NFL and NFLPA Finalize Neuro-Cognitive Benefits Plan

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.

 

If you are a former player interested in discussing your rights, feel free to drop me an email at PaulD_Anderson@me.com or contact me at 573-528-6478.

The following is the text of the RELEASE AND COVENANT NOT TO SUE that Players must sign to obtain the Neuro-Cognitive Disability Benefit:

In consideration for the benefit provided under Article 65 of the Collective Bargaining Agreement between the NFL Management Council and the NFLPA, Player, on his own behalf and on behalf of his personal representatives, heirs, next of kin, executors, administrators, estate, assigns, and/or any person or entity on his behalf, hereby waives and releases and forever discharges the NFL and its Clubs, and their respective past, current and future affiliates, directors, officers, owners, stockholders, trustees, partners, servants and employees (excluding persons employed as players by a Club) and all of their respective predecessors, successors and assigns (collectively, the “NFL Releases”) of and from any and all claims, actions, causes of actions, liabilities, suits, demands, damages, losses, payments, judgments, debts, dues, sums of money, costs and expenses, accounts, in law or equity, contingent or non-contingent, known or unknown, suspected or unsuspected (“Claims”) that the Player has, had, may now have, or may have in the future arising out of, relating to, or in connection with any head and/or brain injury of whatever cause and its damages (whether short-term, long-term, or death) whenever arising, including without limitation neurocognitive deficits of any degree, and Player covenants not to sue the NFL Releases with respect to any such Claim or pursue any such Claim against the NFL Releases in any forum.  This release, waiver and covenant not to sue includes without limitation all Claims arising under the tort laws of any state and extends to all damages (including without limitation short-term and/or long-term effects of such injury and death) whenever arising, including without limitation after execution of this release, waiver and covenant not to sue.  Player further acknowledges that he has read and understands Section 1542 of the California Civil Code, which reads as follows:

            A general release does not extend to claims which the creditor does not know

            or suspect to exist in his favor at the time of executing the release, which if

            known by him must have materially affected his settlement with the debtor.

Player expressly waives and relinquishes all rights and benefits under that section and any law of any jurisdiction of similar effect with respect to the release of any unknown or unsuspected claims released hereunder that Player may have against the NFL Releases.  This release, waiver and covenant not to sue shall have no effect upon any right that Player may have to insurance or other benefits available under any Collective Bargaining Agreement between the NFL Management Council and the NFLPA, or under the workers’ compensation laws, and Player acknowledges and agrees that such rights, if any, are his sole and exclusive remedies for any Claims.

Player acknowledges and agrees that the provision of the benefit under Article 65 shall not be construed as an admission or concession by the NFL Releases or any of them that NFL football caused or causes, in whole or in part, the medical conditions covered by the benefit, or as an admission of liability or wrongdoing by the NFL Releases or any of them, and the NFL Releases expressly deny any such admission, concession, liability or wrongdoing.