the requirements below)
- A vested player
- 5 credited seasons, or
- Three credited seasons, including one after the 1992 season
- He has at least one Credited Season after 1994
- He is under the age of 55
- He is not receiving any other retirement or total and permanent disability benefits under the NFL Plan
- The player is found “by the Plan’s neutral physicians to meet the Plan’s standards for mild or moderate neuro-cognitive impairment”
- He signs a Release and Covenant Not to Sue
What benefits will be paid?
- If a player is found to have mild neuro-cognitive impairment, he will receive monthly benefits of at least $1,500.
- If a player is found to have moderate neuro-cognitive impairment, he will receive monthly benefits of at least $3,000.
- He may also qualify for reimbursement for medical expenses related to neuro-cognitive treatment, up to $10,000 per year.
How long will the benefits be paid?
- The benefits will be payable for no more than 15 years, and the benefits will terminate at the age of 55. (at which time a player may be able to pursue other benefits under the Plan – e.g. Total and Permanent disability)
In order to determine if a player has mild or moderate neuro-cognitive impairment, the player will be scheduled for a comprehensive medical examination. The Plan’s Disability Committee will then determine if the player qualifies. The Committee is comprised of three members: one member is appointed by the NFLPA, one member is appointed by the NFL, and the third member will be the Plan’s Medical Director.
What if I am receiving Line-of-Duty Disability Benefits?
According to the League office, you cannot receive Line-of-Duty (LOD) Disability Benefits and Neuro-Cognitive Benefits simultaneously. You can apply for both, but you will only receive the greater of the two benefits (i.e. LOD or Moderate Neuro-Cog Benefits).
For example, if you are currently receiving $2,000/mo. for LOD Benefits, and you apply for and qualify for Moderate Neuro-Conitive Benefits, then you must choose whether to continue to receive LOD benefits or the $3,000/mo. under the Moderate Neuro-Cognitive Benefits. It is best to consult with your family and attorney when making this decision.
This is the first major shortcoming of the Neuro-Cognitive Benefits. In my opinion, a player should be able to receive LOD and Neuro-Cognitive Benefits simultaneously. LOD benefits are primarily for orthopedic injuries, while Neuro-Cognitive Benefits are for the brain. It makes ZERO sense that a player, suffering from both orthopedic injuries and cognitive disorders, cannot receive both simultaneously.
Yet again, the NFLPA failed to negotiate a better deal in this regard. But for now, it appears, a majority of former players will have to wait — until their LOD benefits terminate — while their neurological condition gets progressively worse before they can receive Neuro-Cognitive benefits.
The Final Kicker
In order to receive the benefits, the player must sign a release promising not to sue the NFL. In other words, if a player accepts the benefits he cannot join the NFL concussion lawsuits. Stated differently, if a player is currently a plaintiff in the concussion lawsuits, in order to receive the benefits, he will likely have to dismiss his lawsuit. The release will not waive any future workers’ compensation claim he may have against a team.
The plaintiffs in the concussion lawsuits, that played after 1994, have a decision to make: should I accept the benefits under this plan, or should I continue to purse my claim against the NFL and hope that it will be successful?
Of course, the plaintiffs’ lawyers in the concussion lawsuits are likely advising their clients not to pursue these benefits (perhaps out of self-interest).
But, the reality is, there is absolutely no guarantee the concussion lawsuits will be successful. If a player is suffering from a neuro-cognitive disorder, then he shouldn’t wait around for the lawsuit to run its course. It will likely take years for the lawsuits to be resolved; during that time several players may have already missed their opportunity to file a claim because they reached the age of 55.
A player needs to make an informed decision and most importantly consider his health and financial situation. A player likely will not have to dismiss his lawsuit until he qualifies for the benefits, at which time, he can weigh his decision: take the benefits or proceed against the NFL in my concussion lawsuit.
Again, I applaud the NFL and the NFLPA. I am hopefully optimistic that this is a step in the right direction to ensuring players are able to have a quality life after retirement. However, if history is any indicator, the Disability Board may be quick to deny claims – but I hope that will not be the case.