By Kelly Mulcahy
On September 11, 2012 the United States Court of Appeals for the Fifth Circuit rejected Gene Atkins’ claim for expansive disability benefits yet again. On September 11, 2012 in a published opinion, the court effectively ended extensive litigation that included an arbitration, a lawsuit against the NFL retirement plan, and several appeals. Atkins, a former player for the New Orleans Saints and Miami Dolphins from 1987-1996, sought “Football Degenerative” disability benefits. Atkins submitted his first application for disability benefits to The Plan, “a multi-employer welfare benefit plan governed by the Employee Retirement Income Security Act and the Labor Management Relations Act,” in December of 2004. Atkins v. Bert Bell/Pete Rozelle NFL Player Ret. Plan, 11-51202, 2012 WL 3931010 (5th Cir. Sept. 11, 2012).
Atkins listed three conditions he believed to have been a result of his football career: “(1) right shoulder ailments, including movement limitations and chronic pain; (2) chronic constant pain in his neck that radiated through his arms and hands; and (3) depression and mood issues that limited his ability to function.” Id at 3. To evaluate these conditions, Atkins was sent to two neutral physicians to be evaluated, Keith Kesler, a psychiatrist, and Tarek Souryal, an orthopedist. Findings were mixed. Dr. Kesler reported that Atkins’ impairments rendered him totally disabled while Dr. Souryal reported that these conditions did not limit his ability to function. Upon review of the reports by the DICC, the Disability Initial Claims Committee, Atkins’ claim was denied. As a result of the denial, Atkins appealed the decision to the Retirement Board, as provided for under The Plan.
Two additional neutral physicians, J. Bryan Williamson, an orthopedist, and Raymond Martin, a neurologist, examined Atkins. Dr. Williamson determined that Atkins impairments were football-related injuries, but did not render him totally disabled. Dr. Martin, however, found that though his physical impairments were a result of football, his cognitive problems were of an “unknown source” and would require “formal neuropsychological testing” to determine their origin. The matter was then referred to Thomas Boll, a Ph.D. clinical neuropsychologist. Dr. Boll concluded that Atkins suffered from illiteracy and borderline mental ability. Specifically, Dr. Boll believed that “’Atkins’ difficulties appear to be primarily in the psychiatric arena and there is no evidence of a neurological disorder…Atkins’ limitations are primarily the product of his ‘extremely limited’ literacy…” Though Dr. Boll did categorize Atkins impairments as totally disabling, his illiteracy and mental limitations were certainly not disabilities that resulted from playing football. Upon receiving this report, the Retirement Board decided to award Atkins with Inactive player benefits. A player qualifies for Inactive benefits if his disability “’arises from other than League football activities,’” as was clearly the case for Atkins. Unsatisfied with the amount of money he would be receiving with an Inactive classification, Atkins submitted yet another appeal in an attempt to be reclassified as Football Degenerative. A player who is classified as Football Degenerative receives significantly greater benefits, but only qualifies to receive those benefits if his disabilities “’arise from League football activities.’”
One denial, two appeals, and a dismissed suit later, the Board found itself in a deadlock on whether to reclassify Atkins and referred the issue for final and binding arbitration pursuant to section 8.3(b) of The Plan.
Final and Binding Is Not So Final and Binding According to Gene Atkins.
On June 18, 2009, an arbitration hearing was conducted before Richard Kasher. Kasher determined that Atkins failed to present sufficient proof that his mental limitations and illiteracy resulted from football activities. Though Atkins provided reports from three doctors regarding the history of his head trauma, they were all premised upon reports made by Atkins “some nine to ten years after” his alleged injuries. Moreover, the incidents are “not set in time and do not reference which teams the Saints were playing, nor is there any evidence that the incidents were reported to the Saints or the Dolphins trainers or Club physicians.” The evidence provided by Atkins undoubtedly failed to meet the “clear and convincing” standard of proof required to sustain his claim. Not surprisingly, Kasher concluded that his benefits should not be reclassified and denied Atkins’ claim. Despite Kasher’s holding, Atkins still felt he was entitled to receive more generous benefits and so filed a second lawsuit, ignoring the fact that the decision made in arbitration was supposed to be final and binding.
Is the Sixth Time the Charm?
While the NFLPA (National Football League Players Association) trustees’ request for reconsideration was still pending, Atkins filed his second lawsuit, seeking “to compel discovery regarding aspects of the Plan’s claim handling process, potential conflicts of interests involving members of the Retirement Board, and the Plan’s handling of other T&P disability benefits claims, as well as challenging the scope of documents designated as part of the administrative record.” The majority of these motions were denied and ultimately the district court granted summary judgment in favor of the Plan.
Judge Edith Brown Clement wrote, “while we are sympathetic to Atkins’ plight…the mixed bag of medical opinions simply does not provide a clear answer as to whether Atkins’ disabling injuries did or did not arise from football.” Once again, Atkins attempt to be reclassified as Football Degenerative based on his limited mental capacity failed and the court upheld the Retirement Boards decision to award Inactive benefits.
The Moral of Gene Atkins’ Story
The take home lesson from Atkins story is this, being both illiterate and of limited mental ability are not disabilities that result from playing football and therefore should not be expected to be compensated for by the Plan. A bar needs to be passed before players can bring these types of cases against the NFL. Are injuries documented and reported with both trainers and team physicians? Is there consensus among physicians as to how the injuries occurred and their impact on the player? Were these limitations present before the player joined the NFL? Perhaps if Atkins had put forth as much time and effort into learning how to read as he did in attempting to gain increased benefits from the NFL, he’d be in a much better place. Or, perhaps he should consider going back to Florida A&M, his alma mater, and demand the education the university clearly failed to provide.
