Atkins v. Bert Bell/Pete Rozelle NFL Player Retirement Plan

Case: 11-51202 Document: 00511981922 Page: 1 Date Filed: 09/11/2012

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

September 11, 2012

No. 11-51202 Lyle W. Cayce

Clerk

GENE ATKINS,

Plaintiff - Appellant

v.

BERT BELL/PETE ROZELLE NFL PLAYER RETIREMENT PLAN; THE

NFL SUPPLEMENTAL DISABILITY PLAN; MANAGEMENT TRUSTEES

OF THE NFL PLAYER RETIREMENT PLAN,

Defendants - Appellees

Appeal from the United States District Court

for the Western District of Texas

Before REAVLEY, SMITH, and CLEMENT Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

Gene Atkins, a former player for the New Orleans Saints and Miami

Dolphins National Football League (“NFL”) teams, filed suit seeking more

generous disability benefits under the Bert Bell/Pete Rozelle NFL Player

Retirement Plan (the “Plan”). The district court granted summary judgment in

favor of the Plan, affirming its benefits determinations that Atkins is only

eligible for “Inactive” player disability benefits instead of the more generous

“Football Degenerative” disability benefits he seeks. Atkins challenges the

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No. 11-51202

standard of review employed by the district court and the substantive merits of

the benefits determinations. We AFFIRM.

FACTS AND PROCEEDINGS

1. The Bert Bell/Pete Rozelle NFL Player Retirement Plan

The Plan is an employee, multi-employer welfare benefit plan governed by

the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C.

§§ 1002(3)(2)(A), 1002(37)(A), and the Labor Management Relations Act

(“LMRA”), 29 U.S.C. §§ 141 et seq., also known as the “Taft-Hartley Act.” As

required by statute, the Plan is jointly administered by employee (NFL players)

and employer (NFL club owners) representatives. 29 U.S.C. § 186(c)(5)(B). Three

player representatives are appointed by the NFL Players Association (“NFLPA”)

and three club ownership representatives are appointed by the NFL

Management Committee (“NFLMC”) (collectively the “Retirement Board” or the

“Board”). The Retirement Board, which meets quarterly, is the “named fiduciary”

of the Plan and is responsible for administering the Plan. The Plan grants the

Board “full and absolute discretion, authority and power” to interpret the Plan

and decide claims for benefits. The Plan also provides that, in exercising its

discretionary powers, the Retirement Board “will have the broadest discretion

permissible under ERISA and any other applicable laws.”

The Plan provides monthly total and permanent (“T&P”) disability benefits

to eligible NFL players. Retired players such as Atkins may be eligible for

benefits categorized as either “Football Degenerative” or “Inactive.” A player

may qualify for “Football Degenerative” T&P benefits if his disability “arises out

of League football activities.” A player may qualify for “Inactive” T&P benefits

if his disability “arises from other than League football activities.” Football

Degenerative benefits are significantly greater than Inactive benefits. After an

initial benefits determination, a player’s benefit category may be altered only

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upon a showing of “changed circumstances” based on “clear and convincing”

evidence.

A player’s claim for T&P disability benefits is first reviewed by the

Disability Initial Claims Committee (“DICC”). The DICC is composed of two

members, one appointed by the NFLPA and one by the NFLMC. If the two

members of the DICC are deadlocked, the claim is deemed denied. Decisions of

the DICC are appealable to the Retirement Board. If the members of the

Retirement Board are deadlocked, they may vote to submit the matter to a

Medical Advisory Physician (“MAP”) for a determination regarding medical

issues. In the event of a deadlock concerning eligibility or entitlement to

benefits, the Retirement Board may vote to refer the dispute for final and

binding arbitration.

2. Atkins’ Initial Claim for Disability Benefits

Gene Atkins played professional football from 1987 until 1996, spending

the majority of his time playing with the New Orleans Saints and the last

several years with the Miami Dolphins. During his career he was well-

recognized for his aggressive, hard-hitting play as a defensive back and he

sustained a number of injuries resulting from on-field collisions.

In December 2004, Atkins submitted an application for disability benefits

to the Plan administrators, claiming T&P disability as a result of three

conditions stemming from his football career. The conditions Atkins listed were:

(1) right shoulder ailments, including movement limitations and chronic pain;

(2) chronic constant pain in his neck that radiated through his arms and hands,

affecting his ability to drive, sense of touch, and ability to hold objects; and (3)

depression and mood issues that limited his ability to function, due in part to his

constant physical pain and inability to work. Atkins reported that he worked at

a Target store for five months but had to stop because of pain, headaches, and

difficulties in dealing with people.

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Following receipt of his disability application, Plan administrators sent

Atkins to two neutral physicians for evaluation, Keith Kesler (“Kesler”), a

psychiatrist, and Tarek Souryal (“Souryal”), an orthopedist. Kesler reported that

Atkins suffered from poor cognitive function, which he stated “cannot be

determined” as to whether it resulted from football. Kesler also reported that

Atkins had chronic pain and headaches, as well as possible neurologic defects,

all of which were the result of football. Kesler found Atkins totally disabled as

a result of his impairments. In contrast, Souryal reported that Atkins suffered

from neck and shoulder impairments which were the result of football, but the

impairments did not render him totally disabled.

Atkins’ application and Kesler’s and Souryal’s reports were reviewed by

the DICC on June 7, 2005. The two members deadlocked and the claim was

deemed denied. Atkins appealed the decision to the Retirement Board as

provided for under the Plan. The Retirement Board scheduled Atkins for two

additional examinations by neutral physicians, orthopedist J. Bryan Williamson

(“Williamson”) and neurologist Raymond Martin (“Martin”).

Williamson concluded that Atkins suffered from long-term neck and right

shoulder impairments due to football-related injuries. However, Williamson also

concluded Atkins was not totally disabled. Martin found that Atkins was totally

disabled due to a combination of problems. He concluded Atkins’ physical

impairments were a result of football, but his memory problems were of an

unknown source. He suggested that formal neuropsychological testing would

have to be done to determine the etiology of Atkins’ problems with intellect,

memory, and mental status.

With the benefit of Williamson’s and Martin’s reports, the Retirement

Board considered Atkins’ claim at its next scheduled quarterly meeting held on

October 20, 2005. The Retirement Board deadlocked and referred the matter to

a MAP. The Plan defines a MAP as a board-certified orthopedic physician or a

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physician in another medical discipline as designated by the NFLPA and

NFLMC. A MAP has the authority to decide only those medical issues submitted

by the Retirement Board. Atkins was referred to Thomas Boll (“Boll”), a Ph.D.

clinical neuropsychologist, for an examination. The referral states that Boll was

to evaluate the impaired body parts identified by Atkins, specifically his “head

ache, numbness, shoulders, neck [and] hands.”

Boll concluded that Atkins suffered from illiteracy and borderline mental

ability, neither of which resulted from football. He further concluded that Atkins

suffered from depression, which could not be determined to be the result of

football, and pain which was the result of football. Specifically, Boll stated that

“Atkins’ difficulties appear to be primarily in the psychiatric arena and there is

no evidence of a neurological disorder” and further concluded that Atkins’

limitations are primarily the product of his “extremely limited” literacy that

places him “at a substantial disadvantage with regard to a wide variety of

occupational pursuits outside of those specifically related to the athletic field.”

Boll concluded that Atkins was totally disabled and suggested psychological and

psychiatric intervention to increase his ability to function adequately on a day-

to-day basis.

After receiving Boll’s report, the Retirement Board considered Atkins’

appeal in a meeting conducted on February 9, 2006. The minutes of the meeting

reflect a decision to approve Inactive T&P disability benefits, retroactively

effective to June 1, 2005. In a letter dated February 23, 2006, the Plan director

explained the award of Inactive T&P benefits was for psychiatric impairments

which did not “arise out of League football activities” under the language of the

Plan. Atkins was informed his T&P disability benefits were therefore not

categorized as Football Degenerative.

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3. Atkins’ Multiple Requests for Reconsideration

Atkins submitted another appeal to the Retirement Board by way of a

letter dated March 3, 2006. In the letter, Atkins requested reclassification into

the Football Degenerative category, stating that he believed his disability

resulted from football activities. However, Atkins did not submit any additional

evidence or argument in support of his reclassification request. On May 10, 2006,

the Retirement Board tabled its consideration of the appeal to allow additional

time for Atkins to be evaluated by a neutral physician.

Atkins was examined by neurologist Robert W. Gilbert, Jr. (“Gilbert”) on

June 12, 2006. Gilbert found that Atkins suffered from the impairments of right

shoulder pain with limited motion, cervical spasms with neck and arm pain, and

carpal tunnel syndrome. Gilbert concluded all of the impairments resulted from

football, but also concluded that Atkins was not totally disabled as a result of his

impairments.

After receiving Gilbert’s report, the Retirement Board reviewed Atkins’

appeal on July 19, 2006. The minutes of the meeting reflect that the Retirement

Board denied the request for reclassification to Football Degenerative T&P

disability benefits. A July 26, 2006, letter from the Plan director stated:

By report dated June 12, 2006, Dr. Gilbert stated that you are not

totally and permanently disabled by your head, neck and right arm

conditions. The Retirement Board noted that Dr. Gilbert’s report is

consistent with earlier medical reports insofar as it states that your

physical impairments are not, by themselves, totally and

permanently disabling. The Retirement Board further found that

Dr. Gilbert’s report is consistent with its earlier conclusion that you

a r e p e r m a n e n t l y a nd t o t a ll y d i s a b l e d b y y o u r

psychiatric/psychological condition, which for the reasons described

above, qualifies you for the Inactive category. In sum, the

Retirement Board once again concluded that the Inactive category

is the correct category for your T&P benefits based on the medical

evidence in your file.

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You should regard this letter as a final decision on review within the

meaning of Section 503 of the Employee Retirement Income

Security Act. . . .You have the right to bring an action under section

502(a) of the Employee Retirement Income Security Act.

After receiving the letter, Atkins did not exercise his right to bring an action

under ERISA § 502 to challenge the Retirement Board’s benefits determination.

Following the Retirement Board’s denial of his request for reclassification,

Atkins sought the advice of noted neurosurgeon Dr. Robert Cantu (“Cantu”), an

expert on brain trauma caused by athletics, including chronic traumatic

encephalopathy (“CTE”) suffered by former NFL players. After examining

Atkins, Cantu opined that Atkins suffered from severe post-concussion syndrome

and was “probably beyond that into early traumatic encephalopathy.” Cantu also

concluded that Atkins was unable to work indefinitely due to a “demented

mental status.”

Based on Cantu’s findings, Atkins submitted a letter to the Retirement

Board on August 23, 2007, in which he requested reconsideration of the denial

of his reclassification request for Football Degenerative benefits. Cantu’s report

was submitted with the letter. The Board treated the letter as a request for

reclassification of benefits from Inactive to Football Degenerative.

On October 4, 2007, the DICC considered and denied the request. An

October 5, 2007, letter from the Plan director stated:

After reviewing the available information, the Committee

determined that you are totally and permanently disabled due to a

psychiatric/psychological condition which precludes an award of

Football Degenerative T&P disability benefits. The Committee also

reviewed Plan section 5.6 regarding reclassification requests, and

concluded that you have failed to present clear and convincing

evidence that you qualify for Football Degenerative T&P benefits

because of changed circumstances. Specifically, the Committee

determined that the new evidence presented . . . relate[s] to the

same condition that was the basis for the original classification.

Accordingly, the Committee denied your request for reclassification.

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In December 2007, Atkins received a favorable decision from the Social

Security Administration in response to his application for disability insurance

benefits (“DBI”) and supplemental security income (“SSI”). The administrative

law judge (“ALJ”) presiding over Atkins’ social security claim relied on the

findings of Cantu and Dr. Ronald DeVere (“DeVere”), a neurologist appointed to

assist the ALJ in determining whether Atkins was disabled. DeVere’s findings

indicated that Atkins had “a number of problems,” including “evidence of some

cognitive disorder, which . . . may be partially related to multiple head trauma

he sustained over a nine-year career of professional football.” The ALJ found

Atkins to be disabled under the Social Security Act and awarded him benefits

dating to January 1, 1998.

After receiving the decision from the ALJ, Atkins requested an appeal of

the DICC’s October 2007 decision by letter dated February 11, 2008. In support

of the appeal, Atkins submitted additional documentation, including the ALJ’s

decision and DeVere’s medical findings. On April 30, 2008, the Retirement Board

tabled its consideration of Atkins’ appeal to allow additional time for Atkins to

be evaluated by a neutral MAP, neurologist James Gordon (“Gordon”).

Gordon examined Atkins on June 25, 2008. He found that Atkins suffered

from impairments of: (1) cognitive dysfunction; (2) depression; and (3) chronic

and post-concussion headaches. Gordon concluded that the chronic and post-

concussion headaches resulted from football, but that the other two impairments

were only “in part” the result of football. Gordon also concluded that Atkins was

totally disabled as a result of the impairments.

Gordon explained his diagnostic impressions:

Mr. Atkins’ overall picture includes elements of psychiatric

dysfunction, cognitive dysfunction, and headache that most likely

result from a combination of constitutional and environmental

factors, none of which, alone, would explain his current condition.

There is little doubt that recurrent head trauma of a concussive and

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sub-concussive type contributes to these disorders, though relative

effect of head trauma is difficult to quantitate. . . . It is impossible

to distinguish the precise extent to which head injury causes, rather

than exacerbates, Mr. Atkins’s headaches, cognitive and behavior

problems, given preexisting neuropsychological limitations and

psychiatric predispositions. What is clear, however, is that he

suffers disabling chronic headache, depression and cognitive

limitations, and that recurrent head trauma resulting from his role

as an NFL defensive back contributed significantly to his current

condition, even if that contribution cannot be reliably quantitated.

In his current condition, he cannot be gainfully employed.

4. Lawsuits and Arbitration

Before the Retirement Board could meet in November 2008 to consider

Atkins’ appeal and Gordon’s findings, Atkins filed suit against the Plan in

district court on August 29, 2008, seeking benefits under ERISA. Atkins v. Bert

Bell/Pete Rozelle NFL Player Ret. Plan, No. 1:08-CV-651-SS, Dkt. 1 (W.D. Tex.

Aug 29, 2008) (the “First Lawsuit”). The suit was ultimately dismissed without

prejudice based on a stipulation of the parties in light of the ongoing appeal

being considered by the Retirement Board. (Id., Dkt. 29).

When the Retirement Board finally met to consider Atkins’ appeal on

November 11, 2008, the Board deadlocked on Atkins’ request for reclassification

and referred the issue for final and binding arbitration pursuant to section 8.3(b)

of the Plan.

On June 18, 2009, an arbitration hearing was conducted before Richard

Kasher (“Kasher”). A number of exhibits, including the deposition testimony of

Cantu and Gordon, were introduced. In addition, Atkins and his then-wife

Patricia Atkins testified at the hearing. Kasher conducted an additional hearing

on August 17, 2009, at which Boll testified and more evidentiary exhibits were

introduced. The arbitration record ultimately included more than 4,000 pages.

Kasher issued his decision on April 12, 2010, finding there was insufficient

evidence to conclude Atkins had proven his level of benefits should be

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reclassified under the Plan. In a lengthy opinion, Kasher reviewed the medical

evidence and testimony presented during the hearings. In pertinent part, the

opinion stated:

In this Arbitrator’s opinion it is also significant to note that Dr.

Cantu candidly testified that he was not able with “100% percent

accuracy” to diagnose Mr. Atkins with CTE. More importantly, Dr.

Cantu testified that Mr. Atkins has “all three aspects of the triad”

of CTE; and thus Dr. Cantu testified that he has a “high index of

suspicion” that Claimant Atkins suffers from CTE. Again, Dr. Cantu

testified candidly that he could not “say with . . . scientific certainty”

that Mr. Atkins has CTE, and could only do so “when his brain is

studied.”

Dr. Cantu’s opinion is qualified by his finding that Mr. Atkins’ CTE

is based upon a “more probably than not” diagnosis. Such an

opinion, as well-founded as it is by Dr. Cantu, a highly-qualified and

well-respected medical practitioner, does not, in this Arbitrator’s

opinion, meet the “clear and convincing” standard of proof required

to sustain Mr. Atkins’ claim.

...

The findings of Doctors Cantu, DeVere and Gordon regarding Mr.

Atkins’ history of head trauma are, as the Owner Trustees have

correctly pointed out, all premised upon the reports made by Mr.

Atkins some nine to ten years after those alleged incidents. 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.

Therefore, the resolution of the issues in this case require the

analysis of the two plausible medical opinions/diagnoses of Gene

Atkins’ cognitive dysfunction.

In this Arbitrator’s opinion, neither the opinions of Doctors Cantu,

Gordon and DeVere on the one hand and Dr. Boll on the other rise

to the level of clear and convincing evidence. And, as noted above,

this Arbitrator is bound by that standard of proof.

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Therefore, Mr. Atkins’s claim falls into the realm of “probability”, as

both Doctors Cantu and Boll have implicitly acknowledged.

It is “probable” that Gene Atkins experienced more than one

concussion event/incident during his ten year career as a

professional football player; and that one of those probable

events/incidents, . . . may have resulted in some postconcussive

symptoms, albeit they were not reported, recorded or treated.

That being said, this Arbitrator finds insufficient evidence to

conclude that Gene Atkins has proven that his level of benefits

should be reclassified under the provisions of the Bert Bell/Pete

Rozelle NFL Player Retirement Plan.

Accordingly, this Arbitrator is compelled to deny Mr. Atkins’ claim.

The NFLPA trustees requested reconsideration of Kasher’s decision. On

November 29, 2010, Kasher denied the request. In so doing, he noted that he had

“fully considered the contradictory medical opinions and the evidence of Mr.

Atkins’ injuries and symptoms” and was not prepared to reopen the record.

Subsequently, and in accordance with section 8.3 of the Plan, the Retirement

Board adopted Kasher’s decision at its February 23, 2011 meeting.

While the NFLPA trustees’ request for reconsideration was still pending,

Atkins filed the lawsuit that forms the basis for this appeal on July 9, 2010 (the

“Second Lawsuit”). Atkins filed several motions 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 district court

denied the majority of the motions with the exception of allowing discovery

regarding some of the Plan’s handling of prior claims.

In November 2011, the district court granted summary judgment in favor

of the Plan and denied Atkins’ motion for summary judgment. Atkins v. Bert

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Bell/Pete Rozelle NFL Player Retirement Plan et al., No. 10-CV-515, slip op. at

18 (W.D. Tex. Nov. 10, 2011). While Atkins argued that the district court should

review the benefits determinations under a de novo standard of review, the court

agreed with the Plan, citing Supreme Court precedent, that abuse of discretion

is the proper standard of review when considering an ERISA plan’s fiduciary’s

benefits determinations. Id. at 12–14. The district court then considered the

merits of Atkins’ challenges to the Plan’s benefits determinations and held that

the Retirement Board, under the Plan provisions, had not abused its discretion

by awarding Atkins T&P disability benefits under the Inactive category instead

of the Football Degenerative category. Id. at 15–16. Additionally, the court found

that Atkins failed to establish that Kasher’s arbitration decision was

procedurally unreasonable. Id. at 17.

On appeal, Atkins challenges the district court’s decision to apply abuse

of discretion instead of de novo review to the Plan’s benefits determinations and

he challenges the merits of the specific benefits determinations made by the

Retirement Board in 2006 and 2011 and by arbitrator Kasher in 2010.

STANDARD OF REVIEW

“Standard summary judgment rules control in ERISA cases.” Cooper v.

Hewlett-Packard Co., 592 F.3d 645, 651 (5th Cir. 2009) (quoting Vercher v.

Alexander & Alexander Inc., 379 F.3d 222, 225 (5th Cir. 2004)). We review the

grant of summary judgment de novo, applying the same standard as the district

court. Pub. Citizen Inc. v. La. Att’y Disciplinary Bd., 632 F.3d 212, 217 (5th Cir.

2011). Summary judgment is appropriate “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” FED. R. CIV. P. 56(a).

We also review de novo the district court’s selection of the appropriate

standard of review to be applied to an ERISA administrator’s eligibility

determination. Meditrust Fin. Servs. Corp. v. Sterling Chems., Inc., 168 F.3d

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211, 213 (5th Cir. 1999). Unless the terms of the plan give the administrator

“discretionary authority to determine eligibility for benefits or to construe the

terms of the plan[,]” an administrator’s decision to deny benefits is reviewed de

novo. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). However,

if the language of the plan does grant the plan administrator discretionary

authority to construe the terms of the plan or determine eligibility for benefits,

a plan’s eligibility determination must be upheld by a court unless it is found to

be an abuse of discretion. Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 111 (2008)

(citing Firestone Tire & Rubber Co., 489 U.S. at 111, 115). Independent of the

administrator’s ultimate authority to determine benefit eligibility, factual

determinations made by the plan administrator during the course of a benefits

review will be rejected only upon a showing of abuse of discretion. Meditrust Fin.

Servs. Corp.,168 F.3d at 213.

In the ERISA context, “[a]buse of discretion review is synonymous with

arbitrary and capricious review.” Cooper, 592 F.3d at 652. This standard

requires only that substantial evidence supports the plan fiduciary’s decision.

Ellis v. Liberty Life Assur. Co. of Boston, 394 F.3d 262, 273 (5th Cir. 2004).

Substantial evidence is “more than a scintilla, less than a preponderance, and

is such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.” Id. (quoting Deters v. Sec’y of Health, Educ. & Welfare,

789 F.2d 1181, 1185 (5th Cir. 1986)). “A decision is arbitrary only if made

without a rational connection between the known facts and the decision or

between the found facts and the evidence.” Holland v. Int’l Paper Co. Ret. Plan,

576 F.3d 240, 246 (5th Cir. 2009) (citing Meditrust Fin. Servs. Corp., 168 F.3d

at 215). Moreover, this court’s “review of the administrator’s decision need not

be particularly complex or technical; it need only assure that the administrator’s

decision fall[s] somewhere on a continuum of reasonableness—even if on the low

end.” Corry v. Liberty Life Assur. Co. of Boston, 499 F.3d 389, 398 (5th Cir. 2007)

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(quoting Vega v. Nat’l Life Ins. Servs., Inc., 188 F.3d 287, 297 (5th Cir. 1999) (en

banc)).

DISCUSSION

1. Abuse of discretion review of the Retirement Board’s 2011

benefits determination

Atkins argues the Retirement Board’s benefits determination in 2011, in

which the Board adopted Kasher’s arbitration decision that Atkins failed to

prove changed circumstances for reclassification to Football Degenerative

benefits by clear and convincing evidence, should be reviewed de novo due to two

procedural irregularities. Atkins asserts that because Kasher did not have

discretionary authority to make a benefits determination under the Plan and

because the Retirement Board’s decision to adopt Kasher’s decision was

untimely under the Plan’s claims procedures, the district court erred by using

abuse of discretion instead of de novo review.

Atkins made similar arguments to the district court in seeking de novo

review of the Board’s 2011 decision. He challenged, among other things, the

Retirement Board’s referral of his appeal to Kasher and the delay in making a

benefits determination. In a well-reasoned rejection of these arguments, the

district court cited Supreme Court and Fifth Circuit precedent for the

proposition that the deferential abuse of discretion standard of review granted

to ERISA plan decisions should not be altered absent a finding that the plan

administrator “acted in bad faith or would not fairly exercise his discretion to

interpret the terms of the Plan.” Conkright v. Frommert, 130 S. Ct. 1640, 1648

(2010).

We agree with the district court’s reasoning. This circuit has rejected

arguments to alter the standard of review based on procedural irregularities in

ERISA benefit determinations, such as delays in making a determination. See

S. Farm Bureau Life Ins. Co. v. Moore, 993 F.2d 98, 101 (5th Cir. 1993). Absent

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potential wholesale or flagrant violations that evidence an “utter disregard of the

underlying purpose of the plan,” this court does not heighten the standard of

review from abuse of discretion to de novo. Lafleur v. La. Health Serv. & Indem.

Co., 563 F.3d 148, 159 (5th Cir. 2009) (quoting Abatie v. Alta Health & Life Ins.

Co., 458 F.3d 955, 971 (9th Cir. 2006) (en banc)); see also Wade v.

Hewlett-Packard Dev. Co. LP Short Term Disability Plan, 493 F.3d 533, 538 (5th

Cir. 2007) (“[Appellant] encourages us to heighten our standard of review due to

the procedural irregularities in the handling of his [ERISA] claim . . . .

[Appellant] has cited no direct authority by the Supreme Court or the Fifth

Circuit dictating a change in the standard of review based upon procedural

irregularities alone, and we see no reason to impose one.”).

Neither the delay in Atkins receiving a final decision nor the use of an

arbitrator rises to the level of a flagrant violation or utter disregard of the Plan

that might require a heightened standard of review. While there was a lengthy

delay of more than two years between the filing of Atkins’ 2008 appeal and the

eventual final decision in 2011, Atkins was informed of the claim’s status and he

participated in the entire process, including testifying and introducing evidence

at the arbitration proceeding. He also voluntarily dismissed the First Lawsuit

in order to allow the arbitration process to proceed. Furthermore, the use of an

arbitrator is fully compliant with the terms of the Plan itself, which expressly

authorizes such a procedure. Section 8.3(b) of the Plan states:

If the voting members of the Retirement Board are deadlocked with

respect to a decision as to whether or to what extent any person is

eligible for or entitled to benefits under this Plan, the Retirement

Board may by an affirmative vote of three voting members submit

such dispute for final and binding arbitration in accordance with the

procedures and practices in use prior to the CBA.

Accordingly, the district court did not err by applying abuse of discretion

review to the Retirement Board’s 2011 benefits determination.

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2. Consideration of Kasher’s arbitration decision

Atkins argues that the district court erred by according deference to

Kasher’s arbitration decision and instead should have reviewed his decision de

novo. Specifically, Atkins claims that because “[t]he plan did not grant Mr.

Kasher discretion to decide benefit claims,” the district court should not have

treated Kasher’s decision with deference by applying an abuse of discretion

standard. Rather, because Kasher was not named as a fiduciary of the Plan,

Atkins argues his decision should have been reviewed de novo.

Atkins’ argument is misguided because it attempts to construe the

Retirement Board’s appointment of Kasher in an overly narrow and mechanical

way. Atkins focuses on the absence of explicit documentation from the Board’s

meetings that he claims was required to grant Kasher the discretion to decide

benefit claims by being officially designated as a Plan fiduciary. He also takes

issue with the absence of specific meeting minutes reflecting the Board’s

adoption of Kasher’s decision. Without such explicit documentation, Atkins

argues that the Retirement Board improperly delegated the benefits

determination to a non-fiduciary, and he cites several cases for the proposition

that when an ERISA plan allows a benefits decision to be made by a non-

fiduciary, the court reviews the benefits decision de novo.

Atkins is correct to the extent that this circuit has stated that only

decisions by Plan fiduciaries and administrators that have been given

discretionary authority are accorded deference and reviewed under an abuse of

discretion standard. If no discretionary authority is given, de novo review is

proper. Sweatman v. Commercial Union Ins. Co., 39 F.3d 594, 599–600 (5th Cir.

1994) (citing Firestone Tire & Rubber Co., 489 U.S. at 115). However, this circuit

has also held that as long as a company or plan maintains control of the ultimate

decision on benefits, it can rely on experienced agents to assist in the

determination and the decision will still be reviewed under an abuse of

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discretion standard. Salley v. E.I. DuPont de Nemours & Co., 966 F.2d 1011,

1014 (5th Cir. 1992).

The problem with Atkins’ argument is that it ignores this subtlety in

conjunction with the plain language of the Plan. The Board did not delegate the

ultimate decision on benefits but instead used its discretion under the plan to

utilize Kasher to break a deadlock, as established under the terms of the Plan

and in compliance with ERISA. Section 8.3(b) of the Plan provides for the exact

process the Retirement Board used in selecting Kasher to arbitrate Atkins’

request for reclassification that resulted in a deadlocked Board. “If the voting

members of the Retirement Board are deadlocked with respect to a decision as

to whether . . . any person is eligible for . . . benefits under this Plan, the

Retirement Board may . . . submit such dispute for final and binding arbitration

. . . .”

This language complies both with the statutory requirements that an

ERISA plan must designate an impartial process by which to resolve deadlock

scenarios, and with precedent that affords deference to plan administration

decisions, provided the benefit plan grants discretionary authority to determine

eligibility for benefits, including the use of an arbitrator to resolve deadlock

scenarios. With respect to payments of benefits, the Taft-Hartley Act permits an

ERISA plan with both employee and employer representatives to utilize an

impartial third party to break a deadlock. “[U]pon and in the event the employer

and employee groups deadlock on the administration of such fund and there are

no neutral persons empowered to break such deadlock, such agreement provides

that the two groups shall agree on an impartial umpire to decide such dispute

. . . .” 29 U.S.C. § 186(c)(5)(B). Section 8.3(b) of the Plan explicitly provides for

this scenario.

Similarly, the Supreme Court and this court have reinforced the propriety

of plan administrators’ utilization of a neutral arbitrator to break a deadlock

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without concerns over the mechanical procedures of formally designating the

arbitrator as a fiduciary. “[I]n the adjustment of employee grievances against the

employer . . . a trustee deadlock over eligibility matters, like any other deadlock,

must be submitted to the compulsory resolution procedure established by

§ 302(c)(5) [of the Taft-Hartley Act].” N.L.R.B. v. Amax Coal Co., 453 U.S. 322,

338 (1981) (emphasis added) (wherein § 302(c)(5) of the Taft-Hartley Act refers

to 29 U.S.C. § 186(c)(5)). This court has reached the same conclusion, holding

that when ERISA plan trustees are given the power to consider adjustments to

the level of benefits for a plan’s beneficiaries, and are also empowered to refer

a deadlocked decision to arbitration, plan trustees are acting within their powers

when utilizing a neutral arbitrator. Hauskins v. Stratton, 721 F.2d 535, 537 (5th

Cir. 1983). Therefore, despite Atkins’ arguments to the contrary, the district

court did not err in using abuse of discretion instead of a heightened standard

of review when considering Kasher’s decision.

3. Substantive review of the Retirement Board’s 2006 and 2011

benefits determinations

Lastly, Atkins challenges the district court’s decision affirming the

Retirement Board’s 2006 and 2011 benefits determinations on the merits under

the abuse of discretion standard. With respect to the Retirement Board’s 2006

benefits determination that he was only eligible for Inactive T&P disability

benefits, he asserts there was “no evidence to support [the] conclusion” that his

disability “was caused by psychiatric impairments that had no connection to his

football career.” He also argues that the Board’s 2011 benefits determination

was an abuse of discretion “due to the combination of insubstantial evidence and

plan and procedural violations.”

Given the deferential standard of review, Atkins’ argument that the

Board’s 2006 benefits determination was an abuse of discretion is without merit.

While Atkins claims the Retirement Board abused its discretion by “cherry

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picking” and “extracting” particular findings from the reports of doctors Boll and

Kesler, these allegations view the assembled evidence too narrowly.

By the time the Retirement Board made its benefits determination in

2006, it had Atkins’ application for benefits and the examination findings of five

doctors: Kesler, Souryal, Williamson, Martin, and Boll. Viewing the doctors’

opinions in the aggregate, there is no conclusive result regarding whether Atkins

was or was not totally disabled, and if he was, whether his disability arose from

football activities.

Two doctors appear to support Atkins’ view of his disability, at least in

part. Kesler reported that Atkins was totally disabled but his conclusions on the

basis for total disability were mixed, noting that it could not be determined if his

cognitive issues were football related while finding Atkins’ chronic pain and

possible neurologic defects were football related. Similar to Kesler, Martin found

that Atkins was totally disabled from a combination of issues, noting that

Atkins’ physical impairments were the result of football but the source of his

cognitive issues was unknown. Martin also suggested further neuropsychological

testing to better understand the source of Atkins’ impairments.

On the other hand, the other three doctors’ opinions support the Plan’s

decision, at least in part. Souryal noted that Atkins suffered from neck and

shoulder impairments but concluded that he was not totally disabled. Similarly,

Williamson concluded that Atkins had neck and shoulder issues resulting from

football but that he was not totally disabled. Finally, Boll reported that Atkins

was totally disabled and that he suffered from pain as a result of football but

that his primary difficulties stemmed from psychiatric issues that were not the

result of football.

Given this set of mixed medical opinions and a standard that requires us

to uphold a plan’s benefits determination absent an abuse of discretion, we must

affirm the district court’s judgment affirming the Retirement Board’s decision

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to award Inactive benefits. While we are sympathetic to Atkins’ plight, the

Board’s decision does not meet the standard for an abuse of discretion given the

mixed collection of evidence that could have been construed to support an award

of either Inactive or Football Degenerative benefits. The Board’s decision was far

from “arbitrary” under the standard set forth in Holland v. International Paper

Co. Retirement Plan, which would mean that the Board made its decision

“without a rational connection between the known facts and the decision or

between the found facts and the evidence.” 576 F.3d at 246. The mixed bag of

medical opinions simply do not provide a clear answer as to whether Atkins’

disabling injuries did or did not arise from football and therefore the Retirement

Board’s discretion cannot be termed an abuse of discretion.

The Retirement Board’s 2011 decision to adopt the arbitration decision by

Kasher also does not meet the abuse of discretion standard. Like the 2006

benefits determination, Kasher had a mixed set of doctors’ reports before him

when determining if Atkins could demonstrate changed circumstances by clear

and convincing evidence in support of his request to be reclassified to Football

Degenerative benefits. In addition to the inconclusive doctors’ reports from the

2006 determination, Kasher noted that Gilbert concluded that Atkins’

impairments resulted from football but that he was not totally disabled. Gordon

on the other hand concluded that while Atkins was totally disabled, two of the

three bases upon which he found Atkins disabled were only “in part” the result

of football. And finally, while Kasher acknowledged the Social Security

Administration’s finding of disability and Cantu’s findings that Atkins was

“probably beyond [post-concussion syndrome] into early traumatic

encephalopathy,” he also explained that these findings failed to meet the high

bar of clear and convincing evidence for changed circumstances required for a

benefits reclassification. Therefore, while Atkins’ claim fell into the realm of

“probability,” the evidence was insufficient for granting Atkins’ claim.

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Like the 2006 benefits determination, Kasher’s decision and the

Retirement Board’s adoption thereof in 2011 do not reach the level of arbitrary

and capricious that is required for reversal under an abuse of discretion

standard. While Atkins argues the 2011 decision was predicated on

“insubstantial evidence,” his claim is not supported by the record evidence and

is without merit in light of the deferential standard of review that requires the

court to affirm the Board’s decision given “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” Ellis, 394

F.3d at 273.

CONCLUSION

We AFFIRM the district court’s grant of summary judgment in favor of the

Plan.

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