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Coming To A Head

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It’s quite possible that one of the most important events in the NFL this season didn't happen on the field. It didn't involve pro bowl players or millionaire owners. It didn't take place in Cowboys Stadium in Dallas, home to Super Bowl XLV.

No, one of the most important events in the NFL this year, and perhaps for years to come, might take place in a courtroom in Baltimore. And it revolves around a former running back with 23 career rushing yards, nine career games, and one very large pending lawsuit.

On Nov. 29, 2010, former Washington Redskins and Carolina Panthers running back Eric Shelton filed a lawsuit against the NFL pension plan, claiming he was improperly denied the highest level of disability benefits owed him due to a career-ending helmet-to-helmet hit that caused permanent injury to his spine. The case might not grab the spotlight immediately, but rest assured there are hundreds of ex-NFLers, as well as current executives working on the new collective bargaining agreement, that have the suit on their radar. The result could lead to a potential avalanche of lawsuits headed the way of the NFL’s office.

“There have been a lot of head-to-head hits over the course of the last decade [in the NFL], and it’s clear that they cause injury,” said Cy Smith, a partner in Zuckerman Spaeder LLC, the law firm representing Shelton. “There are other players in Eric Shelton’s situation... the hope certainly is that not only will Eric be able to vindicate his case, but that he’ll be able to make it possible for other players to get the pension benefits that [they’re] entitled to.”

Shelton, who was originally drafted by the Panthers in the second round out of Louisville in 2005, suffered the injury in Redskins’ training camp in '08 when he collided head-on with another player during an intrasquad scrimmage, causing him to completely lose all sensation for about a minute. When he was later checked out by a doctor, it was discovered that the hit had caused a narrowing of his spinal canal, the tunnel in the center of the spine that houses the spinal cord and nerves.

Since he couldn’t play anymore, he got a job in the pharmacy department at Walgreens to support his wife, Shamea; their two-year-old daughter; and his 16-year-old brother, whom he had taken in and now supports. But the narrowing of his spinal canal caused pain in his limbs and, according to his lawyer, also resulted in blurred vision, memory loss, transient paralysis and Parkinsonism. Working was no longer tolerable.

The pension plan’s Retirement Board awarded him “Football Inactive” benefits, claiming (against the findings of three independent doctors) that while he was totally and permanently disabled, it was not clear to them that the disability was a direct result of playing pro football.

Once Smith and his law firm got involved, the Retirement Board reversed their case, admitting that the injury was due solely to football-related activities, and placed him in the "Football Degenerative" category, which pays $110,000 a year. But while they agreed on the root cause of Shelton’s injury, they denied him the highest level of benefits, ruling that it wasn’t clear to them that his disabilities occurred shortly after the injury. In order to be placed in the highest level of Total and Permanent Disability benefits—the “active football” category, which pays about $230,000 a year—a player must be totally and permanently disabled within six to 12 months of the football-related injury.

The attorney representing the pension plan, Douglas Ell, released the following statement, which was distributed by the NFL: “The plan has four different categories of full [total and permanent disability] benefits. The lawsuit requests that Mr. Shelton be placed in the highest category, which in part applies where a player is unable to work immediately following his NFL career. Mr. Shelton worked at a pharmacy until April 2009.”

Smith said that Shelton worked at Walgreens “briefly,” and that “he had to quit because of the pain from standing, as well as headaches.”

The exact specifics of the case have yet to unfold, and a decision likely won’t come until late-2011.  But the timing couldn’t be more ironic.

This season, the NFL has seen a heavily documented crackdown on helmet-to-helmet hits, resulting in fines and suspensions. Steelers’ linebacker James Harrison alone has been fined $125,000 this season as a result of hits the league found to be illegal.

They have also proposed an 18-game schedule, which seems more likely with each passing week. And this is where the full impact of Shelton’s case could be felt. More games will result in more injuries, which will eventually lead to more disability benefits being paid out. The result of Shelton’s lawsuit could give other players in similar situations the confidence to follow his lead.

The NFL is in the middle of a potential public relations nightmare. On the field, they are being accused of being too protective of their players and “softening” the game. Off the field, they are being charged with denying retired players their rightful benefits.

“The walk has to match the talk,” said Smith. “The NFL hasn’t done that.”

With the potential of a future lockout looming in 2011, it’s understandable how some of the league’s moves could be viewed as bargaining chips in future CBA negotiations.

“With the political warfare that goes on, to say that there’s not [politicking] would be unrealistic,” said former running back Merril Hoge. “The NFLPA and the NFL were notoriously bad in denying a lot of things. The NFLPA was horrendous for years, and they are the ones who are supposed to take care of the players.”

In 1994, after Hoge suffered multiple concussions in the span of a few weeks, the NFLPA sent him to a doctor to see if he was deserving of benefits for head trauma. But instead of being sent to a neurologist, he was sent to an orthopedic doctor who ran tests such as having him walk down the hall.

“I just kept walking right out the door,” Hoge said. “I knew right there they were going to deny me.”

But a lot has changed since then, and Hoge believes significant strides have been made by both the NFLPA and the NFL.

“Really, if you go back to last year when Ben [Roethlisberger] and Kurt Warner both sat out,” he said, “that was historic when it comes to our league. I know this – both sides want to take care of the former player. But they need to have a system in place so that people aren’t looking for a handout. If you don’t have a structure and a protocol, not everyone is going to be happy.”

Which brings us back to Shelton. The only fact that all parties agree on is that regardless of when the severity of his injury was discovered, Eric Shelton suffered a permanent, career-ending injury to his spine as a direct result of playing professional football.

In a recent episode of ESPN’s “Outside the Lines,” NFL Director of Football Operations Merton Hanks, a former All-Pro defensive back, was quoted as saying: “In today’s NFL, we have made the point that we are going to make player safety a priority. The health and safety of an individual player is more important than any game.”
Smith didn’t necessarily see it that way.

“This is a classic case of the NFL saying one thing and doing another,” said Smith. “The NFL has been really visible of late trying to persuade people that they recognize the risk of brain injuries from pro football. Specifically, they have been cracking down on these helmet-to-helmet hits, saying these are the most dangerous types of plays that can happen on the field. It’s fine to levy some sanctions and a few fines, but when it comes time to actually pay out some money to guys who have been injured by the same thing, then there’s a double-standard and frankly, hypocrisy by the NFL.”

If the NFL is afraid of Cy Smith, they should be. In 2006, Smith represented the estate of former Steelers’ center Mike Webster in a case against the NFL pension plan. The courts found in favor of Webster’s estate, and also found that the NFL had acted in bad faith in denying his benefits. As a result, in addition to the money awarded his estate for the suit, the court also imposed a separate monetary award to be paid for attorney fees.

It was the first case the pension plan had ever lost, and it led to congressional hearings in 2007 and '08 that resulted in significant changes throughout the plan.

If Shelton’s case plays out in similar fashion, the result could not only have a significant impact on the pension plan, but also on CBA negotiations, the proposed 18-game schedule, and maybe most importantly, the NFL’s pocketbook.

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