The NFL Forgets Its Own
The National Football League (NFL) commands perhaps the greatest cultural presence in American sports life. It is no secret that many of its players suffer lifelong disabilities, and decades of legal precedent have culminated in an ongoing battle over the extent of the league’s financial liability for those injuries. In response to these concerns, the NFL Player Disability & Neurocognitive Benefit Plan (the “Plan”) was established through a collective bargaining agreement in 2011—it had existed under different names and variations since 1962. [[i]] Its purpose is to provide former players with one of three disability benefits depending on their condition. Line-of-Duty (“LOD”) benefits pay players with mainly orthopedic impairments which are not completely debilitating. [[ii]] Neurocognitive (“NC”) benefits pay players with mild or moderate neurocognitive impairments. [[iii]] Total & Permanent (“T&P”) benefits pay players with impairments rendering them unable to sustain employment. [[iv]] Since the Plan’s inception, the NFL has engaged in a ruthless and systematic campaign to avoid these financial obligations.
The Employee Retirement Income Security Act of 1974 (“ERISA”) governs employer-sponsored benefit plans by imposing fiduciary duties on plan administrators while granting them discretionary authority to interpret plan terms. Courts review their interpretations under an “abuse of discretion” standard; benefits denials are upheld unless they are arbitrary and capricious. In Jani v. Bert Bell, the Fourth Circuit found that the NFL Disability Board (the “Board”) abused its discretion by dismissing credible medical evidence supporting Jani’s disability. [[v]] In Dimry v. Bert Bell, the Ninth Circuit found that the Plan’s process lacked transparency. [[vi]] Over time, courts have become more willing to hold the Board accountable for its procedural deficiencies.
This protracted conflict between the Board and disability claimants is now poised to end. Athlaw LLP, under the leadership of Samuel Katz, is the premier firm for NFL CBA benefits. Its expertise, clientele, and possession of hundreds of thousands of documents obtained from representing individual applicants made for a useful co-counsel arrangement with Seeger Weiss, a powerful plaintiffs’ firm. In February of 2023, they filed a class action complaint against the Board and the Plan alleging fraud, wrongful denial of benefits, racial discrimination, and breach of fiduciary duties. [[vii]] They essentially allege that the Plan is a scheme to defraud players with “Neutral Physicians” hired by the Board to make disability determinations in their financial interest. [[viii]] When players apply for a particular benefit, these physicians perform medical evaluations that form nearly the complete basis on which the Board awards or denies the benefit. [[ix]] According to the complaint, overwhelming evidence—the first of its kind in any ERISA action—suggests not only that these physicians are racially and financially biased, but that players previously awarded benefits comprise a tiny percentage of those who deserve them.
Athlaw uses statistics to provide “powerful evidence … showing a parsimonious pattern of assessments unfavorable to claimants.” [[x]] There are too many to choose from. One statistic shows that the five highest compensated neuropsychologists from 2017 to 2018 have never concluded an applicant T&P disabled. [[xi]] Physicians paid more than $210,000 between 2018 and 2019 found 3.7% of players T&P disabled, compared to physicians paid less than $60,000 who found 31% of players T&P disabled. [[xii]] The plaintiffs allege that of the 784 T&P disability evaluations Athlaw has tracked, 45.4% were performed by physicians who have never concluded an applicant T&P disabled. [[xiii]] Several charts in the complaint visualize these patterns, depicting a positive correlation between NFL compensation and “denial percentage.” [[xiv]] Data for LOD and NC benefits are no different. Where more than a third of retired players report suffering from degenerative joint disease (DJD), Dr. Hussein Elkousy is said never to have made a finding of DJD across Athlaw’s sample of 15 LOD evaluations. [[xv]]
More offensive to the dignity of retired players is the Board’s perpetuation of “race-norming,” something that the NFL Concussion Settlement—for which our own Professor David Hoffman is a special master—has expressly forbidden. [[xvi]] Race-norming is when “demographic” (race-based) IQ scores are compared against “standard” IQ scores. [[xvii]] Lower IQ scores, in general, make it harder to track cognitive decline. Physicians practicing race-norming take whichever is lower between the “demographic” and “standard” scores as the baseline IQ for comparison with cognitive functioning tests. Many applicants were given lower demographic IQ scores because they were black. [[xviii]] We know this from Athlaw’s database of test scores but also from physicians’ public remarks. Dr. Stephen Macciocchi, the Board’s highest-paid neuropsychologist (who, by the way, has never found a single applicant T&P disabled) once stated in a medical publication that “African-American race … contributed to lower test performance” and that “[d]emographic … factors explain more variance in neuropsychological test scores than [mild traumatic brain injury].” [[xix]]
Alford v. NFL is the first class action alleging fraud against the Board to survive a motion to dismiss. [[xx]] It is currently in its discovery phase. If it succeeds—at settlement or trial—it is set to fundamentally alter the framework not only of NFL disability benefits but employer-sponsored disability benefits at large.
[[i]] NFL Players Association, Benefits and Services (2025), https://nflpa.com/active-players/benefits-and-services.
[[ii]] Id.
[[iii]] Id.
[[iv]] Id.
[[v]] Jani v. Bert Bell/Pete Rozelle NFL Player Ret. Plan, 209 Fed.Appx. 305, 316-17 (4th Cir. 2006).
[[vi]] Dimry v. Bert Bell/Pete Rozelle NFL Player Ret. Plan, 855 F. App'x 332 (9th Cir. 2021).
[[vii]] Class Action Complaint, 1, Alford v. The NFL Player Disability & Survivor Benefit Plan, No. 1:23-cv-00358-JRR (Dist. Ct. Dist. MD Baltimore Div., U.S.).
[[viii]] Amended Class Action Complaint, 1, Alford v. The NFL Player Disability & Survivor Benefit Plan, No. 1:23-cv-00358-JRR (Dist. Ct. Dist. MD Baltimore Div., U.S.).
[[ix]] NFL Players Association, Summary of Material Modifications (2024), pg. 3, https://nflpaweb.blob.core.windows.net/website/Departments/Benefits/DisabilitySPD-21.pdf
[[x]] Id. at 37.
[[xi]] Id. at 40-41.
[[xii]] Id. at 46.
[[xiii]] Id. at 48.
[[xiv]] Id. at 43-48.
[[xv]] Id. at 68.
[[xvi]] NPR, NFL Agrees to End Race-Based Brain Testing in $1B Settlement on Concussions (Oct. 20, 2021), https://www.npr.org/2021/10/20/1047793751/nfl-concussion-settlement-race-norming-cte.
[[xvii]] Amended Class Action Complaint, 55, Alford v. The NFL Player Disability & Survivor Benefit Plan, No. 1:23-cv-00358-JRR (Dist. Ct. Dist. MD Baltimore Div., U.S.).
[[xviii]] Amended Class Action Complaint, 38-39, 61-62, 105-106, Alford v. The NFL Player Disability & Survivor Benefit Plan, No. 1:23-cv-00358-JRR (Dist. Ct. Dist. MD Baltimore Div., U.S.).
[[xix]] Id. at 39; NIH, The Impact of Mild Traumatic Brain Injury on Cognitive Functioning Following Co-occurring Spinal Cord Injury (Sept. 20, 2013), https://pmc.ncbi.nlm.nih.gov/articles/PMC3895971/
[[xx]] Alford v. NFL Player Disability & Survivor Benefit Plan, No. 1:23-CV-00358-JRR, 2024 WL1214000 (D. Md. Mar. 20, 2024)