Sports Law Development of the Week: Federal Judge Rules Former NFL Player Wrongly Denied Disability Benefits

By: Cameron Miller

Former NFL players have several options for accessing post-career disability benefits. Players can file worker’s compensation claims through state disability programs, apply for benefits from the Social Security Administration, and seek to qualify under the league’s 88 Plan, which disburses benefits to those diagnosed with dementia and other neurocognitive disorders. Since 2017, players can also submit damages claims in the NFL Concussion Settlement – though that process has been fraught with interminable delays, arguably frivolous appeals, and allegations of fraud.

Another avenue through which players seek compensation and services for the injuries suffered during their NFL careers is the Player Disability and Neurocognitive Benefit Plan. The Plan “makes monthly payments to players who have a mild or moderate neurocognitive impairment, as well as provides reimbursement toward the cost of medical expenses associated with that impairment.” Players seeking benefits under the Plan must submit medical records evidencing cognitive impairment, which are then reviewed by the Plan’s Disability Board or the Disability Initial Claims Committee. Applicants may also be required to undergo additional medical testing to corroborate their impairments and existing medical records. The Plan allows an applicant’s claim for benefits to be denied if the player does not attend the additional “scheduled” evaluations “unless the Player provided at least two business days advance notice to the Plan Office that he was unable to attend.”

One such player ordered for further testing was Darryl Ashmore, an eleven-year NFL offensive lineman who in 2015 applied for benefits under the Plan. After nearly three years, two denials, and a federal lawsuit that was ultimately decided in his favor, Ashmore will receive those benefits.

After submitting initial medical documentation in support of his claim, Mr. Ashmore was notified by a Plan coordinator on October 9, 2015 that he was to appear for examinations before a neurologist (October 16 in Texas), orthopedist (October 20 in South Florida) and a neuropsychologist (October 22 in Tampa, Florida). Ashmore’s counsel responded and requested the examinations be rescheduled to providers closer to Ashmore’s residence in South Florida due to the player’s inability to sit (including on planes) for long stretches “Mr. Ashmore’s medical condition,” his attorney wrote, “will be exacerbated by long-distance travel” (Ashmore was listed at 6-foot-7 and over 300 pounds during his playing career). After the coordinator responded that the doctors assigned to Ashmore were the closest geographically to him, the player’s attorney clarified that he “physically cannot endure travel due to chronic pain in his neck, knees, and back.” Those assertions were supported by Ashmore’s doctor in Florida, who “recommend[ed] [Ashmore] be evaluated by physicians based out of Florida, preferably within a one hour drive of his home in the Ft. Lauderdale/Palm Beach area.”

The coordinator rescheduled the examinations for early November in Atlanta, Georgia. Ashmore’s attorney again requested accommodations and asked his request be presented to the Disability Initial Claims Committee. This time, however, no accommodations were made, and Ashmore’s appointments were canceled despite the coordinator telling Ashmore’s attorney the Committee would consider his request. Ashmore’s claim was then denied because he did not attend the canceled assessments; he appealed under the Plan’s procedures, but it, too, was denied. Ashmore then filed suit in federal court, claiming the Plan made an erroneous decision due to its arbitrary and capricious actions.

Both Ashmore and the Plan sought summary judgment. At issue were two questions: Whether the Plan’s decision to deny Ashmore benefits was correct and whether it abused its discretion in doing so. The Plan argued that because Ashmore never gave formal notice he would not be attending the November evaluations, it acted within its authority in denying the claim. Further, the Plan, reasoned, Ashmore’s requests for accommodations were unreasonable and he did not even attempt to attend the examinations.

Ashmore contended the Plan “misled” him by canceling his scheduled assessments despite telling him his request for additional accommodations would be presented to the Plan’s Disability Initial Claims Committee. Ultimately, Ashmore claimed, the Plan wrongly decided his case, which featured “substantial” evidence of the type of impairment compensable under its terms.

U.S. District Judge Kenneth Marra found in Ashmore’s favor on June 15, 2018, awarding Ashmore future and past Plan disability benefits. Marra found that the Plan’s language allowing denial of claims where players fail to attend “scheduled” evaluations did not apply to Ashmore’s case because the Plan coordinator canceled his evaluations a full five days before they were set to begin. Those assessments were not, therefore, “scheduled” in the sense envisioned by the Plan. On the arbitrary and capricious issue, the court also found for Ashmore, writing, “[t]he Plan cannot reasonably expect a player to attend an examination that is subject to an unresolved request for accommodations.” Because the Plan’s decision to reject Ashmore’s claim for benefits due to his failure to attend assessments that both parties understood would not occur “defie[d] all reason and common sense,” Marra granted Ashmore the benefits he was twice denied under the Plan’s procedures.

Interestingly, the Court did not discuss or make a finding on the merits of Ashmore’s application for disability benefits. Perhaps this is because the only stated reason for the denial of the player’s claim was the failure to attend the medical evaluations. Accordingly, attorneys for the Plan may appeal to the Eleventh Circuit and seek remand of the case back to the Disability Initial Claims Committee. Irrespective of appeal efforts, Marra’s decision may influence how the Plan instructs the Committee to draft their decisions when players do not attend their assessments (or cancel within the 48-hour window). In those cases, the Committee may be asked to make a ruling on the merits of the claim—even if it denies the claim on procedural grounds.

Cameron Miller is a 2016 graduate of Stanford University and earned a Master's in Sports Law & Business from Arizona State University in 2017. He is the Sports Lawyers Association's Research Assistant.