                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-31-2000

Courson v. Bert Bell Pension Plan & NFL
Precedential or Non-Precedential:

Docket 99-3279




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Filed May 31, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-3279

STEPHEN P. COURSON,
       Appellant

v.

BERT BELL NFL PLAYER RETIREMENT PLAN; BERT
BELL/PETE ROZELLE NFL PLAYER RETIREMENT PLAN;
BERT BELL NFL PLAYER RETIREMENT TRUST; BERT
BELL NFL PLAYER RETIREMENT TRUSTEE; BERT BELL
NFL PLAYER RETIREMENT BOARD; BERT BELL/PETE
ROZELLE NFL PLAYER RETIREMENT BOARD; THE NFL
PLAYER SUPPLEMENTAL DISABILITY PLAN; THE NFL
PLAYER SUPPLEMENTAL DISABILITY PLAN DISABILITY
BOARD; THE NFL PLAYER SUPPLEMENTAL DISABILITY
PLAN TRUST; THE NFL PLAYER SUPPLEMENTAL
DISABILITY PLAN TRUSTEES; THE PLAN DIRECTOR;
DOES 1 THROUGH 110, Inclusive

Appeal from the United States District Court
for the Western District of Pennsylvania
(D. Civ. No. 97-cv-02366)
District Judge: Honorable Robert J. Cindrich

Argued
March 21, 2000

Before: MANSMANN, GREENBERG and ALARCON,*
Circuit Judges.

(Filed: May 31, 2000)
_________________________________________________________________

* Honorable Arthur Alarcon of the United States Court of Appeals for
the Ninth Circuit, sitting by designation.
       Philip J. Murray, III, Esquire
        (ARGUED)
       C. James Zeszutek, Esquire
       Daniel A. Dzialga, Esquire
       Thorp, Reed & Armstrong
       One Riverfront Center
       Pittsburgh, PA 15222

        COUNSEL FOR APPELLANT

       Thomas S. Gigot, Esquire (ARGUED)
       Douglas W. Ell, Esquire
       Alvaro I. Anillo, Esquire
       Groom Law Group Chartered
       1701 Pennsylvania Avenue, N.W.
       Suite 1200
       Washington, D.C. 20006

        COUNSEL FOR APPELLEES

OPINION OF THE COURT

MANSMANN, Circuit Judge.

In this appeal, we are asked to decide whether the
decision of the Retirement Board for the National Football
League's retirement plans, denying a request to reclassify
disability benefits to a higher pay status, was arbitrary and
capricious. Stephen P. Courson contends that the NFL and
its member teams condoned and/or supervised, inter alia,
his abuse of alcohol for pain relief and, therefore, his
alcohol-induced cardiomyopathy arose from a "League
football activity" within the meaning of the retirement plan.
Thus, Courson contends he is entitled to a higher level of
disability benefits. Because we find the Board's decision
was reasonable and supported by substantial evidence, we
will affirm the judgment of the District Court.

I.

This appeal presents the unfortunate account of a former
professional football player who once dominated the playing
field as an offensive lineman in the National Football

                                2
League ("NFL") but, due to alcohol-induced cardiomyopathy,
is now in need of a heart transplant. In 1977, Courson was
drafted by the Pittsburgh Steelers Football Club. Courson
played professional football for the Steelers from the time
he was drafted in 1977 until the end of the 1983 season.
He was traded to the Tampa Bay Buccaneers Football Club
in 1984 and played for that team during the 1984 and
1985 seasons. After the conclusion of Tampa Bay's 1986
mini-camp, Courson asked to be traded. Tampa Bay agreed
and released him two weeks later. Courson then spent the
next month in Myrtle Beach, working out with weights and
running every day to stay in physical condition in the
expectation that another NFL team would express an
interest in him. No other team called, however, and in
September 1986, Tampa Bay officially announced
Courson's retirement from football.

After officially retiring from football, Courson took the
first fall vacation of his life--he flew to Munich for
Oktoberfest. Upon returning from Germany, Courson
rented a cabin in Wyoming and began taking notes for his
autobiography, which was eventually published in 1991
under the title, False Glory. In the spring of 1988, Courson
found out he was flat broke, having lost more than
$500,000 through a number of bad investments. Courson
concluded that, "[o]ther than football, I didn't know of too
many legitimate professions in which one could make that
kind of dough. And without a college degree and with few
marketable skills, it would be difficult for me to earn even
a moderately decent wage." Consequently, Courson decided
to pursue a career in professional wrestling. He thought he
could make a lot of money fast and then retire.

In his book, False Glory, Courson describes his first
match in Charleroi, Pennsylvania, in which he quickly
disposed of his opponent by giving "him a couple of hip
tosses, [throwing] him off the ropes, lift[ing] him, body-
slamm[ing] him to the canvas, and then cover[ing] him up.
Bing-bang-boom." Around the same time, Courson
competed in his first and only weight lifting competition. At
a September 10, 1988 event, Courson bench pressed 605
pounds to win the super-heavyweight class, describing the
victory as "exhilarating."

                               3
During his career in the NFL, Courson was exposed to
the use of anabolic-androgenic steroids ("AAS") among his
teammates and other NFL players. In order to compete with
other NFL players who used AAS, Courson began ingesting
AAS to increase his size, strength, speed, and aggression.
Courson continued to ingest AAS after he retired from the
NFL.

At about the same time as he was ingesting AAS,
Courson also began consuming large amounts of alcohol,
primarily as a means to control the pain resulting from
football injuries. According to Courson, his drinking
eventually led to his addiction to alcohol because the pain
remained constant yet more alcohol was needed as his
tolerance level increased. Courson could have chosen
narcotic painkillers, which he claims were frequently
provided by team physicians, to quell his pain but, instead,
he chose alcohol. Courson continued to drink excessively
until he became ill in the fall of 1988.

On November 26, 1988, Courson presented himself to the
hospital emergency room with complaints of shortness of
breath. Following a battery of tests, the hospital's
physicians concluded that Courson was experiencing heart
failure and diagnosed "dilated cardiomyopathy." According
to Courson, cardiologist Richard Rosenbloom, M.D.,
explained that his muscle fibers were being "lost over time"
and that his heart had become "flabby and baggy and
doesn't pump as a normal heart should." Dr. Rosenbloom
immediately placed Courson on a waiting list for a heart
transplant.

In October 1992, Courson applied for disability benefits
under the Bert Bell NFL Player Retirement Plan (the"Bert
Bell Plan" or the "Old Plan"), an employee pension benefit
plan within the meaning of section 3(2)(A) of ERISA, 29
U.S.C. S 1002(2)(A). The Bert Bell Plan was established
through a collective bargaining agreement between the
National Football League Players' Association ("the Players'
Association") and the National Football League Management
Council ("the Management Council"). The Bert Bell Plan
provides the following relevant categories of benefits:

                                4
       1) a monthly pension of "no less than $4,000 if
       disability results from a football injury incurred
       while an Active Player;" and

       2) a monthly pension of "no less than $750 if the total
       and permanent disability results from other than a
       football injury;"

Bert Bell Plan, S 5.1 at p. 27. Thus, the Bert Bell Plan
distinguishes between two types of benefits, "Football
Injury" benefits and "Other Than Football Injury" benefits.

The Bert Bell Plan provides for the creation of a
Retirement Board composed of six voting members, three of
whom are selected by the Players' Association and three of
whom are selected by the Management Council, and one
non-voting member, the Commissioner of the NFL. With
regard to the powers of the Retirement Board, the plan
states:

       the Retirement Board shall have all necessary
       powers incident to the creation, administration,
       implementation and operation of the Plan and Trust,
       including but not limited to the power:

        A) To define and amend the terms of the Plan and
       Trust, to construe the Plan and Trust and to reconcile
       inconsistencies therein.

Bert Bell Plan, S 8.4(A) at p. 36.

On his application for disability benefits, Courson
identified "Idiopathic Dilated Cardiomyopathy" as the
nature and cause of his disability with an onset date of
November 1988. His application included a report from
cardiologist Mark E. Thompson, M.D., who confirmed that
Courson was totally and permanently disabled and that the
disability onset date was November 26, 1988. Dr.
Thompson described the nature of the disability as
"Idiopathic Cardiomyopathy." Dr. Thompson further
indicated in his report that the disabling illness or injury
did not result from a football-related activity. In December
1992, the Retirement Board awarded Courson "Other Than
Football Injury" benefits under the Bert Bell Plan retroactive
to December 1, 1988, the first month following the onset
date of his disability.

                                5
In June 1993, the Players' Association and the
Management Council entered into a new collective

bargaining agreement. The agreement called for the Bert
Bell Plan and the Pete Rozelle NFL Player Retirement Plan
(the "Rozelle Plan"), an ERISA plan similar to the Bert Bell
Plan, to be merged to form a new plan, the Bert Bell/Pete
Rozelle NFL Player Retirement Plan (the "Player Retirement
Plan" or the "New Plan"). The Player Retirement Plan, which
governs eligibility determinations for benefits payable after
July 1, 1993, is also an employee pension benefit plan
within the meaning of section 3(2)(A) of ERISA, 29 U.S.C.
S 1002(2)(A). Under the Player Retirement Plan, eligible
players who had been awarded benefits under the Bert Bell
Plan and the Rozelle Plan (collectively referred to as the
"Predecessor Plans") will continue to receive disability
benefits.

As was true for the Predecessor Plans, eligibility terms
and benefit levels under the Player Retirement Plan were
established through collective bargaining between the
Players' Association and the Management Council and
memorialized in the governing plan document. Like the
Predecessor Plans, the Player Retirement Plan is
administered by a joint Retirement Board composed of six
voting members, three selected by the Players' Association
and three selected by the Management Council. The plan
document provides in pertinent part:

       [t]he Retirement Board will have full and absolute
       discretion, authority and power to interpret, control,
       implement, and manage the Plan and the Trust. Such
       authority includes, but is not limited to, the power to:

       (a) Define the terms of the Plan and Trust, construe
       the Plan and Trust, and reconcile any
       inconsistencies therein;

       (b) Decide claims for benefits (except that the
       Retirement Board will follow decisions submitted
       to, and decided by, the Medical Advisory
       Physician or an arbitrator pursuant to Section
       8.3);

       . . .

                                6
Player Retirement Plan, S 8.2 at 32.

The plan document also sets forth the following four-part
classification scheme for awarding and paying total and
permanent disability benefits:

       (a) (Active Football) The monthly total and permanent
       disability benefit will be no less than $4,000 if the
       disability(ies) results from League football
       activities, arises while the Player is an Active
       Player, and causes the Player to be totally and
       permanently disabled "shortly after" the
       disability(ies) first arises.

       (b) (Active Nonfootball) The monthly total and
       permanent disability benefit will be no less than
       $4,000 if the disability(ies) does not result from
       League football activities, but does arise while the
       Player is an Active Player and does cause the
       Player to be totally and permanently disabled
       "shortly after" the disability(ies) first arises.

       (c) (Football Degenerative) The monthly total and
       permanent disability benefit will be no less than
       $4,000 if the disability(ies) arises out of League
       football activities, and results in total and
       permanent disability before the later of (1) age 45,
       or (2) 12 years after the end of the Player's last
       Credited Season.

       (d) (Inactive) The monthly total and permanent
       disability benefit will be no less than $1,500 if (1)
       the total and permanent disability arises from
       other than League football activities while the
       Player is a Vested Inactive Player, or (2) the
       disability(ies) arises out of League football
       activities, and results in total and permanent
       disability after the later of (i) age 45, or (ii) 12
       years after the end of the Player's last Credited
       Season. The minimum benefits provided under
       this Section 5.1(d) will be offset by any disability
       benefits provided by an employer other than the
       League or an Employer, but will not be offset by
       worker's compensation.

                               7
Id., S 5.1(a) - (d) at 21-22. As used in subsections (a) and
(b) above, the phrase "shortly after" includes Players who
become totally and permanently disabled within six months
after the disability first arises. If a Player becomes totally
and permanently disabled more than twelve months after
the disability first arises, the disability will be conclusively
deemed not to fall within the "shortly after" provision. The
Retirement Board is vested with the discretion to decide
whether the "shortly after" standard is satisfied in cases
where the Player becomes totally and permanently disabled
more than six months but less than 12 months after the
disability first arises. Id., S 5.1 at 22.

In addition to the minimum $4,000 benefit provided by
the Active Football, Active Nonfootball, and Football
Degenerative classifications, a player falling under one of
these three classifications is automatically entitled to an
additional monthly benefit under the NFL Player
Supplemental Disability Plan (the "Supplemental Plan").1 The
purpose of the Supplemental Plan is to provide additional
disability benefits to certain players who also receive total
and permanent disability benefits under the Player
Retirement Plan. Like the Player Retirement Plan, eligibility
terms and benefit levels under the Supplemental Plan are
determined through collective bargaining between the
Players' Association and the Management Council and
memorialized in the governing plan document. The
Supplemental Plan is administered by a Disability Board
composed of six voting members, three of whom are
selected by the Players' Association and three of whom are
appointed by the Management Council. The Disability
Board has absolute discretion and final authority in
interpreting the Supplemental Plan, adopting rules and
regulations regarding the administration of the plan, and
reviewing claims for benefits. Supplemental Plan, S 4.3 at 9.

When aggregated, benefit payments under the Player
Retirement Plan and the Supplemental Plan amount to
$200,000 per year for Players whose claims fall within one
of these three categories. On the other hand, Players whose
_________________________________________________________________

1. The Supplemental Plan is an employee benefit plan within the
meaning of Section 3(1) of ERISA, 29 U.S.C. S 1002(1).

                               8
claims are classified in the Inactive category do not receive
benefits under the Supplemental Plan.

Courson petitioned the Player Retirement Plan's
Retirement Board in May of 1996 to reclassify his disability
from Inactive to one of the three higher-paying
classifications--Active Football, Football Degenerative, or
Active Nonfootball. In his petition, Courson cited his use of
AAS and alcohol during the years that he played in the NFL
as the cause of his disabling heart condition, and that such
use should be considered "League football activities" for
purposes of the Player Retirement Plan's disability
classification scheme.

The Retirement Board unanimously denied Courson's
reclassification request under the Player Retirement Plan in
a letter decision dated July 18, 1996. The Board's decision
left intact Courson's current classification of Inactive for
which he receives payments of $1,750 per month. The
Board concluded that Courson did not qualify for either
Active Football, Football Degenerative, or Active Nonfootball
benefits because: (1) his disability did not arise during the
time he was an Active Player; (2) even if his disability did
arise during the time he was an Active Player, it did not
cause him to become totally and permanently disabled
within 12 months of the onset date of the disabling
condition; (3) the taking of AAS and the consumption of
alcohol are not League football activities; and (4) even if the
taking of AAS was considered a League football activity,
there is no established scientific evidence that there is a
causal relationship between the use of AAS and the
development of dilated cardiomyopathy.

In accordance with the decision review provisions of the
Player Retirement Plan, Courson appealed the Retirement
Board's denial and submitted additional documentation
related to AAS and alcohol use. Courson also raised for the
first time new theories of benefit eligibility with new onset
dates. In particular, Courson argued that he was entitled to
benefits under the Bert Bell Plan from June 1986 through
November 1988 because alcoholism rendered him disabled
during this period. He further argued that his alcoholism
was a "League football activity" which entitled him to the
higher-paying Football Injury benefits during this period.

                               9
Courson also claimed that his heart condition resulted from
"League football activities" which entitled him to Football
Injury benefits under the Bert Bell Plan from November
1988 through July 1, 1993.

The Retirement Board reviewed the supplemental
documentation Courson submitted. In addition, the
Retirement Board sought and obtained more information
about the medical and non-medical issues related to AAS
and alcohol use, all of which was made available for
Courson's review. After considering all of the record
evidence, the Retirement Board, on August 11, 1997,
unanimously affirmed its previous determination that
Courson only qualified for "Other Than Football Injury"
benefits under the Bert Bell Plan for the period December 1,
1988 through July 1, 1993 and "Inactive" benefits under
the Player Retirement Plan on an ongoing basis thereafter.
The Retirement Board further found that Courson was not
totally and permanently disabled from June 1986 through
November 1988 under the Bert Bell Plan eligibility rules.

Having exhausted his administrative remedies, Courson
then filed this action in the District Court against the
defendants, claiming that his application for benefits was
denied in violation of ERISA. The parties subsequently filed
cross-motions for summary judgment. The District Court,
finding that the Retirement Board's decision was reasonable
and supported by substantial evidence, entered an order on
March 31, 1999, granting summary judgment in favor of
the defendants. Courson subsequently filed this timely
appeal.

II.

Our review of the District Court's grant of summary
judgment is de novo. We employ the same legal standards
applied by the District Court in the first instance. Where
the benefit plan gives the administrator or fiduciary
authority to determine eligibility for benefits or to construe
the terms of the plan, the denial of benefits is reviewed
under the arbitrary and capricious standard. Mitchell v.
Eastman Kodak Co., 113 F.3d 433, 437-38 & n.4 (3d Cir.
1997) (citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S.

                               10
101, 115 (1989)). Under all of the plans at issue here, the
Retirement Board is vested with complete discretion to
determine eligibility for benefits and to construe the terms
of the plans. Thus, we review the Retirement Board's
decisions under the arbitrary and capricious standard on
the basis of the administrative record before the Board
when it made its decisions. Hullett v. Towers, Perrin, Forster
& Crosby, Inc., 38 F.3d 107, 114 (3d Cir. 1994) (citing
Firestone, supra, at 115).

Under this deferential standard, a plan administrator's
interpretation of a plan may be disturbed "only if it is
`without reason, unsupported by substantial evidence or
erroneous as a matter of law.' " Abnathya v. Hoffmann-
LaRoche, Inc., 2 F.3d 40, 45 (3d Cir. 1993) (quoting Adamo
v. Anchor Hocking Corp., 720 F.Supp. 491, 500 (W.D. Pa.
1989)). A decision is supported by "substantial evidence if
there is sufficient evidence for a reasonable person to agree
with the decision." Daniels v. Anchor Hocking Corp., 758
F.Supp. 326, 331 (W.D. Pa. 1991). With this highly
deferential standard in mind, we turn now to the merits of
Courson's appeal.

III.

Courson maintains that the Retirement Board's decision
was arbitrary and capricious as it was against the weight of
substantial evidence. The Retirement Board addressed
three distinct claims presented by Courson: (1) a claim for
total and permanent disability benefits from 1986 through
November 1988 due to alcoholism; (2) a request for
reclassification of disability benefits from"Other Than
Football Injury" to "Football Injury" for the period November
1988 to July 1, 1993; and (3) a request for reclassification
of disability benefits from "Inactive" to either "Active
Nonfootball," "Active Football," or "Football Degenerative"
benefits for the period July 1, 1993 to present. 2 We will
address each of these claims seriatim. Before proceeding
with our analysis, however, we will first consider the
_________________________________________________________________

2. In this appeal, Courson has wisely abandoned his claim that his AAS
abuse caused his cardiomyopathy as the medical evidence to date simply
does not support a link between AAS and cardiomyopathy.

                               11
meaning of the terms "totally and permanently disabled"
and "League football activities" as those terms are used in
the plan documents.

With respect to disability benefits paid after July 1, 1993,
a Player will be deemed totally and permanently disabled
under the New Plan in the following situation:

       An Active Player or a Vested Inactive Player . . . will be
       deemed to be totally and permanently disabled if the
       Retirement Board finds that he has become totally
       disabled to the extent that he is substantially
       prevented from or substantially unable to engage in
       any occupation or employment for remuneration or
       profit, but expressly excluding any disability suffered
       while in the military service of any country. A Player
       will not be considered to be able to engage in any
       occupation or employment for remuneration or profit
       within the meaning of this Section 5.2 merely because
       such person is employed by the League or an
       Employer, manages personal or family investments, is
       employed by or associated with a charitable
       organization, or is employed out of benevolence.

Player Retirement Plan, S 5.2 at 22-23. Under section 5.2 of
the Old Plan, which applies to disability benefits paid before
July 1, 1993, the standard for determining total and
permanent disability is stated as follows:

       A Player or Vested Inactive Player, other than a Retired
       Player, shall be deemed to be totally and permanently
       disabled if the Retirement Board shall find that he has
       become totally disabled to the extent that he is
       prevented from or unable to engage in any occupation
       or employment for remuneration or profit, but
       expressly excluding any disability suffered while in the
       military service of any country.

Bert Bell Plan, S 5.2 at 28.

Once a determination of total and permanent disability
has been made, the eligibility criteria set forth previously
for the various levels of benefits must be reviewed in light
of the nature and cause of an individual Player's disability.
Under the New Plan, the four-part classification scheme is

                               12
used (Active Football, Active Nonfootball, Football
Degenerative, Inactive); under the Old Plan, disabilities are
categorized as either "Football Injury" or"Other Than
Football Injury."

Under the New Plan, the key to determining the correct
benefit category is whether the disability arises or results
from "League football activities." The New Plan provides the
following definition of "Arising out of League football
activities":

       "Arising out of League football activities" means a
       disablement arising out of any League pre-season,
       regular-season, or post-season game, or any
       combination thereof, or out of League football activity
       supervised by an Employer, including all required or
       directed activities. "Arising out of League football
       activities" will not include any disablement resulting
       from other employment or activity initiated by the
       Player outside of official pre-season training, including
       athletic activity for recreation or for the general
       purpose of maintaining or achieving playing condition.

Player Retirement Plan, SS 6.4(c) and 6.5(g) at 27 (emphasis
added). Under the Old Plan, the key to correctly classifying
the disability is determining whether the disability"results
from a football injury." The Old Plan defines"Arising out of
football activities" as follows:

       "Arising out of football activities" shall mean a
       disablement arising out of any Game or any pre-season
       or post-season game of the League or out of football
       activity supervised by an Employer, including all
       required or directed activities. "Arising out of football
       activities" shall not include any disablement resulting
       from other employment or activity initiated by the
       Player outside of official pre-season training, including
       athletic activity for recreational or for the general
       purpose of maintaining or achieving playing condition.

Bert Bell Plan, S 6.5 at 30 (emphasis added).3 With these
_________________________________________________________________

3. This definition comes from a separate article of the Old Plan relating
to temporary "line of duty" disability benefits for a player who suffers a
"substantial disablement arising out of football activities." We refer to
this definition because it provides some guidance in determining whether
Courson's disability "result[ed] from a football injury" for purposes of
total and permanent disability benefits.

                               13
definitions in mind, we turn now to a discussion of the
three claims raised by Courson before the Retirement
Board.

A.

Denial of Benefits from June 1986 - November 1988

Courson claims that the Retirement Board's decision to
deny him total and permanent disability benefits under the
Old Plan for the period June 1986 through November 1988
was arbitrary and capricious. He contends that the record
establishes that he was totally and permanently disabled
during this period due to alcoholism. Courson further
contends that his addiction to alcohol arose as a result of
the failure by the NFL and its member clubs for whom he
played, despite knowledge of Courson's use and abuse of
alcohol, to follow NFL policies regarding such abuse.
Moreover, Courson contends that by providing alcohol to
Players after games, the Steelers supervised and directed
his alcohol consumption, thus making it a football activity.
Thus, Courson submits that because his alcoholism
resulted from a football activity, he is entitled to"Football
Injury" benefits. The Board's decision to the contrary,
Courson argues, was against the weight of substantial
evidence.

In support of these claims, Courson argues that the
Board relied solely on a few isolated excerpts from his book,
False Glory, to support its conclusion that he was not
totally disabled from alcoholism. As explained below,
Courson's assertion, however, misstates the basis of the
Board's decision and the record evidence.

Courson further argues that the Board failed to consider
that the temporary ability to engage in purely physical feats
of strength does not necessarily mean that one is capable
of employment. In support of this argument, Courson cites
Mitchell v. Eastman Kodak Co., 113 F.3d 433 (3d Cir.
1997). Courson specifically refers to our comment in
Mitchell that given the characteristics of chronic fatigue
syndrome, it was not inconsistent for the plaintiff 's
physician to conclude that the plaintiff was totally unable

                               14
to engage in substantial gainful activity even though his
ability to perform isolated activities such as standing,
pushing, pulling and communicating was only "somewhat"
limited. Id. at 440 n.7. To further support his position,
Courson cites McShea v. Schweiker, 700 F.2d 117 (3d Cir.
1983), a case involving a claim for social security disability
benefits where the disabling condition was alcoholism.
Courson claims he has displayed many of the same signs of
disabling alcoholism as the claimant in McShea and, just as
the claimant in McShea was not precluded from receiving
social security disability benefits due to periods of lucidity
and sobriety, so, too, should Courson not be precluded
from receiving disability benefits just because the record
indicates periodic activity and sobriety. Id. at 118.

Our decision in Mitchell, however, can be distinguished
on the facts here. The so-called "isolated" activities
performed by Courson were much more than "standing,
pushing, pulling and communicating." Moreover, the
Retirement Board considered the nature of the activities
performed by Courson from June of 1986 through
November 1988 in light of his claimed alcoholism, as well
as other evidence, and concluded that he was not
substantially prevented from or substantially unable to
engage in any occupation or employment for remuneration
or profit.

Finally, Courson contends that the Retirement Board
ignored substantial evidence that Courson was, in fact,
totally disabled from alcoholism for the period June 1986 to
November 1988. The substantial evidence which Courson
contends the Board ignored consists of the report of Paul
Freyder, Courson's affidavit, and his federal income tax
returns for the years in question. A review of the record and
the Retirement Board's decision, however, requires the
opposite conclusion.

Despite Courson's allegations to the contrary, it is clear
that the Retirement Board considered all of the evidence,
including Paul Freyder's report, Courson's affidavit, and his
federal income tax returns, and that its decision was based
on substantial evidence. The Retirement Board considered
Paul Freyder's report and found it to be completely
implausible in light of the facts reported earlier by Courson

                               15
in his book, False Glory. Freyder, a human services
consultant, opined that Courson's alcoholism "consumed
his life and substantially prevented him from or rendered
him unable to find (and maintain) any employment[from
June 1986 through November 1988]." Freyder's report was
based entirely on an extensive interview he conducted with
Courson in 1997.

On the other hand, in False Glory, which was published
in 1991, Courson described his post-football experiences
very differently than he described them to Freyder in 1997.
For instance, in False Glory, Courson stated that after the
Buccaneers released him, Courson then spent the next
month in Myrtle Beach working out with weights and
running every day to stay in condition with the expectation
that another NFL team would express an interest in him. In
October, Courson vacationed in Munich. Upon returning
from Germany, Courson rented a cabin in Wyoming and
began taking notes for his book. In the spring of 1988,
upon learning that he was impoverished as a result of a
number of bad investments, Courson decided to pursue a
career in professional wrestling. Around the same time,
Courson also competed in a weight lifting competition.
There is no indication from these post-football activities
that alcoholism substantially prevented Courson from
finding and/or maintaining any employment from June
1986 through November 1988.

The Retirement Board also considered Courson's lack of
substantial income from June 1986 through November
1988 but concluded that alone it was not indicative of total
and permanent disability as defined by the Old Plan. Here,
when Courson's income tax returns are viewed in light of
the other evidence, the lack of substantial income is
reflective of his intent and attitude between June 1986 and
November 1988. In this regard, Courson did not view
himself as a person who was unable to engage in any
occupation or employment for remuneration or profit
because of a disability. Indeed, one gets the impression
from his statements in False Glory that he was not really
looking for work until his investments severely decreased in
the spring of 1988, at which point he decided to go into
professional wrestling to make some fast money. Thus, the

                                16
record evidence here shows that his lack of substantial
income is attributable to a conscious decision on his part
not to seek employment until he discovered his
impoverished situation -- not because he viewed himself as
disabled in any way and incapable of working.

Moreover, Dr. Thompson's report and Courson's initial
application for disability benefits both state that the onset
date of his total and permanent disability is November 26,
1988. Other than Freyder's report and Courson's affidavit
which are based on the self-serving statements of Courson
made in 1997, no other evidence, medical or otherwise,
refutes the onset date of November 26, 1988. Thus, the
Retirement Board's conclusion that Courson was not totally
and permanently disabled from June 1986 through
November 1988 is reasonable and supported by substantial
evidence.

B.

Reclassification of Disability Benefits- November 1988 to
July 1993

Courson further argues that the Retirement Board's
denial of his request for reclassification of his disability
benefits from "Other Than Football Injury" to "Football
Injury" for the period November 1988 to July 1, 1993 was
arbitrary and capricious. He claims that he is entitled to
the reclassification because his cardiomyopathy is a total
and permanent disability which resulted from a football
injury, i.e., an abuse of alcohol which was supervised and
condoned by the Steelers and Buccaneers. While we can
appreciate counsel's zealousness to fashion an argument on
Courson's behalf in support of reclassifying his benefits to
"Football Injury" benefits under the Old Plan, we do not
find any merit to his argument.

The Retirement Board carefully considered whether
Courson's self-described alcohol abuse was an activity
"supervised by," or "required or directed" by, the Steelers or
Buccaneers. In particular, the Retirement Board
considered: (1) the NFL policy expressly prohibiting serious
misuse of alcohol; (2) that the Steelers provided alcohol to

                                17
players after games but only a maximum of two cans of
beer per player; (3) then Steelers' coach Chuck Noll's
statement that Courson displayed no outward signs that he
was alcoholic or abusing alcohol; and (4) Courson's earlier
statements in False Glory that episodes of heavy drinking
occurred at bars or at home, not at the club facilities, that
he did not believe he was an alcoholic because he did not
match the typical profile -- he was rarely late for work,
never started a fight in a bar, and did not drink every day
-- and that he was a big guy who could drink a lot without
getting roaring, sloppy drunk.

The Retirement Board found that alcohol abuse and AAS
consumption did not constitute activities "required,"
"directed," or "supervised" by the NFL or either the Steelers
or Buccaneers. The Board completely rejected Courson's
argument that the teams' alleged failure to supervise his
alcohol and AAS consumption somehow rendered those
activities "League football activities" within the meaning of
the plan document. To the contrary, the Board found the
evidence showed "Courson decided to overindulge in alcohol
and to use AAS on his own initiative, on his own time, and
in knowing contravention of League policy."

We do not find any fault with the Retirement Board's
conclusion. Although the medical evidence indicates that
alcohol consumption is a cause of cardiomyopathy, the
facts here simply do not support a conclusion that alcohol
consumption is an activity "supervised," "required or
directed" by the League clubs. Likewise, our review of the
evidence causes us to conclude that the record clearly
shows that Courson decided to overindulge in alcohol
consumption on his own initiative, on his own time, in
contravention of League policy. Moreover, no precedent
exists for finding that the failure to supervise Courson's
alcohol intake somehow renders that activity one that
"arises out of football activities" as meant by the Plan.
Given these facts, it would be unreasonable to conclude
that Courson's alcohol abuse was an activity "supervised",
"required or directed" by the Steelers or Buccaneers.
Although alcohol consumption may have caused or
contributed to Courson's cardiomyopathy, such alcohol
consumption was not an activity "supervised,""required or

                                18
directed" by an NFL team. Therefore, Courson's argument
that his disability arose from a football injury lacks merit.
The Retirement Board's denial of his request to reclassify
his disability benefits under the Old Plan was thus
reasonable and supported by substantial evidence.

C.

Reclassification of Disability Benefits- July 1993 to
Present

With regard to his claim for benefits under the New Plan,
Courson makes two arguments. First, Courson argues that
the Retirement Board's denial of his request to reclassify
his disability from "Inactive" to "Active Nonfootball" benefits
was arbitrary and capricious. In support of his argument,
Courson submits that he presented substantial evidence
establishing his eligibility for "Active Nonfootball" benefits
under the New Plan. Specifically, Courson claims he
presented substantial evidence proving: (1) that his
alcoholism arose while he was an active Player, and (2) that
his alcoholism caused him to be totally and permanently
disabled within twelve months of his retirement. Courson
further contends that the Retirement Board rejected his
claim solely on the basis that Courson failed to establish
that his disability existed within twelve months of his June
1986 retirement. Courson submits that the record is
replete, however, with evidence that proves his disease
satisfied the requirements for "Active Nonfootball" benefits.

Courson's argument lacks merit. First of all, a
prerequisite to qualifying for "Active Nonfootball" benefits is
that the disability did not result from"League football
activities." In all other respects, Courson has maintained
that his disability did result from a League football activity,
alcohol consumption. He cannot have it both ways.
Nonetheless, Courson meets this prerequisite since the
Retirement Board's conclusion that his disability did not
result from a League football activity is reasonable and
supported by substantial evidence. Courson's claim of
eligibility for "Active Nonfootball" benefits fails, however,
because he has not shown that his disability,

                               19
cardiomyopathy, arose while he was an active Player and
that it caused him to be totally and permanently disabled
shortly after the disability first arose.4 Although Courson
avers that the record is replete with evidence that proves he
satisfied the eligibility requirements for "Active Nonfootball"
benefits, he fails to identify the particular evidence that
supports his conclusory statement.

Courson's second reclassification argument pertains to
the Retirement Board's denial of his request to reclassify
his disability from "Inactive" to either "Active Football" or
"Football Degenerative" benefits. Courson contends the
Board's decision denying such reclassification was arbitrary
and capricious because the Board's conclusion that alcohol
use was not a "League football activity" contradicted the
substantial evidence. Specifically, Courson contends that
the Retirement Board ignored the simple and indisputable
facts -- that alcohol consumption was managed by the
Steelers; managing the activity is the equivalent of
supervising the activity; since his disability was caused by
alcohol consumption which was an activity supervised by
the Steelers, the disability was caused by a "League football
activity."

In support of his argument, Courson submits that the
following unrebutted substantial evidence proves a
correlation between the use of alcohol and "League" play:
(a) incessant pressure by NFL teams and the League placed
on athletes to gain every possible edge; (b) the NFL was
_________________________________________________________________

4. Courson maintains that "shortly after" includes disabilities where the
claimant becomes totally and permanently disabled within twelve
months of his retirement. As stated earlier, however, the Player
Retirement Plan provides that a disability will be conclusively deemed to
have occurred "shortly after" if the claimant becomes totally and
permanently disabled within six months after the disability first arises.

Although Courson became totally and permanently disabled from
cardiomyopathy within six months after his disability first arose (i.e.,
November 26, 1988), he cannot show that the cardiomyopathy arose
while he was an active player. Other than the single report in 1985 of
atrial fibrillation, nothing in the record indicates that he suffered any
symptoms of this disease until November 1988. Thus, Courson first
became totally and permanently disabled on November 26, 1988, after
he had been retired from football for over two years.

                               20
fully aware of alcohol abuse by certain players and declined
to act or to enforce its own policies; and (c) Courson drank
incessantly at first to quell the pain from football injuries
which led to his uncontrollable urge to drink continuously.
Moreover, Courson claims the Retirement Board refused to
acknowledge sworn statements of his former teammates
regarding the widespread availability of alcohol after home
and away games. Thus, Courson maintains that he is
entitled to "Active Football" benefits because his disability
results from "League football activities,"first arose while he
was an active Player and caused him to be unable tofind
or maintain employment within twelve months of his
retirement.

As we stated earlier, the evidence supports a contrary
finding. While all of Courson's assertions linking alcohol
consumption with League play may be true, they fall short
of establishing that the NFL teams actually condoned or
encouraged the consumption of alcohol, let alone in the
large quantities consumed by Courson. Any perceived
pressure on the part of the Players was self-imposed. If
anything, the evidence shows that the League and member
teams discouraged alcohol abuse. To this end, when
Courson mentioned his alcohol abuse to the Buccaneers,
they referred him to a psychiatrist for counseling. When he
played for the Steelers, Courson did not exhibit any
behavior that indicated that he had a drinking problem. As
he admitted in his book, Courson's binge drinking occurred
in bars and at home--not in the clubhouse.5 Courson's use
of alcohol to quell the pain from his football injuries was
clearly self-imposed and thus not " `supervised' or `required
or directed' " by any NFL team. Accordingly, because
Courson has failed to establish that his disability resulted
_________________________________________________________________

5. Courson refers to the affidavits of teammates regarding widespread
alcohol consumption in the clubhouse. However, an examination of Craig
Wolfley's affidavit reveals nothing more than that alcohol was served on
the plane rides home from away games, that alcohol was used by some
NFL players as a "primitive pain killer for bumps, bruises and injuries,"
and that NFL management appeared to place a greater emphasis on
preventing alcohol abuse towards the end of his career (1980-1991).
Nothing in Mr. Wolfley's affidavit supports Courson's theory that the NFL
" `supervised' or `required or directed' " alcohol consumption.

                               21
from a "League football activity," he is not eligible for
"Active Football" benefits.

In the alternative, Courson argues that if we find the
Retirement Board's decision that Courson did not become
totally and permanently disabled until November 1988 was
supported by substantial evidence, he is nonetheless
entitled to "Football Degenerative" benefits. Courson
contends he has satisfied the eligibility criteria because his
cardiomyopathy was caused by alcoholism which arose out
of a "League football activity," i.e., alcohol consumption,
and he became totally and permanently disabled at the age
of 33 and within three years after the end of his last
Credited Season (1985). As discussed previously, however,
the Retirement Board's conclusion that alcohol
consumption is not a "League football activity" is
reasonable. Thus, because Courson's disability does not
arise from a "League football activity," he is not entitled to
"Football Degenerative" benefits under the New Plan.

Accordingly, we cannot say that the Retirement Board's
decision was arbitrary and capricious on the record
evidence in this case.

IV.

For the reasons set forth above, we will affirm the
judgment of the District Court.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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