Labor & Employment Law Daily NFLPA, other fiduciaries, sued over purportedly ‘secret’ disability benefit changes to ratified CBA
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Wednesday, July 15, 2020

NFLPA, other fiduciaries, sued over purportedly ‘secret’ disability benefit changes to ratified CBA

By Pamela Wolf, J.D.

Plan communications, while touting benefits increases, failed to disclose decreases in benefits to totally and permanently disabled former football players, according to the class action complaint.

Two totally and permanently disabled former NFL football players have filed a class action lawsuit under ERISA and the Labor Management Relations Act against the National Football League Players Association (NFLPA) and other fiduciaries of the Bert Bell/Pete Rozelle NFL Player Retirement Plan (Amended and Restated as of April 1, 2014) and the NFL Player Disability and Neurocognitive Benefit Plan (Amended and Restated as of April 1, 2019). The players allege contract violations of the plans, fiduciary misrepresentations to plan participants, and seek to cure collective bargaining agreement violations. The six-count complaint seeks Rule 23 certification of a class that could include more than 2,000 members.

Loss of disability benefits not disclosed. The named plaintiffs contend that as a result of the 2020 CBA between the National Football League Management Council and the NFLPA, both as presented to players in proposal form for a vote, and “later secretly modified after approval,” totally and permanently disabled former players will lose substantial vested total and permanent disability benefits.

The NFLPA and other fiduciaries violated the language of both the retirement plan and the disability plan, as well as their fiduciary duties under ERISA, by failing to disclose and inform the plaintiffs and putative class members of the substantially negative consequences that plan amendments would have for them in the future, impeding class members’ ability to mobilize to influence the vote against the 2020 CBA.

Lifetime benefits. Allegedly, the total and permanent (T&P) disability benefits for both post-2015 and pre-2015 eligible players are “payable for life.” The plans and income verification statements purportedly created a vested right to lifetime T&P disability benefits for former NFL players, their surviving spouses, and their dependents.

Social security income offset. Under a Social Security offset to begin January 1, 2021, certain inactive players would see their lifetime vested disability benefits diminished by the amount of Social Security benefits they received, according to the complaint. This purportedly means that the plaintiffs and putative class members will receive between $2000 and $3000 less per month, or lose about 20 percent of their fixed income.

Initially, under the March 5 version of the 2020 CBA on which players voted, only certain players who received disability benefits from the disability plan after January 1, 2015, saw their monthly T&P benefits reduced by the amount they received from Social Security. This version did not apply the new offset to the inactive players who started receiving T&P disability benefits initially prior to January 1, 2015.

CBA language switched. But on March 15, 2020, “additional language was secretly added to the 2020 CBA” by the Players Association and Management Council, under which the disability plan will be amended to apply a Social Security offset to players who have been receiving T&P disability since before 2015, according to the complaint.

The change to the language of the 2020 CBA “was done surreptitiously without player knowledge, without following procedures for modifications of CBAs, and without an additional player vote,” the complaint states. When confronted with the secretive changes, the NFLPA allegedly replied that the “changes were not substantive and did not require a vote.” But allegedly, the March 15 changes “by Defendant NFLPA’s own admission, impacted 400-900 former NFL players on T&P disability benefits.” Such a change was clearly “a substantive change to the 2020 CBA, should have been bargained transparently, and voted upon by players,” the plaintiffs contend.

Automatic approval. The 2020 CBA also purportedly rescinds the automatic Social Security approval for T&P disability benefits for the disability plan beginning on April 1, 2024. Currently, players can be deemed disabled based on being found disabled by the Social Security Administration under SSDI or SSI, a provision that was put into place after Congressional hearings on the NFL’s reluctance to find their players disabled using “neutral” physicians and the whole-person evaluation process, the complaint alleges.

In addition, the plaintiffs’ and putative class members’ disability benefits are purportedly threatened by the CBA’ reenactment of the whole-person evaluation process, “which impermissibly changes the terms under which T&P disabilities [payments] had been received by those already in paid status prior to enactment of this provision by requiring that their disability status be ‘reevaluated’ starting on April 1, 2026.’”

Negative changes not communicated. According to the plaintiffs, plan communications, while touting benefits increases, failed to disclose these decreases in benefits. The NFLPA sent plan communications to current and former players both before the 2020 CBA ratification vote and after the vote that were misleading because they omitted material information, according to the plaintiffs.

These statements, which omitted material information, purportedly harmed the plaintiffs and putative class members by:

  • Improperly influencing active players to vote in favor of the disability amendments; and
  • Impeding the ability of the plaintiffs and putative class from mobilizing to influence the vote by the active players against the proposed 2020 CBA.

If the truth about these T&P disability benefit changes had been known, “the vote for ratification would not have been secured improperly, the ratification vote might have failed, and former players might have mobilized effectively against ratification of the 2020 CBA,” the complaint alleges.

“It’s elemental in sports that you don’t change rules of game in middle of game,” Walcheske & Luzi attorney Paul Secunda, one of the plaintiffs’ attorneys, told Labor and Employment Law Daily in a statement. “Yet that is exactly what NFL & NFLPA did to its most vulnerable members. By reducing total & permanent disability for most severely injured players after they had already been receiving benefits for years is inhumane & displays height of greed. Thankfully, not only is what NFL & NFLPA are doing to these disabled former players morally repugnant, but it’s also very much illegal under federal employee benefits law & federal labor law. I won’t rest until these disabled former players receive the justice they so urgently deserve.”

The plaintiffs filed their lawsuit, Cason v. National Football League Players Association, in the District of Columbia; the case is No. 1:20-cv-01875.

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