The NFL Retirement Plan's Approach to Substance Abuse

Recently, the Philadelphia Inquirer profiled former Eagle defensive lineman Sam Rayburn. Rayburn became addicted to painkillers and was arrested in March 2009 for forging prescriptions for controlled substances. Rayburn apparently began self-medicating during his career with the Eagles from 2003 to 2006. While he does not blame the Eagles trainers or coaches, it appears from the article that he may have obtained some prescription painkillers, legitimately, from the team doctors:

"You could get things when it was necessary," Rayburn said. "If you had an injury they were aware of, they would give you a certain amount. They wouldn't give you an entire prescription. Most of the injuries I was dealing with were undisclosed. I was going outside the team doctors and stuff like that to acquire the medicine I thought I needed. It was a deal where I was going out on my own and getting them from other doctors that I knew."

Interestingly, a player addicted to controlled substances prescribed by an NFL team physician could become eligible for disability benefits from the NFL Retirement Plan. If the player has a “total and permanent disability” caused by his “substantially continuous use” of a controlled substance prescribed for him for football-related injuries, he can receive benefits. This raises an interesting issue. Does the addiction itself qualify the player for benefits, or is the intention to limit eligibility only to retired player who has some secondary impairment (liver damage, perhaps) that was caused by the continuous use of the controlled substance?

Regardless of the answer, the existence of the exclusion may reflect the NFL's concern about painkiller abuse and the potential costs to the Retirement Plan. This provision was added to the Plan in 1998 to exclude most substance abuse disabilities from benefit eligibility. Exclusions are built into disability plans precisely to limit the insurer’s known risks. In this case, the Plan itself is the insurer. The existence of this exclusion in the Plan suggests that the NFL had, and perhaps still has, concerns about the possible abuse of painkillers by the players.

New DIsability Lawsuit Against NFL Player Retirement Plan

This office has filed a lawsuit against the Bert Bell/Pete Rozelle NFL Player Retirement Plan on behalf of Gaylon Hyder, a former player for the Rams and Browns. Mr. Hyder suffers from a kidney disease that has led to hypertension and congestive heart failure, rendering him disabled. So what is the link to pro football? As alleged in the Complaint, Mr. Hyder injured his knee during a Rams game against the Atlanta Falcons. To quell the pain and reduce inflammation, the team medical staff gave him Vioxx, which Mr. Hyder continued to take through the remainder of the season. Non-steroidal anti-inflammatory drugs (“NSAIDs”), like Vioxx, are potentially toxic to those with kidney disease. As further alleged in the Complaint, the Rams' medical staff had the results of medical tests that suggested Mr. Hyder had some impairment to his kidney function. Mr. Hyder contends that he is eligible for disability benefits because the Vioxx treatment worsened his kidney problems and prematurely ended his career. Coverage of the lawsuit can be found here.

NFL Players and Concussions

On the eve of the Super Bowl, an article on the CNN.com website reports on recent research on brain injuries suffered by football players:

[U]sing tissue from retired NFL athletes culled posthumously, the Center for the Study of Traumatic Encephalopathy (CSTE), at the Boston University School of Medicine, is shedding light on what concussions look like in the brain. The findings are stunning. Far from innocuous, invisible injuries, concussions confer tremendous brain damage.

It is known that concussions can lead to headaches, sleep disorders and depression. The physical changes to the brains of these former NFL players resemble the physical changes that might be found in the brains of elderly Alzheimer patients. The NFL and the Bert Bell/Pete Rozelle NFL Player Retirement Plan, however, have resisted the concept that repeated football related concussions can lead to depression and other symptoms which might qualify a player for disability benefits after retirement. The article can be found here.

Firing is Personal -- Don't Let it Be Discriminatory

The financial turmoil of recent months will unfortunately lead to job losses. Each day brings another announcement of large-scale layoffs. The end of a year typically brings terminations of employment as budgets are set for the following year. In this poor economic environment, which has been described as “once in a century,” employers may panic and permit or at least acquiesce in discriminatory decisions to fire employees. While the recession may force employers to reduce staff, individual executives and managers choose the person to fire. It is this unavoidably human element of the firing decisions that leads to claims of discrimination.

Age discrimination claims are already on the rise and this trend will likely continue. Another source of discrimination claims will be the revised Americans with Disabilities Act. Revisions that will take effect in 2009 will make it easier for employees to bring claims and survive employer attempts to dismiss the claims at an early stage. The ADA revisions includes the following key changes:

• Impairments that are not inactive or in remission (cancer, for example) can now qualify as a disability.

• A broader definition of “major life activity.” To qualify as a “disability,” an impairment must affect a “major life activity.” Major life activities now clearly will cover such things as seeing, hearing, speaking, walking, breathing, performing manual tasks, learning, caring for oneself, working, eating, standing, lifting, bending, reading, concentrating, thinking and communicating. And more. The revised ADA provides that the list is not all encompassing and that courts should take a broad view of what constitutes a disability.

• In determining whether a disability exists, employers must now look at how an impairment limits major life activities without regard for whether medication or assistive devices would reduce or eliminate the adverse effects of the impairment. For example, an employee with diabetes could still be “disabled” and entitled to a reasonable accommodation even if the diabetic condition is well controlled by medication.

A recession is an impersonal economic event, but firing an employee is very personal from the view of both the decision-maker and the employee. Careful employers will make sure that termination decisions are scrutinized for discriminatory motivation. Careless employers will find themselves subject to lawsuits.