THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

JIMMIE V. GILES, )
)
Plaintiff )
vs. ) CIVIL ACTION FILE NO:
) 1:11-cv-00312-CC
BERT BELL/PETE ROZELLE ) ________________________
NFL PLAYER RETIREMENT )
PLAN, )
)
Defendant )

COMPLAINT

COMES now Plaintiff JIMMIE V. GILES (“Giles”) and files this Complaint due to

the wrongful denial of Football Degenerative disability benefits by Defendant

Bert Bell/Pete Rozelle NFL Player Retirement Plan (“Plan”).

1. At all times relevant to this cause of action, Giles resided within the United

States of America.

2. Defendant conducts business in the State of Georgia and is administered in

the State of Georgia via Jeff Van Note, a member of the Retirement Board of

the Bert Bell/Pete Rozelle NFL Player Retirement Plan. In accordance with

the terms of said Plan, Defendant may be served with legal process upon Jeff

Van Note as a member of the Retirement Board of said Plan.

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3. Plaintiff has exhausted all pre-litigation remedies before filing this cause of

action.

4. Plaintiff’s claims arise out of the Defendant Plan, which is governed by the

Employee Retirement Income Security Act of 1974, as amended (“ERISA”).

Plaintiff evokes this Court’s jurisdiction pursuant to 28 U.S.C. Sec. 1331

and 29 U.S.C. Sec 1132(e).

5. Venue is proper within the Northern District of Georgia pursuant to 29

U.S.C. Sec. 1132(e)(2) as such action may be brought in the District where

the Defendant Plan is administered or where any Defendant resides or may

be found.

6. Plaintiff is retired NFL player, vested for purposes of entitlement to the

benefits which he seeks from the Defendant Plan.

7. Defendant Plan provides for payment of Total and Permanent (“T&P”)

disability benefits for vested retired NFL Players who became disabled more

than 12 months after their last credited NFL season in two categories: (1.)

Football Degenerative – where the disability(ies) arises out of League

football activities, and results in total and permanent disability before fifteen

(15) years after the end of the Player’s last Credited season; and (2.) Inactive

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 – where the total and permanent disability arises from other than League

football activities or arises out of League football activities and results in

total and permanent disability fifteen (15) or more years after the end of the

Player’s last Credited Season. (Plan Section 5.1 (c) and (d)).

8. Effective April 1, 2007, a Player who has been determined by the Social

Security Administration (“SSA”) to be eligible for disability and is still

receiving such benefits at the time he applies for disability under the Plan,

will be deemed to be totally and permanently disabled, unless four voting

members of the Retirement Board determines that such Player is receiving

such benefits fraudulently and is not totally and permanently disabled. (Plan

Sec. 5.2 (b))

9. Plaintiff has earned thirteen (13) Credited seasons with the NFL, from 1977-

1989.

10. To be eligible for Football Degenerative T&P benefits under the Plan, Giles

had to establish that he was disabled on or before March 31, 2005.

11. Giles was found disabled by SSA as of November 1, 2004 and continues to

receive Social Security disability benefits.

12. Plaintiff was found to be disabled by the Social Security Administration

because they determined that his medical impairments limited him to

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 “sedentary” work. As he was 50 years of age in November, 2004; his past

relevant work required a residual functional capacity greater than sedentary

work, and did not provide for transferable skills to sedentary work, SSA’s

Vocational Rule 201.14 was applicable, and dictated a finding that he was

disabled. (20 C.F.R. Part 404, Subpart P, Appendix 2)

13. Plaintiff filed his current application for T&P benefits with the Plan on or

about July 29, 2008.

14. Plaintiff had filed a previous application for T&P benefits with the Plan in

1996. That application was denied after the binding medical opinion of the

Plan’s Medical Advisory Physician who determined that, as a result of his

football related injuries he was limited to “sedentary” work – which (at that

time) meant that he was not totally and permanently disabled under the Plan.

15. By way of letter dated September 8, 2008, Defendant Plan notified Giles

that, based upon his Social Security Award, he was found to be totally and

permanently disabled under Section 5.2 (b) of the Plan, and was placed in

the lower-paying category of Inactive disability.

16. Plaintiff appealed the initial classification of his disability, submitting

documentation from his Social Security file. Giles argued that he should be

entitled to the higher-paying Football Degenerative disability category based

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 upon the facts that (1.) he was found to be disabled by SSA within fifteen

(15) years of his last credited season; (2.) SSA found that he was limited to

“sedentary” work; (3.) the Plan had found Giles limited to “sedentary” work

by virtue of football/League activities in a final and binding decision in

1996.

17. On or about February 26, 2009, Defendant Plan scheduled Giles for an

examination by one of their designated “Neutral Physicians”.

18. Defendant’s action in scheduling Plaintiff for said “Neutral Physician”

examination was arbitrary and capricious, as no basis for the need of such

examination was given.

19. Based upon the arbitrary and capricious action of the Defendant Plan to

schedule such examination without explanation or stated purpose; AND in

combination with various public pronouncements – including those in the

NFLPA’s White Paper submitted to Congress in 2007, and authored by Plan

Counsel that “…Players already receiving Social Security benefits will not

have to be examined by a Plan doctor…” – Giles refused to attend such

exam.

20. On or about March 16, 2009, Plaintiff requested that the Plan provide a

copy of any and all written documents, e-mails and/or amendments to the

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 Plan which set forth any and all particulars with regard to the effect of a

retired player’s favorable Social Security disability determination had upon

his claim for T&P benefits under the Plan.

21. On or about April 22, 2009, Counsel for Defendant Plan transmitted to

Plaintiff the April 8, 2009 written medical opinion of the Plan’s Medical

Director, Stephen Haas, M.D., indicating that he did not feel that Giles’

disability was totally football related, as he was obese. Plaintiff was again

requested to submit to a “Neutral Physician” examination.

22. Defendant’s claim that the opinion of the Plan’s Medical Director that

Giles’ was not totally disabled due to football was a result of his obesity, and

thus necessitated a further medical examination was arbitrary and capricious,

if not in bad faith, in that: (1.) Plan Section 11.15(b) provides in part that the

Medical Director will not decide or recommend whether a particular Player

qualifies for disability benefits; (2.) Giles was obese while he was an active

player in the NFL; (3.) As the Defendant Plan’s final and binding

determination in 1996 that Giles was limited to “sedentary” work by virtue

of his football related injuries, and that the basis of the Social Security

Administration’s determination that he was disabled as of November, 2004

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 was that he was limited to “sedentary” work, any additional medical

impairments which he might have are irrelevant to the fact that he was

disabled due to football injuries; (4.) Measuring a player’s height and weight

– necessary to determine whether he might be obese, is not a part of the

protocol of examinations performed by the Defendant Plan’s “Neutral

Physicians” or “Medical Advisory Physicians”: Giles underwent three such

examinations and none included measurement of his height and weight, nor

an opinion that he was obese.

23. Defendant denied Giles’ appeal for reclassification to Football Degenerative

benefits via letter dated May 28, 2009. The stated basis for the denial was

the opinion of the Plan’s Medical Director and Giles’ refusal to attend a

“Neutral Physician” examination.

24. Subsequent to the Plan’s May 28, 2009 denial of Giles’ claim for

reclassification, amendments were enacted to the Plan document, effective

July 2, 2009, which (for the first time) specifically provided that a retired

player who was determined to be disabled by virtue of a favorable Social

Security award may be required to submit to a further examination by a Plan

designated physician where such further examination is necessary to make

an adequate determination.

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25. On or about January 20, 2010, Plaintiff first became aware of said

amendment to the Plan documents, and requested that his claim be re-

opened for purposes of attending a further examination.

26. On or about February 18, 2010, the Plan’s Retirement Board granted

Giles’ request to reopen his case and made arrangements for a “Neutral

Physician” examination.

27. Giles was examined by “Neutral Physician” Glenn Perry, M.D. (“Perry”) on

or about April 7, 2010.

28. The results of Perry’ examination were not submitted to Plaintiff or his

Counsel prior to the Retirement Board reviewing said examination report

and issuing an unfavorable decision on May 18, 2010.

29. The Retirement Board’s decision dated May 18, 2010 stands as the final

administrative determination of the Defendant Plan with regard to Plaintiff’s

claim for Football Degenerative Benefits.

30. Upon receipt of the Plan’s unfavorable decision, Plaintiff requested a copy

of Perry’s examination.

31. Perry opined that “The orthopedic injuries described in themselves do not

qualify the player for permanent and total disability. However, the

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 orthopedic conditions described did result from injuries sustained while

playing football in the NFL”

32. Via letter dated June 1, 2010 Giles’ Counsel submitted various comments

and objections to Perry’s report and the Retirement Board’s subsequent

actions. Inter alia: (1.) In light of the Plan’s acceptance of a favorable

Social Security award that Giles was and is disabled under the terms of the

Plan, Perry’s opinion to the contrary – absent a finding of fraud by four

members of the Retirement Board – is irrelevant; (2) In light of the fact that

Giles was found to be disabled by SSA within fifteen (15) years of his last

credited season, the only relevant issue before Perry was whether Giles’

disability was a result of his football injuries – which his report clearly

indicates is the case.

33. Via letter dated August 31, 2010, Plan Counsel informed Plaintiff that the

Defendant Plan’s Retirement Board did not reopen the matter.

34. Giles continues to be entitled to Social Security disability benefits; and as a

result of Plan Section 5.2(b) continues to receive Inactive T&P benefits

notwithstanding Perry’s opinion.

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35. The Defendant has violated the duty of care which it owes to the Plaintiff

under ERISA claim regulations and its own Plan Section 8.8 by failing to

properly assess the “Neutral Physician” examination report of Perry.

36. The Defendant has violated the duty of care which it owes to the Plaintiff

under ERISA claim regulations and its own Plan Section 5.2 (b) by failing to

either understand or properly apply Giles’ favorable Social Security

disability award to his claim for Football Degenerative Benefits.

37. The Defendant has acted in bad faith in its evaluation of Giles’ claim by

failing to provide a “full and fair review” of his claim by refusing to

consider all available evidence, as well as Plaintiff’s comments and

arguments in its handling of this case. Such failure is a violation of the

Retirement Board’s duty of care as well as applicable ERISA claims

regulations. ( 29 U.S.C. Sec. 2560.503-1(h)(2))

PRAYER FOR RELIEF:

i. That the Court find in favor of Plaintiff and against Defendants;

ii. That the Court enforce Plaintiff’s rights under the terms of the Bert

Bell/Pete Rozelle NFL Player retirement Plan;

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iii. That the Court find that the Defendant’s actions in denying Plaintiff’s

claim for Football Degenerative benefits is based upon bad faith;

iv. That the Court find that the Defendant’s actions in denying Plaintiff’s

claim for Football Degenerative benefits is arbitrary and capricious;

v. That the Court find that the Defendant’s actions in denying Plaintiff’s

claim for Football Degenerative Benefits is based upon a violation of

the Duty of Care owed to the Plaintiff;

vi. That the Court award Plaintiff past due Football Degenerative

benefits, plus interest;

vii. That the Court declare Plaintiff is entitled to continuing Football

Degenerative benefits;

viii. That the Court enjoin Defendants to fully comply with ERISA claims

regulations and the Plan’s own terms in regard to Plaintiff’s future

benefits;

ix. That the Court Assess reasonable fees and costs to the Defendants;

and

x. That the Court award such other relief as the Court deems appropriate.

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Dated: February 1, 2011

_________________________________
John V. Hogan
Attorney for Plaintiff
GA Bar No. 359936

Law Offices of John V. Hogan

1325 Satellite Blvd.
Suite 1002
Suwanee, GA 30024
678-584-9005 (phone)
678-584-9009 (fax)
john@johnhoganlaw.com

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