By Richard C. Giller, Esq.
Las month, former NFL offensive lineman Darryl Ashmore filed a lawsuit in U.S. District Court for the Southern District Florida against the NFL Player Disability and Neurocognitive Benefit Plan, claiming that the Plan wrongfully denied him benefits solely because he had not traveled to San Antonio, Texas, and to Tampa and Palm Beach Florida over a six day period for medical examination, despite debilitating injuries suffered over the course of his 11-year NFL career.
According to his complaint, Ashmore suffers from “multiple cognitive and mental health conditions” including “encephalopathy, dementia, memory loss, depression, anxiety, and impaired concentration” and it is further alleged that Ashmore’s counsel provided the NFL with a doctor’s letter establishing that Ashmore’s “medical conditions prevent[ed] him from flying and recommended that any examination be conducted by a physician located in Florida.”
The Ashmore case was assigned to Judge Kenneth A. Marra, who was appointed to the bench by President George W. Bush in 2002 which, coincidentally, was the same year that Ashmore retired from the NFL. The complaint did not include any exhibits and the Plan has not yet filed an answer in the lawsuit. While the dispute over whether the NFL acted reasonably in scheduling Ashmore’s doctor’s appointments in three different locations and denying Ashmore’s claim for neurocognitive benefits may well resolve itself rather quickly, but the medical issues noted in the complaint highlight a somewhat underreported aspect of concussions in the NFL; i.e., the long term effects of repetitive low impact hits experienced by linemen.
Ashmore was a 1992 seventh-round draft pick out of Northwestern and played offensive guard in 119 games between 1992 and 2002 for the Rams, Redskins and Raiders. During his 11-year career Ashmore, like most offensive and defensive linemen, sustained lower intensity impact blows to his head, at least as compared with skill position players, but as a lineman he also sustained those hits with a much higher frequency than skill players. Because linemen engage with an opponent on virtually every play, both in practice and during games, they sustain these types of “subconcussive” hits quite frequently. According to a 2014 Harvard University study published in the Journal of Neurotrauma, offensive linemen are also less likely to report concussion symptoms and more likely to play through those symptoms than any other position on the field. Indeed, that study concluded that subconcussive hits, like the hits regularly sustained by Ashmore during his NFL career, may in fact be symptomatic of concussions that simply go unreported.
The 2014 study also noted that linemen, and specifically offensive lineman, reported approximately 62% more suspected concussions and 52% more “dings” or “bell ringers” than players reported at other positions. These findings are consistent with a study performed three years earlier by Joseph J. Crisco, professor of orthopedics at Brown University, who documented a little less than 300,000 hits to the head among 314 players in the 2007-09 seasons. The 2011 Brown study found that offensive linemen suffered more hits to the head than any other position. The sheer number of head blows sustained by offensive lineman, regardless of the intensity of the hits, is cause for concern. Some doctors opine that these types of subconcussive hits could in fact end up causing more neurological damage over the long-term than more high impact hits.
Ashmore, who is now 47 years old, is 6’7” tall and weighed 315 pounds during his NFL playing days. According to his recent complaint and published reports, he now suffers from early onset dementia as well as frequent and severe migraines, and a myriad of other physical injuries and cognitive issues. The Neurocognitive Disability (NCD) benefits sought by Ashmore were added to the benefits available to retired NFL players as part of the 2011 Collective Bargaining Agreement worked out between the NFL and the Players Association. Under Article 65 of the 2011 CBA, players “who have a permanent, neuro-cognitive impairment but are not receiving Line of Duty or Total & Permanent Benefits under the Disability Plan or Pension Benefits under the Retirement Plan” are eligible to receive NCD benefits.
One of the more important but underreported aspects of the NCD Plan is that “an applicant will not be required to establish that the neuro-cognitive impairment arose out of football.” If a player is found to have “mild” neuro-cognitive impairment, he will receive monthly benefits of at least $1,500 and if the impairment is deemed to be “moderate” he will receive monthly benefits of at least $3,000. The player may also qualify for reimbursement for medical expenses related to neuro-cognitive treatment up to $10,000 per year. NCD benefits are available for no more than 15 years and they terminate when the player reaches the age of 55, at which time the player may be able to pursue other benefits under the Plan. A retired player seeking NCD benefits must have five credited NFL seasons, or three credited seasons and one after 1992, and they must have at least one credited season after 1994. Ashmore alleges in his recent filing that he meets all of the criteria for obtaining NCD benefits.
However, Article 65 contains an interesting limitation which may or may not apply to Ashmore. Pursuant to the CBA, a player can only receive NCD benefits if he has “have executed a release of claims and covenants not to sue in a form agreed upon by the parties to this Agreement.” Article 65 further documents an express agreement between the League and the NFLPA that “a player’s right to receive benefits under th[e] Article shall be contingent on the player’s agreement to and execution of the release and covenant not to sue referenced above.” It does not appear that the scope of the required release and covenant not to execute provisions set out in Article 65 have been clarified or litigated, it would appear that these requirements could preclude a player who played in the NFL after 1994 from pursuing NCD benefits if he has joined the NFL Concussion Lawsuit. Additionally, if a player is currently a plaintiff in the concussion litigation he may well be required to dismiss his claims in the concussion case if he wishes to pursue NCD benefits. One article notes that Ashmore is one of the plaintiffs in the 2012 NFL concussion litigation.
At first glance, the complaint filed by Darryl Ashmore in federal court last month appears to involve narrowly framed factual issues concerning when and where the NFL can schedule medical examinations for injured retired players seeking NCD benefits. However, the case also highlights both the adverse impact of subconcussive hits routinely experienced by offensive and defensive lineman and it may help clarify the scope of the release and covenant not to sue in Article 65 of the CBA and whether those provisions require a player to choose between pursuing legal recourse for neurocognitive impairment or pursuing NCD benefits.
Giller is a principal at Polsinelli PC.
