Hausfeld LLP & Zelle Hofmann* Volume I, Issue 2 December 2011 T HE VOICE

An Independent Publication Concerning NFL Retiree Rights & Benefits

INSIDE THIS ISSUE: I. Legacy Fund, Pension, Disability & Benefits I. Legacy Fund, Pen- 1-4 sion, Disability & Benefits In regards to what the NFLPA agreed to in the 2011 CBA for already retired players, on August 11, 2011, the NFLPA through its counsel represented that re- II. Retiree Litigation 5-6 tired players… [have been pouring in praise and thanks to the NFLPA for the new III. Concussion Liti- 7-10 gation benefits that have been agreed to.] IV. Dryer Litigation 11 Not So. V. NCAA 12 N ON-VESTED PLAYERS OF THE NFLPA 13 Retiree Sound-off D ALLAS CHAPTER ARE DISAPPOINTED WITH THE PLAYERS ASSOCATION

By: Brian Duncan post 1993 players, only to find leadership in Washington has out that the Players Associa- once again let them down and tion never put that option on are looking for ways to get in- At our November, 2011 chap- cluded in the benefits that are ter meeting, our non-vested the table. players were very upset and When the Legacy Fund was afforded other former players. voiced their negative feelings created, the intent was to about the decision made by include all pre- 1993 former Brian Duncan players. Only after the Players the Players Association to Vice President, NFLPA Dallas EDITOR'S NOTE distribute the legacy fund. Association re-certified as a Chapter The Voice is in- Many former non-vested play- union, was the Legacy Fund tended to communi- ers feel betrayed and used by tied to the Bert Bell Retire- (1976-78 Cleveland Browns, cate to all retired NFL the NFLPA, not only because ment Plan. The Players Asso- Houston Oilers) players, updates con- they are not being included in ciation solely made this deci- sion so that the recents would cerning key-issues any monetary distribution of the fund, but that the Players continue to receive the effecting NFL retiree Association advocated so money, even after the current rights and benefits. It strongly that they would not agreement expires in ten will provide an objec- leave any former player be- years. However, one of the tive independent re- hind. problems by doing this, is the non-vested players are com- port of matters of sig- The motto “One Team” was pletely left out of the fund. nificant interest to created and circulated at the See Retiree Sound-off Sec- those already retired. convention last February and The Players Association tion on page 12 for more throughout the year. We all clearly has an issue with con- on NFLPA counsel Jeffrey received hats, pens, and other flict of interest. Not only does Kessler’s statement regard- materials with the slogan of this conflict exist between the ing the expressions of “One Team”, which we now current players and the former “praise” by former players find out only applies to the players, but between the for- for the NFLPA concerning mer vested and non-vested former vested players. The the new 2011 CBA. pre 1993, three year players players. The former, non- felt like they were going to get vested, members of the the same vesting rights as the NFLPA in Dallas, feel their The Voice Page 2 I. Legacy Fund, Pension, Disability & Benefits

S OCIAL SECURITY AND NFL DISABILITY

By: John V. Hogan

For the past several years, the Bert Bell/Pete Rozelle NFL Player Retirement Plan has accepted a favorable Social Security disability determination as proof that a former player was “totally and permanently” disabled. If the player was otherwise qualified for entitlement to disability benefits under the Plan, (e.g., vested, not al- ready receiving retirement pension) he could be granted either “inactive” or “football degenerative” T&P benefits.

Under the terms of the new CBA, for claims filed after September 1, 2011, a player will no longer have to prove that his total disability is related to NFL football to ob- tain the higher category of disability benefits, as long as his application is filed within 15 years of his last credited season. (“Inactive A” disability effectively re- places “football degenerative”) For players who retired more than 15 years ago, and found entitled to disability, they will receive a lower paying benefit even if their dis- ability is totally football related.

In my experience in the past couple of years, the preferred way of qualifying for T&P benefits under the Plan is to first win Social Security disability. While it is never easy to win a Social Security disability case, now that we do not have to be concerned whether the medical conditions are football related, it makes even more sense to go the Social Security route first. No longer will we have to be concerned about try- ing to down play a former player’s obesity, diabetes, high blood pressure, head- aches, depression, etc., in the quest to have his disability granted. (SSA regulations require that they consider the combined effects of all of a person’s medically deter- For more minable impairments when determining disability.) information about In my opinion, going the SSA route first is preferable because they have numerous any of the matters laws, regulations and rulings which clearly set forth the criteria needed to obtain disability. I know exactly what needs to be done to obtain a favorable decision. contained in The On the other hand, dealing with the “neutral physicians” of the Bell/Rozelle Plan has been nothing more than a roll-of-the dice. Voice, or if you have any questions, The new CBA also called for further improvements to the NFL disability system, but at this point we do not know what those might be. Stay tuned! please contact Hausfeld LLP at John V. Hogan Law 1-888-259-4249 (202) 540-7200 http://www.johnvhogan.com

John V. Hogan Law specializes in the areas of Social Security Disability and NFL Disability law. John has helped many retired NFL players receive benefits from the Bert Bell/Pete Rozelle NFL Retirement Plan. John also sits on the Board of Direc- tors of the national player advocacy organization Fourth and Goal, he is an Associ- ate Member of the NFL Alumni, Inc., and a sponsor of the Buffalo Bills Alumni Asso- ciation and the NFL Alumni Atlanta Chapter.

Page 3 Volume I, Issue 2 I. Legacy Fund, Pension, Disability & Benefits

L EGACY FUND ALLOCATION

By: Robert Dezube, FSA

An important benefit in the agreement with the NFL is the “Legacy Fund”. The owners agreed to provide $620 Million ($62 Million per year for 10 years) to fund pension benefit for pre-1993 vested players. The Legacy Fund is not a separate fund, but rather is an additional contribution to the Bell/ Rozelle Plan. The additional contribution is expected to pay the additional benefits. The NFL considered many proposals on how to allocate the Legacy Fund amoung the eligible play- ers. The proposal they adopted was one that the NFLPA recommended. It provides a floor of $500 per month for all players who were vested before 1993. The players will also receive an additional $114 per month for each pre-1993 season played. These additional benefits are payable beginning at age 55, or right away if the player is over age 55. An alternative recommendation was put together by Carl Eller, Ron Mix, Bruce Laird, and Willie Lanier at a meeting in New York on September 15, 2011. The alternative plan would have provided a floor of $750 and an additional per-season credit that depended on the time period and seasons played. The per-season credit would have been higher for credited seasons prior to 1960 and would have decreased slightly for later years. See the chart below (Figure 1) for a comparison of the two recommendations.

Rober Dezube is a consulting actuary with Milliman

Figure 1

Allocation Adopted by League Alterative Recommendation

Benefit Credit $500 Floor $750 Floor

Credited Seasons prior to 1960 $114 Per Credited Season $127 Per Credited Season

Credited Seasons 1960 – 1969 $114 Per Credited Season $114 Per Credited Season

Credited Seasons 1970 – 1979 $114 Per Credited Season $108 Per Credited Season

Credited Seasons 1980-1992 $114 Per Credited Season $102 Per Credited Season

Page 4 Volume I, Issue 2 I. Legacy Fund, Pension, Disability & Benefits

L EGACY FUND CONFUSION

By: NFL Hall of Famer Tom Mack

Dear Retirees:

Here’s some more news for all of us who don’t quite understand who’s representing us and how we are being represented!

It has come to my attention via an official letter from Roger Goodell dated November 11, 2011 and an unsigned letter dated December 8, 2011 from the Bert Bell/Pete Rozelle NFL Player Retire- ment Plan (BB/PR Plan), that the Plan appears to be intent on using “actuarial” increases on undis- tributed (deferred) funds over the life of the legacy fund without addressing the passage of time, which inhibits retroactive actuarial increases to older retirees. It also appears, by examples used in other communications that the intent is to use the same actuarial increases that exist in the main plan. While this is fine on the surface, I am confused as to why and or how these actuarial increases may be applied to only parts of the legacy fund while seemingly ignored in other parts of the fund?

I question both the legality and the wisdom of treating retired players to yet another bifurcation of their ranks. Specifically I mean that the actuarial multiplier used by the BB/PR Plan is 261.9% for the 10 year period between taking funds at 55 yrs. of age vs. 65 yrs. of age. I can only assume that the reason for splitting planned Legacy funding into two categories (pre & post 1975 season) was to apply funds in retrospect to the most aggrieved retirees, who are older and have less time to partici- pate (actuarially). What is confusing are the “no mention of actuarial increases” and the flat 14.81% across the board increase (pre vs. post 1975) with no further escalators involved. Do they really mean to drive another wedge between older and younger Pre-93 retirees?

I am taking the liberty to show you a short example of the problem:

A. Player 65yrs old played 10 yrs. from 1969-1978; 6yrs @ $124 + 4yrs @ $108 = $1176/mo. = $14,112/yr. taken immediately (no option).

B. Player 55yrs old played 10 yrs. from 1979-1988 10 yrs. @ 108 = $1080/mo. = $12,960/yr. taken immediately or deferred 10 yrs. (at actuarial rate of 2.619) = $2828.52/mo. Or $33,942/yr. @ age 65.

Perhaps the answer lies in what has not been said nor explained to date. Is it the intension of the BB/PR Plan implementers to pass actuarial increases back into the plan to permit players who took their pensions at dates later than 55years of age to enjoy the actuarial escalation that it seems they intend for our younger, Pre93 retirees? Seemingly that would address and fix the problem of all leg- acy funds being treated in a similar manner with actuarial increases applied evenly for all parties. If they want to say that older players got their actuarial increases and that is how we got to $124/mo., it would mean that had you taken the money at 55yrs of age, you would have only gotten $47/yr. applied to your pension while anyone who played after 1975 gets $108/yr. I guess they don’t think we can read numbers and understand what they mean.

It is my opinion that the BB/PR Plan needs to be implemented with greater consistency, in a way that covers all retirement plans addressed by the collective bargaining agreement. It’s safe to say that a good number of 65yr and older players are all asking this same question about whether or not the Union and the League have sold out the old players, perhaps this time inadvertently, once again!

Tom Mack is a former Guard for the Los Angeles Rams (1966-1978), and was inducted into the Pro Football Hall of Fame in 1999.

The Voice Page 5 II. NFL Retiree Litigation

By: Jim Mitchell When the lockout ended, the claims in Eller I were mooted and the retiree class voluntarily withdrew the Complaint without On February 4, 2010, the NFLPA held a prejudice. press conference at the Super Bowl in Miami, Florida. During this event, NFLPA Executive Eller II Director DeMaurice Smith acknowledged that, For a most of the spring and summer of “when it comes to benefits for pre-1993 play- 2011, the representatives of the Brady plain- ers, the current system is not working.” Smith tiffs negotiated the interests of retired play- also stated that it would be an “immoral deci- ers. Retirees were kept in the dark as to sion” for today’s players not to acknowledge secret meetings held in Chicago, New York, the players who came before them. Baltimore, and Washington, DC. When an Likewise, NFL ownership indicated in an agreement between the players and the own- April 4, 2011 letter to retirees that, “[w]e are ers was reached, improvements to and in- committed to making sure that when we do creases in retiree benefits were sacrificed in reach a new agreement it better addresses favor of the interest of active players. the needs of our retirees. It’s the fair thing to On September 13, 2011, 28 former play- do. It’s the right thing to do and it recognizes ers, including 25 Hall of Famers, filed a class and respects [retirees] contributions to the action suit on behalf of former NFL players in game.” federal district court in Minnesota against On March 11, 2011, the NFLPA walked the NFLPA, NFLPA Executive Director DeMau- away from the bargaining table, leaving behind rice Smith, and NFL players Tom Brady, and an offer from the League that would have pro- Mike Vrabel. (Eller v. NFLPA – Case No. vided substantial increases to retiree benefits. 11cv2623) The suit seeks damages for The NFLPA then relinquished its status as a those improvements and increases to retiree labor organization and filed suit against the benefits that were sacrificed by the Brady NFL on behalf of a class of current players, plaintiffs and representatives during negotia- free agents, and rookies. The suit became tions. The suit also seeks to establish an known as the Brady suit and did not include independent organization to represent retiree the retired players interests. rights, other than the Union. Eller II contends that the defendants could not legally compro- Eller I mise the rights of retirees for the benefit of On March 28, 2011, four retired NFL play- active players and that retiree rights should ers joined Hall of Fame defensive end Carl never again be jeopardized by an organiza- Eller and filed a class action suit in federal tion that has a history of antagonism towards district court in Minnesota against the NFL retirees and outright conflict of interest. and its 32 member clubs. (Eller v. NFL – Case Gault No. 11cv648) Eller I sought to cover the void left when the Brady suit chose not to include On October 13, 2011, former Super Bowl the interests and rights of retired players. Champion and Chicago Bears great Willie Eller I sought to protect the rights of retirees in Gault and 18 other former players – includ- any future negotiations with the NFL on a new ing non-vested, vested, and Hall of Famer CBA. players alike, joined Carl Eller when they filed a class action suit on behalf of former NFL Through Eller I, the retirees for the first time players against the NFLPA in federal district had their own voice and were able to speak for court in Minnesota. (Gault v. NFLPA – Case themselves in order to demand increases to No. 11cv3012) The Gault case was consoli- their pensions, health benefits, medical bene- dated with Eller II, on December 16, 2011, fits, and changes to the disability programs and the combined Eller II action now includes which up to this point had not met the needs 47 former players, 27 of whom are Hall of and rights of the retirees. Additionally, Eller I Famers, 26 of whom are listed in the NFL’s was necessary because if the owner lockout official encyclopedia, Total Football II, as was successful, and the 2011 season was among 300 of the greatest players in NFL shutdown, there would not have been suffi- history. Combined, the Plaintiffs in the Eller II cient new revenue for the League to meet its suit have made 39 Super Bowl appearances, monetary commitments to the retiree commu- have been selected to a combined 201 Pro nity. Bowls, and represent every decade of pro The Voice Page 6

II. NFL Retiree Litigation

Continued from page 4

football since the 1940s. Consolidated Eller II On December 2, 2011, Defendants filed a Motion to Dismiss the Eller II and Gault Complaints. Defendants raise four arguments in support of their Motion. They claim: 1. They only did what they were “compelled” to do by the court; 2. That everything they agreed to in mediation was confidential and judicially immunized from accountability; 3. They owed no fiduciary duty to retirees; and 4. The Brady agreement cannot be subject to any claim for misconduct because it has been incorporated in a Collective Bargaining Agreement and therefore protected under the National Labor Laws. Plaintiffs have until January 9, 2012 to respond to Defendants Motion, and Defendants will Special Thanks to Joe have until January 30, 2012 to reply to Plaintiffs’ response. A hearing on the Motion to Dismiss has been scheduled for February 15, 2012, in St. Paul, Minnesota. Delamielleure for

agreeing to be The Eller II Complaint can be found at: featured on ESPN’s http://www.hausfeldllp.com/content_documents/9/EllerIIComplaintwithExhibits.pdf Outside the Lines.

Jim Mitchell is a Paralegal with Hausfeld LLP This episode will

tackle the concussion issue and focus on helmet manufacturer Riddell. The Voice Page 7 III. Concussion Litigation

By: Jim Mitchell

On October 11, 2011, the NFL filed Notices of Removal in three personal injury con- cussion cases filed in the Superior Court for California, seeking to have the cases heard in the United States District Court for the Central District of California. On/about Novem- ber 7, 2011, Plaintiffs filed Motions to Remand the cases back to State Court and at a hearing on the Motions on December 5, 2011, Judge Manuel Real ruled from the bench (without a request to do so) that the negligence claim in the personal injury cases is pre- empted by the Labor Management Relations Act (LMRA). Because of Judge Real’s ad- verse ruling regarding the California cases, Hausfeld LLP voluntarily dismissed the claims If you are a former against the NFL and helmet manufacturers in both the personal injury and medical moni- NFL player and are toring cases then-pending in California, and are re-filing the claims in another jurisdiction. suffering the On November 15, 2011, the NFL filed a Motion for Transfer and Coordination or Con- symptoms of solidation with the Judicial Panel on Multidistrict Litigation, seeking to have all of the Cali- fornia actions pending in the United States District Court for the Central District of Califor- concussions such as nia and the Eastern District of Pennsylvania, coordinated or consolidated in the Eastern headaches, dizziness, District of Pennsylvania. loss of memory, On December 5, 2011, another personal injury suit was filed against the League in the impulse control United States District Court for the District of New Jersey. (Finn v. NFL, Case No. problems, ringing in 11cv7067) This suit is similar to all previously filed concussion cases against the NFL but adds an additional claim involving the use of a drug called Toradol, a nonsteroidal anti- the ears and/or inflammatory drug available extensively in NFL locker rooms as an alternative “pain kil- hearing loss, fatigue, ler”. According to ¶¶139-147 of the Finn Complaint, Toradol was administered both in depression, sleep oral form or by injection, to players without properly advising the receipient of the risks problems, suicidal posed by with the use of Toradol. In 2002 a study was released warning against using thoughts, dementia, Toradol if the drug recipient had suffered a closed head injury, “The bleeding risk of Tora- dol is an utmost concern in collision sports such as football. Even a small increase in Alzheimer’s, ALS, bleeding risk can exacerbate high-risk injuries such as concussions, spinal cord, spleen, CTE, and other like and kidney trauma.” Players suffering from concussions while taking Toradol were at conditions, please increased health risk for multiple reasons: (1) because of the drug’s pain masking fea- contact Hausfeld ture; and (2) because of the drug’s blood thinning properties. LLP at According to a Bloomberg Law article dated December 5, 2011, counsel for the Finn jmitchell@hausfeldllp. plaintiffs, attorney Seeger Weiss, had been involved in direct “good faith negotiations” com with League officials for months prior to filing suit. Reportedly, during these negotiations, Weiss was urged by the League to hold off on filing the concussion claims in an effort to find resolution through a collaborative effort between retirees and the League in forming a “global traumatic brain injury compensation fund that would compensate [retirees] for their injuries.” According to Bloomberg, Weiss met several times with League officials but after the League reached a deal with the former Union on a new CBA that included concussion related benefits “that were far less favorable than the terms discussed with the [retirees]”, Weiss felt he had no choice but to file suit against the League. Said Weiss, “These [retirees] had patiently refrained from litigation based on their good faith understanding that their injuries would be fairly redressed by the League.” Weiss went on to say, “Our clients were assured by the League’s attorneys that senior NFL officials, including the Commissioner, were committed to forming a sizable compensation fund, but despite months of direct negotiations, the League ultimately chose not to honor their commitment.”

Jim Mitchell is a Paralegal with Hausfeld LLP

The Voice Page 8 III. Concussion Litigation

Return to Play Standards Still a Problem in NFL

By: Jim Mitchell

San Diego Charger Offensive Lineman—Kris Dielman

On October 23, 2011, San Diego Chargers offensive lineman Kris Dielman suffered an on field concussion during a game against the New York Jets, in New York. The concussion took place at the 12:30 mark in the fourth quarter when Dielman engaged Jets’ linebacker Calvin Pace. After the play Dielman was slow to his feet and was apparently disoriented enough to cause CBS an- nouncer Jim Nantz to point out that Dielman was “a little shaky and wobbly.” Nantz wasn’t the only person to notice, as NFL Umpire Tony Michalek also looked to Dielman after the play and appeared to be considering whether or not to blow his whistle for an injury timeout. Dielman made no effort to leave the field of play, which is often the case with NFL players who suffer concussions but wish to remain in the game. However in today’s concussion climate and according to the memo issued by the NFL prior to the 2011 season, teams are instructed that if there is, “any suspicion about a player being concussed, remove him from the game. Always err on the side of caution.” The decision for a player to remain in a game or return to a game after a head injury is not the player’s to make. The title of section 3 of the memo reads, in all capital letters, “WHEN IN DOUBT LEAVE THEM OUT”. Coincidentally, according to Sports Illustrated, the Chargers were out of offensive lineman at the time due to other injuries. The fact that Dielman was not officially diagnosed with a concussion until after the game is irrelevant. Every NFL team has coaches, assistant coaches and many other team personnel all responsible for watching their group of players: linebacker coaches watch the linebackers, secon- dary coaches watch the secondary, running backs coaches watch running backs, etc. Nary an on field move can take place without somebody watching. Dielman’s wobbling and disoriented be- havior after the play should have raised suspicion, but it did not. On the team flight home after the game, Dielman suffered a concussion related seizure. The Associated Press reported that an ambulance met the team plane when it arrived in San Diego, and that Dielman was admitted to a local hospital where he stayed overnight. Doctors diagnosed Dielman as having suffered a grand mal seizure on the plane, and directly attributed the seizure to the concussion he suffered earlier in the day.

Cleveland Browns Quarterback—Colt McCoy

The NFL is reportedly investigating the mishandling of a concussion suffered by Cleveland Browns Quarterback Colt McCoy in a game against the Pittsburgh Steelers on December 8, 2011, in a Thursday Night Football game aired on the NFL Network. The incident occurred when Steeler Linebacker James Harrison leveled McCoy with an illegal helmet-to-helmet hit which sent McCoy to the turf for several minutes. Despite the viscous nature of the hit and the aftermath that left their Quarterback on the turf, the Cleveland Browns report- edly not only did not perform the SCAT2 Concussion Test, but did not perform ANY kind of concus- sion evaluation before sending McCoy back into the game. Browns head coach Pat Shurmur insisted the next day that the team followed the correct proto- col on the sidelines when McCoy was evaluated. Shurmur reported that his Quarterback did not exhibit any signs of having a concussion until after the game. The following day McCoy was evaluated and diagnosed as having suffered a concussion. McCoy’s father has reported that his son told him he had no memory of going back into the game.

Jim Mitchell is a Paralegal with Hausfeld LLP Page 9 Volume I, Issue 2

RETIRED PLAYER SPOTLIGHT

ceived forty Hyperbaric treat- Harry Jacobs, ments, twenty in Naples, FL, at Dr. Perlmutter’s clinic, and LB—Patriots, Bills, Saints (1959-70) twenty at Dr. Spiegel’s clinic in Palm Harbor, FL. Jacobs tells The Voice that Harry Jacobs is from the game he loved, Jacobs settled the time investment in receiv- old school, a middle line- down and started his own ing the treatments is signifi- backer who played in the very business. The Jacobs Team cant, but well worth it. His first and the very last AFL (www.thejacobsteam.com), a first two weeks of treatment games, and called all of the company designed to help consisted of two treatments defensive plays during that others succeed in business per day, five days each week. time. through financial planning, Each treatment takes about risk management and leader- Now age 74, Jacobs’ time an hour and a half to com- ship training. spent hitting opposing run- plete, with a 15 minute period ning backs, quarterbacks and During these years after to get the chamber down to offensive linemen has taken football, Jacobs began to ex- the proper barometric pres- its toll on both his body and perience anger management sure, followed by an hour of brain. problems, depression, mem- Message from Harry treatment and then another In Jacobs’ day on the grid- ory loss and other physical 15 minute period to bring the Jacobs: iron, the word concussion difficulties such as joint prob- barometric pressure back to held no meaning. “Dingers, lems. normal. stingers, and/or bell-ringers”, As Jacobs’ problems wors- “Any former player who The results of these treat- were the terms used to de- ened, he sought out psycho- ments have been amazing. decides they want to start the scribe the vicious hits that logical help and was pre- Jacobs reports that his brain caused players to blackout or scribed medication for his process of his own journey to has begun healing and that “see stars”. Today we call depression. he is more vibrant, energized, health, I would be glad to these same things concus- Jacobs recalls an incident and mentally capable then he sions or more correctly stated, years ago when he was has been in decades. have them contact me for brain injuries. “afraid to drive to Buffalo, 14 In addition to the medical additional details” Many former NFL players miles from [his] home”, a treatments and strict adher- will identify with Harry Jacobs’ route he drove for work the ence to his daily diet and ex- story and the times they came previous 40 years, “because Harry Jacobs ercise program, Jacobs also to the sideline during a game [he] was afraid [he] would not credits his amazing turn- 4001 Legion Drive feeling “woozy” or “loopy” know how to get home.” around to his faith in God and Hamburg, New York 14075 after a big hit. Jacobs recalls After seeking help, Jacobs daily prayer. times when he couldn’t focus 716-649-4460 was referred to the Banner This player profile is the on the opposing players coach- Institute in Phoenix, AZ, and story of Harry Jacobs, as told “because of wavy lines in [his] diagnosed with “mild” cogni- by him. By telling his story, [email protected] eyes”, and other times when tive impairment. When he Jacobs hopes that other for- “[his] eyes were wide open, returned home, Jacobs fol- mer NFL players will become but [he] was nowhere lowed-up with Dent Neurologi- proactive in their own lives around.” It was during these cal in Orchard Park, NY, and not be afraid to seek out occasions that the standard where he was found to have a sideline test was performed, medical treatment. Jacobs gene associated with Alz- hopes that his story will in- “how many fingers am I hold- heimer’s disease. ing up?”, was the question spire others to get the help that most former players After hearing about a new they need and the treatment heard after experiencing an medical treatment called they deserve. on-field concussion. Accord- hyperbaric oxygen therapy, he ing to Jacobs, “they would and his wife Kay traveled to always hold up two [fingers]”, California to visit Dr. Amen’s, and since he never wanted to Amen Clinic. Dr. Amen diag- come out of the game, “[he] nosed Jacobs’ with CTE and always answered ‘two’ so [he] suggested a new diet, exer- cise, vitamin, supplement and #64 Harry Jacobs could get back in the game.” 1964-65 AFL Champion medication regimen, along After his years spent on with hyperbaric treatments. the football field playing the To-date Jacobs has re- The Voice Volume 1, Issue 2 RETIRED PLAYER SPOTLIGHT

for head injuries invl9oves lying in a George Visger, clear pressurized tube breathing pure oxygen at 1.5 times normal DB—Jets, 49ers (1980-81) atmospheric pressure for an hour each day.” Visger also indicated that the procedure is painless “other Like most former NFL players, Visger has been living with than your ears popping a little as the George Visger began his football Traumatic Brain Injury (TBI) for pressure goes up and down, you career at a very young age. Also over 30 years now. Having found don’t feel a thing.” like many other football players, no success at improving his short- Visger explains how the treat- Visger suffered numerous “bell- term memory, Visger has learned ments work, “by infusing all your ringers” both on the field and to live his life through countless fluids with concentrated oxygen, during practice and was expected numbers of little yellow notepads delivering massive doses of oxygen to play through the ensuing men- where every detail of his daily life to all your cells, even those with tal fog. is recorded. As Visger tells it, “I poor or no blood circulation.” Treat- Like most former players, write down my entire days, some- ments also increase, “mitochondrial Visger was never told that the times with up to 15 - 20 pages of activity in all your cells, not just your blows to the head he sustained notes in a single day, and have brain cells. Mitochondria are your were actually brain injuries re- conditioned myself to read cells engines supplying energy. ferred to as concussions. And through the prior weeks notes When the mitochondria in your brain like most former players, Visger every other night. After reading cells are stimulated, it causes was never told that concussions about what I did several days growth of new neurons to areas of could have long term negative prior three or four times, I know your brain not damaged, or not be- effects on his brain. what I did, even if I don’t actually ing used.” Treatments combined remember doing it. I’ve also Visger recalls a concussion he with mental exercises cause new leaned to place Post-It sticky neurons to grow in areas of the brain suffered in 1980, during his notes on my mirror in the bath- rookie season with the San Fran- not being used. This process is room, dashboard of my truck and called Neuroplasticity, and was cisco 49ers. In a game against other areas I will see them at recently discovered. the Dallas Cowboys, Visger tells different times of the day to re- The Voice that he suffered a blow mind me of things on my sched- Since beginning hyperbaric treat- to the head so severe that it re- ule. Alarms go off on my com- ments in two years ago, Visger’s quired the use of between 25-30 puter 2 wks, 1 wk, 5,4,3,2 and 1 micro-cognitive memory tests have smelling salt tablets throughout day prior to appoints. The day of improved from a low of 56 to an the course of the game to keep the appointment I have alarms on amazing 64 on his last evaluation in his head clear. Each time Visger my computer and phone pro- September 2011. Visger’s memory came to the sidelines, the train- grammed to beep at 5 hrs, 3 hrs has increased a staggering 14.3%, ers would go through a “handful” and 1 hr prior to my appointment which is a substantial increase for a of smelling salts so he could and at 15-minute increments the 53 year old man. remain in the game. final hour, then at 10, 5 and 2 In 1986, Visger won a worker’s Early in the 1981 season, minutes. I’ve learned to do this compensation case against the San Visger developed hydrocephalus, as even with a reminder 1 hour Francisco 49ers. All of his hyper- or water on the brain caused by prior, I will get busy writing re- baric treatments have been covered severe head trauma. The condi- ports or on the phone and forget.” by worker’s comp. Visger encour- tion was so severe that it required In October 2009 Visger under- ages other former players to check emergency VP Shunt brain sur- went 3 days of intensive neuro- into a legislation recently passed in gery to remove spinal fluid that psychological evaluations, SPECT California allowing NFL players to file had built-up on his brain. As scans and micro-cog memory a worker’s compensation claim Visger reports, “they drilled a hole tests at Dr. Amen’s clinic in New regardless of where your home team in my skull, ran a perforated tube Port Beach, CA. George recalled, was based. Visger adds, “if you into the ventricles in the middle of “after 3 days of testing Dr. Amen were injured while playing a Califor- my brain, and ran that tube to a stated it was a miracle I could nia team in California, you can file a pressure valve in the back of my even function with the amount of California Worker’s Compensation head. From the pressure valve, a brain damage I had.” claim.” tube was plumbing into my abdo- men to permanently drain spinal Dr. Amen recommended Visger fluid from my brain.” Visger was begin Hyperbaric Oxygen treat- 22 when he underwent this pro- ments. At the same time, Dr. Barry Sears recommended Visger #74 George Visger cedure. begin taking Omega 3 fish oil and Super Bowl XVI Champion Today George Visger is 53 and drink antioxidant juice. In Decem- has undergone 9 emergency VP ber 2009, Visger began receiving Shunt brain surgeries. He has Hyperbaric treatments at the also suffered numerous gran mal Sacramento Hyperbaric Oxygen seizures, the result of which has Treatment Center. left him with major long and short -term memory loss. According to Visger, “[Hyperbaric Oxygen] treatments The Voice Page 11 IV. Dryer Litigation

Dryer — Fred Dryer, et al v. NFL

By: Bob Stein

In Dryer v. NFL, 0:09-cv-02182 (D. Minn.), a group of retired football players (led by Fred Dryer, Jim Marshall, Elvin Bethea, Joe Senser, Dan Pastorini, and Ed Retirees “seek nothing White) allege the NFL, including its NFL Films division, has used retired players’ more than to obtain their likenesses without permission in order promote the league and earn substantial revenues (an estimated $6.9 billion in 2008 alone). fair share of the revenues the NFL has earned, The complaint alleges that while the league was allowed to use players’ names, images, and likenesses during their playing days, no such usage was allowed after and will earn, by the use the players’ contracts expired – particularly for those players who were with the of the retired players’ league during the “glory days” prior to 1993. For example, the complaint focuses identities “ on the fact that the NFL uses extensive film productions to promote the league - complete with scripts, music and editing as opposed to re-broadcasts of NFL games - for which it has generally offered no compensation to retired players -Dryer Complaint whose images are used throughout these films. The retired players have brought claims for unjust enrichment, violations of the Lanham Act, and for violations of their rights of publicity due to these unauthorized uses of their likenesses.

In January 2010, the court denied the NFL’s motion to dismiss the lawsuit and allowed the plaintiffs to move forward with their claims. The case is now in active litigation. On September 13, 2011, the Court appointed Hausfeld LLP, Bob Stein LLC, and Zimmerman Reed as the 3 co-lead counsel in this matter.

The suit continues to progress, with hundreds of thousands of pages of discovery exchanged and reviewed. An Amended Complaint was filed on November 15, 2011, to reflect modifications including consolidation of a number of similar law- suits, and counsel continue to work closely with our experts to analyze the strong- est positions to argue and support.

The new CBA, effective August 4, 2011, helps support the view of retired player publicity rights in that it addressed player publicity rights AFTER an individual player contracts end. For the first time, the CBA requires every NFL Player Con- tract to include language giving the NFL the "right and authority" to use player publicity rights “after the term of the Agreement.” The addition of this language supports the claim in the Dryer case that the NFL did not have these rights in prior CBA's.

The Complaint can be found at: http://www.retiredfootballplayerslawsuit.com/pdf/NFL-A-Complaint.pdf

Bob Stein is an attorney and former NFL linebacker with the Chiefs, Rams, Charg- ers, & Vikings (1969-76)

Page 12 Volume I, Issue 2 V. NCAA - How We Can Bring Justice For College Athletes

By: Ramogi Huma (Founder and President of the NCPA to fight for basic protections. the National College Players Association)

There is much hope for turning this around. Soon after I began playing football for UCLA, New TV deals signed by five of the major con- I realized that student-athletes are subject ferences and the NCAA are generating approxi- to significant financial challenges and lack mately $775 million dollars in new annual reve- many basic protections. I started a student- nue, and can play a major role in addressing athletes’ advocacy group called the National these problems. The NCPA has begun a high- College Players Association (NCPA) after the profile campaign to direct a portion of new TV NCAA suspended my teammate for accept- revenues to bring forth the following necessary ing a few bags of groceries. An agent left reforms: them anonymously on his doorstep after To show support for the listening to a radio interview during which  Cover players’ sports-related medical reform efforts proposed my teammate mentioned that he didn’t expenses. by the National College have money to buy enough food during the Players Association  Ensure that injured student-athletes (NCPA), please visit the season. At the time, his jersey was being have their scholarships renewed, even NCPA website at: sold in stores across the nation, but NCAA if they can no longer participate in their www.ncpanow.org rules didn’t let him receive one penny of sport. those revenues. Later that year, my team-  Increase scholarships equal to the full You can follow the NCPA mates and I were told that the NCAA prohib- on Twitter: @NCPANOW, ited schools from paying for any sports- cost of attendance. or on Facebook. related medical expenses resulting from  Re-establish an educational trust fund For more information injuries suffered during summer workouts (the NCAA recently allowed one to ex- please contact the NCPA since such workouts were deemed pire in August). This educational trust at: 951-898-0985 “voluntary”. fund or “lockbox” would provide funds to former players who don’t graduate so they can continue their education While college football and basketball players and to players that earn their degree. generate billions of dollars per year, college Players would only gain access to this athletic programs can choose to leave them fund if they abide by NCAA rules. with sports-related medical expenses, re- Graduation rates go up, NCAA viola- fuse to renew their scholarships if they are tions go down. injured, leave them with tens of thousands of dollars in educational-related expenses,  Prevent schools from holding transfer- and can hold their eligibility and scholarship ring players’ eligibility hostage. opportunities hostage when they try to transfer schools. Those of us that have played college football can be the difference of the success or failure Football and basketball players spend about of these important reforms. Current and future 40 hours per week in their sport alone at college athletes need us to speak out because the expense of their graduation rates, which no one else will. Current and former NFL play- hover around 50%. In addition, the NCAA ers, in particular, have a powerful voice that caps every full scholarship in the nation be- can bring forth much needed change. low the cost of attendance leaving unsus- pecting players with about $3000-$4000/ Ramogi Huma is Founder and President of the year in out-of-pocket expenses. While the National College Players Association (NCPA), average football and basketball player is and a former UCLA football player (1995-99). worth six figures, about 85% of them live The NCPA is the only independent voice for well below the federal poverty line. Mean- college athletes. while, NCAA rules violations are rampant

and show no signs of slowing down. For reasons such as these, over 14,000 Divi- sion I athletes from all sports have joined The Voice Page 13

RETIREE SOUND-OFF SECTION:

The NFLPA through its attorney Jeffrey Kessler told Judge Susan Nel- son at a hearing on August 10, 2011, that retired players, “have been pouring in praise and thanks to the NFLPA for the new benefits that have been agreed to.” - Jeffrey Kessler, Attorney for the NFLPA to Judge Susan Nelson at a hearing August 10, 2011. (Transcript of Record at 52-53, Brady v. NFL, No. 11-cv- 639 (D. Minn. Aug.10, 2011)).

Please Sound-off: We want to know if retirees agree with the

NFLPA, that the new benefits agreed to by the NFLPA are “praised” by all retirees.

Do you agree that the new benefits agreed to by the NFLPA for retirees are praiseworthy? YES, the benefits secured by the NFLPA during negotiations of the new CBA are adequate and praiseworthy.

NO, the benefits secured by the NFLPA during negotiations of the new CBA are not adequate.

I have no opinion on this issue

Name:

Years Played:

Team(s) Played For:

Comments:

To Sound-off & Be Heard: Fax this page to 202-540-7201

The Voice Page 14

Retired Players Association www.nflretiredplayersassociation.com

Gridiron Greats www.gridirongreats.org

Fourth and Goal www.fourthandgoalunites.com Please Visit Our Unified NFL Dignity After Football Retiree Groups on the Web at: www.dignityafterfootball.org

Independent Football Veterans www.davepear.com

Jeff Nixon Report http://blog.nflalumniassociation.com

DISCLAIMER

The materials and information within this newsletter are made available by Hausfeld LLP and Zelle Hofmann, LLP for informational purposes only and should not be con- sidered legal advice. The transmission and receipt of information within this newslet- ter do not form or constitute an attorney-client relationship. Persons receiving the information via this newsletter should not act upon the information provided without seeking professional legal counsel.

Some links within this newsletter may lead to other websites. Hausfeld LLP and Zelle Hofmann, LLP do not incorporate any materials appearing in such linked sites by ref- erence, and the firms do not necessarily sponsor, endorse and/or otherwise approve of such linked materials.

* Hausfeld LLP and Zelle Hof- mann are legal counsel repre- senting retirees in issues ranging from union misconduct effecting retiree pensions and disability benefits; health consequences of football related concussions; and Hausfeld LLP Zelle Hofmann economic rights of retirees with respect to their names, images 1700 K Street, NW 500 Washington Avenue South and likeness. Suite 650 Suite 4000 Washington, DC 20006 Minneapolis, MN 55415 Phone: (202) 540-7200 Phone: (612) 339-2020 Fax: (202) 540-7201 Fax: (612) 336-9100 www.hausfeldllp.com www.zelle.com