Inside Slant: Jermichael Finley's 'choice'
June, 3, 2014
By Kevin Seifert | ESPN.com
I like a philosophical debate as much as the next pseudo-wannabe intellectual. So I was ready to dive headfirst into the Jermichael Finley dilemma, the one that asks us to choose between two fraught options: Finley's $10 million disability insurance policy or his fervent desire to continue playing.
Should he take the payday, retire at age 27 and preserve his current health? Or should he tempt fate by feeding his love for the game, perhaps earning a more conventional financial reward in the future?
Alas, it's fair to wonder if Finley -- the free-agent tight end who suffered a severe neck injury last season -- truly faces a choice here. I reached out to a few experts in this field, and as best as I can navigate the insurance labyrinth, it appears Finley would need to retire before receiving an offer to make a good argument for a disability claim. Even then, however, he could face a fight with his insurer.
"The answers always lie in the specific language of the policy, which we haven't seen," Atlanta insurance attorney Jeffrey D. Diamond said. "But I've been in this business for 35 years, and in my experience, there are usually conditions in these policies that prevent any kind of end around."
For me, this issue falls back on a basic and intuitive question: How could an employee claim disability if he turns down an offer to work, which in this case would come in conjunction with an employer's medical clearance? An insurance company hoping to avoid a $10 million payout almost certainly would use an NFL contract offer as proof of work competency, wouldn't it?
Finley has put himself in position to seek offers, having visited in March with the Seattle Seahawks, checked in with the incumbent Green Bay Packers last week and most recently met with New England Patriots officials. His personal doctor has cleared him for full contact, and his agent appeared to be open for business during an appearance last week on "PFT Live."
Finley doesn't have much leverage in negotiations, given the risk and potential liability involved with signing a player who suffered a bruised spinal cord and required fusion of the C-3 and C-4 vertebras. Thus the philosophical conundrum: If offered, say, a one-year contract for the veteran's minimum of $730,000, should he take it for the "love of the game" or fall back on the promise of a $10 million tax-free claim?
Jeffrey Joy, a vocational rehabilitation consultant based in Connecticut, said disability claims are often won by employees who have been offered a job. Typically in those cases, Joy said, the offer is not comparable to the previous employment -- a former manager offered assembly-line work after a mental illness, for example. That circumstance wouldn't seem to apply for Finley, whose only offer would be for the same job -- an NFL tight end -- that he previously held.
Brian Kersey/Getty ImagesJermichael Finley sustained a bruised spinal cord after taking a hit last season against Cleveland.
In his PFT interview last week, agent Blake Baratz said Finley has a "very sound argument to collect on his disability claim" if "he shuts it down permanently right now" -- ostensibly after trying and failing to secure a contract. Presumably pointing to the possibility of a future offer, Baratz also said: "Three weeks from now, or six weeks from now, or nine weeks from now or if he plays in 'X' number of games, it's a completely different story."
In other words, according to Diamond, it's likely one or the other but not an either-or situation.
"I haven't seen his policy, but it's hard for me to believe he will have that choice," said Diamond, who also teaches law at Georgia State University and Atlanta's John Marshall Law School. "I have to believe it's not that simple, that there are some conditions or exclusions. That's how these things usually work."
(I reached out to Baratz but have not yet heard back.)
According to Joy, the typical practice in such cases is to conclude that a person is not legally disabled if two or more medical sources conclude he or she has the capacity to work at his previous level. In this case, the implicit conclusion would come from two contract offers.
Even if Finley retires without an offer, Diamond said, he faces a fight to collect.
"This is a whole world that most people really don't know about," he said. "Insurance companies use the claims process to make money. They try to pay lower claims, deny claims, accuse people of insurance fraud. There are all sorts of things that go on that the public doesn't really know about.
"It's ignorant, or in good faith I'll say naïve, to think you can simply cash in a disability claim if he doesn't make a team. His reasons will be subject to scrutiny, and they'll look for any reason other than the fact that he has an injury.
"My experience in this business is that insurance companies don't say, 'Oh, you didn't get an offer from the Seahawks, we're sorry, we'll pay your $10 million today.' That doesn't happen. With something of this size, they'll fight tooth and nail."
The point here is not to burst Finley's bubble or discredit his smart decision to seek out disability insurance while playing such a violent game. Rather, it's to inject a dose of reality into what is a difficult matter. Life, as they say, takes place not in the black or white but in the gray area. At the moment, Jermichael Finley is smack in the middle of it.