Case 1:18-cv-04483-RWS Document 53 Filed 08/31/18 Page 1 of 20

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
CHRISTOPHER HUDSON,
Plaintiff,
v.
NATIONAL FOOTBALL LEAGUE
MANAGEMENT COUNCIL et al.,

Case No. 18-cv-4483
Judge Robert W. Sweet

Defendants.

MEMORANDUM IN SUPPORT OF DEFENDANT
NATIONAL FOOTBALL LEAGUE MANAGEMENT COUNCIL’S
MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

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TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT .....................................................................................................1
FACTUAL BACKGROUND ..........................................................................................................2
ARGUMENT ...................................................................................................................................6
I. Plaintiff Does Not And Cannot Demonstrate That The NFLMC Is A Fiduciary To The
Plan Under ERISA. ......................................................................................................................7
II. In Any Event, Plaintiff Cannot Demonstrate That The NFLMC Breached Any Purported
Fiduciary Duties. ........................................................................................................................10
III. Counts IV And V Fail To State Any Claim Against The NFLMC ...................................14
CONCLUSION ..............................................................................................................................15

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TABLE OF AUTHORITIES
Page(s)
Cases
Ashcroft v. Iqbal,
556 U.S. 662 (2009) .............................................................................................................6, 14
In re Bear Stearns Cos., Inc. Sec., Derivative, & ERISA Litig.,
763 F. Supp. 2d 423 (S.D.N.Y. 2011)......................................................................................13
Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007) ...................................................................................................................6
Cent. States, Se. & Sw. Area Health, & Welfare Fund v. Gerber Life Ins. Co.,
984 F. Supp. 2d 246 (S.D.N.Y. 2013)........................................................................................2
Flynn v. Hach,
138 F. Supp. 2d 334 (E.D.N.Y. 2001) .......................................................................................7
Grossman v. Dirs. Guild of Am., Inc.,
No. EDCV 16-1840, 2017 WL 5665025 (C.D. Cal. May 1, 2017) .........................................10
Howell v. Motorola,
633 F.3d 552 (7th Cir. 2011) ...................................................................................................13
Int’l Bhd. of Elec. Workers, Local 90 v. Nat’l Elec. Contractors Ass’n,
No. 3:06cv2 (SRU), 2008 WL 918481 (D. Conn. Mar. 31, 2008) ....................................10, 12
Johnson v. Evangelical Lutheran Church in Am.,
No. 11-23, 2011 WL 2970962 (D. Minn. July 22, 2011) ........................................................12
Lingis v. Motorola, Inc.,
649 F. Supp. 2d 861 (N.D. Ill. 2009) .......................................................................................13
Liss v. Smith,
991 F. Supp. 278 (S.D.N.Y. 1998)...........................................................................................12
Littlejohn v. N.Y.C.,
795 F.3d 297 (2d Cir. 2015).......................................................................................................6
N.Y. Times Co. v. Newspaper & Mail Deliverers’-Publishers’ Pension Fund,
303 F. Supp. 3d 236 (S.D.N.Y. 2018) (Sweet, J.)......................................................................7
NLRB v. Amax Coal Co.,
453 U.S. 322 (1981) .............................................................................................................9, 11

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In re Polaroid ERISA Litig.,
362 F. Supp. 2d 461 (S.D.N.Y. 2005)..................................................................................9, 12
Sommers Drug Stores Co. Emp. Profit Sharing Tr. v. Corrigan Enters., Inc.,
793 F.2d 1456 (5th Cir. 1986) .............................................................................................8, 10
Trs. of Local 138 Pension Tr. Fund v. F.W. Honerkamp Co.,
692 F.3d 127 (2d Cir. 2012).......................................................................................................7
Trs. of Sheet Metal Works Nat’l Pension Fund v. Kakareko (In re Kakareko),
575 B.R. 12 (Bankr. E.D.N.Y. 2017) .........................................................................................8
Trs. of Upstate N.Y. Eng’rs Pension Fund v. Ivy Asset Mgmt.,
131 F. Supp. 3d 103 (S.D.N.Y. 2015)........................................................................................6
In re WorldCom, Inc. ERISA Litig.,
263 F. Supp. 2d 745 (S.D.N.Y. 2003)........................................................................................9
Statutes
29 U.S.C. §§ 1001-1461 ..................................................................................................................7
29 U.S.C. § 1002 ..........................................................................................................................7, 8
29 U.S.C. § 1102 ..............................................................................................................................7
29 U.S.C. § 1104 ............................................................................................................................11
29 U.S.C. § 1105 ..............................................................................................................................6
29 U.S.C. § 1109 ..............................................................................................................................6
29 U.S.C. § 1132 ..............................................................................................................................1

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PRELIMINARY STATEMENT
Through this action, Plaintiff seeks a higher award of benefits under the Bert Bell/Pete
Rozelle NFL Player Retirement Plan (“the Plan”), a benefit plan for retired National Football
League (“NFL”) players negotiated between Defendant NFL Management Council (the
“NFLMC”), the representative of the NFL clubs, and the NFL Players’ Association (“NFLPA”),
the NFL players’ union.

Plaintiff has already sought these higher benefits, including in

administrative proceedings before the Retirement Board, the entity charged with administering
the Plan, and in prior litigation in federal district court. Rather than challenge the final decision
of the Retirement Board denying his request for higher benefits under Employee Retirement
Income Security Act (“ERISA”) § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), Plaintiff instead filed
this action under ERISA § 502(a)(3) against the NFLMC, NFLPA, the Retirement Board, and the
individual trustees, claiming breaches of fiduciary duty and other related claims in a post hoc
effort to alter the provisions of the Plan to his benefit. As set forth below and in the motions to
dismiss filed concurrently by the other Defendants, Plaintiff’s claims are without merit and
should be dismissed in their entirety.
With respect to the NFLMC specifically, Plaintiff’s claims fail as a matter of law because
they are based on the faulty premise that the NFLMC is a “fiduciary” to the Plan, and, in any
event, fail to demonstrate that the NFLMC breached any purported fiduciary duty. Accordingly,
Defendant NFLMC respectfully requests this Court to dismiss Counts III, IV, and V of Plaintiff’s
Complaint as to the NFLMC for failure to state a claim pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure.

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FACTUAL BACKGROUND
The Bert Bell/Pete Rozelle NFL Player Retirement Plan
The Plan in this case is a Taft-Hartley multi-employer retirement plan, which is the result
of a collective bargaining agreement between the NFLMC, on behalf of the 32 member clubs of
the NFL who contribute to the Plan, and the NFLPA, on behalf of the players. (Compl. ¶¶ 11, 12;
see also the Plan, page 1.)1 In accordance with Taft-Hartley, 29 U.S.C. §§ 141-197, the Plan is
administered by the Retirement Board, which is comprised of three voting members appointed
by the NFLMC (the employer representatives) and three voting members appointed by the
NFLPA (the union representatives). (Plan, Art. 8.1, 8.2.) The NFLMC and the NFLPA have the
authority to remove and appoint a replacement for any member of the Retirement Board that
each has respectively appointed. (Plan, Art. 8.1.)
Pursuant to the terms of the Plan, the Retirement Board is the “named fiduciary” of the
Plan within the meaning of ERISA, and has the “full and absolute discretion, authority and
power to interpret, control, implement, and manage the Plan . . . .” (Plan, Art. 8.2.) The
Retirement Board’s authority includes the power to, inter alia, define and construe the terms of
the Plan, decide claims for benefits, and adopt procedures and rules for the administration of the
Plan. (Plan, Art. 8.2.) The Plan does not authorize the NFLMC or the NFLPA to supervise or

1

Given the central importance of the Plan itself and the fact that Plaintiff has referred to
it repeatedly throughout his Complaint, we have attached the Plan to the declaration
accompanying this memorandum of law. See Cent. States, Se. & Sw. Area Health, & Welfare
Fund v. Gerber Life Ins. Co., 984 F. Supp. 2d 246, 249 (S.D.N.Y. 2013) (“Specifically in the
ERISA context, ‘[b]ecause the Plan is directly referenced in the complaint and is the basis of this
action, the Court may consider the Plan in deciding the motion to dismiss.’”) (internal citations
omitted). The Plan has undergone multiple amendments and restatements during the relevant
time period, but the relevant plan document is the document in effect at the time the Plaintiff
applied for benefits. Accordingly, we attach a copy of the Plan Amended and Restated as of
April 1, 2009 as Exhibit B to the Declaration of Stacey R. Eisenstein (“Eisenstein Decl.”), which
has been filed together with this memorandum of law.
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direct the decisions of the members that they appoint to the Retirement Board in the Retirement
Board’s administration of the Plan.
The Plan provides total and permanent (“T&P”) disability benefits to eligible players.
(Compl. ¶ 21.) The Plan provides T&P benefits in four different classifications. For instance,
for total and permanent disability that arose from activities “other than League football
activities,” players receive a monthly total permanent disability benefit. (Compl. ¶¶ 22, 24.)
Another classification provides disability benefits for disabilities that “ar[ose] out of League
football activities” (“Football Degenerative benefits”).

(Compl. ¶ 25.)

Because Football

Degenerative benefits arise from “League football activities,” those individuals entitled to
Football Degenerative benefits receive a higher monthly benefit than those whose disability did
not result from football activities. (Id.)
As provided by the Plan, the Disability Initial Claims Committee decides initial claims
for disability benefits under the Plan, and consists of three members: one appointed by the
NFLPA, one appointed by the NFLMC, and one medical professional jointly designated by the
NFLPA and the NFLMC. (Plan Art. 8.2(b); 8.4.) The classification of disability benefits is
determined by the appropriate entity (either the Disability Initial Claims Committee or the
Retirement Board), who reviews the facts and circumstances in the administrative record.
(Compl. ¶ 27.) Once his disability benefits are classified, a player can petition to be reclassified
to receive a higher level of benefit—e.g., Football Degenerative benefits. (Compl. ¶ 28.) The
player must show the Retirement Board or the Disability Initial Claims Committee “clear and
convincing” evidence that because of “changed circumstances,” the player satisfies the
conditions of eligibility for a new classification of disability benefits. (Id.)

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Procedural Background
Plaintiff is former NFL football player, who currently receives T&P disability benefits
under the Plan. (Compl. ¶ 10.) Plaintiff filed an initial application for disability under the Plan
in March 2010. (Compl. ¶ 32.) After his claim was denied, Plaintiff filed an appeal with the
Retirement Board, and the Retirement Board awarded him T&P disability benefits in May 2011.
(Id.) In its decision awarding Plaintiff T&P benefits, the Retirement Board determined that
Plaintiff was ineligible for Football Degenerative benefits because it determined that Plaintiff’s
injuries were unrelated to League football activities. (Compl. ¶ 33.)
Plaintiff sought reclassification of his T&P benefits in September 2014, arguing that a
Social Security Administration finding that Plaintiff was disabled as of December 31, 2009
constituted “clear and convincing evidence” of “changed circumstances” within the meaning of
the Plan.

(Compl. ¶¶ 34, 35.)

The Retirement Board denied Plaintiff’s request for

reclassification in October 2014, and Plaintiff appealed the Retirement Board’s decision in
March 2015. (Compl. ¶¶ 36, 37.) In its May 2015 decision denying Plaintiff’s appeal, the
Retirement Board found that Plaintiff had failed to meet the “changed circumstances”
requirement, explaining that “changed circumstances” means “a change in Player’s physical
condition—such as a new or different impairment—that warrants a different category of
benefits.” (Compl. ¶ 38.) Following the Retirement Board’s decision, Plaintiff filed an ERISA
§ 502(a) claim in the United States District Court for the Northern District of Mississippi (Case
No. 3:15 CV 128-MPM-JAA) alleging that he was entitled to benefits under the Plan in the
Football Degenerative category (Compl. ¶¶ 40-44).2 Thereafter, the parties voluntarily remanded

2

A copy of Plaintiff’s complaint filed in the United States District Court for the District
of Northern Mississippi, Case No. 3:15 CV 128-MPM-JAA, is attached hereto (see Eisenstein
Decl., Ex. C).
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the case back to the Retirement Board and after an extended back-and-forth, on November 22,
2016, the Retirement Board again issued a final decision denying Plaintiff’s request for
consideration. (Compl. ¶¶ 40-46.)
In February 2018, Plaintiff received a notice of a summary of material modifications to
the NFL Player Disability & Neurocognitive Benefit Plan (“Disability Plan”), including an
amendment regarding “changed circumstances” related to reclassification of T&P benefits
(which Plaintiff refers to as the “2017 Amendment”). (Compl. ¶ 47.)3 Plaintiff’s counsel wrote
to the Retirement Board, asking whether the amendment would apply retroactively to Plaintiff’s
claim for benefits and requesting additional information and documents. (Compl. ¶ 48.) The
Retirement Board provided documents and information, but did not respond to Plaintiff’s
question about retroactive application because it “amount[ed] to an advisory opinion . . . .”
(Compl. ¶¶ 50-51.)
Plaintiff’s Claims
The gravamen of Plaintiff’s Complaint is that the Retirement Board violated ERISA and
its fiduciary duties under ERISA by failing to define “clear and convincing evidence” and
“changed circumstances,” thereby “lock[ing] [Plaintiff] into a lower category of benefits.”
(Compl. ¶¶ 67-88.) Plaintiff also asserts three claims against the NFLMC, all contingent upon
the NFLMC being a fiduciary to the Plan and having breached its fiduciary duties: (1) the
NFLMC breached its fiduciary duty under ERISA by failing to monitor the actions of the
members of the Retirement Board that it appointed (Count III); (2) invalidation of the 2017
Amendment, to the extent it applies to the Plan, which Plaintiff asserts cannot be applied
3

The Disability Plan is a separate benefit plan negotiated by the NFLMC and NFLPA.
Effective January 1, 2015, the Plan no longer provides T&P benefits (except that the Plan
continues to provide T&P benefits for applications already approved). Rather, all T&P benefits
applied for on or after January 1, 2015 are now provided under the Disability Plan.
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retroactively against the Plaintiff (Count IV); and (3) the Plan allegedly attempts to relieve the
Plan’s fiduciaries from any responsibility or liability in violation of §§ 410 and 404(a)(1)(A) &
(B) of ERISA (Count V). Plaintiff makes these claims without any factual allegations supporting
his claim that the NFLMC is a fiduciary, other than the conclusory statement that the NFLMC is
a fiduciary because it appoints and removes members of the Retirement Board. The NFLMC
now moves to dismiss those counts as to the NFLMC.
STANDARD
To survive a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, a complaint must plead sufficient facts to state a claim upon which relief may be
granted. Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). On a motion to dismiss under Rule 12(b)(6), all factual allegations in the
complaint are accepted as true, and all reasonable inferences are drawn in the plaintiff’s favor.
Littlejohn v. N.Y.C., 795 F.3d 297, 306 (2d Cir. 2015). However, “a plaintiff’s obligation to
provide the grounds of his entitlement to relief requires more than labels and conclusions . . . .”
Twombly, 550 U.S. at 555 (internal citations omitted). Accordingly, a complaint must contain
“sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). A claim is facially plausible when
“the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556).
ARGUMENT
To state a claim for fiduciary breach under ERISA, a plaintiff must allege facts that show
the defendant was a fiduciary of the retirement plan and breached its fiduciary duty. 29 U.S.C.
§§ 1105(a); 1109(a); Trs. of Upstate N.Y. Eng’rs Pension Fund v. Ivy Asset Mgmt., 131 F. Supp.

6

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3d 103, 121 (S.D.N.Y. 2015). Therefore, to survive a motion to dismiss, Plaintiff must allege
facts demonstrating that the NFLMC is a fiduciary of the Plan for purposes of the asserted
claims, and that the NFLMC breached its fiduciary duty. Plaintiff has done neither, and therefore
his claims against the NFLMC should be dismissed as a matter of law.
I.

Plaintiff Does Not And Cannot Demonstrate That The NFLMC Is A Fiduciary To
The Plan Under ERISA.
Like all Taft-Hartley multi-employer pension plans, the Plan is subject to ERISA. 29

U.S.C. §§ 1001-1461; Trs. of Local 138 Pension Tr. Fund v. F.W. Honerkamp Co., 692 F.3d 127,
128 (2d Cir. 2012) (“ERISA is a comprehensive statutory scheme regulating employee retirement
plans.”). Under ERISA, both single-employer and multi-employer plans must have a named
fiduciary with authority to control and manage the operation and administration of the plan. 29
U.S.C. § 1102(a).4 A fiduciary to a plan may be named formally—for instance, in the plan
instruments.

Id.

A person or entity may also be a de facto fiduciary if he exercises

“discretionary authority or discretionary control” with respect to the disposition of plan assets,
plan money or investments, or the administration of the plan. 29 U.S.C. § 1002(21)(A).
Plaintiff does not—and cannot—allege that the NFLMC is a named fiduciary under the
Plan. The Plan expressly states that “[t]he Retirement Board will be the ‘named fiduciary’ of the

4

In contrast to a single-employer plan, which is funded and administered by a sole
employer, 29 U.S.C. § 1002(16)(B), multi-employer plans are maintained pursuant to collective
bargaining agreements between employers and employee organizations, which require multiple
employers—such as NFL clubs—to “pool contributions into a single fund that pays benefits to
covered retirees who spent a certain amount of time working for one or more of the contributing
employers.” Honerkamp, 692 F.3d at 129; see also 29 U.S.C. § 1002(37)(A). Multi-employer
plans offer advantages in certain situations that make single-employer plans unfeasible, for
example in industries where employees transfer among employers. See Honerkamp, 692 F.3d at
129; see also N.Y. Times Co. v. Newspaper & Mail Deliverers’-Publishers’ Pension Fund, 303 F.
Supp. 3d 236, 241 (S.D.N.Y. 2018) (Sweet, J.). Multi-employer plans are overseen by a board
of trustees with equal voting strength held by representatives of the union and the employers who
contribute to the plan. See, e.g., Flynn v. Hach, 138 F. Supp. 2d 334, 337 (E.D.N.Y. 2001).
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Plan . . . .” (Plan, Art. 8.2.) Nor can the NFLMC be viewed as a de facto fiduciary under
ERISA. The Complaint puts forth no allegation that the NFLMC exercised any discretionary
authority or control over the Plan’s assets, nor does it allege that the NFLMC had any
discretionary responsibility in the management or administration of the Plan.

In fact, the

Complaint barely mentions the NFLMC, and certainly does not allege that the NFLMC was
involved in any way in managing or administering the Plan. Merely calling the NFLMC a
“fiduciary” does not make it so. 29 U.S.C. § 1002(21)(A); see also Sommers Drug Stores Co.
Emp. Profit Sharing Tr. v. Corrigan Enters., Inc., 793 F.2d 1456, 1459-60 (5th Cir. 1986) (“[A]
person is a fiduciary only with respect to those aspects of the plan over which he exercises
authority or control.”); Trs. of Sheet Metal Works Nat’l Pension Fund v. Kakareko (In re
Kakareko), 575 B.R. 12, 23 (Bankr. E.D.N.Y. 2017) (“The definition of ‘fiduciary’ under ERISA
focuses on the exercise, as well as the possession, of authority or control.”) (internal citations
omitted).
Because Plaintiff cannot reasonably allege that the NFLMC exercises “discretionary
authority or discretionary control” over the Plan, Plaintiff suggests that the NFLMC is a
fiduciary of the Plan “by virtue of [its] powers to appoint and remove other fiduciaries”—
specifically its authority to appoint and remove voting members of the Retirement Board.
(Compl. ¶ 11.) Plaintiff alleges that this authority confers upon the NFLMC the fiduciary
responsibility to monitor the Retirement Board, including by supervising, and when necessary,
overturning the decisions of the Retirement Board. (Id.) Even assuming that these allegations
accurately describe the role of the NFLMC as set forth by the Plan (and they do not), they cannot
as a matter of law establish that the NFLMC possesses the authority to direct the determinations
of its appointees.

Indeed, the Supreme Court has held that an employer who appoints a

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representative to the board of trustees “may [not] direct or supervise the decisions of a trustee he
has appointed.” NLRB v. Amax Coal Co., 453 U.S. 322, 330 (1981).5
Moreover, the Second Circuit has never held that employers who have the authority to
appoint and remove trustees makes the employer itself a fiduciary, and courts in this District
have specifically rejected Plaintiff’s contention to the contrary. For instance, in In re WorldCom,
Inc., Judge Cote rejected the plaintiffs’ assertion that “the right to appoint and to remove the
individuals who will fill these positions [Plan Administrator and Investment Fiduciary] is a
fiduciary function [conferring] the fiduciary duty to monitor the performance of an appointee.”
In re WorldCom, Inc. ERISA Litig., 263 F. Supp. 2d 745, 760 (S.D.N.Y. 2003). Judge Cote noted
that the plaintiffs’ argument “goes too far,” because “[i]t would make any supervisor of an
ERISA fiduciary also an ERISA fiduciary.” Id. See also In re Polaroid ERISA Litig., 362 F.
Supp. 2d 461, 473 (S.D.N.Y. 2005) (“ERISA does not attach liability for investment decisions to
fiduciaries whose roles were limited to appointing, retaining and removing other fiduciaries.”).
Here, too, the NFLMC’s authority to appoint and remove members from the Board does
not—and legally cannot—confer the NFLMC with a fiduciary authority over the decisions made
by the members that it appoints. Accordingly, Plaintiff’s claims against the NFLMC, each of
which presupposes that the NFLMC serves as a fiduciary with discretionary control over the
administration and assets of the Plan, fail as a matter of law.

5

Imposing a fiduciary obligation on contributing employers to multi-employer plans to
direct the determinations of employer representatives on the board of trustees also would be
contrary to the long-standing structure of multi-employer plans, which often consist of dozens of
contributing employers. If simply having a contribution obligation to a multi-employer pension
plan requires a contributing employer to supervise and direct the decisions of the employer
representatives it appoints to the board of trustees, multi-employer plans would have numerous
employers directing their actions, and the system would not work.
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II.

In Any Event, Plaintiff Cannot Demonstrate That The NFLMC Breached Any
Purported Fiduciary Duties.
Regardless of whether Plaintiff can demonstrate that the NFLMC had a fiduciary duty

with respect to appointing and replacing the employer representatives to the Retirement Board,
Plaintiff’s claims against the NFLMC should be dismissed because Plaintiff cannot demonstrate
as a matter of law that the NFLMC beached any purported duty. Where courts have found that
the power to appoint and remove trustees of a multi-employer plan establishes any fiduciary
responsibility, that fiduciary responsibility has been limited to the performance of actually
appointing and removing trustees. See, e.g., Grossman v. Dirs. Guild of Am., Inc., No. EDCV
16-1840, 2017 WL 5665025 (C.D. Cal. May 1, 2017) (noting that “the Ninth Circuit has
extended fiduciary status to entities whose only control of the administration of the plan is
through the power to appoint and remove plan trustees,” but concluding that “[s]uch an entity
owes a fiduciary obligation only in the performance of its appointment and removal role”); Int’l
Bhd. of Elec. Workers, Local 90 v. Nat’l Elec. Contractors Ass’n, No. 3:06cv2 (SRU), 2008 WL
918481, at *7 (D. Conn. Mar. 31, 2008) (finding that employer association representing
contributing employers was an ERISA fiduciary by virtue of its power to appoint and remove
trustees, but noting that the association’s “fiduciary obligations are, of course, limited to those
aspects of the plan over which [it] exercises authority or control”) (quoting Sommers Drug
Stores, 793 F.2d at 1459-60); see also Sommers Drug Stores, 793 F.2d at 1459-60 (“[A] person is
a fiduciary only with respect to those aspects of the plan over which he exercises authority or
control. For example, if an employer and its board of directors have no power with respect to the
plan other than to appoint the plan administrator and the trustees, then their fiduciary duty
extends only to those functions.”) (internal citations omitted). Plaintiff’s allegations of breach of
fiduciary duty in this case go well beyond the NFLMC’s appointment or removal of employer
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representatives to the Retirement Board. Indeed, the Complaint includes no allegation that the
NFLMC’s performance in appointing and removing employer representatives was not with the
“care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man
acting in a like capacity and familiar with such matters would use in the conduct of an enterprise
of a like character and with like aims.” 29 U.S.C. § 1104(a)(1)(B).
Instead, in putting forth allegations concerning the NFLMC’s failure to change
determinations made by the Retirement Board, Plaintiff seeks to impose a broader “duty to
monitor.” Plaintiff alleges that the NFLMC should have “monitored” the Retirement Board by
requiring the Retirement Board to adopt revisions to and interpretations of the Plan more
favorable to Plaintiff. (Compl. ¶ 94.) But if the NFLMC had directed the Retirement Board to
change its determinations, the NFLMC would have exceeded its limited authority to appoint and
replace employer representatives to the Retirement Board, and would have run afoul of the
Supreme Court’s explicit prohibition against employers directing the decisions of their
appointees to a multi-employer plan’s board of trustees.6 See Amax Coal Co., 453 U.S. at 330.
Even assuming that Plaintiff is correct that appointing representatives to the Retirement
Board somehow imposes a “duty to monitor” those appointees, the Complaint contains no
allegations that the NFLMC breached this duty. The duty to monitor multi-employer plan
trustees at most requires that “at reasonable intervals the performance of trustees and other
fiduciaries should be reviewed . . . in such a manner as may be reasonably expected to ensure
that their performance has been in compliance with the terms of the plan and statutory standards,
6

Plaintiff’s arguments fail for the additional reason that the NFLMC only has the
authority to appoint three employer trustees to the Retirement Board. Therefore, even if the
NFLMC could direct the actions of its appointed trustees—which it cannot—the NFLMC would
still be unable to direct the actions of the Retirement Board. (Plan, Art. 8.1, 8.2). For Plaintiff’s
claim to succeed, the NFLMC would be required to take actions for which it lacks the authority
to take not only under the law, but also under the terms of the Plan.
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and satisfies the needs of the plan.” Local 90, 2008 WL 918481, at *7 (quoting Liss v. Smith,
991 F. Supp. 278, 311 (S.D.N.Y. 1998)).

An appointing fiduciary is “not obliged to examine

every action taken by [his appointees] but [is] obliged to take prudent and reasonable action to
determine whether the administrators were fulfilling their fiduciary obligations.” In re Polaroid
ERISA Litig., 362 F. Supp. 2d at 477 (internal citations omitted). The Complaint’s allegations
against the NFLMC related to its alleged failure to monitor the Retirement Board are threadbare
at best.

Indeed, the NFLMC is barely mentioned throughout the Complaint, and Plaintiff

supports his allegations against the NFLMC with conclusory statements that the NFLMC
“should have” known that the Retirement Board’s administration of the Plan did not comply with
ERISA. Plaintiff simply has not offered any details regarding what the NFLMC did or did not
do with respect to the Retirement Board. Plaintiff has pleaded no facts to permit the inference
that the NFLMC failed to monitor its appointed employer representatives.
Furthermore, courts have noted that an appointing fiduciary’s duty to monitor is limited,
and have refused to impose a broad fiduciary duty in this context. Courts have limited the duty
to monitor to practical tasks related to appointing those trustees—such as monitoring appointees’
attendance at meetings and confirming that appointees voted on matters. See Local 90, 2008 WL
918581, at *8 (in one of the very few multi-employer cases in which a court found that an
appointing entity had a duty to monitor the trustees it appointed, the court found that the
appointing entity had breached its duty by failing to monitor and replace trustees who did not
attend meetings or cast votes on plan issues). This limit is logical and appropriate, as imposing
broad fiduciary duties on an appointing fiduciary undermines the rationale of appointing a board
of trustees in the first place. See, e.g., Johnson v. Evangelical Lutheran Church in Am., No. 1123 (MJD/LIB), 2011 WL 2970962, at *5 (D. Minn. July 22, 2011) (“The duty to monitor is

12

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limited and does not include a duty ‘to review all business decisions of Plan administrators’
because ‘that standard would defeat the purpose of having trustees appointed to run a benefits
plan in the first place.’” (quoting Howell v. Motorola, 633 F.3d 552, 573 (7th Cir. 2011)); Lingis
v. Motorola, Inc., 649 F. Supp. 2d 861, 881-82 (N.D. Ill. 2009) (noting that the duty to monitor
“has clear limits,” and rejecting plaintiffs argument that it entails monitoring the prudence of a
specific investment, as such a broad duty to monitor would undermine the rational of creating an
investment committee).
The allegations in the Complaint do not show that the NFLMC failed to monitor its
appointees in the limited way recognized under the law.

Rather, Plaintiff complains that the

NFLMC did not second-guess the determinations made by the Retirement Board, authority that
the NFLMC does not possess. Far from containing allegations that the Retirement Board failed
to attend meetings or refused to respond to inquiries, the Complaint acknowledges that the
Retirement Board was active and responsive to Plaintiff’s appeals and requests for information
and documents. Plaintiff simply disagrees with the Retirement Board’s determinations. By
asking this Court to hold the NFLMC accountable for the Retirement Board’s interpretation and
administration of the Plan, and requiring the NFLMC to direct the Retirement Board to change
its determinations, Plaintiff impermissibly attempts to expand any purported duty to monitor—to
the extent it exists in the first place. Therefore, claims against the NFLMC must be dismissed.7

7

Plaintiff asserts that the NFLMC is liable for the Retirement Board’s alleged breach of
fiduciary duty because of the NFLMC’s duty to monitor its appointees. But in order for Plaintiff
to have such a claim against the NFLMC—if such a claim even exists—he must first adequately
plead a breach of fiduciary duty claim against the Retirement Board. Courts have recognized
that, “[a] claim for breach of the duty to monitor requires an antecedent breach to be viable,” and
“[w]ith no antecedent breach by the monitored parties in this case, …[the] duty to monitor claim
fails.” In re Bear Stearns Cos., Inc. Sec., Derivative, & ERISA Litig., 763 F. Supp. 2d 423, 580
(S.D.N.Y. 2011). If in deciding the Retirement Board’s Motion to Dismiss this Court determines
that Plaintiff has failed to state a claim against the Retirement Board and dismisses the
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III.

Counts IV And V Fail To State Any Claim Against The NFLMC
Count IV, which seeks to require enforcement of the terms of the Plan in existence prior

to 2017, and prior to the 2017 Amendment, also must be dismissed against the NFLMC. As an
initial matter, Plaintiff fails to allege that the 2017 Amendment is even applicable to the Plan.
But even if the 2017 Amendment did apply to the Plan (which it does not), the NFLMC does not
have the authority under the Plan to interpret, apply, or enforce the terms of the 2017
Amendment, or any other terms of the Plan. Under the Plan, only the Disability Initial Claims
Committee and the Retirement Board have that authority. (Plan, Art. 8.2, 8.5).
Plaintiff’s Complaint lacks any allegation that the NFLMC has the authority to enforce
the terms of the Plan. Rather, Plaintiff’s Complaint alleges only that the NFLMC has the
authority to appoint and replace the three employer trustees on the Retirement Board, and that
the NFLMC, jointly with the NFLPA, has the authority to amend the Plan. (Compl., ¶ 11). As
explained above, however, neither the authority to appoint and replace trustees, nor the joint
authority to amend the Plan, provides the NFLMC the authority to interpret and apply, or to not
apply, the terms of the Plan to a participant’s claim. Accordingly, Plaintiff’s claim seeking to
compel the NFLMC to use a power that it is not alleged to possess is both implausible and
factually insufficient, and should therefore be dismissed. See Iqbal, 556 U.S. at 663.
Additionally, because Plaintiff has failed to state a claim against the NFLMC for breach
of fiduciary duty, Count V also must be dismissed as to the NFLMC. Under Count V, Plaintiff
attempts to void a provision of the Plan “[t]o the extent that [it] attempts to relieve these
Defendants of their responsibility or liability to discharge their fiduciary duties under ERISA.”
(Compl. ¶ 110.) Specifically, Plaintiff seeks to have the “constructive knowledge” provision in
Complaint as to the Retirement Board, the Court must also dismiss the Plaintiff’s claims against
the NFLMC.
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the Plan’s breach of fiduciary duty statute of limitation language declared null and void, either
because it violates ERISA or because the Retirement Board failed to adequately explain it in the
Summary Plan Description that Plaintiff received. (Compl. ¶¶ 109-112.) However, because
Plaintiff has failed to allege sufficient facts to demonstrate that the NFLMC even breached any
fiduciary duty, Count V is irrelevant as to Plaintiff’s claim against the NFLMC. Accordingly,
Count V should be dismissed against the NFLMC.8
CONCLUSION
For the reasons stated above, the NFLMC respectfully requests that this Court dismiss
Plaintiff’s Counts III, IV, and V against the NFLMC for failure to state a claim upon which relief
may be granted, and dismiss the NFLMC from this action.

8

Plaintiff’s Complaint should be dismissed for the separate and independent reason that
the statute of limitations has run, as set forth more fully in the brief filed by the Retirement
Board filed concurrently with this brief.
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Dated: August 31, 2018

Respectfully submitted,
/s/ Stacey R. Eisenstein
M. Christine Slavik
Akin Gump Strauss Hauer & Feld LLP
One Bryant Park
New York, NY 10036
Tel: (212) 872-1000
Fax: (212) 872-1002
Email: cslavik@akingump.com
Stacey R. Eisenstein (pro hac vice)
Eric D. Field (pro hac vice)
Akin Gump Strauss Hauer & Feld LLP
1333 New Hampshire Avenue, NW
Washington, DC 20036
Tel: (202) 887-4000
Fax: (202) 887-4288
Email: seisenstein@akingump.com
Email: efield@akingump.com
Counsel for Defendant National Football
League Management Council

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