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GENE ATKINS, Plaintiff, complains that the Bert Bell/Pete Rozelle NFL Retirement
Plan ("Retirement Plan") and the NFL Supplemental Disability Plan ("Supplemental Disability
Plan") are liable to him for additional disability benefits because his disabilities arise from playing
NFL football. The claims administrator for both plans, the Retirement Board of the Bert
Bell/Pete Rozelle NFL Player Retirement Plan (the "Board"), the body that provides the
fiduciary review and final decision as to disability claims brought under the Retirement Plan by
former NFL players such as Atkins, determined that Atkins' disabling conditions are not related
to football. This determination by the Board is incorrect and is not supported by substantial
evidence. In addition, on behalf of the Retirement Plan and the Disability Plan, Atkins asserts
that the Board breaches its fiduciary duty by not providing a full andfair review of denied claims
as required by paragraph 8.8 of the Retirement Plan and by 29 U.S.c. 1133 of the Employee
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I. PARTIES
2. Defendant Retirement Plan can be served with citation by serving the agent for
service that is appointed in the plan, the Retirement Board, the joint Board of Trustees for the
Retirement Plan, 200 St. Paul Place, Suite 2420, Baltimore, MD 21202-2040.
3. Defendant Disability Plan can be served with citation by serving the agent for
service that is appointed in the plan, the Disability Board, the joint Board of Trustees for the
Disability Plan, 200 St. Paul Place, Suite 2420, Baltimore MD 21202-2040.
4. The Court has jurisdiction because this suit alleges that the Retirement Board
abused its discretion in classifying Atkins' disability benefits as inactive benefits, meaning that
the Board decided that Atkins' disability was unrelated to NFL football. The Retirement Plan
and Disability Plan from which Atkins seeks additional benefits are employee welfare benefit
plans subject to ERISA. This court has jurisdiction over this claim for improper classification
of disability benefits under 29 U.S.CA. 1132(e)(1) of the ERISA. Venue is proper in the
Western District of Texas, Travis County, in accordance with 29 U.S.C 1132(e)(2) as Atkins is
seeking benefits which the plans are obligated to pay to him at his residence in Round Rock,
5. Gene Atkins was born in Tallahassee, Florida in 1964. He attended Florida A&M,
which is in Tallahassee, on a football scholarship beginning in the fall of 1983. In 1987, before
he graduated from Florida A&M, he was drafted by the New Orleans Saints of the National
Football League. Even though he played professional football for the Saints during the years
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1987 and 1988, he fmished his education at A&M and was awarded a Bachelor of Science
6. Atkins played for ten seasons in the NFL. From 1987 until 1993, he played
cornerback and safety for the New Orleans Saints. He started every game. From 1988 through
1991, he returned kick-offs and punts in addition to playing cornerback and safety. From 1994
through 1996, Atkins played cornerback and safety for the Miami Dolphins. During his playing
days Atkins was known as "Mean Gene" because he hit opposing players so hard.
7. Atkins retired in 1996. He engaged in various types of work after that, including
starting a semi-professional football team. During his playing days, he had suffered from some
serious injuries, including many concussions and injuries to his neck and shoulders. By 2003
and 2004, he was no longer able to function at any full time job.
8. In December of 2004 Atkins applied for disability benefits under the Bert Bell/Pete
Rozelle NFL Player Retirement Plan. Within his application, he described three conditions
which caused him to be disabled, all ofwhich he attributed to his ten years playing NFL football:
2) Chronic constant pain at the base of head and neck. Pain sometimes
radiates through arms and my hands, feels like plastic. Everything I
touch feels numb and I drop objects I try and pick up. Unbearable
pain most days. I had several stingers while playing but did not feel
any affects until I turned 38 years old;
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Atkins submitted a letter with his application in efforts to further explain his condition. The last
"I suffer from depression, and probably have for several years, but was
in denial. 1 have not sought any medical attention, because of my lack
of insurance coverage. 1 have not been able to work, therefore 1 am not
covered by any insurance. 1 am now seeking disability income to recover
and hopefully get better to where 1 can function and take care of my
children. 1 am in great need of immediate medical attention and would
welcome the opportunity be seen by your physician in order to receive the
help 1 need."
9. Atkins was then sent to various physicians selected by the Retirement Plan. The fIrst
physician that he visited was Raul Isern, Jr., M.D. in Beaumont. He saw Dr. Isern on January
4,2005. Dr. Isern never turned in a report to the NFL subsequent to his examination ofAtkins,
10. On January 11, 2005, at the Retirement Plan's request, Atkins was examined by
Tarek Souryal, M.D., an orthopedic specialist in Dallas. Dr. Souryal indicated in his report to
the NFL Retirement Plan, completed on a form created by the plan and sent to Souryal, that he
thought Atkins could, from an orthopedic perspective, perform many tasks which did not
involve heavy lifting, but indicated that "headaches and arm/hand numbness may signify non-
orthopedic problem. Should have a neurologic eval." Dr. Souryal indicated in the NFL form
that he was asked to complete that Atkins had impairments to his neck and shoulder, and that
11. On May 16, and May 20, 2005, the Retirement Plan had Atkins examined by Keith
Kessler, M.D. a psychiatrist. Kessler concluded that Atkins was totally disabled as a result of
the following impairments: poor cognitive functioning, chronic pain with depressed mood,
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chronic headaches, and possible neurologic deficits. Kessler indicated that it was his opinion
that the chronic pain with depressed mood, chronic headaches, and possible neurologic deficits
were all related to playing football. Like the orthopedic specialist Dr. Souryal, Dr. Kessler
indicated that Atkins should be examined by a neurologist. Dr. Kessler also indicated that
12. After these reports were obtained by the Plan, the initial decision-maker for the plan,
the Disability Initial Claims Committee ("Committee"), deadlocked in its decision whether
Atkins was disabled. It reported this to Atkins by letter dated June 15,2005, which indicated
that since the Committee had deadlocked, Atkins' application for disability benefits had been
denied by virtue of Retirement Plan section 8.6, which provides that "if the members of the
Disability Initial Claims Committee are deadlocked with respect to a decision as to whether a
13. Atkins appealed the Committee's decision by letter dated June 22, 2005. In
response, the NFL Retirement Plan sent Atkins to another orthopedic specialist and a
neurologist. On July 11, 2005, Atkins was examined by J. Bryan Williamson, M.D., an
minutes and indicated on the NFL Retirement Plan's physician report form that Atkins had
impairments to his neck, right shoulder, and thumb, all of which were caused by football, but
Dr. Williamson indicated that he felt Atkins would be able to engage in a light duty or sedentary
occupation.
14. Atkins was examined by Raymond Martin, a neurologist also located in Houston, on
July 14, 2005. Dr. Martin determined that Atkins was "totally disabled to the extent that he is
substantially unable to engage in any occupation for remuneration or profit,", i.e. disabled as that
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tenn was defined by the Retirement Plan. Dr. Martin indicated that the impainnents which
caused Atkins to be disabled were bilateral numbness in hands, frozen right shoulder, neck pain
and limited range of motion in the neck, chronic headaches, and memory problems. On the
NFL fonn, Dr. Martin indicated that the numbness in Atkins' hands, his frozen right shoulder,
and his neck pain all resulted from playing football. Dr. Martin was unable to say whether
15. During this time, the summer of2005, Atkins attempted full-time work. He applied
and got a job at a Target store near the apartment in Round Rock, Texas where Atkins lived with
his wife, Patricia, and their sons Jason and Jared. His responsibilities were to hang signs and
perfonn other tasks. Due to his constant headaches, shoulder and neck pain, limited range of
motion, and numbness in his hands, he was not able to perfonn the tasks required of him and
16. On October 28 t h, 2005, approximately 10 months after Atkins had submitted his
claim, the body that considers appeals of denied claims for the Retirement Plan, the Retirement
Board ("Board") of the Retirement Plan, advised Atkins that it had deadlocked, just as the
Committee had deadlocked in considering his initial claim.! Atkins was advised in the letter that
pursuant to plan provision 8.3(a) his claim would be referred to a Medical Advisory Physician
17. Atkins was sent to see Thomas Boll, Ph.D. on December 29, 2005. Dr. Boll is a
neuropsychologist. After having his assistant administer a test to Atkins by having Atkins
JIhe Board has six voting members, three of whom are selected by the NFLPA (National
Football League Players' Association) and three of whom are selected by the NFL Management
Council.
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answer a long series of questions, Dr. Boll detennined that Atkins was disabled due to the
impairments of illiteracy and borderline mental ability, major depression, and pain. Dr. Boll
indicated that illiteracy and borderline mental ability was not related to football, that it could not
be detennined whether Atkins' depression was related to football, but indicated that his pain was
related to football.
18. By letter dated February 23, 2006, the Board notified Atkins that his claim for
disability benefits had been approved. However, the Board also detennined that his disability
was unrelated to football. Accordingly, in the parlance of the Retirement Plan, he was approved
for "inactive" total and permanent disability. The Board found the effective date of disability,
i.e. the date disability payments would commence, as being June 1,2005.
19. Although the details of the plans trend towards providing leverage for the denial of
benefits rather than their approval, the NFL Retirement Plan and the NFL Player Supplemental
Disability Plan, by their covers, are promoted as a safety net for ex-NFL players such as Mr.
Atkins, and they are intertwined. If an ex-player is disabled, but that disability is deemed to have
been caused by disease or injury unrelated to football, the Retirement Plan provides a formula
for disability benefits for that employee but the Supplemental Disability Plan is not triggered.
This is what occurred to Atkins in February of 2006. Atkins had a net credit for ten seasons
with the NFL. In accordance with the formula within the Retirement Plan, and providing for
cost of living adjustments and plan modifications as of April 1, 2008, Atkins is paid $1,225.00
per month and his ex-wife is paid the same amount pursuant to a divorce decree which divides
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any payments from the Retirement Plan 50/50. 2 Most disability plans pay the disabled employee
approximately 60% of his or her pre-disability earnings up to a certain cap, the cap often in the
neighborhood of $20,000.00 per month for executives, most of whom, during their working
days, earned far less than most NFL players. Benefits are generally not reduced or eliminated
when the disability is not work-related. The NFL treats its former employees who become
disabled much differently. For those that become disabled from a condition deemed to be
unrelated to football, the players are paid a pittance of their former earnings. The Retirement
Plan currently pays Atkins disability benefits that are approximately 3% of the salary he was
earning at the end of his football career. Had the Board approved Atkins for disability benefits
that were "football degenerative", meaning that the disability is deemed to have arisen out of
football activities, he would be paid substantially more under the Retirement Plan and this
decision by the Board would also trigger a substantial monthly payment to Atkins under the
20. Atkins was relieved to finally receive some disability benefits from the Retirement
Plan after more than a year of endeavor, having visited six different specialists chosen by the
administrators of the Retirement Plan. However, he was shocked to learn that the Board did
not consider his disability to arise out of football activities. He promptly appealed the
21. Atkins received a letter dated March 21,2006, acknowledging his appeal and advising
him that his appeal would be considered by the Board during its meeting on May 10t h, 2006. At
the May 10 th meeting, the Board decided that it would like the opinion of another neurologist,
2Atkins' disability payments are also reduced 25% because he opted for an early payment
benefit of a portion of his retirement, receiving 25% of its present value in a lump sum.
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as it was apparently dissatisfied with the opinions of the neurologist that the Retirement Plan
administrators had sent him to in July of2005, Dr. Raymond Martin, who found that most of
his impairments were caused by playing football. The Board withheld its decision on Atkins'
22. At the request of the NFL Retirement Plan, Atkins was then seen by Robert Gilbert,
M.D., a neurologist in Atlanta, on June 12,2006. Atkins brought medical records and fllms with
him, but Dr. Gilbert advised that he didn't need to see them. Dr. Gilbert conducted a physical
exam on Atkins that lasted two or three minutes and then told Atkins that there was nothing
wrong with him. Dr. Gilbert's notes reflect that he spent a total of five minutes with Atkins. 3
In his notes, Dr. Gilbert indicates that Atkins has no neck pain or neck stiffness, even though
Atkins came in complaining about chronic neck pain and neck stiffness. In the Retirement Plan
form, Dr. Gilbert writes that Atkins has "subjective complaints of pain but MRI and NC/EMG
studies show relatively mild abnormalities including carpal tunnel and cervical radiculopathy."
This contradicts the findings of previous physicians who had examined Atkins. A year earlier,
after taking his own x-rays of Atkins' neck and shoulder, orthopedist J. Bryan Williamson
23. The Retirement Plan director, Sarah E. Gaunt, sent Atkins a letter datedJuly 26, 2006,
indicating that the Board had denied his appeal, and that Atkins' benefits would continue to be
24. Atkins, depressed due to his constant pain and troubled by what was perceived by him
and others around him, such as his wife Patricia, as a gradual decline in memory, concentration,
Atkins confinns in his videotaped interview submitted with his last appeal that he spent
3
approximately 5 minutes with Dr. Gilbert.
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and cognitive skills, went to see a neurosurgeon named Robert Cantu, M.D. in February of 2007.
Dr. Cantu practices in Maryland and specializes in post-concussion injury to athletes such as
Atkins. After conducting a number of tests on Atkins, Cantu diagnosed Atkins with post-
concussion syndrome and early traumatic encephalopathy.4 Dr. Cantu indicated that Atkins was
not able to work due to demented mental status caused by head trauma from professional
25. On August 23, 2007, Atkins, now represented by counsel, requested that the
categorization of his disability be reconsidered by the Retirement Plan. Atkins supplied the
Retirement Plan Committee with a number of documents in support of his request for
reconsideration, including Dr. Cantu's records. By letter dated October 5, 2007, Atkins was
informed that the Committee denied Atkins' request for reconsideration and reclassification, but
advised Atkins that he could appeal the determination. Atkins appealed the decision by letter
dated February 11, 2008, and provided additional support for his appeal, including interviews
with Atkins and his wife Patricia along with a notice that Atkins had received from the Social
Security Administration awarding him disability benefits. The decision by the Administrative
LawJudge with the Social Security Administration's Office ofDisability Adjudication and Review
found that Atkins had been disabled since January 1, 1998. The Judge based his decision on the
opinion of Dr. Cantu, that Atkins had a declining mental status due to post-concussion
syndrome, and Dr. Ronald DeVere, who had seen Atkins in May of 2007, and found that Atkins
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carrying/lifting/fingering/ climbing/reaching.
26. Dr. DeVere's records, five pages, were the only additional medical records submitted
with Atkins' appeal. The bulk of the records that supported his request for reconsideration had
27. The benefits coordinator for the Plan, Paul Scott, advised by correspondence dated
February 15,2008 that the appeal had been received and that the appeal would be presented to
the Retirement Board for decision at its next quarterly meeting on April 30, 2008. Prior to April
30,2008, no representative of the Board advised Atkins or his counsel that the Board needed
additional time to decide Atkins' appeal. Atkins was advised after the Board meeting on April
30, 2008 that the Board had tabled its decision of his appeal and wanted Atkins to see another
physician. By letter datedJune 16, 2008, Paul Scott, the benefits coordinator, advised Atkins that
he was to see a neurologist, James Gordon, M.D., on June 25,2008 in Seattle, Washington. As
before, Atkins complied and saw Dr. Gordon on June 2sr\ 2008. Dr. Gordon evaluated Atkins
for the following health conditions: concussions, headaches, and memory loss. Dr. Gordon was
the third neurologist and the eighth physician who evaluated Atkins at the request of the
28. The Board's next quarterly meeting was scheduled for July 23, 2008, at which time
Atkins' claim was supposed to be decided. Neither Atkins nor his counsel received any prior
notice that an additional extension of time was necessary. By letter from the Plan Director Sarah
Gaunt dated August 6,2008, Atkins and his counsel were advised that at its July 23, 2008 meeting
the Board again tabled its consideration of Atkins' appeal and advised that the appeal would not
be considered until the next quarterly meeting scheduled for November 11, 2008. The Board
claimed that it needed the extension because the neutral physician, Dr. Gordon, had not yet
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29. Atkins brings this cause of action for benefits under 29 U.S.CA. 1132(a)(1)(B) of
ERISA as neither the Committee nor the Board had substantial evidence to support its decision
30. In addition, Atkins brings this cause of action on behalf of the participants of the
Plan under the authority of 29 U.S.C 1132(a)(2) because the Board routinely denies a full and
fair review of a participants' claim and routinely breaches paragraph 8.8 of the Plan, both of
which occurred to Atkins in response to his appeals of his claim. It does so because during the
appeals process it selects physicians who are biased towards finding that a disabling injury or
illness is not football-related to such a degree that their selection violates both Paragraph 8.8 of
the Plan and the statutory requirement that a plan fiduciary, in this case the Board, conduct a full
8.8 Duty of Care. The Retirement Board and the Disability Initial
Claims Committee will discharge their duties with respect to the Plan
and Trust solely and exclusively in the interest of the Players and their
beneficiaries, and with the care, skill, prudence, and diligence under
the circumstances then prevailing that a prudent man acting in a like
capacity and familiar with such matters would use in the conduct of an
enterprise of like character and like aims .
29 U.S.C.1133
"In accordance with regulations of the Secretary, every employee
benefit plan shall-
31. The breach of the Plan and the breach of 29 U.S.c. 1133 were both breaches of
fiduciary duties by the Board actionable under 29 U.S.c. 1132(a)(2) and Section 29 U.S.c.
1109(a), with Article 29 U.S.c. 1104 describing the fiduciary duties of plan fiduciaries such as the
Board.
32. In this case, the selection of Dr. Robert Gilbert during the appeals stage, who held
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a substantial bias against finding that Atkins was disabled as a result of his football career, was
not a fair review of his claim, nor did it follow the plan's requirements that the Board discharge
its duties solely for the benefit of players and their beneficiaries.
33. It is expected that the Defendant Plans will contend that Atkins has failed to exhaust
the administrative process before filing suit, as he has filed suit before the November Board
meeting when the Board mayor may not have decided his claim. Time,. and time again the
Retirement Plan administrators have not met the minimum requirements of ERISA claim
procedures as set forth in 29 C.P.R. § 2560.503-1. At this point, in accordance with 29 C.F.R.
§ 2560.503-10), Atkins, who up to now has been a paragon of patience, is deemed to have
exhausted the administrative remedies available under the plans and is now permitted to pursue
any available remedies under Section 1132(a) of ERISA on the basis that the plans have failed to
provide reasonable claim procedures. In regards to the time requirements for deciding an appeal
of a denied disability claim in the case of a multiemployer plan (such as the plans at issue, as they
cover players of the various teams within the NFL, each team being an employer of its players
) with a board or committee that makes the final decision, the minimum requirements are as
follows:
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34. Under the claim regulations the board was required to decide Mr. Atkins' claim at the
board meeting on April 30, 2008. Atkins had submitted everything more than 30 days prior to
the meeting, and had advised the board that nothing further would be submitted. No special
circumstances were present, nor did Atkins or his counsel even receive written notice prior to
April 30, 2008 that his claim would not be decided at that meeting. The only notice that Atkins
received regarding his claim was a letter dated June 16, 2008, which advised that the Board
wanted to send Atkins to another physician (this physician would be the 8th physician that would
examine Atkins at the request of the NFL and the third neurologist-hardly special circumstances
n~cessitating additional time, especially considering that the referral was meant to provide a
second opinion to Dr. Cantu's opinions, which had been provided to the administrators of the
Retirement Plan in August of 2007). The next meeting was on July 23, 2008. Again, not only
did the Board not decide his claim but no written notice was given prior to the meeting that
special circumstances existed and additional time was needed. Atkins was then sent notice that
his claim would be decided at the November meeting. Under 29 CFR § 2560.503-10), Atkins is
deemed to have exhausted the administrative remedies available under the plans due to the
Board's repeated failure to comply with minimum claim regulations and is therefore permitted
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v. RELIEF REQUESTED
A. Benefits
35. Atkins requests all benefits due him under the Retirement Plan and the Supplemental
Disability Plan. As Atkins' disability is football related, he should have been receiving, in the
aggregate, $6,875.25 per month instead of $2,430.00 per month from June 1, 2005 forward. The
$6,875.25 is calculated by taking the sum of the $4,000.00 per month payment from the
Retirement Plan that he should have been paid and a $5,167.00 payment from the Supplemental
Plan that he should have been paid and reducing it by 25% because of Atkins' early withdrawal
36. Since Atkins has received inactive (i.e. non-football related) disability benefits under
the Retirement Plan from June 1, 2005 forward, the amount of benefits that he has been
receiving, $2,430.00, needs to be credited against the$6,875.25 that is owed. Therefore, after
crediting this amount, $4,445.25 is owed per month from June 1, 2005 to the present. As of
October 31, 2008, the back benefits that will be owed total $182,255.25, with additional benefits
accruing monthly (November 1, 2008 forward) at the rate of $6,875.25 per month rather than
$2,430.00 per month. Atkins prays that these back benefits be awarded him, as the decision by
B. Injunctive Relief
37. Section 1109 of ERISA provides that equitable relief may be granted for breaches
of fiduciary duty. Atkins requests that the Board be compelled to comply with the Retirement
Plan and its statutory duty to claimants to conduct a full and fair review, as required by 29 U.s.c.
1133, by sending claimants such as Atkins to physicians who do not have a conflict of interest
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with the participant and further compel the board to timely decide claims and comply with the
notice procedures as previously described. As part of the injunctive or equitable relief for breach
of fiduciary duty, Atkins asks that the claims administrators of the Retirement Plan, the
concerning consulting physicians that the Board or the Committee intends to use to examine the
participants. The specific information which they should be compelled to disclose, prior to a
final decision, is the physician's current C.V., the number of times that the consulting physician
has seen participants of the Plan and the conclusion (yes or no) made by that physician in answer
to the question on line 8 of the Plan's Physician's Report Form as to each prior participant
38. In addition, Atkins prays for his attorney's fees and costs under 29 U.S.CA.
1132(g).
PRAYER
Wherefore, premises considered, Atkins prays for past due benefits, and further that the
Board and the Initial Claims Committee be enjoined from sending claimants to physicians who
have a conflict of interest with the claimant, that they be compelled to provide information
regarding the consulting physicians prior to a final decision and that they timely decide claims in
accordance with the minimum claim procedure requirements of ERISA. Atkins prays for
reasonable and necessary attorney's fees incurred in bringing this action. Atkins prays for such
other and further equitable relief to which he may show himself to be justly entitled.
5Line 8 of the fonn asks "In your opinion, is the patient totally disabled to the extent that
he is substantially unable to engage in any occupation for remuneration or profit?"
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Respectfully Submitted,
By: ----'-""'-H-hf+--f--.L----=--+------
JEFF AHL
ate at No. 05310900
ATTORNEYS FOR PLAINTIFF
GENE ATKINS
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