National Football League

Ex-player gets court dates for lawsuit

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

Alex Marvez

A trial that could reveal some of the NFL’s retirement program’s secretive inner workings is tentatively set for early next year.

FOXSports.com learned that a Maryland District Court recently ordered a three-day bench trial for February 27, 2012 to hear the lawsuit filed by ex-NFL player Andrew Stewart, whose claim for increased medical benefits was rejected by trustees of the Bert Bell/Pete Rozelle plan.

Defense attorney Doug Ell of the Groom Law Group has filed a motion to remand the case to the retirement board for a new review. Stewart’s attorney Michael Rosenthal of Rosenthal Lurie LLC has opposed. A court ruling is pending.

Should the trial proceed as scheduled, Rosenthal is expected to seek a detailed account of how the six-member retirement board came to its decision on Stewart’s claim. A slew of former NFL players whose claims were also rejected have previously sought the same transparency but their attempts were rebuffed by privacy laws. Some lawsuits have been settled by summary judgment after judicial review.

“We are going under the assumption that there will be live witnesses,” Rosenthal told FOXSports.com. “There is no final decision yet but we are hopeful that it’s going to come out that way.”

Rosenthal said attorneys representing the Bell/Rozelle trustees have shared minutes from the brief time spent discussing Stewart’s case on August 18, 2011.

Rosenthal learned the late Dave Duerson didn’t vote upon Stewart’s claim as initially believed. Duerson – a star NFL safety who committed suicide in February -- was one of the NFL Players Association’s three trustee appointees on the board. The other three were appointed by the NFL.

That Duerson story was first reported by freelance journalist Irv Muchnick in his blog.

Stewart’s claim was rejected by a 6-0 vote. It’s believed a proxy took Duerson’s spot during the voting but no other details are available.

Ell declined comment to FOXSports.com.

Duerson’s role in the proceedings is considered important by the plaintiffs because he was diagnosed with brain damage during a posthumous medical study. Much like, Stewart, other retirees whose claims were rejected are now wondering whether Duerson was fit to serve on the board.

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, Canada, 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 centers around conflicting medical opinions given by different plan-appointed physicians assigned 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.

Retiree benefits remain a major point of contention even after the new Collective Bargaining Agreement between the NFL and NFLPA was purported to earmark $1 billion over the next decade toward their welfare. A group of retirees led by Hall of Fame defensive end Carl Eller filed a lawsuit against the NFLPA on Wednesday claiming the active players “had no authority to negotiate with the League the terms of pension, retirement and disability benefits with respect to the class of retired NFL players described herein, something the NFLPA's counsel already have conceded,” according to the Associated Press.