U.S. District Court Judge Trevor McFadden has dismissed a lawsuit brought by retired NFL quarterback Don Majkowski and running back Aveion Cason against the league, the NFLPA and their joint disability and retirement boards. The case concerns an alleged illegal conspiracy to abolish retired NFL players’ disability benefits. The dismissal, dated May 7, was “without prejudice.” That classification means the two players can re-file their lawsuit as an amended complaint, one that tries to cure deficiencies identified by Judge McFadden. Majkowski and Cason can also appeal the dismissal to the U.S. Court of Appeals for the D.C. Circuit or take no action.
All options are on the table, Paul Secunda, one of the attorneys representing Majkowski and Cason, told Sportico. “Our litigation,” Secunda stresses, “will continue to push the NFL to reconsider not-well-thought-out provisions” in the 2020 collective bargaining agreement.
The case centers on two provisions. The first is the “whole person” evaluation requirement, which adds a layer of scrutiny before a player is deemed eligible for total and permanent (T&P) disability benefits. Whereas previously a Social Security determination of disability established eligibility, the new standard will require a comprehensive appraisal. The second provision is the Social Security offset, which will reduce by several thousand dollars a month the amount of disability money paid to certain categories of retired players by dollar amounts they receive from the government. These terms, Majkowski and Cason insist, are designed to take away essential benefits from aging and disabled ex-players.
A major hurdle for Majkowski and Cason is establishing they have “standing” to sue. To show standing, a plaintiff must have suffered an “injury” (such as a bodily injury or loss of money) that is traceable to the defendant and that the court could remedy. Crucially, as retired players, Majkowski and Cason have no vote on the CBA. They nonetheless claim a sufficient nexus given they are intended beneficiaries.
Judge McFadden wasn’t convinced. He stressed the whole person evaluation is a work-in-progress. Court records indicate it won’t be effective until at least April 2024. The judge also reasoned that even if Majkowski and Cason were subject to the evaluation, they might pass and qualify for benefits. In other words, the duo hasn’t yet been injured and might not become injured.
Judge McFadden also wasn’t persuaded by the players’ offset argument. While he agreed the offset will diminish benefits, he maintained there is no “vested right” to those benefits. The judge reasoned that once the 2011 CBA expired, any rights from that CBA ended.
The judge likewise reasoned that he can’t, and wouldn’t, order a CBA revote. Majkowski and Cason underscore that key CBA language changed after NFLPA members voted 1,019 to 959 to ratify—language they say will cost retired players as much as $3,000 a month. Judge McFadden emphasized that Majkowski and Cason “cite no authority for their proposition that the Court could order a re-vote.” He further opined that “a re-vote makes little sense given their status as retired players. No party involved in the ratification vote—in particular, active players—complains about it here.” The judge, a former Deputy Assistant U.S. Attorney General, added, “This is a rare case in which the parties to the contracts—the Players Association and the [NFL] Management Council—agree on what the contracts’ terms mean.”
Despite the ruling, Secunda highlights how retired players’ rights have notably improved since the case was filed last July. Secunda contends the case has pressured the NFL and NFLPA to rethink their treatment of retired players. For instance, last December the CBA was amended to push back the start date of the offset from Jan. 1, 2021 to Jan. 1, 2024. “Our litigation,” Secunda asserts, “had them delay the offset by three years”—a move that hurt Secunda’s case for the purposes of standing but helps some retired players. Secunda also notes that the “whole person” standard will be re-evaluated in 2024 and might not be put in place for years thereafter. This means retired players who would have lost money and other benefits over the next few years won’t.
“This is a shot across the bow,” Secunda insists. “If [the NFL, NFLPA and joint boards] are going to try to cut their disability expenses inappropriately and unfairly, we’re ready. . . . We won’t let them make money off of people’s disabilities.”