Former NFL running back Willis McGahee told a doctor assigned to him by the NFL’s disability board that he had suicidal thoughts. Another former NFL player, Michael McKenzie, had his doctor terminate his evaluation because the ex-cornerback had “serious psychiatric issues.” The disability board denied both claims.
These are two examples cited in a new class-action lawsuit filed Thursday morning against the NFL’s disability plans, its board members and commissioner Roger Goodell. Long a bone of contention among retirees who argue the board blocks benefits, several players have also successfully sued to overturn the denial of their benefits.
Now arrives a wider lawsuit, one that contends there is an unspoken bond between certain doctors who turn down claims and a disability plan that pays them regularly by sending former players their way.
“There is powerful statistical evidence that strongly suggests a systematic pattern that the more the Board pays a physician, the more likely the physician is to have a high rate of rendering opinions adverse to benefits applicants,” the lawsuit claims. “As a result, a pattern of assessments unfavorable to benefits claimants has infected the Board’s decision-making.”
Only 2.5 percent of players were found “totally and permanently disabled” or T&P by physicians who were paid more than $200,000 by the plan from March 31, 2016, through April 1, 2017, the lawsuit alleges. Meanwhile, for board-hired physicians paid between $52,000-$60,000 in 2015-16, 26.67 percent of players were found T&P disabled, according to the lawsuit. The lawsuit named several doctors who were paid between $1 million and $2 million who had 100 percent, or nearly complete, rejection rates.
“The NFL is paying its doctors millions of dollars to disqualify players,” said Douglas Kreis, one of the plaintiffs’ attorneys with Aylstock, Witkin, Kreis & Overholtz, who said the stats were based on 707 claims the law firms collected from the U.S. Department of Labor.
The disability plans refer to their doctors as “neutral.”
Goodell was asked about issues with disability denials during his Super Bowl press conference Wednesday before the lawsuit was filed.
“We have to obviously have a system to be able to identify who qualifies for those benefits and who doesn’t qualify for those benefits,” he said. “And that’s done with the union and management. And the facts are that’s done independently with doctors who make a determination of whether the benefit, an individual, qualifies under that program.
“So you don’t want people to benefit from it that don’t qualify for it, because it takes away from people who do qualify for it. So you’re always going to have people who may think they qualify for it. Doctors disagree. The joint board disagrees. That’s the way the system works. But I would tell you the benefits in the NFL are off the charts.”
The NFL has not yet responded to a request for comment since the lawsuit was filed.
The way the system works has been criticized by federal judges before, most recently by a Texas district court jurist who ruled to overturn the denial of former player Michael Cloud’s bid for the highest level of T&P benefits. In her order, which the NFL is appealing, Judge Karen Gren Scholer wrote, “claim for disability benefits was wrongfully and arbitrarily denied in a process that lacked the procedural safeguards both promised by the benefits plan and required by law.”
The NFL has argued in all these previous cases that the federal law that governs defined benefits plans, the Employee Retirement Income Security Act or ERISA, mandates that the courts defer to the judgment of retirement boards. In a 2021 deposition in the Michael Cloud case, disability board member Dick Cass, then the president of the Baltimore Ravens, said, “It is the board’s responsibility to interpret the plan, and we have broad discretion to interpret the plan.”
However, the law also requires these plans to conduct a “full and fair” review and that has not always happened, the lawsuits allege.
The NFL disability board is made up of six members, three appointed by the NFL and three by the NFLPA. Each is named as a defendant.
The former players named as plaintiffs are McGahee, McKenzie, Charles Sims, Joey Thomas, Jason Alford, Daniel Loper, Jamize Olawale, Alex Parsons, Eric Smith and Lance Zeno.
One of the plaintiff law firms is Seeger Weiss, which is the lead counsel on the NFL concussion settlement. That settlement did not cover claims brought against the disability board. Chris Seeger of that firm said he has seen evidence that players are approved for benefits in the concussion settlement and then denied by the disability board for the same or lesser malady.
“We’ve got a problem,” Seeger said. “They got a problem.”
Among the damages being sought in the lawsuit are paying all the players the disability they are owed, financial penalties for the defendants, reforming the system and banning 33 specific doctors who are named.
McGahee said he played with torn hip flexors during an 11-year career.
“I have a twisted vertebra in my back and it irritates me, irritates me so much it comes to a point where I’d have to lay in bed and my girl has to help me get out of bed sometimes,” he said Thursday after the lawsuit was filed. “When I go to regular doctors … they tell me my body looks like an 80-year-old man, all arthritis going through my body through my joints, all of that.”
Smith, who played seven years with the Jets, said he blacks out sometimes and wakes up to find he’s bleeding, punched holes in the wall and his wife and kids are crying. He has been denied T&P benefits. “Most of the time, like, either I don’t want to get out of bed, I just want to lay in bed in a dark room and cry,” Smith said Thursday.
“It’s a sham,” he said of the disability plan. “The NFL likes to pretend like they care about player safety. But it’s only when something big time happens in a game, they’re like, ‘Oh, yeah, we’ll fix this.’ But once it’s passed, all the media’s gave up on that, then they don’t care anymore. Like us players, they don’t care about us anymore.”
(Top photo of Willis McGahee after an injury in 2011: Peter Aiken / Getty Images)