Boyd v. Bert bell/pete Rozelle

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRENT BOYD, 

Plaintiff-Appellant,

v. No. 03-56514

BERT BELL/PETE ROZELLE NFL  D.C. No.

CV-01-02072-NAJ

PLAYERS RETIREMENT PLAN; NFL

PLAYER SUPPLEMENTAL DISABILITY OPINION

PLAN; THE DISABILITY BOARD,

Defendants-Appellees.



Appeal from the United States District Court

for the Southern District of California

Napoleon A. Jones, District Judge, Presiding

Argued and Submitted

December 10, 2004—Pasadena, California

Filed June 13, 2005

Before: Robert R. Beezer, Cynthia Holcomb Hall, and

Kim McLane Wardlaw, Circuit Judges.

Opinion by Judge Beezer;

Concurrence by Judge Wardlaw

7015

BOYD v. BELL 7017

COUNSEL

Lawrence D. Rohlfing, Law Offices of Lawrence D. Rohlfing,

Santa Fe Springs, California, for the plaintiff-appellant.

John P. McAllister, Groom Law Group, Washington, DC, for

the defendants-appellees.

OPINION

BEEZER, Circuit Judge:

Former professional football player Brent Boyd appeals the

denial of football degenerative disability benefits under the

7018 BOYD v. BELL

Bert Bell/Pete Rozelle National Football League Player

Retirement Plan (“the NFL Plan” or “Plan”). The Plan pro-

vides retirement, disability, and other benefits to eligible cur-

rent and former professional football players. The district

court granted the NFL Plan’s motion for summary judgment,

holding that the Plan’s Retirement Board (“the Board”) did

not abuse its discretion in denying Boyd’s claim for football

degenerative disability benefits. We have jurisdiction pursu-

ant to 28 U.S.C. § 1291, and we AFFIRM.

I

Brent Boyd was drafted in the third round of the 1980

National Football League (“NFL”) draft by the Minnesota

Vikings and was an offensive lineman for the Vikings until

his retirement from the league prior to the 1987 season.1 After

his retirement, Boyd claimed approximately $82,000 from

settling claims he asserted under California Worker’s Com-

pensation system as a result of several injuries, but not includ-

ing any specific head trauma. Boyd held various jobs until

August 1999, when he was no longer able to work.

In March 1997, Boyd filed his first application for football

degenerative disability benefits under the Plan. The applica-

tion claimed benefits based on orthopedic joint problems that

resulted from NFL injuries. In his application, Boyd told the

committee that his “first and most serious NFL injury” was a

knee injury that occurred in October 1981. Boyd wrote, “I

know I have the mind and spirit to succeed in an occupation,

but my body refuses to cooperate.” Boyd’s application neither

noted nor alleged any brain injuries or head trauma, and his

medical history before 2000 reveals reports and diagnoses of

alcohol abuse, depression, digestive tract disorders, and

hypertension, but no complaints or findings of brain disorders

1

According to Boyd’s opening brief, “The purpose of an offensive line-

man is simple: he must become the irresistible force moving the defense

or the immovable object precluding the undaunted pass rush.”

BOYD v. BELL 7019

or injuries. Boyd’s 1997 claim was denied by the Board,

based on a medical opinion that Boyd could work so long as

it did not involve certain physical elements. Boyd did not

appeal.

In June 2000, Boyd again applied to the NFL Plan for dis-

ability benefits, this time citing alleged organic brain prob-

lems as the result of an alleged head trauma. It is this

application for benefits that is in dispute. Boyd claims that he

was knocked unconscious during a preseason game in August

1980, and that despite having temporary blindness in his right

eye during the game, he continued to play. Other than this

alleged incident in August of 1980, Boyd does not recall los-

ing consciousness at any other time. Boyd claims that in 1980

he began experiencing constant headaches, which the Vikings

personnel told him were a side effect of anti-inflammatory

medication (Indocin) to treat pain and inflammation of the

knees. Boyd told the NFL Retirement Board that as the head-

aches began, it was then that he first began using alcohol on

a habitual basis. As his football career developed, Boyd

claims that he noticed increasing fatigue, increased forgetful-

ness, and lack of focus. Boyd currently complains of “a gen-

eral constant flu-like feeling, fatigue, headaches, queasiness,

forgetfulness, intermittent blurred vision, difficulty reading,

lack of concentration, learning difficulty, memory loss, dizzi-

ness and light-headedness.”

The NFL Plan is governed by the Employee Retirement

Income Security Act (“ERISA”) and was established pursuant

to collective bargaining agreements between the National

Football League Players Association (“Players Association”)

and the National Football League Management Council

(“Management Council”). The NFL Plan is administered by

a Retirement Board composed of six voting members, three

of whom are appointed by the Players Association, while the

other three members are selected by the Management Coun-

cil. The members of the Board serve without pay. The NFL

Plan grants to the Retirement Board the “full and absolute dis-

7020 BOYD v. BELL

cretion, authority and power to interpret, control, implement,

and manage the Plan,” including the authority to adjudicate

claims for benefits.

The NFL Plan provides for monthly total and permanent

disability benefits (“T&P Benefits”) to an Active Player or

Vested Inactive Player whom the Retirement Board deter-

mines to be totally and permanently disabled. In his 2000

application, Boyd applied for both Football Degenerative and

Inactive T&P Benefits, two of four categories of T&P benefits

provided by the Plan:

[5.1](c) (Football Degenerative). The monthly total

and permanent disability benefit will be no less than

$4,000 if the disability(ies) arises out of League foot-

ball activities, and results in total and permanent dis-

ability before the later of (1) age 45, or (2) 12 years

after the end of the Player’s last Credited Season.

[5.1](d) (Inactive). The monthly total and permanent

disability benefit will be no less than $1,500 if (1)

the total and permanent disability arises from other

than League football activities while the player is a

Vested Inactive Player, or (2) the disability(ies)

arises out of League football activities, and results in

total and permanent disability after the later of (i)

age 45, or (ii) 12 years after the end of the Player’s

last Credited Season. The minimum benefits pro-

vided under this Section 5.1(d) will be offset by any

disability benefits provided by an employer other

than the League or an Employer, but will not be off-

set by worker’s compensation.

NFL Retirement Plan at §§ 5.1(c), 5.1(d) (emphasis added).2

2

The Plan offers two other types of T&P disability benefits, which Boyd

did not claim. Section 5.1(a) of the Plan (referred to as the “Active Foot-

ball” disability benefit) provides for a disability that results from League

BOYD v. BELL 7021

The 1993 Collective Bargaining agreement created a new

NFL Player Supplemental Disability Plan, which provides

additional monetary benefits to certain former players who

qualify for benefits under sections 5.1(a)-5.1(c) of the Plan.

Section 5.1 of the Plan was amended in 1998 (“1998

Amendment”), which limits the recovery of disability benefits

as a result of a psychological/psychiatric disorders but pro-

vides:

[A] total and permanent disability as a result of a

psychological/psychiatric disorder may be awarded

under [inter alia, the Football Degenerative category]

if the requirements for a total and permanent disabil-

ity are otherwise met and the psychological/

psychiatric disorder either (1) is caused by or relates

to a head injury (or injuries) sustained by a Player

arising out of League football activities (e.g., repeti-

tive concussions); (2) is caused by or relates to the

use of a substance prescribed by a licensed physician

for an injury (or injuries) or illness sustained by a

Player arising out of League football activities; or (3)

is caused by an injury (or injuries) or illness that

qualified the Player for total and permanent disabil-

ity benefits under Section 5.1(a).

NFL Retirement Plan at § 5.1 (amended November 1, 1998)

(emphasis added).

In December 2000, the Retirement Board determined that

Boyd was totally and permanently disabled within the mean-

football activities, arises while the player is active, and causes permanent

and total disability shortly after the disability first arises. Section 5.1(b)

(referred to as the “Active Nonfootball” disability benefit) provides for

benefits if the disability does not arise from League football activities but

does arise while the player is an active player and causes permanent and

total disability shortly after the disability first arises.

7022 BOYD v. BELL

ing of the Plan and voted to grant Boyd T&P Inactive benefits

of $1,550 per month, retroactive to October 1, 1999, pursuant

to Plan section 5.1(d). The Board deferred consideration of

Boyd’s claim for Football Degenerative benefits under section

5.1(c).

In considering whether Boyd qualifies for Football Degen-

erative disability benefits pursuant to Plan section 5.1(d), the

Board reviewed the medical opinions of various health profes-

sionals. We turn to discuss part of that body of medical evi-

dence.

Plan neutral physician Dr. J. Sterling Ford, a neurologist,

concluded in his narrative report that “[f]rom a neurologic

standpoint, [Boyd] does appear to have several problems that

may arise out of head injuries suffered in the course of his

NFL career. Only further testing will be able to determine the

extent of those injuries.” Dr. Ford observed that Boyd’s

symptoms “raise the question of possible organic brain inju-

ry.” On a standardized form that the Board asked Dr. Ford to

complete, Dr. Ford checked “yes” after being asked whether

the injury resulted from a football-related activity.

At Boyd’s request, Dr. Daniel Amen and Dr. Edward Spen-

cer conducted a SPECT (single photon emission computed

tomography) brain scan on Boyd, which seeks to measure

brain metabolic activity. Dr. Spencer concluded that Boyd’s

scan revealed decreased brain activity, “consistent with head

trauma.” Without identifying any cause, Dr. Spencer con-

cluded that Boyd “is disabled due to his brain injury.”

The Board referred Boyd to Dr. Branko Radisavljevic, a

Plan neutral psychologist. Dr. Radisavljevic concluded that

Boyd was disabled as a result of “emotional liability depres-

sion due to post traumatic organic brain disorder.” Dr. Radi-

savljevic wrote that Boyd’s disability “appears to be the result

of a fairly small brain injury that I cannot fully understand.”

On the Board’s standardized “Physician’s Report” form, Dr.

BOYD v. BELL 7023

Radisavljevic checked “yes” when queried whether Boyd’s

disability resulted from a football-related activity.

In 2001, the Board referred Boyd to Dr. Barry Gordon, the

Director of Cognitive Neurology and Neuropsychology and

the Memory Clinic at Johns Hopkins Hospital. Boyd was sub-

ject to nearly two days of examinations and neuropsychologi-

cal testing, including a 100-minute examination by Dr.

Gordon himself. Dr. Gordon concluded:

Based on the evidence available, the alleged head

injury of August, 1980 could not be organically

responsible for all or even a major portion of the

neurologic and/or neuropsychologic problems that

Mr. Boyd is experiencing now, to a reasonable

degree of medical probability. (I include the alleg-

edly abnormal SPECT scan results in this category.)

This is true even allowing for the many unknowns

about this injury, including its precise severity.

Many if not most or all of his complaints are more

typically those attributable to depression and/or

chronic pain and/or to the effects of untreated hyper-

tension and physical deconditioning.

To reasonable degree of medical probability, the

depression that Mr. Boyd is currently experiencing

(by report) could not be an organic consequence of

the head injury of August, 1980.

Many feel that chronic pain can be a cause of depres-

sion, and chronic pain itself has been reported to

cause impairments in neuropsychologic performance

(although not necessarily impairments in underlying

cerebral functions[)]. Mr. Boyd has previously

reported pain from musculoskeletal injuries related

to his football playing. I note these possible explana-

tions and connections, although determination of the

orthopedic source(s) of his pain, his reported depres-

7024 BOYD v. BELL

sion, and possible connections between the two are

not within my area(s) of expertise.

In April of 2001, the Board denied Boyd’s claim for Foot-

ball Degenerative disability benefits, explaining that “Mr.

Boyd’s disabilities do not arise out of League football activi-

ties, and that Mr. Boyd therefore does not qualify for Football

Degenerative T&P benefits.”3 Boyd subsequently filed this

lawsuit.

On remand from the district court, in January 2003, the

Board reconsidered its decision in view of the 1998 Amend-

ment to the Plan. The Board concluded that the amendment

“only limit[s], and do[es] not expand, the availability of Foot-

ball Degenerative T&P benefits” and so does not give rise to

a less rigorous standard than that set forth by Plan Section

5.1(c) under which Boyd could qualify for Football Degenera-

tive disability benefits.

The district court granted summary judgment for the Board,

concluding that “[t]he Board’s reliance on Dr. Gordon’s med-

ical expertise constitutes substantial evidence upon which the

decision may stand.”

3

The Plan defines “Arising out of League football activities” as:

a disablement arising out of any League pre-season, regular-

season, or post-season game, or any combination thereof, or out

of League football activity supervised by an Employer, including

all required or directed activities. “Arising out of League football

activities” does not include, without limitation, any disablement

resulting from other employment, or athletic activity for recre-

ational purposes, nor does it include a disablement that would not

qualify for benefits but for an injury (or injuries) or illness that

arises out of other than League football activities.

NFL Retirement Plan at § 6.4(c) (amended effective July 1, 1993).

BOYD v. BELL 7025

II

[1] The NFL Plan was established pursuant to collective

bargaining and grants to the Retirement Board the full discre-

tion to adjudicate claims and interpret the Plan. We review the

Board’s decision to deny Boyd’s football degenerative dis-

ability benefits for an abuse of discretion. Firestone Tire &

Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989); Jones v.

Laborers Health & Welfare Trust Fund, 906 F.2d 480, 481

(9th Cir. 1990) (recognizing that we “will not upset the

review process the parties have [collectively] bargained for,

absent an abuse of discretion by the Board.”). An ERISA

fiduciary is “obligated to guard the assets of the [Plan] from

improper claims, as well as to pay legitimate claims.” Brogan

v. Holland, 105 F.3d 158, 164 (4th Cir. 1997) (internal quota-

tions and ellipsis omitted). Our deferential standard of review

furthers a primary goal of ERISA, which endeavors “to pro-

vide a method for workers and beneficiaries to resolve dis-

putes over benefits inexpensively and expeditiously.” Taft v.

Equitable Life Assurance Soc’y, 9 F.3d 1469, 1472 (9th Cir.

1993).

[2] “In the ERISA context, even decisions directly contrary

to evidence in the record do not necessarily amount to an

abuse of discretion.” Taft, 9 F.3d at 1473. An ERISA adminis-

trator abuses its discretion only if it (1) renders a decision

without explanation, (2) construes provisions of the plan in a

way that conflicts with the plain language of the plan, or (3)

relies on clearly erroneous findings of fact. Bendixen v. Stan-

dard Ins. Co., 185 F.3d 939, 944 (9th Cir. 1999); Atwood v.

Newmont Gold Co., 45 F.3d 1317, 1323-24 (9th Cir. 1995).

“A finding is ‘clearly erroneous’ when although there is

evidence to support it, the reviewing [body] on the entire evi-

dence is left with the definite and firm conviction that a mis-

take has been committed.” Concrete Pipe and Products of

California, Inc. v. Construction Laborers Pension Trust for

Southern California, 508 U.S. 602, 622 (1993), quoting

7026 BOYD v. BELL

United States v. United States Gypsum Co., 333 U.S. 364, 395

(1948). We will uphold the decision of an ERISA plan admin-

istrator “if it is based upon a reasonable interpretation of the

plan’s terms and was made in good faith.” Estate of Shockley

v. Alyeska Pipeline Serv. Co., 130 F.3d 403, 405 (9th Cir.

1997) (internal quotations omitted).

III

We consider whether the Retirement Board abused its dis-

cretion when it determined that Boyd’s total disability did not

arise out of his League football activities. Boyd argues that

the NFL abused its discretion by relying on what Boyd casts

as the “incomplete and lone contrary [medical] opinion [of

Dr. Gordon] in the record.” Essentially, Boyd argues that the

Board relied on clearly erroneous findings of fact when it

determined that Boyd’s disability did not arise from League

football activities. We reject this contention.

[3] To hold that the Board abused its discretion, we would

have to conclude that the entire record leads to a “definite and

firm conviction that a mistake has been committed” by the

Board in concluding that Boyd’s disability did not arise from

his football career. Concrete Pipe, 508 U.S. at 622. This we

cannot do. What is transparent from the record is that the

cause of Boyd’s disability is far from clear. That is, the evi-

dence can reasonably be interpreted to conclude that Boyd’s

disability either is or is not linked to his football career. The

Retirement Board reasonably concluded, based on Dr. Gor-

don’s extensive evaluation and report, that Boyd’s disability

did not arise from his League football activities. We are

unable to conclude that the Board abused its discretion in so

concluding.

[4] Boyd’s claim is not saved by relying on what he charac-

terizes as the medical experts who expressed the opinion that

Boyd’s disability does arise from his League football activi-

ties. An ERISA administrator’s exercise of its discretion to

BOYD v. BELL 7027

adjudicate claims is not a mere exercise in expert poll-taking.

We hold that a mere tally of experts is insufficient to demon-

strate that an ERISA fiduciary has abused its discretion, for

even a single persuasive medical opinion may constitute sub-

stantial evidence upon which a plan administrator may rely in

adjudicating a claim.

[5] Further, even the experts that Boyd claims to be in his

corner fail to unequivocally conclude that Boyd’s disability

arises from his football career. For example, although Dr.

Ford checked the box on the Retirement Board form indicat-

ing that Boyd’s disability arose from his football career, in his

more-detailed narrative report, he wrote that Boyd “does

appear to have several problems that may arise out of head

injuries suffered in the course of his NFL career. Only further

testing will be able to determine the extent of those injuries.”

(emphasis added).4 For his part, Dr. Spencer identified

decreased brain activity “consistent with head trauma”

(emphasis added), and without identifying any specific cause,

concluded that Boyd “is disabled due to his brain injury.” As

did Dr. Ford, Dr. Radisavljevic checked the box indicating

that the injury arose from Boyd’s football career, but con-

cluded in his narrative report that Boyd’s disability “appears

to be the result of a fairly small brain injury that I cannot fully

understand.” Dr. Radisavljevic also noted that Boyd was

“somewhat obese,” and in contravention to Boyd’s claimed

symptoms of memory loss and forgetfulness, Dr. Radisavl-

jevic noted that Boyd “scored 30 out of 30 on the mini mental

state exam which included multiple cognitive functions.” In

light of what the Board apparently construed as inconsistent

or incomplete reports, the Board did not abuse its discretion

in referring the matter to Dr. Gordon, who reportedly is a

noted neurologist, and ultimately relying on Dr. Gordon’s

report to conclude that Boyd’s disability did not arise from his

football career.

4

Dr. Gordon presumably performed the further neuropsychological test-

ing that Dr. Ford recommended.

7028 BOYD v. BELL

IV

The Retirement Board did not abuse its discretion in con-

cluding that Boyd’s disability did not arise from his League

football activities.

AFFIRMED.

WARDLAW, Circuit Judge, concurring in part and concur-

ring in the result:

I part company with the majority’s inclusion of the dictum

on pages 7026-27, where the opinion states: “An ERISA

administrator’s exercise of its discretion to adjudicate claims

is not a mere exercise in expert poll-taking. We hold that a

mere tally of experts is insufficient to demonstrate that an

ERISA fiduciary has abused its discretion.” The opinion

reaches the correct result solely because the standard of

review is “significantly deferential” to the Board; we may not

hold the Board’s factfinding to be erroneous unless the “entire

evidence” leaves us with “the definite and firm conviction

that a mistake has been committed.” Concrete Pipe & Prods.,

Inc. v. Constr. Laborers Pension Trust, 508 U.S. 602 (1993).

Moreover, “that the plan administrator’s decision is directly

contrary to some evidence in the record does not show that

the decision is clearly erroneous.” Snow v. Standard Ins. Co.,

87 F.3d 327, 331 (9th Cir. 1996). My conclusion that the

Board did not abuse its discretion under this standard is based

on the fact that Boyd’s head injury was not contemporane-

ously diagnosed, and therefore it was not unreasonable for the

Board to rely upon Dr. Gordon’s opinion that Boyd’s head

injury did not arise from his football activities. Because the

opinion’s conclusion is based on the deferential nature of the

abuse of discretion standard of review applicable to this case,

both the tone and substance of the quoted sentences are

unnecessary.