National Football League

NFL retirement plan faces challenge

Published Aug. 15, 2011 1:00 a.m. ET

Alex Marvez

The late Dave Duerson’s role as an NFL retirement board trustee may soon come under scrutiny inside a Maryland courtroom.

FOXSports.com has learned that a Sept. 8 pretrial hearing will be held for a lawsuit filed by former NFL player Andrew Stewart against the Bert Bell/Pete Rozelle NFL retirement plan.

“We want to bring the trustees in to testify how they came to their decision and take us through the process,” Stewart’s attorney, Michael Rosenthal, told FOXSports.com. “Whether the judge will let us, I don’t know. But it’s something we’re going to push for.”

Duerson, who committed suicide in February, was one of six trustees who unanimously voted last August to reject Stewart’s attempt to have his disability stipend raised. The fact Duerson was shown to have suffered brain damage from his football career has critics of the retirement program questioning whether he was mentally capable of serving as a trustee.

“When you look at what happened and hear what (Duerson) was going through, you wonder if he really knew what he was voting on,” Stewart said.

Said Rosenthal: “I can’t get (Duerson’s) notes or any kind of information regarding his participation. We guess Duerson was there, but we’re not sure. We don’t know who was physically there or what discussions they had.”

Doug Ell, who represents the NFL’s retirement plan through the Groom Law Group, told FOXSports.com that he would oppose any new requests for discovery.

“We believe the case should be decided on the existing record or remanded to the (retirement) board for further consideration,” Ell wrote in an email to FOXSports.com. “The court has already rejected (Stewart’s) claims of fiduciary breach and requests for discovery.

“This is not a secret process, and there is nothing to expose. Mr. Rosenthal has a copy of the entire record. The board’s decision was unanimous in this case. The board reviews all the evidence and makes its decision. There is ample case law holding that a court should not delve into the thought and decision-making process of the board. We will ask the court to decide the case in accordance with these well-established legal standards.”

Stewart’s disability filing stems from injuries he claims were suffered during a five-year NFL career (1989-1993) with Cleveland, Cincinnati and San Francisco. Stewart then played extensively in the Canadian Football League before retiring in 2000.

The 45-year-old Stewart filed for disability with the Bell/Rozelle retirement plan in 2008 because of knee and hand injuries that were suffered during his time in the NFL. Stewart, who now lives in Vancouver, British Columbia, says those ailments forced him to quit a post-football landscaping job that he took only because he was unable to pass the physical exams for a criminal justice career he hoped to pursue.

The NFL retirement plan awarded Stewart what are known as “inactive” benefits capped at $40,000 annually but not the “total-and-permanent” disability benefits he was seeking that pay as much as $110,000 annually. That led to Stewart’s appeal and subsequent lawsuit, which is centered around conflicting medical opinions given by different plan-appointed physicians to review his case. Those doctors failed to reach consensus on whether Stewart’s disability stemmed solely from his NFL playing days or was exacerbated by his time in the CFL.

The fact Stewart’s appeal seems headed for trial is rare because most cases are settled by summary judgments from after judicial review. Baltimore-based US District Court Judge William D. Quarles Jr. is handling these proceedings.

“The NFL usually wins,” Rosenthal said. “There are very difficult hurdles for players to overcome. To my knowledge, there hasn’t even been a full trial in an NFL disability case. My plan is to have the (retirement board) go to court and defend its decision in public.”

Duerson was one of three NFL Players Association trustees on the retirement board. The other three were designated by the NFL.

Benefits claims by retired players seeking an increase in medical benefits are first handled by the retirement plan’s “disability initial claims committee.” The trustees then review any subsequent appeals.

One trustee told FOXSports.com that the review of disability benefits requires no subjectivity based upon how the process is conducted.

“The player goes to doctor. The doctor gives a report assigning a percentage of disability,” the trustee said. “If they get a certain percent, they qualify. If they don’t, they have the ability to appeal and go to another doctor.

“As trustees, our responsibility is to oversee management and administrative aspects of these benefits. We’re not the ones in charge of determining what the benefits are.”

The trustee also defended Duerson’s work and said he never displayed impairments that reflected brain damage. Duerson was diagnosed with advanced chronic traumatic encephalopathy (CTE) during a posthumous study of his brain by Boston University.

CTE can cause dementia, memory loss and depression. The disease was a common thread between more than 20 former NFL players whose brains were studied after premature death or suicide.

Duerson had served as a trustee for five years before his death. Among his responsibilities were reviewing what one trustee described as roughly “10 inches” of paperwork for each quarterly meeting regarding all different aspects of the retirement plan.

“Dave did a good job,” the trustee said. “He was well on top of things at all these meetings.”

Duerson wasn’t a popular figure among some retirees, especially after his 2007 Congressional testimony questioning whether there was a link between football and mental illnesses like Alzheimer’s disease. Duerson engaged in a particularly ugly spat with Mike Ditka — his former head coach in Chicago from 1983 to 1989 — when defending the NFLPA’s treatment of retired players.

As a four-time Pro Bowl safety, Duerson was one of Ditka’s best players during that span. He also was elected Chicago’s NFLPA team representative.

The retirement plan’s frequent rejection of disability claims bolstered accusations that Duerson no longer had the best interest of ex-NFL players at heart. They claimed Duerson was using his new unpaid trustee position to curry favor with NFLPA executive director Gene Upshaw, who had strained relations with retired players over benefits. The magazine Men’s Journal reported that Duerson even “told people” he was handpicked by Upshaw to someday replace him.

That succession never happened. DeMaurice Smith was elected to replace Upshaw following the latter’s 2008 death while still in office. Duerson wasn’t one of the three finalists to run for the position.

Trace Armstrong did run. The former defensive end and NFLPA president told FOXSports.com that he never saw Duerson angle to become executive director. Armstrong, who worked closely with the union through Smith’s election in early 2009, described Duerson as a “strong player advocate" and “very effective trustee.”

"It's not like Dave had control of the purse strings,” Armstrong said. “I’m not saying the rules and procedures don’t need to be changed. They do. But some of these retirees just want to blame somebody.”

John Hogan, an attorney representing former Tampa Bay Buccaneers tight end Jimmie Giles in another disability appeal, has called for greater transparency in the claims process. Hogan believes the retirement board should be required to provide written statements that explain “why they take certain actions, why they deny a claim, etc.”

In an email to FOXSports.com, Hogan wrote, “If players like Andrew and Jimmie get to court, it should be readily apparent from the record whether the (retirement) plan is acting in good faith or acting arbitrarily and capriciously, which is a violation of their fiduciary duties.”

The NFL annually handles dozens of disability claims submitted by former players who say the game has left them unable to hold other jobs. The league’s desire to place restrictions on the geographical filing of workman’s compensation claims was a hot-button topic in recent collective-bargaining agreement negotiations between the NFL and NFLPA. So were pension increases for retired players, especially those who played before 1993.

The NFL and NFLPA have earmarked $1 billion over the next 10 years to improve retired player benefits.