Lost in the midst of a hectic December in the NFL was the federal indictment filed in the Eastern District of Kentucky alleging ten former players engaged in systematic healthcare fraud. According to prosecutors, the players defrauded the Gene Upshaw NFL Player Health Reimbursement Account Plan. The Plan was founded as part of the 2006 Collective Bargaining Agreement. The Plan aims to cover out-of-pocket medical expenses incurred by former NFL players who are not covered by insurance. Each player is entitled to a maximum of $350,000. To qualify, a player must have played at least three seasons in the NFL. The Plan is funded with upwards of $800 million dollars. It is administered by a seven-member board of representatives.
The Scheme
The alleged scheme took place between June, 2017 and December, 2018. The players submitted over $3.9 million in claims and the program paid out over $3.4 million on those claims. The players would submit reimbursement claims for expensive medical equipment that they never actually purchased. Generally, these claims ranged from $40,000 to $50,000. Some of the equipment included, “hyperbaric oxygen chambers, cryotherapy machines, ultrasound machines designed for use by a doctor’s office to conduct women’s health examinations and electromagnetic therapy devices designed for use on horses.” Because each player is only entitled to a maximum of $350,000, a key part of the scheme was recruiting new players for participation in the conspiracy. In exchange, the players would receive kickbacks from payouts other players received. These kickbacks ranged from a couple thousand dollars to upwards of $10,000. Additionally, the players allegedly fabricated medical documentation to support their claims and impersonated other players to gain information about the status of their claims.
The examination of individual claims is handled by the insurance company Cigna. Their employees detected several red flags in the fraudulent claims and altered federal authorities who took it from there. Because the alleged fraudulent activity crossed state lines, the federal government had jurisdiction to pursue the case.
What Players Were Involved?
The 10 players alleged to be involved in the scheme are, “Clinton Portis, Carlos Rogers, Robert McCune, Correll Buckhalter, Tamarick Vanover, John Eubanks, Ceandris Brown, James Butler, Frederick Bennett and Etric Pruitt.” Both Robert McCune and Correll Buckhalter are alleged to be the “ringleaders” of the scheme. They recruited new players and made many of the phone calls to check the status of submitted claims. The players face serious charges that include wire fraud, health care fraud, and conspiracy to commit wire fraud and healthcare fraud.
Legal Standard
To maintain the conspiracy charges against the players, federal prosecutors must show they agreed to accomplish a common goal through unlawful means. Allegedly, they agreed to defraud the Reimbursement Plan by submitting false claims and documents. Prosecutors allege that all the players involved knew of the scheme and that some acted “brazenly.” Strengthening their case are all the false documents the players submitted in an attempt to demonstrate a need for the supposed medical equipment.
The wire fraud charges require prosecutors to show that the players used interstate communications to further their scheme. These communications include emails and bank transactions. In regard to the health care fraud charge, prosecutors must show the players used false pretenses to procure money from the Reimbursement Program. This can be shown through communications with health care representatives and the false documents the players provided.
These are serious charges and each player faces multiple counts. The maximum sentence for each offense ranges between 10 and 20 years. However, it is unlikely the players would receive such a harsh sentence, provided they have reasonably clean records. A judge would likely impose their sentences to be served concurrently. The players may look to negotiate a plea agreement in an effort to avoid considerable prison time and the dim prospects of a trial. Prosecutors seem to have a strong case that is supported by substantial evidence. Many federal prosecutors boast conviction rates upwards of 90%. A plea agreement may mandate cooperation with federal prosecutors in the prosecution of the other players. In exchange, the player may receive a lighter sentencing recommendation or a reduction in charges.
Of course, the players are all innocent until proven guilty. But so far no player or their attorney has commented or issued a statement on the indictment, other than Clinton Portis. His attorney stated, “Clinton Portis had no knowledge that his participation in what he believed to be an NFL sanctioned medical reimbursement program was illegal.” It seems likely that the next step for the parties will be to at least attempt a plea negotiation. If it is favorable, the players would be wise to take it.
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