Andre Royal v. NFL Retirement Board: He Who Hesitates Is (Usually) Lost

Dec 17, 2021

By: Jeff Birren, Senior Writer

Andre Royal played in 60 NFL games in the late 1990’s.  He began receiving NFL disability benefits in 2001, after being diagnosed as “totally and permanently disabled.”  In 2015 Royal unsuccessfully sought reclassification that would have “resulted in greater benefits.”  Royal sued the NFL Retirement Board, claiming that the Board violated ERISA, 29 U.S.C. § 1022 for failing to provide him with a summary of the plan, for failing to provide an adequately explained the Board’s interpretation of certain key terms, and for breach of fiduciary duty.  The District Court granted the defendants’ motion to dismiss based on the statute of limitations.  Royal appealed, but the Second Circuit affirmed (Andre Royal v. Retirement Board of the Bert Bell/ Pete Rozelle NFL Retirement Plan et al, Case No. 20-4184, 2021 U.S. App. LEXIS 29606; 2021 WL 4484925 (“Royal”) (10-1-21)).

Andre Royal’s Football Life

Royal played high school football at Tuscaloosa.  He went to Alabama and played under Head Coach Gene Stallings, though “he almost didn’t make into UA for academic reasons” (, Tommy Dess, “Andre Royal returns to UA to earn degree” (“Royal Returns”) (5-11-14)).  He was part of the 1992 national championship team and played in the 1995 Senior Bowl, but he “was nearly dismissed” by Coach Stallings.  He never participated in spring football, once due to an injury and twice due to suspensions.  One suspension “caused him to miss the 1993 Southeastern Conference Championship Game and the Gator Bowl” (Id.).  Royal was not drafted by an NFL team.

He signed with the Cleveland Browns in 1995 but was released prior to the season.  He then signed a three-year contract with the Carolina Panthers. That year he played in 12 games, and in 1996 and 1997 he played in all sixteen regular season games plus two 1996 playoff games.  In 1997 Royal had five sacks, 60 solo tackles, 13 assisted tackles and forced three fumbles as a right inside linebacker. 

Royal received a guaranteed contract with the New Orleans Saints in 1998.  It was not a happy pairing. The night before he signed, “he was arrested after an incident at a French Quarter strip club” (Id.).  Royal later admitted that he signed the contract after “I got out of jail” and “without letting them know” (Id.).  Royal was expected to start at linebacker for the Saints, but a training camp incident got in the way.  Several rookies, including Cam Cleeland, were forced to walk through 20-30 “players lined up on each side of a dormitory hallway” and they were hit with a pillowcase filled with coins (Wikipedia, “Andre Royal”).  This led to a hazing lawsuit against the Saints and various players, including Royal.  The Saints settled the case, and Royal was dismissed.  He then had “a highly-publicized public shouting match” with Head Coach Mike Ditka (Id.).  His days in New Orleans were numbered, and the team traded him to the Colts because the Saints needed another tight end due to Cleeland’s dormitory eye-injury.

He played in 13 games for Indianapolis in 1998 but only three games in 1999.  He then retired due to the impact of his injuries.   His Complaint stated that with the Saints he “began suffering from seizures, severe headaches, migraines, confusion, loss of awareness, incontinence, inability to concentrate, memory loss, insomnia, mood swings, several bitten tongues from seizures, emotional outburst, dizziness, waking up in different rooms from seizure and being unaware of what happened, nightmares, whole body shaking, difficulty finding words and loss of balance” all of which were reported to medical personnel and team doctors. The problems worsened over the next two years” at the Colts (Royal v. Retirement Board, (Complaint at 15 (6-1-19)).  Royal moved back to Alabama and graduated from Alabama in 2014 (“Royal Returns”).

Royal Seeks Benefits

Royal applied for NFL disability benefits in March 2000.  He sought both the Plan documents and Plan benefits.  He received benefits, but not the Plan (Complaint at 15).  He was “classified” as “totally and permanently disabled” and began receiving disability benefits in 2001 (Royal v. Retirement Board of the Bert Bell/Pete Rozelle NFL Retirement Plan, et al, Case No. 19-cv-5164 (AJN), Opinion and Order, (“Royal, Opinion and Order”) at 1, S.D.N.Y. (11-20-20)). 

Royal re-applied for greater benefits in May 2015.  That was denied, and his appeal was rejected in December.  Royal filed his Complaint in June 2019.  The defendants were the NFL Management Council, the NFL Players Association (“NFLPA”), the Retirement Board of the Bert Bell/Pete Rozelle NFL Retirement Plan, Plan Board Members Katie Blackburn of the Bengals, Richard Cass of the Ravens, Ted Phillips of the Bears, plus Samuel McCullum, Robert Smith, and Jeffrey Van Note, player members of the Board. 

The Complaint had a cause of action for a purported ERISA violation of 29 U.S.C. §1022(a); a cause of action for an asserted ERISA breach of fiduciary duty (29 U.S.C. §1104(a)(1) for allegedly failing to inform and disclose to Royal; another ERISA cause of action for a supposed failure to monitor the plan that was asserted against the NFL Management Council and NFLPA, 29 U.S.C. §1104(a)(1)(A), (B) and (D); a cause of action to invalidate a 2017 plan amendment and thus enforce terms of the pre-2017 plan, asserted against all the defendants, 29 U.S.C. §1132 (a)(3); and a claimed violation of ERISA asserted against all the defendants, 29 U.S.C. §1110(a).  The prayer for relief sought, among other things, “a surcharge against the breaching fiduciaries in the amount of attorneys’ fees or expenses incurred by Plaintiff who incurred such fees and expenses in connection with his initial request for reclassification” (Complaint at 32).

The NFL Management Council and the NFLPA filed motions to dismiss.  Royal responded by filing a voluntary dismissal as to those defendants.  The Court entered that order on November 19, 2019 and denied the motions to dismiss as moot (Royal v. Retirement Board, Order (11-19-19)).  It later denied the Management Council’s request for attorneys’ fees, (Royal, Order, 11-2-2-).  The Plan’s Board and the individually named defendant also filed a motion to dismiss.  Royal filed an Amended Complaint, so the Court also denied that motion as moot (Royal v. Retirement Board, Order (12-19-19)).

The Defendants Respond

Royal filed his Amended Complaint on August 26, 2019, and the defendants filed a second motion to dismiss two weeks later, on September 9, 2019.  Royal filed his opposition on September 30, 2019.  Yet another motion to dismiss was filed that October.  The Court re-set the various deadlines, and Royal opposed the latest motion on December 11, 2019.  The remaining defendants replied on December 18, 2019.  There was no oral argument and the Court ruled on November 20, 2020. 

Judge Alison J. Nathan Rules

Judge Nathan noted that the Amended Complaint asserted four claims, but Royal only defended two ERISA claims in his opposition (Royal, Opinion and Order at 3).  The first issue was the defendants’ assertion that Royal lacked Article III standing, primarily based on Second Circuit opinions.  They argued that Royal “does not qualify for active football benefits” because a “timely receipt” of a proper claim “would not have made any difference in the amount of benefits Royal received, and so he has not suffered in fact.  The Court disagrees” (Id. at 5). 

The “Supreme Court has consistently held” that a plaintiff suffers an “injury in fact” when he or she “fails to obtain information which must be publicly disclosed.”  Royal’s injury was “even clearer” than in other disclosure cases “because ERISA creates an obligation to furnish information to the plan participants whose rights it directly affects”.   Furthermore, other cited cases sought disgorgement of profits but had not shown “any individual loss” (Id. at 6).  Royal did “not seek restitution or disgorgement of behalf of absent class members (there are none) or even on his own behalf.”  Rather, he sought relief “related to the Board’s alleged failure to provide an intelligible” plan description.  He therefore had Article III standing to bring his claims. 


The defendants also argued that the claims were time-barred.  ERISA Section 413, 29 U.S.C. §1113 requires that a plaintiff commence an action for breach of fiduciary duty within the earlier of six years after the date of the violation or three years after the date on which the plaintiff had actual knowledge of the violation, except in in the case of fraud or concealment.   ERISA “does not set a limitations period for claims not covered by §413” but instead courts look to the most “analogous state limitations period” (Id. at 7).  Prior “district courts in this circuit had uniformly” applied New York’s three-year limitations period, including one case brought against the Management Council (Hudson v. Nat’l Football League Mgmt. Council, No. 18-cv-4483 (GHW) (RWL) 2019 WL 5722220, at 23 (S.D.N.Y. (9-5-19)). 

Royal claimed the Board failed to provide him with a copy of the relevant documents back in 2000, and this “falls well outside the applicable limitations period for both a violation for statutory disclosure requirements and breach of fiduciary duty.”  His allegations stated that he “was aware that he had not received a copy” of the documents “at the time of the original application for disability benefits.  The three-year limitations period therefore began to run from that date and expired in 2003” (Id. at 8).

Royal also failed “to plausibly allege that the Board engaged in fraud or concealment so as to trigger the lengthier limitations period for breaches of fiduciary duty in the case of fraud.”  Although he “baldly” asserted that the Board “intentionally and fraudulently concealed” the Plan and a summary description of it, Royal alleged “no facts supporting an inference” that the failure to so provide him “was deliberate or fraudulent.”  Furthermore, the longer limitations period would have expired in 2006. 

Royal argued that the limitations period should only begin “when he became aware of the Board’s interpretation of the terms ‘clear and convincing’ and ‘changed circumstances’ following his 2016 application for reclassification” (Id. at 9).  Judge Nathan thought otherwise.  He had alleged that the “relevant failure of disclosure occurred in 2000” and after his original benefits determination he was “locked in” to a specific designation.  The Court quoted the Amended Complaint that made it clear that 2000 was the date of the injury.  Both Hudson and Boyd v. Bert Bell/Pete Rozelle NFL Player Retirement Plan, 796 F. Supp. 2nd 682, 693 (D. Md. 2011) made the Board’s interpretation of these terms a public record, and the Boyd court held “that the Board’s interpretation of the NFL player retirement plan was reasonable.”

The Other Claims

Royal “does not defend his remaining claims in his opposition” (Id. at 10).   Furthermore, his fourth claim, “seeking a declaration that a 2017 amendment to the plan is void, fails to meet the requirement of Federal rules of Civil Procedure 8 because it is unintelligible.”   Royal failed to provide the Court with a “copy of that amendment, any explanation of its contents, or any basis on which to conclude that he has a legal right to relief.”   His fifth cause of action sought a “declaration that the plan’s limitation period is void, is untimely.  The Court also doubts that this claim is independently actionable.” 

Amendment Would Be Futile

Royal had been given an opportunity to amend the Complaint “to attempt to remedy any defects made apparent by the Board’s motion to dismiss, and he did so.”  Further amendment “would be futile” because his claims were time-barred (Id. at 11).  Judge Nathan dismissed “all claims with prejudice.” 

In the Second Circuit

Royal insisted that the District Court “improperly dismissed his claims as time-barred” because the statute of limitations did not begin to run until 2016 “when he finally received” the Plan documents.  He “also argues, for the first time on appeal, that he is entitled to equitable tolling of the statute of limitations based on his disability.  We disagree” (Royal at 5).   “[W]hether the statute of limitations is six years or three years, Royal’s claims are clearly time-barred.”  Both claims were “premised on the Board’s failure” to provide the requested information in October 2000.  He “alleges that he was ‘harmed by not having’” this “’at the time of his original application because he did not know that he would be prevented from applying for a higher tier of benefits’ at a later date” (italics in the original).  

The Circuit was “unpersuaded.”  Royal failed to allege any “facts giving rise to a plausible inference that the Board fraudulently concealed its failure to provide” the relevant information “at the time of the original application” (Id. at 6).  “To the contrary, Royal merely alleges that the Board promised to send” it “in 2000, [but] did not in fact send” the documents “until February 2016.  It is difficult to understand how the Board could have concealed its failure to provide” it “in 2000 from Royal, the intended recipient, who presumably would know whether and when he received the missing document.”  Moreover, he acknowledged that he knew at the time that he did not have it so it “therefore strains credulity—and logic—to argue that he was unaware of the so-called fraud for the ensuing 16 years.”  

The Court stated that because the claims were time-barred under either limitations period it “need not reach the question of whether a three-or six-year limitations applies.”  The Court further declined to address his new argument that equitable tolling applied because it is “well established” that appellate courts “will not consider an issue raised for the first time on appeal.”   It retains that discretion, but “Royal provides no reason to do so here, particularly since he offers no explanation for why he failed to raise this argument before the district court.”  Royal cited a case that extended the limitations period due to the plaintiff’s insanity, citing his own disability “but he alleges no facts suggesting” that he resembles that plaintiff (Id., Fn. 3).  The Circuit affirmed.


The case will return to the District Court, where undoubtedly the defendants will seek their costs.  So instead of filing a claim to gain money, Royal filed a claim and will pay money.  One wonders what Royal was told about the potential risk. 

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