Chairman Inouye, Subcommittee Chairman Dorgan, Ranking Member Stevens, Subcommittee Ranking Member DeMint, Members of the Committee and distinguished guests, my name is Daryl Johnston. I had the privilege of playing professional football for the Dallas Cowboys for 11 years as a Running Back. I was forced to discontinue playing when a neck injury sidelined my career.  I am here today to help implement positive change to the NFL’s existing disability system, which is in dire need of reform.  As a member of a fairly recent generation of retirees who ended his career in 1999, I want to assure you that this problem is a crucial concern for anyone who has ever played or will play professional football.

 

Growing up, I knew I always wanted to play football. My heroes were Larry Csonka, Rocky Blier, and Roger Staubach because of their unwavering courage and love of the game. They played with their hearts, they played with passion, and these men were my heroes. As a Pop Warner player, I always considered football a contact sport. At the college level, my coach taught us football is not a contact sport—that if you want a contact sport, then take ballroom dancing. Football is a collision sport.  I was also taught the difference between pain and injury, which are quite different concepts in the world of the NFL.  If you are not injured, the emphasis is to get back out on the field and perform your job. You play through the pain – and thus put yourself at greater physical risk for life after football. With the size and speed of the players today, and with the nature of new equipment design, the collisions have become more violent every year. The severity of collisions was evidenced once again just recently when Kevin Everett with the Buffalo Bills suffered a catastrophic spinal injury. A career ending injury is every player’s worst fear when he steps onto a football field.

 

In the late 1960’s and early 1970’s, the players competed on a new experimental surface called Astroturf. Astroturf basically consisted of a thin, carpet-like cushion between the playing surface and the concrete. NFL organizations chose to put down a low-maintenance, synthetic surface to allow for revenue producing events in their stadiums without regard for the damaging effects this hard surface would have on the players’ bodies. For decades, the NFLPA has knowingly misled players to believe that artificial turf posed no more threat to injury than natural grass. As a player, one knows and experiences firsthand on Monday morning, from the aches, pains, bruises, and abrasions that result from playing on an inferior artificial surface the day before.   And this type of surface is responsible for as many concussions—probably more—than the actual collisions you see on the field.

 

I recently met Conrad Dobler, a 10-year veteran Offensive Lineman for the St. Louis Cardinals. He has had multiple knee and hip replacements from playing on Astroturf. He has had as many as seven surgeries in one year, and he’s spent nearly 100 days in the hospital this past year. He has been denied disability benefits numerous times by the NFL Players Union, yet has been told by doctors he is severely disabled. He’s never received a penny of disability money from the union or the league. The NFLPA has nothing in place to take care of players suffering these medical challenges from the physical abuse of an NFL career. Another issue unaccounted for under the NFLPA’s disability plans are the degenerative nerve conditions that result from the violent collisions associated with the game of football. As a player, you always believe the Union will be there for you at the end of your career.  However, as I learned, that is not the case. The union is only obligated to represent and protect active employees – not retired players. Therefore, they only focus on the interest of active players.

 

Highly recognizable players are suffering heart-wrenching setbacks and near hopeless predicaments.  Mike Mosley, a receiver for the Buffalo Bills from 1982-84, experienced knee, neck, and back injuries that shortened his career and left him permanently disabled.  Mosley played 20 games in 3 seasons as a wide receiver. He received full disability payments for 6 years, and then a doctor assigned by the NFL ruled sedentary work was possible so, in 2004, all his disability payments were immediately cut off without warning.  He has lost his house, his truck, his savings, and his entire quality of life.  He’s had to move in with his 75 year old Mom (living off a $306 social security check), and has sole custody of a 14 year old daughter he’s trying to raise – for whom he cannot even buy clothes.  He also has no health insurance and cannot afford any medical care.  It has ruined his life.  In a medical emergency, he will no doubt become the responsibility of the state.  So, much as you and I send tax money that should pay for our schools and teachers to build NFL stadiums, we will pay for Mike’s care someday because the NFL doesn’t want to pick up their own check.

 

Brian DeMarco, a former offensive lineman for the Jacksonville Jaguars and Cincinnati Bengals, is damaged so badly from his five years playing pro football that he is only a fraction less disabled than a quadriplegic at age 35. He has had so many injuries that only people who have been in horrendous car crashes might understand - all from playing America’s favorite sport. DeMarco’s career ended amid severe health problems after the 1999 season. After 4 attempts over several years to navigate the NFL’s disability system’s red tape, he was unable to even get his application process started and be assigned a doctor for evaluation - even though his back was broken in 17 places. He’s been homeless 3 times in the last 4 years, and has lived in storage units for 5 months with his wife and 2 children.  He has constant pain from his crushed spine, numerous physical ailments, and is unable to hold a job. This is a man who’s given up his quality of life for this sport. Because of injuries and runaway medical bills and an inability to work or get any kind of health insurance, the once proud and well-off DeMarco was as down and out as you can get in this country.  The NFL Players Association has given him virtually no help.  He has called the NFLPA over 100 times in the last year but has experienced no success in getting a claim opened.  At one point, he was actually told that he needed to help himself before the NFLPA could help him and he was told to get a job and sent bus fare to search for one by an NFLPA representative.  And, finally, whenever he has had the temerity to raise his discuss his problems in public, the NFL’s and NFLPA’s representatives have branded him a fraud.

 

The urgency and demand in the NFL to get back on the field creates a greater risk.  The cumulative effect of multiple surgeries throughout your career is damaging to the body.  This toughness, a sign of the times in that NFL era in the early 1960’s explains why Larry Morris, a linebacker for the Bears from 1959 to 1965, once returned to action 6 weeks after knee surgery, removed a cast on his broken thumb during a game and played through 4 concussions. After one such knock in the head during the 1964 season, the NFL encouraged Larry to ignore dizzy spells and ringing in his ears so he could play.  Larry is best known for being the most valuable player for the Bears in the 1963 NFL Championship game. Larry now suffers from dementia at age 73 and cannot be left unattended. His health care expenses have sapped more than $200,000. His wife of 50 years, Kay Morris is still waiting for the full benefits to which Larry is entitled under the new “88 Plan”--named after the number of Baltimore Colt great John Mackey--but the award to date is at a lower level and administrative difficulties with that Plan have prevented her from obtaining adequate support.  It has been proven that almost all medical claims coming from brain trauma due to concussions are denied or only given lesser benefits stating that the injuries and mental issues such as depression and early onset dementia cannot be proven that they are a direct result of football.  (In a recent article in the Charlotte Observer, an NFL Plan attorney divulged that there have only been four such claims made successfully in the history of the Plan—only four concussion cases!)   It is difficult for families who are technologically challenged and struggling to afford food and healthcare to navigate this bureaucratic maze.

 

My own career was ended prematurely. I had five remaining years of a seven-year contract.  I suffered a herniated disk at C-6 and C-7. After surgery, I battled my way back onto the field and played one year and one game.  I herniated a disk again at C-5 and C-6.  I had an agreement with my doctor that, if this happened, I would retire and walk away from the game.  I chose quality of life with my new family moving forward under the impression that the union would provide financial assistance in lieu of the money I left on the table with my contract.  I discovered by going through the NFLPA Disability process that this system was put in place to deny claims by former players. The only concern that they had was that I could maintain another job—any other job--and generate income with no regard to the injuries that were a direct result of playing the game of football. 

 

The doctor I met with is considered a neutral physician but, in reality, he was a physician designated by the NFLPA. I was not allowed to bring in x-rays, MRI’s, and the doctor could not consult with the trainers from my team or the doctor who performed my surgery.  He denied my claim. His only interest was whether I was capable of holding another job. He showed little interest in my physical condition and the injuries sustained from an 11 year NFL career.

 

Upon appeal, to another designated NFLPA physician, my claim was denied as I walked into the office. He did not examine me, nor did he interview me. My impression was the decision was made long before I walked through the door. I am not the first to have experienced this routine treatment of injured players. When I talked to other colleagues about my case, their instructions to me were to just

 

keep fighting and, eventually, I would be accepted. The system has no set standards that instill confidence and trust with any player going through the process that they will be granted disability benefits.

 

Former NFL players are hurting physically, emotionally, and financially.  There is a tremendous amount of pride in NFL players. We don’t ask for much but we will beg for nothing. This system forces us to beg for benefits that we have earned and to which we are rightfully entitled.  The League needs to take care of these legendary players who made the game of football what it is today. 

 

The NFL claims to have paid benefits to 284 former players – only about 3 or 4 percent of the estimated 7,000 NFL retirees who have received disability payments (this is the Plan’s own figure; it has also used 8,000 in testimony before the House of Representatives and 9,000 in public statements afterwards, but I’ll use the lower number to give the most flattering picture of their efforts).  A meager 3 or 4 percent at most who have received disability payments is not nearly enough for a game that takes the unique toll on human bodies that football does.  That this discrepancy should exist in a game that realizes over $7 billion in annual revenue is a stain upon the game’s integrity.   The issue of former NFL players’ needing financial and medical assistance is hardly is a new one. The story of former Pittsburgh center Mike Webster, a Hall of Fame player, came to light a decade ago.  Crippled by the constant banging during his career, Webster became homeless.  He applied several times for disability, but was unanimously turned down each and every time.  He died of a heart attack in 2002, and his family sued the NFL for benefits the league had denied him.  They won $1.5 million. 

 

In recent months the league has taken positive measures to acknowledge those realities by implementing “The 88 Plan” into the most recent labor agreement in honor of former Baltimore Colts tight end John Mackey. Like Morris, Mackey suffers from dementia – but on a more severe level.  The “88 Plan” provides up to $88,000 a year for families to put toward a residential care facility or up to $54,000 for home care.  In the case of Kay Morris, Kay doesn’t believe a nursing home is the best place for her husband, and the $54,000 allotted for home care just isn’t enough money to pay for nursing help and necessary medical attention.  This added program is a step in the right direction; however, it is not enough.  Moreover, since the Mackey Plan is administered as a reimbursement plan, many qualifying players do not have the front money to participate and obtain care.

 

To protect their economic interests, the NFL and the current players’ union have allowed the Plan’s procedures to become an obstacle course for former players in order to prevent them from getting benefits. They have not published or prescribed rules or standards for the determination of benefit eligibility. There are documented cases, such as Brent Boyd’s, in which the Plan has disregarded the medical opinions of its own “Plan Approved” doctors when the Board does not want to pay benefits. In order to minimize the amount owners must pay, the Board denies many former players’ claims. This is an inherent conflict of interest that favors the owners and active players and has led to tragic results for many severely disabled NFL retirees. 

 

The Retirement Board created a 42-month limit on retroactive disability amounts for retired players, which is not only against the retired player’s best interests but also a direct violation of the ERISA law. The imposition of a limitation on the amount a player is able to recover reduces the accrued benefit. Degenerative conditions do not always show up within 42 months. Therefore, this makes applying for this benefit impossible due to the time limitation. 

 

The NFL Retirement Board, not the NFLPA, determines disability claims.  Representatives are appointed by the NFL owners and the NFL Players Association.  There is no one on the board looking out for the interests of former players. This six-member board votes unanimously almost every time.  The Groom law firm who established the pension fund in the 1993 Collective Bargaining Agreement also serves as counsel to defend the distribution of disability payments.  They have earned $3.15 million for defending claims in the past year—about one-sixth of what the Plan says it pays out in disability benefits.  This is an obvious conflict of interest. The emphasis is only on the current player. The players who built the NFL have been left behind. 

 

The retired player has no voice in the current system. The salaries paid to players who built the NFL pale in comparison to the salaries the players receive today. The NFLPA, however, continues to focus on the current player and his financial stability. In 1993, the Collective Bargaining Agreement (CBA) added many new benefits in addition to the pension. It added a severance, a 5 year Cobra Health Plan after retirement, a 401K Plan, and a second career savings plan - none of which was retroactive before 1993 and there had been no changes in benefits for the previous twenty-three years.

 

Delvin Williams, who played 8 years as a running back in the NFL, experienced this firsthand.  After 8 years, 6 surgeries, 2 concussions, broken ribs, a dislocated thumb, knee and spinal injuries, as well as numerous other joint and vertebrae injuries, his professional football career ended in 1981, when the Green Bay Packers released him.  He was one of approximately 285 out of 7,000 retired NFL Players who received degenerative disability benefits. However, it did not come without a fight and persistence.  He started the process in 1983 and was awarded a football degenerative disability benefit in July of 1995 – 12 years later!  In 12 years, he was turned down twice and lost at arbitration before being awarded the disability pension benefit. 

 

The NFL may be concerned about the small number of players who might abuse the system, but in ostensibly protecting against this small problem, they are turning their backs on literally hundreds of players who need assistance. The NFLPA looks at this as protecting themselves against a player, however, this is destroying the family unit and quality of life– families are divorcing, players are losing custody of their children, losing their houses, living in homeless shelters, etc.  There are lots of players in dire need.  They were the foundation of the NFL. The league and active players are making millions of dollars. These former players are losing their health, homes, and dignity.  Even the great Johnny Unitas was denied disability.

 

The retirement plan has been contorted into a way for the players association to aid the active players. They have cut out the retired players and diverted this money into new plans for active players. Major League Baseball, which draws annual revenues of $4.3 billion, pays out an average of $36,700 in benefits to its participating players. Compare that to the NFL, which is currently drawing $7.1 billion in annual revenues, yet its average benefit payout is $13,000. This is an incredible injustice.

 

These disabled football players helped build the NFL into a multi-billion dollar industry that continues to grow.  Many of these individuals are suffering from debilitating injuries, post-traumatic stress, and dementia after sacrificing their bodies and minds for the League--for the NFL’s success. They face mounting medical problems and financial hardships and the League must do more to assist them. The league has not only forgotten them, but has attempted to strangle their quality of life through an unwieldy retirement and disability benefit system.  This disability plan is grossly inadequate for those who need it the most – the former players.

 

Why am I here?  I am not here to cause controversy, but to affect positive change.  We want to fix this issue. As Senators, you have the ability to make a difference and the power to create change immediately. After presentation of these facts, my hopes are high that this situation will be resolved.  There is an excessive amount of money generated by the NFL – the money is there to solve this problem.  This is a $7 billion dollar industry. Why is it not being funneled into the right areas and why is it not being administered to accomplish what it was set up to do?   I implore you to make educated decisions and take care of those retired players – the heroes that have made the game of football the number one spectator sport in America.  These retired players are being denied benefits while the NFL continues to profit off their work.  These are the giants that helped build the league.

 

I am asking the Senate Commission for oversight to ensure the NFLPA is working towards correcting the problem in good faith. I would like to request the NFLPA be fiscally responsible in paying disability claims. Claim information needs to be publicly divulged so all can see the record of disability claims that have been paid. A major frustration has been the lack of openness on the part of the NFLPA to share the financial aspects of the Plan. The Plan completes a valuation once a year, which compares the assets to the liabilities for the past year. There is nothing confidential or privileged about the information included in this report.  If copies of this report for the past 5 years were made available to retired players, a huge increase in trust could be achieved. Why has this not happened before now?  This simple request for information should be volunteered by the NFLPA with openness as evidence of proper administration of the plan.

 

What do we hope to accomplish? Our hope is to bring a measure of fairness to the relationship between the League and retired disabled football players. We would like to rework the structure of the disability system.  The system must be neutral to all parties. The framework must include a designated group of retirees from each decade of the NFL in order to provide a voice for forgotten players.  The voices that need to be heard are those of retired players who are suffering medically and financially from the harsh realities of their post NFL careers. It is necessary they be voted in by their peers, not appointed or hand picked by the NFL Committee. The league needs to take a hard look at doing more for veteran players, and address the core issue of overhauling the current disability system.  My goal is to help create a system that addresses the needs of former players that are in dire straights because of the injuries they suffered as a direct result of playing professional football. There are unique circumstances to some of these individuals that the system must account for and take into consideration.  The retired players from the previous era must be provided a voice as the NFL moves forward.

 

Roger Goodell, the Commissioner of the NFL is forming its first alliance to improve medical services for ailing retired players.  As a form of recognition that a serious problem exists, this is a step in the right direction, but the alliance was devised and announced without gaining sufficient input from advocates who have represented the interests of retirees for years.  A better negotiation process would have produced a better alliance.  To his credit, Mr. Goodell is cleaning up the NFL regarding the actions of certain contemporary players, but now he needs to restore the dignity of the Players who built this league, which has been robbed from many of them by the disability process.  According to the Integrity Clause of the NFL, “The Commissioner is in charge of the integrity of the game, its management and its players.” Webster defines the term “integrity” as “a noun . . . [that] means honesty . . . A trustworthiness and incorruptibility to the degree that one is incapable of being false to an agreement, contract, responsibility or pledge.”  We have an ethical and fiduciary responsibility to the Public – the people who drive the “engine of success” of the NFL.  The fans and retired players are counting on the Commissioner and the Senate to be truthful and honest, and to make a difference in the lives of these broken heroes and past football giants that made football the number one spectator sport in America.