BOYD et al v. NATIONAL FOOTBALL LEAGUE et al

Filing 1

COMPLAINT against NATIONAL FOOTBALL LEAGUE, NFL PROPERTIES LLC ( Filing fee $ 350 receipt number 055871.), filed by MACARTHUR LANE, MARK COOPER, BRAD JACKSON, ROBERT BELL, CHARLES ANTHONY, CLIFF HARRIS, MARVIN WOODSON, PAUL KRAUSE, NOEL JENKE, CHARLES MYRTLE, CEDRICK HARDMAN, BRUCE LAIRD, JOE DELAMIELLEURE, DON HORN, DENNIS HARRAH, JAMES WILLIAMS, MARK KONAR, TOMMY NOBIS, JAMES JONES, CALVIN JACKSON, TROY JOHNSON, MICHAEL MORTON, PETER LAZETICH, CALEB MILLER, JOSEPH KAPP, MICHAEL WEDDINGTON, HARVEY ARMSTRONG, DERLAND MOORE, MICHAEL MERRIWEATHER, JAMES HARRELL, AARON JONES, II, KENNETH EASLEY, JR, ESTATE OF GREGORY LENS, RICK SANFORD, WILLIAM "BILLY&quo SHIELDS, GARY PADJEN, CHARLES KRUEGER, PHIL VILLAPIANO, KEN FANTETTI, DONNIE GREEN, LEON "RAY" JARVIS, EDWARD WHITE, JOE FERGUSON, JR, LARRY WOODS, DONALD MACEK, JEFF BARNES, CHARLIE SMITH, LEE FOLKINS, DERRICK GAFFNEY, AUGUST "GUS" OTTO, PHILLIP FREEMAN, III, OLRICK JOHNSON, JR, WILLIE GREEN, JAMES HOUGH, CHARLEY HARRAWAY, THOMAS BEER, JAMES GARCIA, FRED FORSBERG, TERRANCE "TERRY&quo METCALF, BOBBY HARDEN, JR, DENNIS MCKNIGHT, ALFRED GROSS, GENE LANG, LEMUEL BARNEY, BRENT BOYD, DELLES HOWELL, JERRY ROBINSON, WILLIAM "BILL" CODY, VICTOR HICKS, ARTHUR STILL, REGINALD CLARK, CRAIG CURRY, DONALD MANOUKIAN, MARK NICHOLS, JEFF MCINTYRE, DAVID RECHER, LEONARD "BUBBA&quo MCDOWELL, JR, MIKE WOOD, TERRY OWENS, CLARENCE VERDIN, BRYAN STOLENBERG, ROD MARTIN, ROBERT KROLL, KEITH NORD, MICHAEL "TONY" DAVIS, CONRAD DOBLER, MELVIN CARVER, MIKE AUGUSTYNIAK, TRUMAINE JOHNSON, FRED SMERLAS, RANDY RAGON, MARGENE ADKINS, NEAL CRAIG, WILLIAM "BILLY&quo TRUAX, KORY MINOR, J. BRUCE JARVIS, LIONEL ANTOINE, STEVE JONES, PETER CRONAN, IRA MATTHEWS, III, MARK COTNEY, JEFFREY WALKER, MERVIN KRAKAU, JON MELANDER, LARRY WEBSTER, FRED ANDERSON. (Attachments: # 1 complaint, # 2 complaint, # 3 complaint, # 4 complaint, # 5 complaint, # 6 complaint, # 7 complaint, # 8 complaint, # 9 complaint, # 10 complaint, # 11 complaint, # 12 complaint, # 13 complaint, # 14 complaint, # 15 complaint, # 16 complaint, # 17 complaint, # 18 complaint, # 19 Civil Cover Sheet)(mima, )

198.

Obtaining disability benefits under the Plan has been notoriously difficult.

In 2010, only 289 of 464 eligible players who applied for disability payments were awarded any.

199.

As noted above, on June 23,2007, hearings on the NFL's compensation

of

retired players were held before C&A Subcommittee. Numerous retired players suffering severe

disabilities as a result of their careers playing for the NFL, including Plaintiff Boyd, told their
stories of being denied T&P and other benefits. Representative Sanchez summarized the

evidence as follows:

After announcing this hearing and subsequent research, it
has become clear that the NFL disability and pension
benefits plans have sparked a significant amount of
passionate critics. The various stories relayed by the
retirees demonstrate concern not only with how the plan
is structured but also about how it is administered.

The fundamental question then becomes whether this
disability process is fair for the retired employees of the
NFL. The evidence suggests that the vast majority of
former players needing benefits do not receive them.
What is even more troubling is that through projects
such as the NFL films, the NFL continues to profit off
those very same players who are denied benefïts.
Essentially, is the NFL, Ð multibillion dollar
organization, fairly treating the employees who
helped build it? (Emphases added).

200.

Representative Conyers also summarized some of the evidence that had

been presented to the subcommittee:

[T]he NFL's treatment of its retired players with respect
problematic. As
many of us know, the average football athlete is not a
marquee player but plays in the league for less than 4
years and often retires because
injury. Upon
retirement, he receives only $14,500 in pension benefits,
less than half the amount received by an average retired
Major League baseball player.

to disability and pension benefits is

of

85

Of 10,000 retired NFL players, it is estimated that

less

than 300 receive long-term disability

payments.
Several recent well-publicized cases highlight the
resulting problems. For example, Pittsburgh Steelers

center Mike Webster [("Webster")]. The court
recently awarded his estate more than $1.1 million in
disability payments that the NFL's Retirement Plan
administrators claimed he was not entitled to receive.
Or take Brian DeMarco, former offensive lineman for the
Jacksonville Jaguars. According to the Denver Post, Mr.
DeMarco's back was broken in 17 places and he retired
due to severe health problems after the 1999 season. But
he has never been able to get NFL disability benefits. His
disabilities were so extensive that he can't hold a
telephone to his ear. In the last 4 years, Mr. DeMarco and
his family have been homeless on three occasions.
{.*rt

tÈ

I am concerned about the extent to which these issues are
attributable to the administration of the NFL Retirement
Plan, and I am troubled by the fact that arbitration is not
readily available in cases of disability claims. The
process for resolving disputes concerning player benefits
and submission of disputes to a benefit arbitrator does not
usually apply to retirement or disability benefits. Rather,
the plan's Retirement Board hears appeals of its own
decisions instead of submitting appeals to an arbitrator,
and this practice has drawn significant criticism.
(Emphases added).

201.

On September 18, 2007, a hearing on oversight of the NFL retirement

system was held before the United States Senate Committee on Commerce, Science and

Transportation. Similar testimony about denials of benefits was presented by NFL retired
players.

202.

On April 8, 2008, the Congressional Research Service ("CRS") issued a

report on "Former NFL Players: Disabilities, Benefits And Related Issues." It concluded:

The subject ofplayers' injuries, disabilities, and benefits
is a complex one, and, accordingly, there are a host of
86

issues surrounding this subject. Although the number and
type of benefits have grown over the years, older retirees,

particularly those who played prior to 1982, have fewer
benefits available to them than their successors have.
Yet, this subset of former players might have the greatest
financial and medical needs.

203.

As the CRS report also explained, there were substantial obstacles in

obtaining T&P disability benefits under the Plan:
Overall, from July I,1993, through June26,2007,1,052
individuals applied for LOD or T&P disability benefits:
428 applications were approved; 576 were denied; and 48
are pending. The approval rate, which does not include
the cases that are pending, is 42Yo. The following series
of statements shows the status of applications at each step
ofthe process.

--I,052 applications submitted for disability benefits.
--3 58 (3 4%) applications approved.
--675 (64%) applications denied.
--19 (2%) applications are pending.
--223 (33% of 675) applications denied at the initial stage
were appealed.
--69 (31%) approved on appeal.
--132 (60%) denied on appeal.
--22 (10%) appeals are pending.

--32 (24% of 132) applicants whose appeals were denied
filed a lawsuit.

--l (3%) lawsuit resulted in a reversal of the Retirement
Board's decision.

204.

As the CRS report also noted, as of Octob er

27 , 2007 ,

only I 54 NFL

retired players were receiving T&P disability benefits.

205.

There also exists a separate health benefit plan for retired or former NFL

players known as the "88 Plan." The 88 Plan was created in August of 2007, apparently partly in
response to the congressional hearings cited above.

87

It is designed to assist players who are

vested under the Plan and who are determined to have dementia (including Alzheimer's
Disease), as this condition is defined in the 88 Plan. The 88 Plan

will

pay the cost of medical

and custodial care for eligible players, including institutional custodial care, institutional charges,

home custodial care provided by an unrelated third party, physician services, durable medical
equipment, and prescription medicine. For eligible players who are institutionalized as an inpatient, the maximum annual benefit is currently $100,000 pursuant to the 2011 CBA ($130,000

beginning in 2016). For eligible players who are not institutionalized as an in-patient, the
maximum annual benefit is $88,000 ($116,000 beginning

in20l6).

88 Plan benefits may be paid

on behalf of an eligible player even if that player is also receiving T&P disability benefits from
the Plan, but only if he is in the "Inactive" category. As of December 2010, only 15 1 NFL
players were receiving benefits under the 88 Plan.

206.

There also exists an "NFL Player Care Plan" subsidized by the

NFL Player Care Plan provides

a

uniform administrative framework for

a range

NFL. The

of programs that

benefit eligible former NFL players. Currently, these benefits are: (a) joint replacement benefits;
(b) assisted living benefits; (c) discount prescription drug benefits; (d) Medicare supplement
insurance benefits; (e) spine treatment benefits; (f) neurological care benefits; and (g) life
insurance benefits. These benef,rts can be terminated summarily. For example, it has been
reported that Bruce Schwager, who played at various NFL training camps and now suffers from
dementia, was told on March 14,2011 that his bills for treatment at a dementia-care facility in
Sugarland, Texas will no longer be paid.

207.

In sum, the NFL, perhaps the richest professional sports league ever, has

demonstrated a repeated unwillingness to take adequate care of retired players who are suffering

88

from the consequences of on-field head injuries incurred during their respective League careers
and have made the game of professional football in this country what

it is today.

COUNT I
Action For Declaratorv Relief

208.

Plaintifß repeat and reallege each of the allegations contained in the

foregoing paragraphs.

209.

There is a case and controversy among Plaintiffs on the one hand and the

Defendants on the other.

210.

Pursuant to 28 U.S.C. ç 220I, Plaintiffs seek a declaration as to the

2Il.

They seek a declaration that Defendants knew or reasonably should have

following.

known that the repeated traumatic brain and head impacts, as well as concussions, suffered by
Plaintiffs while playing NFL football were likely to put them at excess risk to neurodegenerative
disorders and diseases including but not limited to CTE, MCI, Alzheimer's disease or similar

cognitive-impairing conditions.

2I2.

Plaintiffs seek a declaration that the Defendants, through their voluntary

undertakings, had a duty to advise players and protect players from these risks.

2I3.

Plaintiffs seek a declaration that the Defendants willfully and intentionally

misled Plaintiffs conceming these medical risks.

214.

Plaintiffs seek a declaration that the Defendants thereby recklessly

endangered Plaintiffs.

COUNT II
Action For Neglisence

2I5.

Plaintiffs repeat and reallege each of the allegations contained in the

foregoing paragraphs.
89

216.

The NFL has historically assumed a gratuitous independent tort duty to

create and enforce rules that protect the health and safety of its players, and it has violated

Section 323 of the Restatement (Second) of Torts, and the common law.

217.

Throughout the history of the NFL, the League has purported to exercise

its duty to protect the health and safety of its players by implementing rules, policies and
regulations in

a

purported attempt to best protect its players.

218.

By enacting rules to protect the health and safety of its players, the NFL

has repeatedly confirmed its duty to take reasonable and prudent actions to protect the health and

safety of its players when known and foreseeable risks exist.

219.

The NFL breached its duty to its players, including Plaintiffs, to use

ordinary care to protect the physical and mental health of players by implementing standardized
post-concussion guidelines and by failing to implement mandatory rules that would prevent a

player who suffered a mild traumatic brain injury from re-entering a football game or practice.

220.

Throughout the many years that the NFL has repeatedly established its

duty to protect the health and safety of its players when known and foreseeable risks exist, until

August 14,2007, the NFL failed to create and implement league-wide guidelines concerning the
treatment and monitoring of players who suffer a concussive brain injury during a game.

22I.

The NFL failed to establish any adequate guidelines or policies to protect

the mental health and safety of its players. As explained above, the guidelines that the League

offered in2007 were false and misleading and failed to apprise Plaintiffs of the risks associated

with on-field concussions

222.

The NFL's failure to

fulfrll its assumed duty to protect its players includes,

but is not limited to, the following failures:

90