THE NFL

AND ERISA
Disabled Players
Thrown for
Another Loss

By Jeffrey Dahl*

114 Journal of Consumer & Commercial Law

INTRODUCTION

Retired professional football play-
ers face a daunting challenge when
trying to obtain football-related disability benefits from
the NFL, even when the greater weight of the evidence
supports their claim. This is due to the Employee Retire-
ment Income Security Act of 1974 (known by the acro-
nym ERISA) and the federal court decisions of the last
35 years that have interpreted it, combined with disabil-
ity plan terms that give advantage to those denying the
claim and the willingness of decision-makers to exploit
the leverage ERISA has offered them. Although other
employees in the private sector face the same hazards
and hurdles of ERISA, claims of former NFL players help
highlight the significant shortcomings of the law.

THE NFL, CONCUSSIONS, AND ERISA tilted in favor of the NFL, i.e. a court is required to defer to a dis-
ability decision made by the NFL Retirement Board and can only
The long-term health effects of concussions suffered by NFL reverse the NFL Board’s decision’s if it is found to be an abuse of
players has recently garnered significant attention. Considering that discretion, and 2) there is no legal remedy beyond getting the
that concussions are common in many contact sports, and have benefits that are due, meaning there is little or no downside in de-
occurred in the NFL since its formation in 1920, serious study laying and denying valid football-related disability benefit claims.
and public discussion of their potential to cause serious long-term
injury have been long overdue. In the old days, they were just GENE ATKINS
called “dingers” or “having your bell rung” and usually nothing
more was said about it. The consumer demand for an entertain- Things used to be different for Gene Atkins. By the time
ment product that included bone-crunching hits and tackles and he was eight years old, he believed he would become a profes-
the need to have the best players on the field caused those that sional football player. Gene grew up on Orange Avenue, in the
owned and managed the NFL, the most profitable sports business South City area of Tallahassee, Florida. His father sold furniture
in the world, to avoid serious study and discussions of the long- at a retail store in Tallahassee and his mother stayed at home and
term effects of head trauma. The warrior mentality of the players looked after their nine children. Gene, the second youngest, at-
enabled the long silence, as most learned at an early age to equate tended Rickards High School in Tallahassee, a tough school where
complaining with weakness. Being the best often required having many of the kids ran in gangs. At Rickards Gene played football,
a high pain threshold and keeping quiet about temporary blurred baseball, and ran track. Although dyslexic, Gene persevered. He
vision and fuzzy-headedness. would not only graduate from high school but college as well.
There is a different but intertwined harm to players who Atkins received a number of scholarship offers and
submit a claim for disability benefits to the NFL, a subtle but elected to play football at Florida A&M in Tallahassee, where he
significant harm that does not grab any headlines. The NFL dis- became a college All-American. In 1987, after his junior year, he
ability plan (contained in two documents, the NFL Retirement was drafted in the 7th round by the New Orleans Saints. He was
Plan and a supplemental disability plan) is an ERISA plan that the 179th draft pick overall.
provides the NFL Retirement Board discretion to make disability Six foot one inch and 200 pounds, Gene played regu-
benefit decisions. This means: 1) that the scales of justice are larly for the Saints as a defensive back and kick-returner in 1987
Journal of Consumer & Commercial Law 115
 In December of 2004 Atkins applied for football-
related disability benefits under the Bert Bell/
Pete Rozelle NFL Player Retirement Plan.

and 1988. Although just 21 and one of the elite few who make injuries and eventually had a pin inserted to keep shoul-
it to the NFL, he returned to Florida A&M during his first off- der in place. The pin was removed in 1996 because of
season to complete his college degree. chronic pain in the area. I have trouble driving because
In 1989 he became a starter and started in almost every its difficult to turn the steering wheel;
game in the defensive backfield for the remainder of his career.
He played six years with the Saints and three years with the Miami 2) Chronic constant pain at the base of head and neck.
Dolphins, ending his career in 1995. He was known as hard- Pain sometimes radiates through arms and my hands,
hitter, especially in New Orleans, which at the time had one of feels like plastic. Everything I touch feels numb and I
the best defenses in the league. Gene dislocated his right shoulder drop objects I try and pick up. Unbearable pain most
four times while playing for New Orleans, and repeatedly had his days. I had several stingers while playing but did not feel
“bell rung” from high speed collisions involving his helmet. At- any affects until I turned 38 years old;
kins often resorted to hitting and tackling opposing players with
his head because he was unable to wrap them up with his arms 3) Mood swings-because of my inability to function
due to the repeated injuries to his right shoulder. Since Atkins without constant pain, my mood has been effected.
was in the defensive backfield, each game in which he played over Depression over the physical condition of my body and
his ten-year career was a series of high-speed collisions, many of not being able to work.”
which involved the use of his head to hit opposing players.
Unfortunately, Atkins doesn’t remember much of his Atkins submitted a letter with his application in efforts
professional football career. His claims against the NFL have to further explain his condition. The last paragraph reads as fol-
given him reason to retrieve old game tapes out of his garage and lows:
watch some of them. Many times, he says, it’s like watching a “I suffer from depression, and probably have for several
stranger play football. years, but was in denial. I have not sought any medical
After football, Atkins tried the construction business attention, because of my lack of insurance coverage. I
and then coaching, but his neck pain, headaches, and cognitive have not been able to work, therefore I am not covered
problems grew more severe. Frustrated and wanting to help pro- by any insurance. I am now seeking disability income
vide for his family, he got a job at a Target store near their apart- to recover and hopefully get better to where I can func-
ment in Round Rock, Texas, hanging signs in the morning before tion and take care of my children. I am in great need
the store opened. His wife Patricia remembers him repeatedly of immediate medical attention and would welcome the
calling home, asking her about simple work tasks that he was told opportunity be seen by your physician in order to receive
to perform. Due to his continuous neck and shoulder pain, head- the help I need.”
aches, cognitive impairment, and fingertips that felt like they were
covered in plastic, Gene had to quit his job a few months after The NFL retirement plan and supplemental disability
being hired. plan are both ERISA plans. These plans are funded by a trust,
Atkins has overcome some incredible hurdles. Even so, which is funded by contributions from the NFL teams. The
his prior success could not adequately prepare him for the struggle greater the number of players who are approved for disability ben-
which he continues to face in trying to obtain football-related dis- efits, the greater the contributions required (assuming there is no
ability benefits from the NFL. offsetting decrease in contribution requirements).
If a player if found to totally and permanently disabled
Atkins Applies for Benefits by the NFL while under contract with an NFL team, the dis-
ability is classified as either football-related (a category called Ac-
In December of 2004 Atkins applied for football-related tive Football) or unrelated to football (Active Nonfootball). 1 If
disability benefits under the Bert Bell/Pete Rozelle NFL Player a disability is found to have arisen after the player’s NFL career is
Retirement Plan, which, along with a supplemental disability over but before the later of age 45 or 12 years after the end of the
plan, provides monthly income benefits in case of total and per- player’s last credited season, the player can receive either Football
manent disability. Within his application, which he completed Degenerative benefits (for a disability arising out of NFL football
with the help of his ex-wife Sandra Atkins, he described three activities) or Inactive benefits (for disabilities found to be unre-
conditions which caused him to be disabled, all of which he at- lated to football). The focus here is on the latter two categories of
tributed to his ten years playing NFL football: benefits, both of which are available for disabilities arising after a
“1) Unable to lift right shoulder or move arm to func- player’s NFL career is over.
tional positions cannot reach up or more than 90 Players are paid a relatively small monthly amount if
degrees to either side. Had several dislocated shoulder they are approved for Inactive benefits. Monthly benefits are en-
116 Journal of Consumer & Commercial Law
hanced dramatically (and the supplemental disability plan is trig-
gered) if the player is approved for Football Degenerative benefits.
Because the disability benefits are paid for life, in contrast to most
other disability plans where monthly payments stop at or near age
65, if a relatively young player is found to be disabled from play-
ing football, the long-term payout can be significant. Of course it
is a flyspeck when contrasted with the combined annual revenue
of the NFL and its franchises, which was reported to be approxi-
mately 8.5 billion dollars in 2009. 2
Atkins, who commanded a salary of close to a million dol- members: one appointed by the player’s association and one ap-
lars a year in the latter stages of his career, receives $2,650.50 pointed by management). Atkins was advised that because the
per month from the NFL for disability benefits. His benefits are Committee had deadlocked, his application for disability benefits
classified as Inactive benefits, which means the NFL Retirement was denied by virtue the plan’s provision that renders a claim au-
Board has found his disability to be unrelated to playing NFL tomatically denied when the Committee deadlocks.
football. Pursuant to a divorce decree, half of his benefit goes
to his ex-wife Sandra. Most disability plans pay approximately Atkins’ Appeal
60% of one’s pre-disability salary, usually until the age of 65 if
one remains disabled. Atkins receives approximately 3% of his ERISA has a structured claims procedure, formulated by
pre-disability earnings. the U.S. Department of Labor and placed within the U.S. Code
of Federal Regulations, which both decision-makers and claim-
Dancing the Seven Physician Tango...Plus One ants are supposed to follow. One of ERISA’s well-established
rules is that all group benefit plans must give a claimant the right
Dr. Isern-Psychiatrist to appeal a denied claim. This appeal is sometimes referred to
After receipt of his claim for football-related disability as a “full and fair review” of the claim, the phrase “full and fair
benefits, the NFL sent Atkins to a psychiatrist in Beaumont, Raul review” coming directly from the ERISA statute that requires it.
Isern, Jr., M.D. Atkins saw Dr. Isern on January 4, 2005. Dr. Simply put, the claimant can write a letter saying that he wants a
Isern never turned in a report to the NFL subsequent to his ex- review of the denial, and he has the opportunity to submit more
amination of Atkins. documentation in support of his claim. At this reviewing stage,
when the original documentation as well as new documentation
Dr. Souryal-Orthopedic Specialist is required to be reviewed, the parties are not viewed adversaries.
The NFL then had Atkins examined by an orthopedic In fact, ERISA law requires that the person or persons conducting
specialist in Dallas. The orthopedic specialist, Tarek Souryal, the review of the denied claim act as the claimant’s fiduciary. Be-
thought Atkins could perform many tasks that did not involve ing a fiduciary means acting fairly, honestly, and impartially when
heavy lifting, but noted that “headaches and arm/hand numb- reviewing the claim.
ness may signify non-orthopedic problem. Should have a neuro-
logic eval.” On the NFL form that he was asked to complete, Dr. Dr. Williamson-Orthopedic Specialist
Souryal wrote that he felt Atkins could work but that he had im- Exercising his right to a full and fair review of his claim,
pairments to his neck and shoulder, and that these impairments Atkins appealed the Committee’s decision. In response, the NFL
were caused by playing NFL football. sent Atkins to another orthopedic specialist and a neurologist. In
July, 2005, Atkins was examined by J. Bryan Williamson, M.D.,
Dr. Kesler-Psychiatrist an orthopedic specialist in Houston. Dr. Williamson examined
The next physician the NFL selected to examine Atkins Atkins for approximately 30 minutes and found impairments to
was Keith Kesler, M.D. a psychiatrist in Austin. After conduct- his neck, right shoulder, and thumb, all of which were caused by
ing two examinations of Atkins, Dr. Kesler concluded that At- football, but Williamson indicated that he felt Atkins would be
kins was totally disabled as a result of the following impairments: able to engage in a light duty or sedentary occupation.
poor cognitive functioning, chronic pain with depressed mood, Williamson summarized Atkins’ condition:
chronic headaches, and possible neurologic deficits. Dr. Kesler “His right shoulder which gives him pain and discom-
found that Atkins’ chronic pain with depressed mood, chronic fort and limited range of motion is directly related to
headaches, and possible neurologic deficits were all related to playing football and injuries sustained while playing
playing football. Like the orthopedic specialist Souryal, Kesler football. His neck pain which results from multiple level
recommended that Atkins be examined by a neurologist and also degenerative disease is related to his position to playing
recommended that Atkins see a pain specialist. safety and repetitive trauma to his head and neck. It is
important to note that persons of his age can have de-
The First of Three Deadlocks: Atkins’ Claim is Denied generative change similar to this on a degenerative basis
only. It is felt that playing football in the NFL contrib-
After the NFL obtained the reports of Dr. Kesler and uted to the significant degenerative change in his neck
Dr. Souryal, the Disability Initial Claims Committee (“Com- and pain in his neck.”
mittee”), which is the initial decision-maker for disability benefit
claims brought under the NFL retirement plan, deadlocked in its About Atkins’ severe headaches he said:
decision whether Atkins was disabled (The Committee has two “Overall it is expected his neck and secondary cervical
Journal of Consumer & Commercial Law 117
 The guiding principle of ERISA, according to the U.S.
Supreme Court, is a “careful balancing between ensur-
ing fair and prompt enforcement of rights under a plan
and the encouragement of the creation of such plans.

occipital headaches will continue to give him problems Federal courts.” 3

and difficulties in the future. It is unclear that there is
The guiding principle of ERISA, according to the U.S.
any relationship of Mr. Atkins’ ability to concentrate or Supreme Court, is a “careful balancing between ensuring fair and
ability to work with others is related to his neck or shoul- prompt enforcement of rights under a plan and the encourage-
der problems.” ment of the creation of such plans.” 4
ERISA applies to most employee benefits in the pri-
Dr. Martin-Neurologist vate sector, most commonly pension benefits, disability benefits,
Then Atkins was also examined by Raymond Martin, health insurance benefits, and life insurance benefits. Although
a neurologist selected by the NFL. Dr. Martin determined that its primary focus is the regulation and protection of pension ben-
Atkins was disabled. He reported that the impairments which efits, including the creation of a pension guaranty fund, ERISA
caused Atkins to be disabled were bilateral numbness in hands, governs other benefits, including disability benefits, and regulates
frozen right shoulder, neck pain and limited range of motion in how claims are to be handled. One of its stated purposes is to pro-
the neck, chronic headaches, and memory problems. On the tect a claimant’s right to seek redress at the courthouse, but it also
NFL form, Martin indicated that the numbness in Atkins’ hands, trumps, in legal nomenclature “preempts,” all state law, so that a
his frozen right shoulder, and his neck pain all resulted from play- claimant must exclusively rely upon ERISA law when seeking a
ing football. Martin was unable to say whether Atkins’ memory legal remedy. The established case law on ERISA benefit claims
problems were related to football. has created a difficult incline for current and future claimants. 5

THE NFL PLAYER’S FIDUCIARY: THE NFL RETIRE- No Live Testimony, No Cross-Examination, No Jury Trial
MENT BOARD
Because their disability claims are governed by ERISA,
The NFL Retirement Board is the fiduciary that is required to NFL players have no right to a jury trial. In deciding whether the
conduct the full and fair review of a player’s denied claim. It has NFL Board abused its discretion in denying a player’s claim, the
six members, three of whom are selected by the NFL Players’ As- trial is limited to a federal judge’s review of the claim file. Once
sociation (“NFLPA”) and three of whom are selected by the NFL the dispute is in court (which generally means once a complaint
Management Council. has been filed at the federal courthouse) players have no right
to subpoena documents concerning the background or qualifica-
The Second Deadlock: Atkins’ Claim Referred to a Medical Ad- tions of the physicians who the NFL has asked them to see. The
visory Physician for a Binding Decision players have no right to testify or elicit live testimony from their
spouses, former teammates, or treating physicians. They have no
After receipt of the additional medical examination re- right to cross-examine physicians or adverse witnesses at trial.
ports, the Board announced that it had deadlocked on its review
of the claim just as the Initial Committee had deadlocked. In A Player Must Prove that the NFL Board Abused its Discretion
a letter, Atkins was advised that pursuant to a retirement plan
provision his claim would be referred to a Medical Advisory Phy- Many of the rights denied a claim pursuant to ERISA
sician (“MAP”) for a determination of disability that would be are often considered fundamental. For example, a right to a jury
binding upon the Board. trial to resolve a civil dispute over 20 dollars is supposed to be
guaranteed by the Seventh Amendment. 6 However, there is even
TIME OUT: MORE ABOUT ERISA a greater loss than the loss of a jury and the right to live testimo-
ny. Because the NFL retirement plan and supplemental disability
Because it provides the explanation as to why Atkins’ plan grant the NFL Board the right to be king, i.e. full discre-
claim was not decided at this point, it is appropriate to discuss tion to decide player benefit claims, established ERISA case law
ERISA in greater detail. According to the U.S. Congress, ERISA requires that a reviewing court defer to the NFL Board’s decision.
was enacted to: The Board’s decision will not be tampered with unless the court
“protect participants in employee benefit plans and their finds that it abused its discretion. What this means is that the
beneficiaries, by requiring the disclosure and reporting player must come to court with more than a “preponderance of
to participants and beneficiaries of financial and other the evidence” in his favor, which is the burden of proof required
information with respect thereto, by establishing stan- for the vast majority of civil claims. To win in court, the player
dards of conduct, responsibility, and obligation of fi- must prove that the NFL Board acted arbitrarily and capriciously
duciaries of employee benefit plans, and by providing in denying his claim. The distance between these two burdens of
appropriate remedies, sanctions, and ready access to the proof is considerable. ERISA deference, the requirement that a
118 Journal of Consumer & Commercial Law
claimant prove at trial that the final decision-maker acted arbi-
trarily and capriciously, is a high hurdle, and is often the lynchpin
of federal court decisions that are adverse to an ERISA claimant.

Onerous Plan Terms: A Clear and Convincing Evidence Stan-

dard

Although some details of ERISA plans are regulated

(ERISA is primarily devoted to the regulation of pension plans),
most details of a non-pension plan can be freely written (such as the NFL retirement plan and supplemental disability plan, deter-
the definition of disability). Plan terms that seem innocuous or mined Atkins to be totally and permanently disabled as a result of
too esoteric to matter can have a real impact on benefit claims. playing professional football.
An NFL player who has already been found disabled but who is In the absence of ERISA jurisprudence, there is little doubt that
receiving Inactive benefits, i.e. he has been found disabled by the Atkins’ claim for football degenerative disability benefits would
NFL Board but his disability is found to be unrelated to foot- have been quickly approved at this point. The NFL Board would
ball, has a much more difficult time upgrading to football-related be reckless indeed if they were to let Atkins have a jury trial where
benefits than a new claimant asking for the same thing. This is they would be forced to admit that they denied his claim even
because the NFL plans require that a disabled claimant prove by though from a psychiatric and neurologic perspective Atkins was
clear and convincing evidence, rather than a preponderance of found to be totally and permanently disabled as a result of play-
the evidence, that his disability should be reclassified as a football- ing pro football. There was no competing evidence from special-
related disability. ists in either discipline indicating otherwise. Furthermore, these
A typical civil trial is a contest between disputants on were not findings by treating physicians who may have held a
a level playing field. In a typical ERISA trial, the claimant starts treatment bias in favor of their patient but instead were findings
within a hole on his side of the field because he must prove that by medical specialists selected by the NFL! A large jury verdict
the claims decision was an abuse of discretion. Disabled NFL in favor of Atkins would not be surprising. The NFL Board’s
players, deemed by the Board to be disabled for reasons other insistence upon more examinations would probably be viewed by
than pro football, start in a hole within the broader hole. The a jury as bad faith, that is, shopping for an opinion that the NFL
broader hole is the abuse of discretion standard where all players Board wanted, i.e. an opinion of no disability or disability unre-
find themselves, the blacker hole within is the plan requirement lated to football, and also motivated by delay.
that a player, already disabled, prove to the NFL Board by clear However, because ERISA offers the claimant no possi-
and convincing evidence that he should be upgraded to football- bility of a monetary remedy for unreasonable delay, Atkins was
related benefits. sent to more physicians.

The Only Damages Will Be the Benefits that Should Have Been Atkins’ Claim Continues....For Another Four Years!
Paid
The MAP: Thomas Boll, Ph.D.-Neuropsychologist
Finally, ERISA jurisprudence has stripped the players of
the leverage that extra-contractual claims can provide. No mat- Atkins was sent to see Thomas Boll, Ph.D. on December
ter how unreasonably the NFL Board may have responded to his 29, 2005, whose opinion would break the second deadlock and
claim or how much delay occurred as a result of its structural bind the Board. Although the NFL retirement plan promises the
malformation (3 players association members and 3 management players that only a physician may bind the Board when it dead-
members) and internal dispute resolution deformity (no time locks over a player’s medical condition, the NFL Board assigned
clock on an arbitration when the Board is deadlocked), if a player its decision on Atkins to Dr. Boll, who is not a physician but has
is wildly successful at the courthouse the most he will receive are a Ph.D. in neuropsychology. He is the Plus One in the Seven
the monthly benefits that should have been paid in the first place. Physician Tango choreographed by the NFL. Dr. Boll opined
Unlike claims that can be brought under state tort law or under that Atkins was disabled due to the impairments of illiteracy and
state insurance codes, no claims for consequential damages, men- borderline mental ability, major depression, and pain. He said
tal anguish damages, or punitive damages can be brought against Atkins’ illiteracy and borderline mental ability were not related to
the NFL for either purposeful delay or for rendering an outlandish football, that it could not be determined whether his depression
decision. Unreasonable delay and unreasonable decision-making was related to football, but indicated that his unresolved pain was
are guaranteed a free ride (other than the possible payment of at- caused by his pro football career.
torney’s fees).
Atkins Approved for Inactive Benefits
BACK TO ATKINS’ CLAIM
By letter dated February 23, 2006, approximately 14
At this point in the process, 10 months after Atkins months after Atkins applied for benefits, the Board notified
submitted his claim, no decision had been reached. From an Atkins that his claim for disability benefits had been approved.
orthopedic perspective Atkins was found not disabled. But the However, the NFL Board determined that his disability was un-
physician specialists in neurology (Martin) and psychiatry (Kes- related to football, that is, he was approved for Inactive benefits.
ler), physicians hand-picked by those that operate and manage The Board found the effective date of disability, i.e. the date dis-
Journal of Consumer & Commercial Law 119
 Dr. Cantu indicated that Atkins was not able to work
due to demented mental status caused by head trauma
from professional football activities and that this con-
dition was permanent.

ability payments would commence, as being June 1, 2005. The cluding interviews with Atkins and his wife Patricia along with a
NFL advised Atkins that he would receive $1,822.50 per month notice that Atkins had received from the Social Security Admin-
(Inactive benefits have since increased slightly-as of April, 2010, istration awarding him disability benefits from January 1, 1998
Atkins is receiving $2,650.50), to be divided equally with his ex- forward.
wife, pursuant to a divorce decree. As a result, Atkins began re- The Administrative Law Judge for the Social Security
ceiving $911.25 per month from the NFL for his disability. 7 Administration, who decided that Atkins was disabled and should
Atkins was relieved to finally receive something from receive Social Security disability benefits, found that Atkins was
the NFL but didn’t understand why he was only entitled to Inac- “severely impaired” by post concussion syndrome and frozen right
tive benefits, since Dr. Boll found some of his impairments were shoulder, and that Atkins was “unable to understand, remember,
caused by playing pro football. He appealed the decision. and carry out simple routine instructions on a sustained basis.”
Atkins was sent to more doctors. He based his findings on the opinions of Dr. Cantu and the find-
ings of Dr. Ronald DeVere, who had seen Atkins in May of 2007
Dr. Gilbert-Neurologist at the government’s request. A neurologist, Dr. DeVere found
Although the neurologist Dr. Martin had already found that Atkins had a significantly slowed mental functioning.
Gene disabled from playing football, the NFL sent Atkins to At- The NFL advised by correspondence that Atkins’ claim
lanta in June 2006 to see another neurologist, Dr. Robert Gilbert. would be presented to the NFL Board for decision at its next
According to Atkins, Dr. Gilbert conducted a physical exam on quarterly meeting on April 30, 2008. Atkins was advised after the
Atkins that lasted approximately five minutes and indicated that Board meeting on April 30, 2008 that the Board had tabled its
although Atkins was limited by pain from impairments caused by decision of his appeal and wanted Atkins to see yet another physi-
football, he felt Atkins could engage in some type of sedentary cian selected by the NFL. In June 2008, the NFL sent Atkins to
work. Seattle to see neurologist James Gordon.
The NFL Board denied Atkins’ appeal, indicating that
he was only entitled to Inactive benefits. Dr. Gordon-The Third Neurologist Selected by the NFL

Dr. Robert Cantu-Neurosurgeon Just as he had seven times before, Atkins readily com-
When Atkins learned of the suicide death of his NFL plied. He flew to Seattle and saw Dr. Gordon on June 25th, 2008.
contemporary Andre Waters, who also played safety, he sought Dr. Gordon evaluated Atkins for the following health conditions:
more help for his depression and cognitive problems. 8 He was concussions, headaches, and memory loss. Dr. Gordon was the
led to Chris Nowinski, a Harvard graduate who suffers from post- third neurologist and the eighth physician who evaluated Atkins
concussion syndrome as a result of a brief pro wrestling career, at the request of the administrators of the NFL retirement plan. 11
and who subsequently wrote the book Head Games: Football’s On September 11, 2008, James Gordon delivered his
Concussion Crisis. Nowinski has been instrumental in creating report to the NFL. Dr. Gordon determined that Gene was totally
the current public awareness surrounding concussions and their disabled due to cognitive dysfunction and depression, indicating
potential for long-term damage. Atkins talked with Nowinski, that both of these impairments arose in part as a result of Gene’s
who referred him to a neurosurgeon named Robert Cantu, M.D. NFL career. He also determined that Gene was impaired due
in February of 2007. 9 Dr. Cantu practices in Concord, Massa- chronic tension headaches and post-concussive headaches, which
chusetts, and specializes in post-concussion injury to athletes such he also attributed to Gene’s NFL career. Gordon summarized his
as Atkins. After conducting a number of tests on Atkins, Cantu findings as follows:
diagnosed Atkins with post-concussion syndrome and early trau- “It is impossible to distinguish the precise extent to
matic encephalopathy. 10 Dr. Cantu indicated that Atkins was which head injury causes, rather than exacerbates, Mr.
not able to work due to demented mental status caused by head Atkins’s headaches, cognitive and behavior problems,
trauma from professional football activities and that this condi- given preexisting neuropsychological limitations and
tion was permanent. By letter dated October 5, 2007, the Com- psychiatric predispositions. What is clear, however,
mittee denied the request for reconsideration and reclassification, is that he suffers disabling chronic headache, depres-
but advised Atkins that he could appeal the determination. sion, and cognitive limitations, and that recurrent head
trauma resulting from his role as an NFL defensive back
The Social Security Administration Awards Atkins Benefits, contributed significantly to his current condition, even
Finding Atkins Severely Impaired by his Frozen Right Shoulder if that contribution cannot be reliably quantified. In his
and Post-Concussion Syndrome current condition, he cannot be gainfully employed.”

Additional support for Atkins’ appeal was provided, in-

120 Journal of Consumer & Commercial Law
A Third Deadlock

Atkins received a letter from the NFL on November 20,
2008, approximately four years after he had filed his disability
claim and over three years after a neurologist (Martin) and psychi-
atrist (Kesler) selected by the NFL found Gene to be disabled as a
result of playing professional football. The NFL told Atkins it was
deadlocked for a third time (two deadlocks by the NFL Board, the
final decision-maker; one deadlock by the Initial Claims Com-
mittee), indicating as follows: the other rise to the level of clear and convincing evi-
“At its November 11, 2008 meeting, the Retirement dence. And, as noted above, this Arbitrator is bound
Board of the Bert Bell/Pete Rozelle NFL Player Retire- by that standard of proof.
ment Plan (“Plan”) considered your appeal from its ear-
lier decision to award you inactive total and permanent Therefore, Mr. Atkins’s claim falls into the realm of
(“T&P”) benefits effective June 1, 2005. The Retire- “probability”, as both Doctors Cantu and Boll have im-
ment Board was deadlocked on the classification issue plicitly acknowledged.”
raised by your appeal. Pursuant to provisions of Plan
section 8.3(a), the Retirement Board referred that issue The NFLPA Board members have submitted a request
to final and binding arbitration. for reconsideration that is pending. December 2009 marked the
fifth anniversary of the filing of Atkins’ claim for football-related
Please note that you are not a party to disability benefits. Because there is a request for reconsideration
the arbitration. The arbitration is between the members pending, there has been no final Board decision (however, the
of the Retirement Board appointed by the NFL Players Board is bound to follow the arbitrator’s decision). Atkins’ federal
Association and the members of the Retirement Board court claim, challenging the Board’s decision (whenever that oc-
appointed by the NFL Management Council.....” curs), hasn’t even begun.

The Arbitration Decision OTHER PLAYERS WHO HAVE EXPERIENCED ERISA

The arbitration to settle the dispute between NFL Board The NFL’s handling of Gene Atkins’ claim is far from
members over Atkins’ claim has taken over 18 months. Both unique. In December 2005 the Wall Street Journal reported that
parties have been represented by counsel. 12 Although so deeply only 90 out of more than 7,561 former pro players covered by
entrenched that they engaged in a year and a half of litigation the NFL disability plan receive football-related disability benefits.
against one another, all of the Board members were supposed to 15
Drawn out claims and litigation over former players’ claims
remain Atkins’ fiduciary during this period, as this litigation was are easy to find. Although the preponderance of the evidence,
part of the ERISA-required full and fair review of his claim. i.e. the greater weight of the evidence, shows players to have valid
The Arbitrator, Mr. Richard Kasher, described the heart football-related disability claims, under ERISA law that is often
of the dispute between Board members as whether Atkins was not enough, and therefore deserving players often lose. Here are
entitled to “football-related total and permanent disability de- a few examples.
generative benefits because, as he claims, he suffers from post-
concussion syndrome.” The basis of that claim was the diagnosis Victor Washington
of post-concussion syndrome made by Dr. Cantu. Physicians selected by the NFL said that Victor Wash-
Mr. Kasher decided in favor of the management Board ington, a former NFL defensive back, running back, and wide
members. His decision rested on the “clear and convincing” evi- receiver, was disabled from football-related injuries, including
dence standard written into the NFL plan, the hole within the depression from chronic pain. 16 Washington filed his claim in
hole, at the bottom of which stands Mr. Atkins. Mr. Kasher sum- 1983, seeking football-related benefits, and, like the Atkins case,
marizes the competing evidence and his decision as follows: the NFL Board deadlocked and after four years it was sent to
“Dr. Cantu’s opinion is qualified by his finding that Mr. an arbitrator. In 1987 the arbitrator found Washington to be
Atkins’ CTE 13 is based upon a “more probable than disabled but that his disability was not related to football. In
not” diagnosis. Such an opinion, as well-founded as it is 1996 Washington requested reclassification based upon a neutral
by Dr. Cantu, a highly qualified and respected medical psychiatrist’s favorable findings, and the case settled in 1998, al-
practitioner, does not, in this Arbitrator’s opinion, meet though litigation continued until 2007 over whether the NFL
the “clear and convincing” standard of proof required to improperly withheld information prior to the settlement.
sustain Mr. Atkins’ claim.
............ Donald Brumm
............. Donald Brumm played pro football between 1963 and
Therefore, the resolution of the issues in this case require 1972. 17 He applied for disability benefits in November of 1984,
the analysis of the two plausible medical opinions/diag- requesting football-related benefits. Despite an NFL selected psy-
noses of Gene Atkins’ cognitive dysfunction. 14 In this chiatrist who found Brumm to be disabled from playing football,
Arbitrator’s opinion, neither the opinions of Dr. Cantu, in January 1987, two years after Brumm filed his claim, the NFL
Gordon and DeVere on the one hand and Dr. Boll on Board decided Brumm should be paid Inactive benefits. Brumm
Journal of Consumer & Commercial Law 121
 Found in a local train station in 1996, he was seen by
a psychiatrist to whom he reported that he had been
living out of his car and hotels the last three and one-
half years.

challenged the decision at the courthouse and ultimately won Otis Armstrong
when a federal appeals court decided in 1993 that the NFL acted The procedural delays of Armstrong’s claim mirrors the
arbitrarily and capriciously in denying Brumm football-related delays experienced by Gene Atkins. 19 Armstrong was a running
benefits. Even though it took Brumm nine years to obtain the back for the Denver Broncos, playing from 1973 until 1980. He
football-related benefits that he deserved (over six years elapsed was injured while playing in 1980 and did not play another down.
between the time that the psychiatrist selected by the NFL diag- He applied for active football disability benefits from the NFL in
nosed Brumm with a football-related disability and the appeals 1981. Like Atkins’ claim, Armstrong’s claim wound its way into
court found in favor of Brumm) and the NFL was found to have a Board deadlock, the three player’s association members siding
acted arbitrarily in denying Brumm benefits, Brumm was entitled with Armstrong and the three management members deciding
to nothing more than the benefits that he should have been paid that Armstrong was not disabled. Additional physician opin-
in the first place. ions were obtained and in 1986, five years after Armstrong’s case
was submitted, it was sent into arbitration to break the deadlock.
Michael Webster Armstrong sought to rescind the arbitration by a federal court
Iron Mike Webster is perhaps the most well-known foot- decision but it was denied. However, the arbitrator was ordered
ball player to have battled the NFL on a disability claim, although to rule within 30 days of submission of the briefs. In reciting
his 7 year battle had to be finished by his estate because of his early the facts of the case in order to display what he called a “six-year
death. 18 Webster is remembered as a Pittsburgh Steeler, where he senseless contest,” Judge Kane, a federal judge from Denver, pro-
earned 4 Super Bowl rings. He played a total of sixteen years (be- vided unrestrained criticism of the NFL Board:
tween 1974 and 1991) and sustaining multiple concussions dur- “This brief and nonexhaustive chronology of plaintiff’s
ing his pro career. Webster’s life deteriorated after football. Found experience since his 1980 injury is replete with delays,
in a local train station in 1996, he was seen by a psychiatrist to confusion, stalemates, and inconstancy in the part of
whom he reported that he had been living out of his car and hotels the board and the persons under its control. Otis Arm-
the last three and one-half years. In November of 1998, Webster strong has been the unfortunate forgotten victim of the
was diagnosed with dementia caused by his football-related head struggle between NFL management and players.”
trauma.
Webster applied for active football benefits, in the alter- Although Judge Kane is critical of the NFL’s claims pro-
native degenerative football benefits, in the spring of 1999. After cess, deservedly so since players like Armstrong and Atkins get
repeated delays, in 2003 the NFL granted him degenerative ben- lost in what can become an epic struggle between the players
efits but denied active football disability benefits (active football and management, to the NFLPA’s credit, they did not fold to
benefits provides more monthly benefits than degenerative foot- management’s desire to withhold football disability benefits from
ball benefits), finding the onset of his disability to have occurred Armstrong. At the time of Judge Kane’s order, the physicians
after his pro football career had ended. Litigation ensued and were lined up 5 to 2 in support of an award of football disability
was not completed until 2006, when a federal appeals court (U.S. benefits.
Fourth Court of Appeals) concluded that Webster should have
received active football disability benefits. The court, noting the Daniel Johnson
great burden that Webster had to overcome in prevailing on the Johnson played NFL football from 1982 until he suf-
case, wrote as follows: fered a career-ending back injury. 20 He then fought the NFL
“While recognizing that the decisions of a neutral plan regarding the onset date of his disability and lost in the 8th Circuit
administrator are entitled to great deference, we are Court of Appeals. Although the physician count is noted to be
nevertheless constrained to find on these facts that the two to one in favor of Johnson’s claim, due to ERISA deference,
Board lacked substantial evidence to justify its denial Johnson lost. In ruling against Johnson, the Court, in a passive,
here. In particular, the Board ignored the unanimous hands-off manner which is typical of ERISA court decisions, con-
medical evidence including that of its own expert, disre- cludes:
garded the conclusion of its own appointed investigator, “Again, the Board has the authority to construe the
and relied for its determination on factors disallowed by terms of the Plan,
the plan.......” we are required to give deference to its interpretation,
and we reverse only if it has abused its discretion....Giv-
Despite the arbitrary denial by the NFL Board, the court en the Plan’s language, we cannot say that the Board’s
could award nothing more than the benefits that should have been interpretation was unreasonable or constituted an abuse
paid in the first place. of discretion...”

122 Journal of Consumer & Commercial Law

 Lawrence Smith
The NFL prevailed in the 9th Circuit Court of Appeals
on Lawrence Smith’s claim regarding the category of disability
benefits that were paid to him (he was approved for degenerative
football but not active football) and the date of onset of disability.
21
As the Court notes, however, it took the NFL almost four years
to decide his claim once he applied for benefits. Although the
Court indicates that Smith was partly responsible for the delay
because of his failure to submit information, four years is inexcus-
able, can cause financial devastation, and is the kind of legal de- ERISA so that full discretion could not be what he described as a
lay that another depressed individual was talking about in his “to grant of “absolute power” to the Board.
be or not to be” soliloquy, when reciting the reasons to “quietus
make with a bare bodkin.” 22 CONCLUSIONS FROM THESE CLAIMS

Anthony Green Incredible Delay is Common

Anthony Green played for four years in the NFL, 1990
until 1993. 23 His career was cut short as a result of injuries to his When placing Atkins’s claim in a mixing bowl with these
hands, knees, and shoulders. Green applied for disability benefits published claims, some conclusions can be made. One is that in-
with the NFL in 1997. Although he applied for active football credible delay is often the norm. Incredible is a fair description
disability benefits, for which he was eligible even though he didn’t because in the world of non-ERISA disability claims, an insurer
have enough seasons to be vested so that he could apply for foot- or administrator is required to decide the claim promptly or in-
ball degenerative or inactive benefits, the NFL Board sidestepped cur delay damages and penalties. Texas insurance law basically
the merits of the claim. Instead, it denied Green’s claim on the requires claims to be decided within 60 days or an 18% penalty
basis that he was not vested. The Court sent it back to the Board will attach to all damages for wrongfully rejecting a claim. Not
in 1999 because of the Board’s avoidance of the claim’s merits. so here. State law protections are of no use to players like Brent
Boyd, Otis Armstrong, or Gene Atkins. The underlying reason
Brent Boyd for the delay, a delay that may very well result in financial devasta-
Brent Boyd was a Minnesota Viking from 1980 until tion to the player and his family, is that the law allows it. ERISA
1987. 24 He filed a disability claim with the NFL for orthopedic provides no monetary sanction against prolonged delay in making
ailments in 1997 and was denied. He filed another claim, this a decision on a disability claim.
time for organic brain damage as a result of head trauma, in 2000.
Like Atkins, Boyd was awarded inactive disability benefits. The A Player Does not Prevail Just Because the Evidence Weighs in
NFL deferred his claim for football degenerative benefits. Boyd his Favor
was sent to a neurologist selected by the NFL who found Boyd’s
disability to be football-related. Another physician viewed Boyd’s Also, it is clear that there are those sitting on the NFL
brain scan and concurred with the neurologist. Boyd was then Board who are willing to exploit the deference that they are given
sent to a psychologist picked by the NFL who also found Boyd’s by the courts. Even if the greater weight of the evidence is in favor
disability to be football-related. of football-related disability, decision-makers know that they can
Still discontent, the NFL sent Boyd to yet another phy- side with a minority medical opinion and get away with it often
sician. This physician, a neurologist, opined that Boyd’s disability enough. It is naive to suggest that this kind of decision-making,
was not football-related, i.e. that his head trauma from playing in taking advantage of the leverage given by ERISA deference rather
the NFL did not cause organic brain injury. The Board followed than focusing on where the greater weight of the evidence lies,
the minority opinion, determining that Boyd was only entitled to is limited to the NFL. Since it is legal and follows a basic profit
Inactive disability benefits. motive (less claim payments, greater profit), this thinking is com-
Boyd challenged the decision in court but lost in trial monplace with ERISA insurers and claims administrators. It
and in his appeal, primarily due to the throne of ERISA deference has spawned a cottage industry of “expert report” services, which
upon which the NFL Board sits. In denying Boyd’s appeal, the are limited to providing expert consulting reports (the medical
Ninth Circuit wrote as follows: consultant doesn’t see the patient; he or she merely renders an
“An ERISA administrator’s exercise of its discretion to opinion of disability after reviewing the claim file) that can be
adjudicate claims is not a mere exercise in expert poll- tucked into an ERISA claim file, designed to insure that if the
taking. We hold that a mere tally of experts is insuf- claim is taken to the courthouse, the court will find the decision
ficient to demonstrate that an ERISA fiduciary has reasonable, i.e. not arbitrary and capricious, even when the expert
abused its discretion, for even a single persuasive medi- report is contrary to the greater weight of the medical evidence.
cal opinion may constitute substantial evidence upon
which a plan administrator may rely in adjudicating a Plan Language Can Derail a Valid Claim
claim.”
Although the average person may believe that a disabled
Boyd testified before Congress in 2007, claiming that employee should receive disability benefits if the greater weight
the process was corrupt. Well-versed in ERISA as a result of of the evidence supports that decision, the plan language con-
his long battle with the NFL, he asked Congress for a change to trols. The discretionary clause and the “clear and convincing”
Journal of Consumer & Commercial Law 123
 Although esoteric, ERISA is often devastating in
its application, allowing a denial of benefits to be
affirmed even though the greater weight of the
evidence supports the claim.

evidence standard put players at a significant disadvantage if they CONCLUSION

want to contest the Board’s decision at the courthouse. The “clear
and convincing” evidence standard, directed at players who are It is a good thing that the long-term health effects of
already disabled, requiring them to climb a higher hurdle than concussions is finally getting the study and exposure that it has
non-disabled players who also apply for football-related benefits, long deserved. Prevention of potential brain injury is absolutely
is an example of a provision that can deftly derail a valid football- critical. However, for those already disabled, whether by concus-
related disability claim. sions or otherwise, many face another challenge, an uphill road
that often remains hidden from the landscape because of its dry
detail. Although esoteric, ERISA is often devastating in its ap-
plication, allowing a denial of benefits to be affirmed even though
the greater weight of the evidence supports the claim. More pub-
lic awareness of the difficulties which disabled players and other
disabled employees throughout the private sector commonly face
in trying to obtain disability benefits is needed. Perhaps the play-
ers mentioned here, gladiators like Gene Atkins who were paid to
physically punish the opposing players game after game, year after
year, with no weapons or instruments to generate force other than
their own bodies, can help create that public awareness that may
ultimately lead to a re-leveling of the scales in regards to ERISA
benefit claims.
Gene Atkins
*Harkins, Latimer & Dahl, P.C.
ATKINS: A TALLY OF THE EVIDENCE 405 N. St. Mary’s Street, Suite 242
San Antonio, Texas 78205
Since Atkins filed his disability claim, he has seen nine [email protected]
physicians and one neuropsychologist. Eight of these specialists
were selected by the NFL. The chronology of specialists and their
findings are as follows: 1. The plan term “Total and Permanent” disability is to con-
1. Dr. Isern-Psychiatrist-never turned in an opinion. trast it with the Line of Duty benefits. Line of Duty benefits are
2. Dr. Souryal-Orthopedist-impaired, but not disabled; shorter-term disability benefits (although they can last up to 90
recommended a neurologist because of headaches and months) available to active players. Total and Permanent disabil-
hand-arm numbness; ity benefits are the long-term disability benefits, available for dis-
3. Dr. Kesler-Psychiatrist-disabled-football related; abilities arising either during a player’s NFL career or afterwards
4. Dr. Williamson-Orthopedist-impaired, not disabled; (but before the later of age 45 or 12 years after the end of a player’s
5. Dr. Martin-Neurologist-disabled-football-related; last credited season). The focus here in on long-term disability
6. Dr. Boll-Neuropsychologist-disabled-some impair- benefits: total and permanent disability.
ments football-related, some not; 2. New York Times, April 5, 2010.
7. Dr. Gilbert-Neurologist-not disabled; 3. Employee Retirement Income Security Act of 1974, 29
8. Dr. Cantu-Neurosurgeon-disabled-football-related; U.S.C. § 1001(b) 2000.
9. Dr. Gordon-Neurologist-disabled-football-related; 4. Aetna Health Inc. v. Davila, 542 U.S. 200, 215 (2004).
and 5. Insurance carriers tell the story of ERISA advantage as well
10. Dr. DeVere-Neurologist-disabled-football-related. as anyone. The author received a brief this week requesting that
the federal court in Austin find that the disability policy at issue in
The two not selected by the NFL were Dr. Cantu and the case is an ERISA policy. Seeking the shelter ERISA provides,
Dr. DeVere. Although the greater weight of the evidence clearly counsel for MassMutual writes in the opening paragraph:
supports a finding of football-related disability, ERISA deference,
in tandem with the clear and convincing evidence requirement “The Court should, at the outset, resolve the
inserted into the plan, have thus far caused Atkins to receive threshold issue of ERISA’s applicability. If ap-
much less than he deserves. plicable, ERISA will dramatically impact the re-
maining proceedings. First, ERISA will preempt
all of Smith’s state law claims, leaving her with
124 Journal of Consumer & Commercial Law
 only a claim for benefits under ERISA. Second,
Smith will not be entitled to a jury trial. Third,
the Court will review MassMutual’s factual deter-
minations that Smith was not disabled under an
abuse of discretion standard. Fourth, the Court
may consider only the evidence available to Mass-
Mutual, and the parties cannot supplement the
record with oral testimony. (cites omitted).”
6. In fact, one of the many causes of the American Revolution Dr. Boll’s opinion that Atkins’ disabling cognitive problems were
was King George III’s decree forbidding jury trials in the Ameri- not caused by football but were caused by functional illiteracy and
can colonies. bipolar disorder or depressive disorder.
http://en.wikipedia.org/wiki/Seventh Amendment to the United 13. CTE is chronic traumatic encephalopathy.
States Constitution. 14. The opinion contrary to Dr. Cantu and Dr. Gordon was
7. Atkins payment was reduced by 25% due to an early with- from Dr. Boll, the neuropsychologist, who believes that Atkins’
drawal of money from the retirement plan. cognitive dysfunction is not from post-concussion syndrome but
8. Waters was a safety like Atkins and played in the NFL at is caused by a combination of functional illiteracy, psychiatric
the same time as Atkins. An autopsy was done on Waters’ brain symptoms consistent with depressive disorder or bipolar disorder,
after his death, from which it was determined that Waters had the and pain.
brain of an 85 year old man. The deterioration of his brain was 15. “A Hobbled Star Battles the NFL” Ellen E. Schultz, Wall
attributed to trauma as a result of the hard hits he delivered while Street Journal, December 3 – 4, 2005.
in the NFL. 16. Facts taken from the case Washington v. Bert Bell/Pete Rozelle
9. Nowinski and Cantu are co-founders of the Sports Legacy NFL Retirement Plan (9th Cir. 2007).
Institute, a non-profit organization founded in 2007, meant to 17. Facts taken from Brumm v. Bert Bell NFL Retirement Plan,
research, inform, and help prevent brain trauma in sports. 995 F.2d 1433 (8th Cir. 1993).
10. “Encephalopathy” is generalized brain dysfunction marked 18. Facts taken from Jani v. Bell, 209 Fed. Appx. 305 (4th Cir.
by varying degrees of impairment of speech, cognition, orienta- 2006).
tion, and arousal. Taber’s Cyclopedic Medical Dictionary, 20th 19. Facts taken from Armstrong v. Bert Bell NFL Player Retire-
Edition, page 698. ment, 646 F.Supp. 1094 (D. Colo. 1986).
11. Dr. Gordon was the fourth neurologist that Atkins had seen 20. Facts and quote taken from the Court’s opinion in Johnson v.
after filing his claim, as neurologist Dr. DeVere examined Atkins Bert Bell/Pete Rozelle NFL Player Retirement Plan, 468 F.3d 1082
at the request of the Social Security Administration. (8th Cir. 2006).
12. Although they are fighting over Atkins’ claim, with 3 man- 21. Facts taken from Smith v. Bell, 125 F.3d 859 (9th Cir. 1997).
agement Board members taking a position adverse to Atkins’ claim 22. “....for who would bear the whips and scorns of time, the
for football-related benefits, by ERISA law, all NFL Board mem- oppressor’s wrong, the proud man’s contumely, the pangs of de-
bers were required to remain a fiduciary to Atkins during this “full spised love, the law’s delay, the insolence of office and the spurns
and fair” review process. The writer appreciates and gives a special the patient merit of the unworthy takes, when he himself might
thanks here to the NFLPA’s counsel, Joseph “Chip” Yablonski, his quietus make with a bare bodkin...” Shakespeare’s Hamlet, Act
who kept Atkins’ and his counsel advised of the Board’s adver- 3, Scene 1. Obviously, depressed and financially strapped players
sarial deliberations in keeping with the fiduciary requirements of like Atkins are poorly equipped to handle a 4 or 5 year delay.
the entire NFL Board. Although the management board mem- 23. Facts taken from Green v. Bert Bell/Pete Rozelle NFL Player
bers didn’t communicate with Atkins or his counsel during the Retirement Plan, 1999 WL 417925 (N.D. Tex.).
arbitration process, the brief which they filed after the arbitration 24. Facts taken from Boyd v. Bert Bell/Pete Rozelle NFL Players
hearing was concluded indicated that they relied heavily upon the Retirement Plan, 410 F.3d 1173 (9th Cir. 2005).
“clear and convincing” evidence standard, and continued to urge

Journal of Consumer & Commercial Law 125