NFL must pay benefits for ex-player’s brain injury, 4th Circuit says

Listen to this article

The National Football League’s pension plan, administered in Baltimore, must pay higher disability benefits to a retired player suffering from cognitive impairment caused by multiple concussions, a federal appeals court ruled Friday.

In its published 3-0 decision, the 4^th U.S. Circuit Court of Appeals assailed the NFL pension board for ignoring evidence – even from its own neurologist — that former linebacker Jesse Solomon suffers chronic traumatic encephalopathy, or CTE, in addition to his acknowledged knee injuries.

“A fiduciary must rely on substantial evidence to sustain its denial of benefits and thus abuses its discretion when it ignores unanimous relevant evidence supporting an award of benefits,” Judge Allyson W. Duncan wrote for the 4^th Circuit. “The expert opinions concerning Solomon’s CTE-injuries established at least a presumption that Solomon was entitled to football degenerative benefits, and the board did not rely on substantial evidence to contradict them. Indeed, it relied on no evidence at all.”

Solomon began his nine-year career with the Minnesota Vikings in 1986 and played for six teams. His suit claimed that he had sustained 69,000 full-speed collisions and that he has not worked due to cognitive losses and chronic knee pain since 2007, when he left his job as a high school teacher and football coach.

Solomon’s attorney, Cy Smith, characterized the court’s opinion as a strong indictment of how the NFL treats its retired players with degenerative brain injuries sustained during their gridiron days.

“The NFL plan continues to deny benefits to people like Jesse Solomon in the face of overwhelming evidence,” said Smith, of Zuckerman Spaeder LLP in Baltimore. “It is troubling that someone who has such obvious disabilities cannot get a fair shake from the plan.”

Smith noted the NFL’s $1 billion settlement with former players who alleged the league knew but did not fully disclose to them the risk of brain damage from playing football. The league, which admitted no wrongdoing in agreeing to the settlement, has adopted playing rules to reduce the instances of head injuries, such as 15-yard penalties for hitting a defenseless receiver.

However, Smith said the NFL’s attention to current players’ safety means little to retirees who, like Solomon, believe the settlement provides inadequate compensation.

Solomon chose not to join the settlement because “he thought it was unfair to living NFL players who have CTE – including, but not limited to, him,” Smith said. “It is sad that even as the NFL tries to turn the page … they are not treating people like Jesse Solomon properly.”

Adam Abelson, also of Zuckerman Spaeder, served as Smith’s co-counsel.

The plan’s attorney, Michael L. Junk, did not return telephone and email messages seeking comment on the 4th Circuit’s decision Friday. Junk is with Groom Law Group Chtd. in Washington, D.C.

In its decision, the 4^th Circuit upheld U.S. District Judge Marvin J. Garbis’ ruling in Baltimore last year that Solomon is owed “football degenerative benefits” because he became totally and permanently disabled as a result and within 15 years of his football career, which ended in 1995.

The 4^th Circuit, like Garbis, rejected as unsupported by substantial evidence the pension board’s conclusion that Solomon did not become fully disabled by March 31, 2010, the 15^th anniversary of his retirement, and was therefore entitled to only inactive player benefits.

The board had rejected Solomon’s initial 2009 total disability claim, which cited only orthopedic injuries, according to the 4^th Circuit’s opinion. The board then declined to address Solomon’s amended application, which cited the cognitive loss.

The board said the amendment could not be considered because it contained neurology examinations conducted beyond the 15 year anniversary of Solomon’s retirement.

But the 4th Circuit said all evidence is relevant if it references the retired player’s condition prior to his 15^th retirement anniversary, as Solomon’s medical reports did. Those reports included the board neurologist’s finding in February 2011 that Solomon had suffered what the doctor called a “progressive worsening of cognition” over a five- to 10-year period, the 4^th Circuit stated in its scathing opinion.

“Stripped of the arbitrary restrictions on evidence it would consider, the board provided no justification for denying Solomon football degenerative benefits, let alone substantial evidence for doing so,” Duncan wrote.

Judges Diana G. Motz and Dennis W. Shedd joined Duncan’s opinion in Jesse Solomon v. NFL Player Supplemental Retirement Plan, No. 16-1730.