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Appeals Court Rules Against NFL Pension Plan, Finds Ex-Player "Totally Disabled" From Concussion and CTE

June 23, 2017

A federal appeals court has decided that the NFL pension plan “ignore[d] unanimous relevant” evidence, “including that of its own expert,” when it rejected the claim of ex-player Jesse Solomon. Mr. Solomon suffers from chronic concussion syndrome and Chronic Traumatic Encephalopathy (CTE) as a result of nine seasons in the NFL and nearly 70,000 high-speed collisions. Mr. Solomon is represented by Cy Smith and Adam Abelson of Zuckerman Spaeder LLP.

In today’s decision, the U.S. Court of Appeals for the Fourth Circuit affirmed the 2016 decision of the trial court, finding that the pension plan “failed to follow a reasoned process or explain the basis of its determination,” ignored “new and uncontradicted evidence,” and “relied on no evidence at all.” At oral argument in May 2017, the three-judge panel sharply criticized the plan in an exchange captured below.

Mr. Smith called the decision noteworthy for two reasons. First, “it is the most recent decision finding that the NFL plan has acted arbitrarily and in bad faith when denying injury claims by retired players, particularly those with concussions.” Smith, who represented the estate of ex-Steeler Mike Webster in the 2006 case establishing the League’s responsibility for concussion injuries, noted that today’s opinion calls out the plan for relying on arguments the Fourth Circuit said were “explicitly rejected” by the same court more than a decade ago.

Second, doctors (including the NFL plan’s own expert) examining Mr. Solomon found he had CTE (the main disease caused by repeated concussions), which the NFL has long claimed cannot be diagnosed in living persons. The court ruled that he was suffering from “CTE-related disability” and had “CTE-injuries.” Despite these findings, in the recent class-action settlement, the League refused to pay benefits for CTE victims – including Mr. Solomon – unless the victims were already dead. As Mr. Smith put it, “In trying to turn the page on concussion injuries, the NFL cannot ignore the living evidence of ex-players like Jesse Solomon.”

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 From the May 9, 2017 argument:

Judge Dennis Shedd (17:00): “Why is the Plan fighting him so incredibly hard? . . . And when he makes the claim through your own doctor that he’s got a problem? . . . Why in the world would you – I guess current players don’t want money to come out for past players, or something?”

Michael Junk (attorney for the plan): “I don’t think that’s a motivating factor.”

Judge Dennis Shedd: “Then why in the world would any player playing professional football . . . look at this and go, This is one heck of a great deal for players. We play as hard as we can, give everything we got, get banged up – I saw something in the record [about] 69,000 tackles, that’s incredible. We do all we can, and then we apply and when doctors say I have a problem based on those hits, and they say, You’re not orthopedically disabled, go away.

Judge Allyson Duncan: “Forever.”

Judge Dennis Shedd: “I’m not counsel, you are, but somebody ought to scratch their head and say, Does this really look good? We don’t have much of a legal argument, but we’re willing to fight it to the death to deny somebody . . . Does that make sense to you?”

. . .

Judge Dennis Shedd (18:50): “Do you think that looks good to players, what’s going on in this courtroom today? It’s not necessarily part of the determination, I’m just asking a real world question I’m asking.”

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