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IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
TYRONE KEYS
v.

:

Plaintiff,

:

BERT BELL/PETE ROZELLE
NFL PLAYER RETIREMENT PLAN
and the NFL PLAYER DISABILITY
& NEUROCOGNITIVE BENEFIT
PLAN
Defendants.

Case No. 8:18-cv-02098-CEH-JSS

:
:
:
:
:

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
AND MEMORANDUM OF LAW
I. INTRODUCTION
In their zeal to build and prosecute a fraud claim against Tyrone Keys, counsel for the
Defendants, the Bert Bell/Pete Rozelle NFL Player Retirement Plan (“Retirement Plan”) and the
NFL Player Disability & Neurocognitive Benefit Plan (“Disability Plan”) (collectively “the
Plans”), and the Retirement Board (“Board”), the Retirement Plan’s fiduciary which made the
final decision on Keys’ benefit claim, lost their bearings. Unfortunately, the Plans plow forward,
doubling down on an unreasonable and arbitrary decision. Had the Board members engaged in a
full and fair review of the pertinent medical records within the Administrative Record (“AR” or
“Record”), along with the relevant terms of the Plans and details of the Total and Permanent
(“T&P”) disability application Keys submitted in the fall of 2003 (“Initial Benefits Application”),
they would not have accused Keys of fraud and brought their overpayment counterclaim.
Instead, the Board members have bought into a prosecution of Keys urged by the Plans’ counsel

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that amounts to an abuse of discretion. Keys has committed no fraud. Accordingly, summary
judgment should be granted in Keys’ favor 1) awarding him Inactive A benefits; and 2) denying
the Plans’ claims of overpayment of T&P disability benefits, as there has been no overpayment.
II. STANDARDS GOVERNING THIS MOTION
Because this case arises from a dispute over benefits provided by employee welfare
benefit plans that are governed by the Employee Retirement Income Security Act of 1974
(ERISA), the standard of review is dependent upon the relevant plan documents. Firestone Tire
& Rubber Company v. Bruch, 489 U.S. 101 (1989).

If the benefit plan documents grant

discretion to the plan administrator making the final benefit determination, this Court should
review the administrator’s decision under an abuse of discretion standard. Id. at 111.
Both Plans provide the necessary discretionary language to the Retirement Board
members so that an abuse of discretion standard of review is required (AR 0035-0036 is the
discretionary grant in the 2001 Retirement Plan; AR 00111-00112 is the discretionary grant in
the 2011 Retirement Plan; AR 00204-00205 is the discretionary grant in the 2017 Retirement
Plan). Thus, the Board’s final decision on February 26, 2018 should be reviewed under an abuse
of discretion standard (the Board’s final decision may be found at AR 05277-05287).
A. The Eleventh Circuit’s Multistep Process for Reviewing ERISA Benefit Claims
The Eleventh Circuit has developed a multistep process when reviewing ERISA benefit claims:
1) Apply the de novo standard to determine whether the claim administrator’s
benefits-denial decision is “wrong” (i.e. the court disagrees with the administrator’s
decision); if it is not, then end the inquiry and affirm the decision;
2) If the administrator’s decision in fact is “de novo wrong,” then determine
whether he was vested with discretion in reviewing claims; if not, end
judicial inquiry and reverse the decision;
3) If the administrator’s decision is in fact “de novo wrong” and he was vested
with discretion in reviewing claims, then determine whether “reasonable” grounds
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exist for supporting the decision;
4) If no reasonable grounds exist, then end the inquiry and reverse the decision;
if reasonable grounds exist, then determine if the claims administrator operated
under a conflict of interest;
5) If there is no conflict, then end the inquiry and affirm the decision;
6) If there is a conflict, the conflict should merely be a factor for the court
to take into account when determining whether an administrator’s decision
was arbitrary and capricious.
Blankenship v. Metro Life Ins. Co., 644 F.3d 1350, 1354 (11th Cir. 2011)
III. STATEMENT OF FACTS TAKEN FROM THE ADMINISTRATIVE RECORD
Keys played in the National Football League for seven credited seasons as a defensive
lineman for the Chicago Bears, Tampa Bay Buccaneers, and the San Diego Chargers. (AR
01212; AR 01018). He played from 1983 until 1989, when he elected to retire due to football
injuries to his back, knees, and shoulder. (AR 01018-01022; Keys’ injury settlement with the
San Diego Chargers in 1989 is in the record, AR 00700).

Within two years of his NFL

retirement, Keys underwent five surgeries due to orthopedic impairments arising from his NFL
career: a right shoulder arthroscopy; a right knee arthroscopy; a lumbar discectomy; another right
shoulder arthroscopy; and another right knee arthroscopy. (AR 01063).
A. The Plans and the Administrative Claims Procedures Described in the Plans
Shortly after his NFL career ended, Keys submitted a disability claim to the Plans’
administrators due to his significant football-induced impairments. (AR 00496). At the time
Keys submitted his initial disability claim, there were three relevant classifications of disability
benefits: (i) Line of Duty (LOD) Benefits awarded to players who have a “substantial
disablement” due to playing NFL football but who are considered not totally disabled; (ii)
Football Degenerative Total and Permanent (T&P) benefits awarded to players who are

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considered to be substantially prevented from engaging in any occupation, i.e. totally disabled,
due to impairments caused by playing NFL football; and (iii) Inactive T&P Benefits, awarded to
former NFL players who are found to be totally and permanently disabled but whose disability is
considered to be unrelated to their NFL careers (Articles 5 and 6 of the 2001 Retirement Plan
govern the offering and requirements of these three classifications; AR 00025-00032).
A finding of Football Degenerative T&P disability benefits triggers supplemental benefit
payments from the Disability Plans (Section 3.1 of the 2001 Disability Plan, AR 00254). As a
result of a 2011 collective bargaining agreement, the disability benefit classifications were
amended. Players, such as Keys, who were entitled to Football Degenerative T&P benefits
before the amendments’ effective date became entitled to Inactive A T&P benefits under the
2011 and post-2011 Plans (Section 5.10(b) of the 2011 Retirement Plan; AR 00105). Players
receiving Inactive T&P benefits at the time of the 2011 amendments became entitled to Inactive
B T&P benefits. Id.
The claims administrators for the Plan consists of two groups: the Disability Initial Claims
Committee (“DICC”), a committee of two individuals, one appointed by the NFL Players
Association and one appointed by the NFL Management Council, and the Retirement Board
(“Board”), consisting of three individuals appointed by the NFL Players Association and three
individuals appointed by the NFL Management Council (Article 8 of the Retirement Plan
addresses the composition and powers of the DICC and the Retirement Board; AR 0003500040). 1 Since the Plans are a product of collective bargaining between management and labor,

1

The DICC, the Board, and the individuals who work in the Plan office, are sometimes
collectively referred to as the Plans’ administrators.

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so called Taft-Hartley Plans, the DICC and the Retirement Board must have equal representation
from labor and management. 29 U.S.C. §186(c).
The claims procedures of ERISA require that a benefit plan governed by ERISA provide
adequate notice in writing to any participant or beneficiary whose claim for benefits has been
denied, providing the specific reasons for the denial in a manner calculated to be understood by
the participant.
requirement.

29 U.S.C. §1133(1).

Under the Plans, the DICC is responsible for this

ERISA claims procedures also require that the benefit plan provide to any

participant whose claim has been denied a reasonable opportunity for a full and fair review of
the denial decision by a fiduciary named in the plan document. 29 U.S.C. §1133(2). The
Retirement Board and Disability Board members are the named fiduciaries responsible for
conducting the full and fair review of denied benefit claims (Section 8.2 of the Retirement Plan,
AR 00204; Section 9.2 of the Disability Plan, AR 00351). The Disability Board is the fiduciary
with final authority over claims and benefits originating with disability and neurocognitive
benefit applications submitted after January 1, 2015; the Retirement Board is the fiduciary with
final authority over benefits resulting from earlier applications (Section 4 of the 2017 Disability
Plan; AR 00330-00332). Since Keys was first awarded T&P Football Degenerative Benefits in
2004, the Retirement Board was the fiduciary responsible for the full and fair review of his
appeal. The Retirement Board’s final decision on February 26, 2018 is the ruling at issue in this
case (AR 05277-05287).
B. How the Fiduciary Review of Keys’ Claim Actually Occurred
In practice, the claims procedures within the NFL-benefit world are radically different
from the claims procedures established by a typical insurer or third-party administrator of a
group benefit plan governed by ERISA. In the latter case, the full-and-fair fiduciary review

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required by 29 U.S.C. §1133(2) is typically performed by an appeals specialist who decides the
appeal after reviewing all of the documents relevant to the claim and appeal. Metropolitan Life
Ins. Co. v. Glenn, 554 U.S. 105, 128 S. Ct. 2343 (2008) is illustrative of that process and presents
a typical claim and appeal with an insurer of an ERISA plan. In his concurrence, Justice Roberts
notes that the “lion’s share of plan claims denials are made by administrators that both evaluate
and pay claims,” i.e. the lion’s share of plan denials occur over insured plans. Id. at 2353.
The NFL pension and welfare benefit plans are not insured plans. In the NFL-benefits
world, the Board members attend two-day meetings every quarter to decide a myriad of pension,
line-of-duty, disability, and neurocognitive benefit claims that have been made by active or
former NFL players. Significantly, when conducting full and fair reviews of denied claims,
Board members are statutorily required to discharge their duties “solely in the interests of the
participants and beneficiaries” of the Plans.” 29 U.S.C. §1104(a). In conducting a full and fair
review of claims, Board members are charged with a special standard of care toward participants.
Glenn, 128 S. Ct. at 2350. As this case demonstrates, Board members receive a significant
volume of medical records and player information they are required to evaluate while keeping
close-at-hand the relevant terms of the plan or plans that apply.
As the Record and this litigation reveals, the Groom Law Group, Chartered (Groom)
serves as counsel for the Plans during the administrative claims process and is also litigation
counsel when denied appeals are litigated. Although the complete claim file is made available to
each Board member prior to the quarterly Board meetings, due to the number and complexity of
the claims, and the volume of information they must consider for each claim, Board members
rely upon summaries and presentations from their counsel.

The summaries are typically

provided to Board members a few days to a week before the quarterly meetings.

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1. The 2017 Miami Memorandum from Groom
The falsehood that Keys defrauded the Plans’ administrators when he submitted his
Initial Benefits Application in 2003 was first hatched within the corridors of 1701 Pennsylvania
Ave. (Groom’s Washington D.C. address) after J. Christopher Deem, counsel for Keys, submitted
an appeal dated April 11, 2016, seeking Inactive A benefits for Keys (formerly Football
Degenerative benefits) for the period between December 2011 and November 2013. (AR 0252202523). Keys was paid Inactive B benefits during that time period. (AR 02313-02314).
After reviewing Keys’ Social Security disability file, Doug Ell, Alvaro Anillo, and
Jeanne Wilson, all attorneys with Groom, prepared a twelve-page summary that was sent to the
Retirement Board six days before the Board’s February 21-22, 2017 quarterly meeting in Miami
(“Groom Memorandum”) (AR 03453-03464). Although the issue on appeal was whether Keys
was entitled to additional benefits between 2011 and 2013, the thrust of Appendix A to the Groom
Memorandum included accusations that: 1) Keys withheld information about receiving workers’
compensation benefits in 1991; 2) Keys did not provide the full medical report of a Dr. Chet
Janecki dated August 1, 2003 (“August 2003 Janecki Report”), which was found within Keys’
Social Security disability file; 3) Keys’ Social Security disability award hinged upon information
that was allegedly made suspect by the August 2003 Janecki Report; and 4) Keys engaged in
forum shopping regarding his Social Security disability claim (AR 03456-03459).
The primary focus of the Groom Memorandum was the August 2003 Janecki Report
(AR 04370-04373). In that report, Dr. Janecki indicated that Keys suffered from a number of
different conditions that were caused or aggravated by a car accident (rear-end collision), which
occurred in May 2002. Id. Seizing upon the August 2003 Janecki Report, Groom then wrote in
bold letters in Appendix A to the Memorandum, “The Omitted Information is Inconsistent

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with the Conclusions Made in the Plan’s 2004 T&P Determination.” (AR 03456). According
to Groom, the neutral physician examinations and reports of the Plan-appointed physicians, Dr.
Harlan Selesnick and Dr. David Apple, both of whom found Keys disabled due to injuries
caused by his NFL career, were rendered “invalid” by the August 2003 Janecki Report. (AR
03457). Furthermore, according to Groom, the August 2003 Janecki Report revealed that Keys’
statement on his application that all the conditions for which he was claiming disability were “the
direct result of football, unfortunately” was a misrepresentation. (AR 03456).
2. The Suspension of Keys’ Benefits: The February 2017 Meeting in Miami
As a result of the Groom Memorandum, the Board suspended Keys’ T&P disability
benefits at its February 22, 2017, meeting in Miami. (AR 03486; 03494-03498). In March, 2017,
Keys was asked to respond to Alvaro Anillo at Groom regarding eleven inconsistencies that
Groom alleged were within the 2000-plus pages of documents that were part of the claim file.
(AR 03534-03538). Dr. Gay Culverhouse, former President of the Tampa Bay Buccaneers (19911994) and an advocate for player safety, responded on Keys’ behalf and engaged in a dialogue
with Anillo regarding the alleged inconsistencies. (AR 03499-03807).
3. Dr. Culverhouse’s Response
Dr. Culverhouse provided an eighty-page response on May 1, 2017, which included a
summary of Keys’ work history for NFL Charities and his compensation received for that role, a
thirteen-page summary of his medical treatment from January 1, 2000 until April 6, 2017, and
various tax returns and supporting data. (AR 03706-03786).
4. The August 2017 Chicago Overview and Memorandum From Groom
After further dialogue between Anillo and Dr. Culverhouse, Groom provided an
Overview to the Retirement Board prior to its August 16-17, 2017 meeting in Chicago that rested

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upon an internal Groom memorandum from Jeanne Wilson to Doug Ell and Alvaro Anillo (the
Overview is AR 03996; the Memorandum is AR 04002-04004). In the Overview, circulated five
days before the meeting, Groom advised the Board as follows:
“Tab 11 contains a memo describing recent developments relating to
Tyrone Keys, and recently received documents. Keys admits he was
injured in a car accident on May 7, 2002. This is significant because
the extensive medical care for the injuries that were the basis for Keys’
Football Degenerative T&P benefits commenced on May 10, 2002,
just three days after the accident. Keys also provided, for the first time,
a 2003 IME report evaluating injuries from the car accident. The IME
report attributes Keys’ extensive medical treatment to the car accident.
You may recall that Keys wrote on his application for disability,
submitted in the fall of 2003, ‘All Injuries were the direct result of Pro
Football, unfortunately.’ We now have conclusive evidence that
representation was false.” (emphasis added).
Keys has received a total of $1,220,662 in disability payments. If the
Board were to retroactively reclassify Keys’ disability benefits from
Football Degenerative to (now) Inactive B, he would owe
$831,488.28.” (AR 03996).
5. Groom’s Presentation and the Vote in Chicago, August 2017
The Board minutes summarize Groom attorney Doug Ell’s presentation to the Board in
Chicago in August, 2017, as well as the Board’s decision:
“Mr. Ell described recent developments relating to Tyrone Keys, and
documents that have recently been provided to the Plan. Mr. Ell
described a number of features in this complex case. He noted the
Plan now had evidence of fraud. He highlighted that when Mr. Keys
applied for total and permanent disability benefits in September of
2003, Mr. Keys wrote that ‘all injuries were the direct result of pro
football unfortunately.’ Mr. Ell stated that the Plan now knows that
Keys was in a car accident on May 7, 2002, that three days later he
began extensive medical care, and that the report for that IME stated
that all of his injuries were ‘casually related’ to the car accident. Mr.
Ell stated that the Plan had received, through Mr. Keys’ Social
Security file, a full copy of the report by Dr. Janecki in 2003,also
attributing all of Mr. Keys’ impairments to the car accident. Mr. Ell
stated that Mr. Keys’ 2003 application only included the last page of
Dr. Janecki’s report listing the impairments, and failed to provide the
first three pages indicating that the injuries were the result of a car
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accident. Mr. Ell discussed other troubling inconsistencies in the
record. The Board voted unanimously to permanently suspend Tyrone
Keys’ disability benefits because of fraud, so as to recover a part of the
past overdue payments, and to write him a letter outlining the evidence
and providing him with the right to appeal.” (AR 04030).
The Board, swayed by the conclusions made within the presentation and memorandum
from Groom, decided that Keys had committed fraud and, as a result, had been overpaid
$831,488.28 because his benefits had been misclassified beginning in January 2004 as Football
Degenerative/Inactive A instead of Inactive/Inactive B (AR 04045-04048).

The alleged

overpayment would have come from the Disability Plans, since a finding of Football
Degenerative T&P disability benefits triggers supplemental benefit payments from the Disability
Plans. (Section 3.1 of the 2001 Disability Plan, AR 00254). Plan Director, Michael Miller, sent
notice of the Board’s decision, dated August 30, 2017, to Keys. Keys was advised that he had a
right to appeal the Board’s decision. (AR 04045-04054).
6. Keys’ Appeal
Keys, through Dr. Culverhouse, timely appealed the Board’s August 2017 decision. In
his appeal, Keys provided thirteen exhibits and argued that his medical records fully supported his
claim that the four conditions he listed as disabling impairments in his Initial Benefits Application
in the fall of 2003 were caused by playing in the NFL. (AR 04249-04379).
7. The Board’s Final Decision: Miami, February 2018
The Board denied Keys’ appeal. The Board affirmed its prior decision that Keys had
committed fraud and that, as a result, he had been overpaid $831,488.28 because his benefits had
been misclassified beginning in January 2004 as Football Degenerative/Inactive A instead of
Inactive/Inactive B. (AR 05277-05287). Plan Director Michael Miller notified Keys of the
Board’s decision by letter dated February 26, 2018. Id.

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IV. ARGUMENT
A. The Board’s Decision in February 2018 was De Novo Wrong Because
Keys Did Not Submit False Information to the Plans’ Administrators
The core of the Board’s February 2018 final denial, and the Plans’ Counterclaim, is that
Keys committed fraud when he failed to disclose the 2002 car accident in his 2003 disability
application. (AR 05277-05287). As noted, the Board’s decision was impelled by the factual
recitations and conclusions made by Groom’s presentations and summaries in 2017 and 2018.
Had the Board been provided Keys’ application with Groom’s summaries and the
medical records that reflected the four impairments for which Keys was claiming disability,
instead of allowing them to remain embedded within the claim file, the Board members would not
have made the arbitrary and capricious decision they made in February 2018, but instead would
have continued Keys’ Inactive A benefits.
1. Keys’ 2003 Application for T&P Disability Benefits
Keys completed his Initial Benefits Application on September 13, 2003. The Initial
Benefits Application, attached hereto as Exhibit 1, asked him to identify the impairments which
caused him to be disabled. Under the heading “Disability and Causes” within the application,
players are asked to identify all conditions which they believe make them unable to work and
whether they believe the conditions they identify were caused by playing NFL football. (AR
00783) (emphasis added).
a) The Four Conditions Keys’ Listed and the
Medical Records Diagnosing Those Conditions
Keys identified four orthopedic conditions that caused him to be disabled. The medical
records that describe the diagnosis of each condition, all taken from the Record, are also included
within Exhibit 1.

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“Condition 1
I have unfortunately cervical spondylosis with upper extremity
symptoms referred to as radiculopathy. I am unable to sit for much
more than 10 minutes without having to stand. I am unable to stand
for more than 5 minutes without having to sit.” (Exhibit 1; AR
00784).
Keys’ Source for Condition 1: This condition is taken directly from Dr. Janecki’s
September 4, 2003 report. Dr. Janecki states as follows:
“The patient’s cervical spine has been actively managed by other
physicians, but we have evaluated him on one occasion and, based
upon our review, the patient has developed premature cervical
spondylosis with upper extremity radicular symptoms referred to as
radiculopathy. This premature development of spondylosis again is
the directly related to his participation in professional football.”
(Exhibit 1; AR 04374).
“Condition 2
I unfortunately have significant spondylosis lumbar spondylosis with
facet arthropathy at multiple levels & lower extremity radiculopathy.
I am unable to complete a work day because of having to constant
alternate between sitting & standing every few minutes to relive (sic)
the pain . I herniated my lumbar in the last NFL game.” (Exhibit 1;AR
00784).
Keys’ Source for Condition 2: This condition is taken directly from Dr. Janecki’s
September 4, 2003 report. Dr. Janecki states as follows:
“The same can be said of the patient’s lumbar condition where he is
again known to have significant lumbar spondylosis with facet
arthropathy at multiple levels and lower level extremity radiculopathy
or symptoms into his lower extremities, right greater than left. This
again is a consequence of his participation and has been accelerated as
a result.” (Exhibit 1; AR 04374).
“Condition 3
I unfortunately have degenerative joint disease chondromalacia &
osteochondral defect of the humeral and osteochondral defect of the
humeral & osteochondral defect of the glenoid rim and degenerative
tears of the glenoid. I am scheduled to begin pain management
consultation next week. I landed on my shoulder & was never told that
it was cracked by team doctors.” (Exhibit 1; AR 00784)

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Keys’ Source for Condition 3: This condition is taken directly from Dr. Hugh Unger’s
December 9, 1991 report. Dr. Unger, a Plan-appointed physician, identifies the condition as a
football related injury and states as follows:
“On 5-21-90, Dr. Bonati, at the GCOC Institute for Special Surgery,
did a diagnostic arthroscopy of the right shoulder, revealing
degenerative joint changes, chondromalacia, and osteochondral defect
of the humeral head, and osteochondral defect of the glenoid, and
degenerative tears of the glenoid, with a slap lesion.” (Exhibit 1; AR
01076).
Condition 4
I have chondromalacia patella in both knees. I am unable to sit for
more than 10 minutes without having to stand up to relieve the pain. I
also cannot stand for more than 10 minutes because of the pain. I am
to begin pain management consultation to include facet injection &
associated trigger points and neural forarrminal (sic) injections.”
(Exhibit 1; AR 00784).
Keys’ Source for Condition 4: This condition is from Dr. Unger’s 1993 report. Again,
Dr. Unger indicates that this condition was caused by Keys playing NFL football:
“Patient has multiple extremity involvements with arthritis of the right
shoulder, chondromalacia of both knees, tear of the medial meniscus.
It is anticipated that further degeneration of the right shoulder may
Develop, as well as early arthritic changes in the knees in time. In
addition, he has undergone a microlaminectromy for disc disease.”
(Exhibit1: AR 01020).
Following the listing of the conditions which a player believes causes him to be disabled,
the application then asks the player to “describe all accidents, injuries, or illnesses that did not
result from NFL football (for example, car accidents) and that may have caused or contributed
in any way to the above conditions.” (Exhibit 1; AR 00784) (emphasis added).
Relying upon the diagnoses and opinions of Dr. Janecki in his September 2003 report and
the earlier diagnoses and opinions from Plan physician Dr. Unger, Keys accurately responded
that “all injuries were the direct result of football, unfortunately.” There was no fraud here. The

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four conditions that Keys listed as causing his disability were directly linked to physicians’
opinions that supported his statements that: 1) the conditions existed; and 2) the conditions were
caused by playing in the NFL. All are easily located within the Record.
Two additional aspects of Keys’ 2003 application are important. First, Keys advised the
Plan administrators within his Initial Benefits Application that in 1990 he received workers’
compensation benefits in the amount of $39,000. (Exhibit 1; AR 00786). If there was an offset
to be applied against Keys’ Line-of-Duty (LOD) benefits, the opportunity for that claim was
available to the Plans’ administrators beginning in September 2003. Without going through the
administrative claims process, the Plans now assert that LOD benefits were overpaid. As such,
the Plans delayed making a reimbursement claim for LOD benefits for over fifteen years.
Second, in his application, Keys provides the name, address, and phone number of all his
health care providers, including Dr. Janecki. (Exhibit 1; AR 00785). If the Plan administrators
wanted to review the medical records of Keys’ treating physicians for inconsistencies with his
Initial Benefits Application, they were afforded that opportunity beginning in September, 2003.
2. The Reports of the Plan-Appointed Experts Were Not Rendered
Invalid by the Alleged Failure of Keys to Provide Janecki’s August 2003 Report
After receiving Keys’ Initial Benefits Application in September 2003, the Plans’
administrators sent Keys to orthopedic specialist Harlan Selesnick, M.D. for an independent
medical evaluation (IME). (AR 00778). Dr. Selesnick’s reports, along with Dr. David Apple’s
report and a letter from the Plans’ administrators’ office advising Keys of the scope of their
examinations, are attached as Exhibit 2. After examining Keys on December 18, 2003, Dr.
Selesnick determined that Keys was disabled and that his disability was caused by his NFL
career. (Exhibit 2; AR 00829-00830; AR 00834-00836). Specifically, Dr. Selesnick concluded
as follows:
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“I believe that due to Mr. Keys’ chronic cervical and lumbar injuries,
right shoulder limitations of motion, and pain and bilateral knee
degenerative arthritis with limitation of motion and pain, that he is
unable to work in any occupation or employment for remuneration or
profit. I believe these limitations are permanent and he is likely to
worsen with time to the point that he will eventually require bilateral
knee replacements and possible right should replacement surgery. I
believe the cervical degenerative arthritis and lumbar degenerative
arthritis will likely progress with time as well.” (Exhibit 2; AR 0083500836).
Thereafter, in the spring of 2006, the Plans’ administrators sent Keys to Georgia to be
examined by another orthopedic specialist, David Apple, M.D. (AR 01240). After conducting
his examination, Dr. Apple agreed with Dr. Selesnick, concluding as follows:
“Tyrone Keys has sustained multiple musculoskeletal injuries during
his NFL career, the cervical spine, the right shoulder, the lumbar spine,
and both knees. Comparing his examination at this date with the last
one done in 2005 there has been only a slight worsening, both by
symptomatology as well as by examination. He continues to be
physically impaired in all of these areas. I would concur that these
conditions in his cervical spine, lumbar spine, and both knees will
worsen with advancing age. He continues to be unemployable because
of these musculoskeletal problems.” (Exhibit 2; AR 01249).
In their Memorandum in February 2017, Groom advised the Board that the absence of
the August 2003 Janecki Report concerning the 2002 auto accident rendered Dr. Selesnick’s IME
and report invalid, which in turn, according to Groom, also rendered the subsequent IME and
report by Dr. Apple invalid. (AR 03457). The Board members acquiesced. In the final denial,
the Board asserted that “by concealing the fact of the accident from the Plan, you precluded the
Plan’s neutral physicians from properly evaluating the cause of your alleged total and permanent
disability.” (AR 05281).
Mindful that the Board members were obligated to conduct a full and fair fiduciary
review rather than simply rubber-stamp the conclusions of Groom, Groom should have
recommended that the Board members review Keys’ Initial Benefits Application, Dr. Janecki’s
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August 2003 and September 2003 reports, Dr. Selesnick’s report, Dr. Apple’s report, Dr.
Howard Hochman’s March 2003 IME report, and the earlier medical reports from Dr. Unger in
order to determine for themselves whether the independent medical examinations and reports
from the Plans’ neutral physicians were rendered invalid by the absence of the August 2003
Janecki Report (Hochman’s IME report is AR 04375-04379 and is attached as Exhibit 3).
The full and fair fiduciary review requirement of ERISA is a critical part of the Act’s
purpose: the protection of benefits promised to employees. 29 §U.S.C. 1001. At its core,
ERISA’s full and fair fiduciary review requirement means that the evidence be considered in its
entirety (“fully”), with an even hand (“fairly”). 29 U.S.C. §1133(2). Had Groom provided a
complete picture to the Board, the Board would have determined that the examinations and
reports of Dr. Selesnick and Dr. Apple were not invalid.
The form letter that was sent to Keys advising him of his appointment with Dr. Selesnick
in December 2003 was a typical form letter from the Plans’ administrators’ office. (Exhibit 2;
AR 00778). A similar form letter was sent to Keys the following year (Ex. 2; AR 01163) and
then again before Keys’ IME with Dr. Apple in 2006.

(Ex. 2; AR 01240).

The Plans’

administrators advised Keys as follows:
“….Your medical records and application have been sent to the above
physician (Dr. Selesnick). On your application you described the
condition(s) you have that you believe qualify you for disability.
During your examination, the Physician will evaluate the impaired
body parts you identified on your application. These are as follows:
Cervical spine, lumbar spine, shoulder, knees” (Ex. 2; AR 00778)
(emphasis added).
Contrary to the conclusions made by Groom that were passed on to the Board, the IMEs
and reports of Dr. Selesnick and Dr. Apple were not rendered meaningless by the absence of the
August 2003 Janecki Report.

Those NFL-expert physicians were furnished with Keys’
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application, which contained the conditions for which he was claiming disability. (Exhibit 2; AR
00778; AR 01163; AR 01240). Since Keys limited his claim of disability in his Initial Benefits
Application to the four conditions which had been identified by Dr. Janecki’s September 2003
report and Dr. Unger as being caused by his NFL career, and since Keys was examined by both
physicians, who, as Plan neutral physicians had abundant experience in identifying NFL injuries,
the August Janecki 2003 report was not necessary to that process.
Further, by March 2003, according to the IME performed by Howard Hochman, D.C,
Keys had “no objective residual signs of injury related specifically to the 5/07/02 MVA [motor
vehicle accident].” (Ex. 3; AR 04378). A conspiracy theory that some permanent injury was
caused by the 2002 car accident, but was concealed before the examinations by Dr. Selesnick
and Dr. Apple, is dispelled by Dr. Hochman’s IME report in March 2003.
3. Keys’ Advanced Degenerative Conditions in 1991 and
Thereafter Caused by his NFL Career
The revisionist history, which Groom created in 2017 and 2018, and the Board adopted
in its final denial, finding that Keys’ disability was not caused by playing in the NFL but rather
by a 2002 rear end auto accident, also fails to provide an accurate picture of Keys’ recognized
orthopedic impairments prior to 2002. In 1991, Keys submitted a claim for Line of Duty (LOD)
benefits (AR 00440). The Plan’s administrators sent him to one of its top orthopedic physicians,
Hugh Unger, M.D., for evaluation. Id. Dr. Unger performed his first examination of Keys on
December 9, 1991, approximately two years after Keys’ last NFL season. (AR 00425-00433).
Dr. Unger evaluated the degree of Keys’ NFL-related impairments. He reported that Keys had a
50-59% loss of use of his back as a result of playing in the NFL; a 30-49% loss of use of his
shoulder as result of playing in the NFL; and a 60-79% loss of use of both knees as a result of

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playing in the NFL. (AR 00433). After his 1991 examination of Keys, Dr. Unger wrote as
follows:
"This patient has multiple extremity involvements, with arthritis of the
right shoulder, chondromalacia of both knees, and tear of the medial
meniscus. It is anticipated that further degeneration in the right
shoulder may develop in time and he may develop early arthritic
changes in his knees." (Id.).
Dr. Unger examined Keys annually for approximately eight years on behalf of the Plans’
administrators. His findings remained the same: that Keys had severe orthopedic impairments,
degenerative in nature, that were caused by playing in the NFL. His reports are assembled in the
Record (AR 04294-04321). When the entire Record is considered, the Board’s February 2018
decision to award Inactive B benefits (benefits for disabilities not arising from playing in the
NFL) based upon the 2002 car accident is arbitrary and capricious. There is substantial evidence
within the Record that Keys remains disabled due to playing in the NFL. There is no evidence
within the Record that Keys was disabled by the car accident in 2002.
4. The Plan Documents
No plan provisions were mentioned or provided within Groom’s summaries and
presentations to the Board members. Instead, Groom’s energies were principally devoted to
undermining Keys’ credibility and portraying him as an accomplished liar and overall bad person
(rather than the “Johnny Appleseed of community service in Tampa” as the St. Petersburg Times
described him; AR 03363). Groom’s summaries should have been tethered to the Plans. Again,
the principal function of ERISA is to protect contractually defined benefits. U.S. Airways, Inc. v.
McCutchen, 569 U.S. 88, 100 (2013). Consequently, it is essential to tether the circumstances
under consideration to the plan terms that address those circumstances.

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In order to offset disability benefits, the applicable Retirement Plans and the Disability
Plans have essentially the same provision. The 2017 Retirement Plan, similar to the other
relevant plans, provides as follows regarding overpayment:
“12.12 Recovery of Certain Overpayments. If false information
submitted by or on behalf of a Player causes the Player to receive
amounts under the Disability Plan to which such Player is not entitled,
any future disability benefit payable to the Player or his beneficiary . . .
under Articles 5 or 6 of the Plan will be reduced by the amount of the
overpayment from the Disability Plan, plus an interest rate of 6% per
year.” (AR 00221).
In reducing Keys disability benefits from Football Degenerative (now Inactive A) to
Inactive (now Inactive B), retroactively to January 2004, the Board was required to find that
Keys submitted false information to the Board, which caused Keys to be paid benefits under the
Disability Plan to which he was not entitled. As has been made clear, Keys did not submit false
information. As a result, the Board’s actions in claiming the right to recovery under Section
12.12 of the Retirement Plan, and offsetting Keys’ Inactive B benefits after August 2017 was
contrary to the plain terms of the Plans, was de novo wrong, and was an abuse of discretion.
B. The Retirement Board Was Vested with Discretion
The Plans all provide the necessary discretionary language to the Retirement Board
members so that an abuse of discretion standard of review is required.
C. No Reasonable Grounds Existed for the Board’s February 2018 Decision
No reasonable grounds existed for the Board to decide that Keys defrauded the Plan and
that beginning in 2004, his T&P disability benefits should have been classified as Inactive (now
Inactive B), not Football Degenerative (now Inactive A). The four impairing conditions that
Keys identified in 2003 in his Initial Benefits Application as causing him to be disabled, and that
he claimed arose from his NFL career, are clearly supported by medical opinions within the

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Record. His application was accurate. Keys did not submit false information that caused him to
be classified in the wrong category within the Retirement Plan and Disability Plan.

No

reasonable grounds existed for the Board’s findings that Keys committed fraud and that the 2002
car accident, and not his NFL career, caused him to be disabled.
In addition, the IMEs and reports of Dr. Selesnick and Dr. Apple were not rendered
invalid by the alleged absence of Dr. Janecki’s August 2003 report. Their examinations and
reports were based upon their experience as physicians who regularly evaluate former NFL
players and were also based upon the four conditions that Keys identified in his application as
causing his disability. Those conditions had already been identified by Dr. Janecki and Dr.
Unger as being caused by his NFL career. Further, Keys’ prior medical records, beginning in
1991, were consistent with the findings of Dr. Selesnick and Dr. Apple. No reasonable grounds
existed for the Board to determine that those reports were invalid and did not support Keys’
claim that his disability was caused by his NFL career.
Further, there were no reasonable grounds for the Board to find that Keys’ proper
classification of disability benefits was Inactive B, meaning unrelated to his NFL career. The
reports of Dr. Unger, Dr. Janecki, Dr. Selesnick, and Dr. Apple all support Keys’ claim that his
disability arises from playing in the NFL. In contrast, there was no evidence that his disability
was caused by the car accident in 2002, or by some other event unrelated to his pro football
career. After conducting an IME of Keys in March of 2003, Dr. Hochman concluded that Keys
had no objective residual signs of injury related to the car accident. (Ex. 3; AR 04378).
D. The Conflict of Interest that Influenced the Decision
Conflicts of interest appear in many forms, and under trust law that is applied to ERISA
benefit cases, conflicts of interest are factors to be considered when determining whether there

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has been an abuse of discretion. Glenn, 128 S. Ct. at 2349. Although it is clear that Keys did not
commit fraud, and therefore the issue of a conflict of interest is immaterial, there remains a
structural conflict of interest in this case that is substantial, and the evidence that the conflict of
interest influenced the Board’s decision is substantial.
As detailed here and in the Record, because of the manner in which NFL benefit appeals
are reviewed and decided (two-day meetings occurring four times a year), coupled with the
significant number of claims and the volume of documents that apply to each claim, the
Retirement Board members rely heavily upon summaries and presentations that are provided by
Groom, the Plans’ counsel. Groom acts as both plan counsel during the administrative claims
process and as litigation counsel. Groom is paid hourly fees for their litigation services. (See
Exhibit 4, Defendants’ Response to Plaintiff’s First Request for Admissions, Response 14). 2
That dual role of acting as the Plans’ counsel during the administrative claims process and
litigation counsel creates a structural conflict of interest. An employer or an insurance carrier
that handles the dual roles of deciding and paying ERISA benefit claims operates under a
recognized structural conflict of interest because of the financial gain they can incur by denying
claims. Glenn, 128 S. Ct. at 2348-2350. In this case, Groom operated under a structural conflict
because Groom has a financial incentive to persuade the Plans’ administrators to deny certain
claims because that opens the door for potential litigation that can be lucrative for the firm. In
this case, that structural conflict of interest appears to have significantly impacted how this claim

2

The 2017 Form 5500 filed with the U.S. Department of Labor by the Retirement Plan, of
which this Court may take Court take judicial notice, indicates that the Plan paid the Groom Law
Group $3,630,297 for that fiscal year. The relevant excerpts of the 5500 filing are attached as
Exhibit 5. The information on what the Plan paid Groom is on the final page of Exhibit 5.
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was presented to the Board in 2017 and 2018, which in turn, had a significant impact upon the
final decision made by the Board.
Although evidence of this conflict exists throughout the Record, the Overview and
Memorandum prepared for the Chicago meeting and Groom’s presentation at that meeting,
during which the Board determined Keys had committed fraud and the Disability Plan should be
refunded almost a million dollars, provides a palpable example of the conflict. Groom appears to
have been motivated not so much to aid the Board members in discharging their statutory
obligation to conduct a full and meaningful review of the denied claim, but rather to steer the
administrative claim towards litigation.
The 2017 Chicago Overview, Memorandum, and Presentation From Groom
Five days before the Chicago meeting, Groom advised the Board as follows:
“……………You may recall that Keys wrote on his application for
disability, submitted in the fall of 2003, ‘All Injuries were the direct
result of Pro Football, unfortunately.’ We now have conclusive
evidence that representation was false.” (emphasis added).
Keys has received a total of $1,220,662 in disability payments. If the
Board were to retroactively reclassify Keys’ disability benefits from
Football Degenerative to (now) Inactive B, he would owe
$831,488.28.” (AR 03996).
Keys’ Initial Benefits Application in which he listed the four conditions for which he was
claiming disability remained embedded within the claim file. The application was not attached to
the Overview nor the Memorandum, nor did Groom recommend to Board members within the
Overview or Memorandum that they review Keys’ application in light of the August 2003 Janecki
Report. Nor, according to the Record, were the four impairing conditions that Keys’ listed in his
Initial Benefits Application described to the Board in Groom’s presentation at the quarterly
meeting (AR 04030). Instead, Groom informed the Board that Keys represented that “all of his

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injuries were due to football.” Keys did not. Instead, in his Initial Benefits Application for
disability benefits, Keys represented that the four conditions that he listed in his application
were all caused by playing NFL football. Groom never explained this critical distinction to the
Board. Instead, Groom simply advised the Board that the Plan had “conclusive evidence” that
Keys’ representations were “false.”
Groom also failed to provide Dr. Hochman’s IME report with their Chicago Overview.
Had Groom provided the 2003 IME report, or had the conclusions of the 2003 IME at least been
summarized, the Board would have known that Dr. Hochman concluded that by March 2003
Keys had no permanent injury related to the car accident. (Exhibit 3; AR 04378). Instead,
Groom’s summary of Dr. Hochman’s

IME was that Keys underwent “extensive” medical

treatment as a result of the car accident, creating the inference that he sustained permanent injury
as a result of the auto accident. (AR 04030).
Nor did Groom remind the Board that according to Dr. Unger, the Board-appointed
orthopedic expert who examined Keys on several occasions, as of 1991, over 25 years before
the Board’s meeting in Chicago, Keys had a 50-59% permanent loss of use of his back as a
result of playing in the NFL; a 30-49% permanent loss of use of his shoulder as result of playing
in the NFL; and a 60-79% permanent loss of use of both knees as a result of playing in the NFL
(AR 00432-00433).

Nor did Groom remind the Board that before Keys applied for T&P

disability benefits in September 2003, Dr. Janecki provided a report dated September 4, 2003,
which indicated that Keys’ degenerative condition in his left knee, premature cervical
spondylosis, and significant lumbar spondylosis were caused by his NFL career. (AR 04374).
No plan documents or terms were included with Groom’s Chicago Overview and Memorandum.

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This is substantial evidence that this structural conflict, Groom acting as both Plan
counsel when claims are administered and acting as litigation counsel if denied appeals are
litigated, influenced what Board members were told and not told. This conflict of interest appears
to have played a substantial role in the Board’s determinations.
V. REMEDY REQUESTED
Keys’ appeal in 2016, requesting Inactive A instead of Inactive B benefits from
December 1, 2011 to November 30, 2013, was denied as a result of the 2017 Chicago meeting.
(AR 04045).

The sole reason for denial of the appeal was that Keys “original disability

application dated September 13, 2003 was fraudulent, in that it affirmatively represented that
League football activities were the sole cause of [his] totally and permanently disabling
impairments.” Id. As has been shown here, Keys’ representations in his application were not
fraudulent.

Therefore, he should be awarded Inactive A T&P disability benefits from the

Disability Plan in the sum of $144,000 ($6,000 per month for 24 months), spanning the time
period from December 2011 through November 2013, as Keys was paid Inactive B T&P benefits
during that time period but should have been paid Inactive A T&P benefits.
In addition, Keys is owed Inactive A T&P benefits from the Plans from August 2017 to the
present (and while this case is pending) at the rate of $10,250.00 per month.
VI. CONCLUSION
Keys’ motion for summary judgment should be granted as the Retirement Board abused
its discretion in denying further Inactive A benefits to Keys after August 2017 based upon its
finding that Keys concealed information from the Plans’ administrators that led to a disability
classification to which he was not entitled. Keys did not present false information to the Board.
The four orthopedic impairments he listed in his application were all caused by his NFL career.

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Accordingly, summary judgment should be granted in favor of Keys: 1) awarding him Inactive A
benefits; and 2) denying the Plans’ claims of an overpayment of T&P disability benefits, as there
has been no overpayment.
/s/ Lansing C. Scriven
LANSING C. SCRIVEN, ESQ.
Florida Bar No. 729353
LANSE SCRIVEN LAW
lanse@lansescriven.com
3903 Northdale Blvd., Suite 100e
Tampa, FL 33624
813/940-4000 (Telephone)
813/327-4828 (Facsimile)
--and-JEFFREY DAHL, ESQ.
Texas State Bar No. 05310900
LAW OFFICE OF JEFFREY E. DAHL
405 N. St. Mary's Street, Suite 242
San Antonio, Texas 78205
210/527-0900 (Telephone)
210/527-0901 (Facsimile)
Attorneys for Plaintiff, Tyrone Keys
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM OF LAW has been
electronically filed with the Clerk of the Court using the CM/ECF system. I further certify that a
true and correct copy of the foregoing will be furnished through the CM/ECF system to counsel
of record on this 15th day of November, 2019.
/s/ Lansing C. Scriven

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