                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

VICTOR A. WASHINGTON,                  
                 Plaintiff-Appellee,
                v.
BERT BELL/PETE ROZELLE NFL
PLAYER RETIREMENT PLAN;                      No. 05-16366
RETIREMENT BOARD OF THE BERT
BELL/PETE ROZELLE NFL PLAYER                  D.C. No.
                                           CV-04-00360-NVW
RETIREMENT PLAN; NFL PLAYER
SUPPLEMENTAL DISABILITY PLAN;
DISABILITY BOARD OF THE NFL
PLAYER SUPPLEMENTAL DISABILITY
PLAN,
            Defendants-Appellants.
                                       

VICTOR A. WASHINGTON,                  
               Plaintiff-Appellant,
                v.
BERT BELL/PETE ROZELLE NFL
PLAYER RETIREMENT PLAN;                      No. 05-16533
RETIREMENT BOARD OF THE BERT
BELL/PETE ROZELLE NFL PLAYER                  D.C. No.
                                           CV-04-00360-NVW
RETIREMENT PLAN; NFL PLAYER
SUPPLEMENTAL DISABILITY PLAN;
DISABILITY BOARD OF THE NFL
PLAYER SUPPLEMENTAL DISABILITY
PLAN,
             Defendants-Appellees.
                                       

                            12927
12928             WASHINGTON v. BELL/ROZELLE



VICTOR A. WASHINGTON,                  
                 Plaintiff-Appellee,
                v.
BERT BELL/PETE ROZELLE NFL
PLAYER RETIREMENT PLAN;                      No. 05-16845
RETIREMENT BOARD OF THE BERT
BELL/PETE ROZELLE NFL PLAYER                  D.C. No.
                                           CV-04-00360-NVW
RETIREMENT PLAN; NFL PLAYER
                                               OPINION
SUPPLEMENTAL DISABILITY PLAN;
DISABILITY BOARD OF THE NFL
PLAYER SUPPLEMENTAL DISABILITY
PLAN,
            Defendants-Appellants.
                                       
         Appeal from the United States District Court
                  for the District of Arizona
           Neil V. Wake, District Judge, Presiding

                     Argued and Submitted
           July 11, 2007—San Francisco, California

                   Filed September 21, 2007

        Before: Procter Hug, Jr., Pamela Ann Rymer, and
              Raymond C. Fisher, Circuit Judges.

                 Opinion by Judge Rymer;
  Partial Concurrence and Partial Dissent by Judge Fisher
                WASHINGTON v. BELL/ROZELLE             12931


                        COUNSEL

Edward A. Scallet, Groom Law Group, Washington, DC, for
the appellants.

Susan Martin, Martin & Bonnett, Phoenix, Arizona, for the
appellee.


                         OPINION

RYMER, Circuit Judge:

   Victor A. Washington is a former player in the National
Football League. He was a participant in the Bert Bell NFL
Player Retirement Plan (the old Plan) until it was amended
and merged with the Pete Rozelle NFL Player Retirement
Plan on March 30, 1994 to become the Bert Bell/Pete Rozelle
NFL Player Retirement Plan (the new Plan). He is now a par-
ticipant in the Bell/Rozelle Plan. Both Plans are governed by
the Employee Retirement Income Security Act (ERISA), 29
U.S.C. §§ 1001 et seq., and administered by a six-member
Retirement Board (Board).

   Unfortunately, Washington’s professional career was
plagued by injuries. He was a running back and kick returner
who began playing in the NFL in 1971. He came over from
the Canadian Football League having already suffered a knee
injury that required surgery. While playing in the NFL, he
hurt his ankle, cracked his knee cap, and underwent surgery
on his left shoulder and elbow. Washington left football in
1976.
12932                  WASHINGTON v. BELL/ROZELLE
   His claims history started in 1983 and is extensive. Greatly
simplifying it, a player must be totally and permanently dis-
abled.1 Since leaving the NFL, Washington has suffered post-
traumatic stress disorder and depression. He has sometimes
worked, sometimes not. Medical opinions have differed as to
whether he was totally disabled or could perform some type
of work.

   Washington’s first claim was made in 1983 for total and
permanent disability benefits under the old Plan. The old Plan
classified temporary and permanent disability benefits as
“football” or “non-football.” “Football” benefits were paid
where the disability resulted from “a football injury.” Benefits
at the “football” level were greater than for “non-football” dis-
abilities.2 The Board (three of whom are appointed by the
National Football League Players Association and three by
the NFL Management Council) deadlocked on Washington’s
1983 claim, and referred the issues of total and permanent dis-
ability, as well as the cause of disability, to arbitration. On
July 10, 1987 the arbitrator, Sam Kagel, awarded Washington
“non-football” benefits (as of August 1, 1984), but denied
“football” benefits based on the arbitrator’s interpretation of
the phrase, “a football injury,” as requiring that a player’s dis-
ability be linked to a single football injury. The arbitrator
found that Washington’s medical experts had not pointed “to
  1
     The new Plan deems a player “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.”
Plan, § 5.2. The old plan defined the phrase similarly.
   2
     Under the old Plan, § 5.1 as amended through March 8, 1983 provided:
      Effective January 1, 1983, the monthly pension shall be no less
      than $4,000 if the disability results from a football injury incurred
      while an Active Player.
      Effective January 1, 1983, the monthly pension shall be no less
      than $750 if the total and permanent disability results from other
      than a football injury.
                  WASHINGTON v. BELL/ROZELLE               12933
‘a injury’ that resulted in his having to leave football” and the
psychiatrists had not identified “ ‘a’ injury as solely responsi-
ble for Washington’s psychological problems.” Washington
did not litigate the issue further.

   In the same time frame, Kagel decided a series of cases
involving other former NFL players in which he applied
essentially the same criteria that included, in particular, his
view that a player would be eligible for “football” benefits
under the old Plan only if he incurred his disability from a sin-
gle football injury. The Board, in turn, relied on the Kagel cri-
terion of one identifiable football injury in denying Donald
Brumm’s request for “football” benefits in May, 1987.
Brumm took his case to federal court. It ended up in the
Eighth Circuit Court of Appeals, which, on June 16, 1993,
rejected as unreasonable the same interpretation of the phrase,
“a football injury,” in the old Plan that the arbitrator had
applied to Washington’s 1983 claim. Brumm v. Burt Bell NFL
Ret. Plan, 995 F.2d 1433 (8th Cir. 1993). The opinion recites
the course of negotiations between the players and owners
that produced the two-tier “football”/“non-football” system in
the old Plan. See id. at 1438. The court agreed with Brumm
that this system was meant to be a football versus non-football
distinction rather than the single injury versus multiple or
cumulative injury construction adopted by Kagel and the
Board. Thus, the court concluded:

    To require that disability result from a single, identi-
    fiable football injury when the relevant Plan lan-
    guage speaks of “a football injury incurred while an
    Active player” is to place undue and inappropriate
    emphasis on the word “a”. “Injury” can mean either
    an “act or a result involving an impairment or
    destruction of . . . health”. Therefore, the key phrase
    from Section 5.1, “a football injury”, could refer to
    either a single injury (act) or a cumulative one
    (result).
12934                  WASHINGTON v. BELL/ROZELLE
Brumm, 995 F.2d at 1440 (internal citation omitted).

   After Brumm, the NFL Management Council and the NFL
Players Association agreed on the new Plan as part of a new
collective bargaining agreement. The new Plan, of which
Washington was notified December 20, 1993 and which
became effective as of July 1993, eliminated the “football”
and “non-football” categories of total and permanent disabil-
ity benefits under the old Plan, replacing them with four new
categories: Active Football, Active Nonfootball, Football
Degenerative, and Inactive.3 Football Degenerative benefits
are paid where the total and permanent disability arises out of
“League football activities” and Inactive benefits are paid
  3
   Section 5.1 sets out the categories as follows:
      (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 . . . .
      (b) (Active Nonfootball). The monthly total and permanent dis-
      ability benefit will be no less than $4,000 if the disabilty(ies)
      does not result from League football activities, but does arise
      while the Player is an Active Player . . . .
      (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 disabil-
      ity 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 perma-
      nent disability after the later of (i) age 45, or (ii) 12 years after
      the end of the Player’s last Credited Season.
   Players who qualify for Football Degenerative benefits receive both a
monthly benefit and a monthly disability payment from the NFL Player
Supplemental Disability Plan (Supplemental Plan) which was also estab-
lished in the 1993 Collective Bargaining Agreement. Players who qualify
for Inactive benefits do not receive additional amounts from the Supple-
mental Plan.
                     WASHINGTON v. BELL/ROZELLE                      12935
where the disability arises from “other than League football
activities.”4 Washington’s “non-football” benefits under the
old Plan were treated as Inactive benefits under the new Plan,
and were increased from $750 per month to $1,500 per month
as of the Plan’s effective date in July 1993.5

   If eligible for benefits at the Football Degenerative level,
Washington would have received no less than $4,000
monthly. On February 29, 1996 he requested reclassification
of his new Plan benefits to Football Degenerative. The Board
denied his request on April 18, 1996, advising Washington
that it had determined that his “disability did not arise out of
League football activities.” Washington appealed, and
retained an attorney with Spence, Moriarty & Schuster to rep-
resent him. New information was submitted, Washington was
referred to a neutral psychiatrist whose report was favorable
to his position, and a copy of the Supplemental Plan and its
Summary Plan Description was sent to counsel.6 Protracted
  4
   Section 5.1 does not define “arises out of League football activities,”
but § 6.4(c), which pertains to line-of-duty disability, does. It provides:
      “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 foot-
      ball activity supervised by an Employer, including all required or
      directed activities. “Arising out of League football activities”
      does not include, without limitation, any disablement resulting
      from other employment, or athletic activity for recreational pur-
      poses, nor does it include a disablement that would not qualify
      for benefits but for an injury (or injuries) or illness that arises out
      of other than League football activities.
   5
     The December 20, 1993 notice also explained that as a result of the
1993 Collective Bargaining Agreement, due to benefit improvements
Washington was eligible to receive a retroactive payment applicable to his
effective date or April, 1987, whichever was earlier.
   6
     The Supplemental Plan indicates that the Players Association and Man-
agement Council had considered the decision of the Eighth Circuit in
Brumm in providing for supplemental disability benefits to players receiv-
ing Active Football, Active Nonfootball, or Football Degenerative benefits
under § 5.1 of the new Plan.
12936                 WASHINGTON v. BELL/ROZELLE
negotiations resulted in a settlement agreement, executed
December 8, 1998, which acknowledges that Washington
asked the Board to reclassify his benefit from Inactive to
Football Degenerative under section 5.1(c) of the new Plan,
that the request was rejected, and that the parties “wish to
resolve their dispute concerning classification of Mr. Wash-
ington’s total and permanent disability benefit.”7 The resolu-
tion was for the Plan to pay Washington a substantial amount
in a lump sum, for the Plan to continue to pay inactive bene-
fits without requiring Washington to undergo periodic exami-
nations, and for Washington to release the Plan from any
claim for disability benefits.

   When Washington turned 55 on March 23, 2001, his Inac-
tive disability benefit converted to an equal retirement benefit
under the new Plan. On October 3, 2001 Washington again
requested that his disability benefits be reclassified at the
Football Degenerative level. The Board responded that the
settlement agreement released all claims for disability bene-
fits, and that Washington had properly converted to retirement
benefits at the Inactive rate pursuant to § 5.4 of the Plan.8
  7
      The dissent posits that old Plan benefits were at stake, but Washington
does not argue that benefits under the old Plan continued to be on the
table, nor did his counsel or the district court understand that they were.
Indeed, his attorney’s declaration characterizes Washington’s administra-
tive appeal from the 1996 denial as a “claim to reclassify his disability
from ‘non-football related’ to ‘football degenerative’ under the disability
benefit terms of the Bert Bell/Pete Rozelle NFL Player Retirement Plan
. . . .’ ” The court’s ruling and order have to do only with the 1996 applica-
tion. And Washington’s 1992 round of claims pre-dated Brumm, so
Brumm could have no relevance as to them. Nor does Washington argue
on appeal that he could have pursued some kind of claim between 1992
and 1998 different from the one he actually made in 1996, or contend that
the statute of limitations posed no problem with respect to that period or
any period prior to 1992.
    8
      Section 5.4 provides in relevant part:
      If, as a result of the last physical examination prior to a Player’s
      Normal Retirement Date, the Retirement Board or the Disability
                    WASHINGTON v. BELL/ROZELLE                     12937
   Sometime in 2003, Washington learned about Brumm from
another former NFL player. He then asked the Board for
meeting minutes and relevant documents concerning his
claims. The Plan furnished them in January 2004, together
with a cost bill of $200.30.

  Washington filed this action in 2004 against the Bell/
Rozelle Plan and the Board9 to undo the 1998 settlement
under ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3), on the
ground that the Plan and the Board breached their fiduciary
duties by failing to disclose that the ruling in Brumm had
overturned the criteria used to deny his football-related dis-
ability benefits. The district court concluded that knowing
about Brumm would have made a difference to Washington in
deciding whether to settle his 1996 claim, and thus should
have been disclosed. For this reason it granted summary judg-
ment to Washington, rescinded the settlement agreement, and
reopened Washington’s 1996 claim for reclassification.

   The Plan and Board appeal. While a Plan fiduciary must
disclose information that would be material to a reasonable
participant, we disagree with the district court that the holding
in Brumm would be material to a request for reclassification
to Football Degenerative under the new Plan. Brumm con-
cerned construction of the old Plan whose causation require-
ment for “football” benefits — disability resulting from “a
football injury” — is different from the new Plan’s require-

     Initial Claims Committee determines that the Player continues to
     be totally and permanently disabled, he will be entitled to a
     monthly pension under Article 4, with his total and permanent
     disability benefit under Section 5.1(a), 5.1(b), 5.1(c), or 5.1(d),
     whichever previously applied, substituted for the sum of his Ben-
     efit Credits for life or until cessation of such total permanent dis-
     ability . . . .
  9
    Later, he added as parties the NFL Player Supplemental Disability
Plan, and the Disability Board of the NFL Player Supplemental Disability
Plan.
12938                WASHINGTON v. BELL/ROZELLE
ment that Football Degenerative disability arise out of
“League football activities.” Nothing in the Brumm opinion
sheds light on what that phrase means. Accordingly, we
reverse the summary judgment. Washington cross-appeals,
but we see no error on the issues he raises and affirm as to
them.

                                     I

   Washington argues that a reasonable person would have
wanted to know about the Brumm decision overturning the
criteria the Board had previously used to deny him football-
related benefits before agreeing to forfeit significantly higher
benefits. He posits that Brumm’s holding would be important
to deciding the likelihood of success on his appeal to the
Board and the relative risks involved, as well as the risks of
filing a lawsuit seeking benefits under ERISA. Thus, he sub-
mits, the failure to disclose was material and a breach of fidu-
ciary duty.

   [1] Rooted in trust law, Firestone Tire and Rubber Co. v.
Bruch, 489 U.S. 101, 110 (1989); Peralta v. Hispanic Bus.,
Inc., 419 F.3d 1064, 1070 n.7 (9th Cir. 2005), ERISA imposes
fiduciary duties on Plan administrators. The duty of loyalty is
one of the common law trust principles that apply to ERISA
fiduciaries, see Varity Corp. v. Howe, 516 U.S. 489, 506
(1996), and it encompasses a duty to disclose.10 Trustees must
“deal fairly” and “communicate to the beneficiary all material
facts the trustee knows or should know in connection with the
transaction.” Peralta, 419 F.3d at 1070 n.7 (quoting Restate-
ment (Second) of Trusts § 170 (1992)); see also Bins v. Exxon
Co. U.S.A., 220 F.3d 1042, 1049 (9th Cir. 2000) (en banc)
(employer-fiduciary violates its duty of loyalty “to plan par-
  10
     By statute, an ERISA fiduciary is obliged to “discharge [its] duties
with respect to a plan solely in the interest of the participants and benefi-
ciaries.” 29 U.S.C. § 1104(a)(1); see also Cal. Ironworkers Field Pension
Trust v. Loomis Sayles & Co., 259 F.3d 1036, 1045 (9th Cir. 2001).
                    WASHINGTON v. BELL/ROZELLE                     12939
ticipants by failing to disclose material information”); Barker
v. Am. Mobil Power Corp., 64 F.3d 1397, 1403 (9th Cir.
1995) (“A fiduciary has an obligation to convey complete and
accurate information material to the beneficiary’s circum-
stance, even when a beneficiary has not specifically asked for
the information.”). The test is objective, as both parties recog-
nize.11 Cf. United States v. Smith, 155 F.3d 1051, 1065 (9th
Cir. 1998) (noting that the test for materiality in a Rule 10b-
5 case is “whether a reasonable man would attach importance
(to the fact misrepresented) in determining his choice of
action in the transaction in question”) (internal quotations
omitted); see also Krohn v. Huron Mem’l Hosp., 173 F.3d
542, 547 (6th Cir. 1999) (observing, in ERISA context, that
“a misrepresentation is material if there is a substantial likeli-
hood that it would mislead a reasonable employee in making
an adequately informed decision in pursuing disability bene-
fits to which she may be entitled”); Fischer v. Phila. Elec.
Co., 994 F.2d 130, 135 (3d Cir. 1993) (same).

   [2] We cannot see how the holding in Brumm would inform
the decision-making process of a reasonable participant in
Washington’s position, pursuing a request to upgrade benefits
from Inactive to Football Degenerative under the new Plan,
contemplating settlement of such a request, or assessing the
costs and benefits of litigating denial of that request. Wash-
ington reviewed the new Plan documents prior to settling his
claim. The new Plan’s Football Degenerative category pro-
vides for benefits of no less than $4,000 if disability “arises
out of League football activities,” while Brumm related
entirely to the “football” category in the old Plan, which pro-
vided for benefits at that level for “a football injury.” Wash-
  11
     The district court’s order turned on Washington’s declaration that he
would not have settled his claim for less than the full amount of football
degenerative benefits through age 55 if he had known about the holding
in Brumm. However, the court indicated in ruling on the Plan’s motion for
reconsideration that it would nevertheless reach the same conclusion had
it applied a reasonable person standard.
12940             WASHINGTON v. BELL/ROZELLE
ington was notified in 1987 that his claim for “football”
benefits under the old Plan was rejected by the arbitrator
because his medical experts had not identified “a” injury that
resulted in his having to leave football and the psychiatrists
had not identified “a” injury as solely responsible for Wash-
ington’s psychological problems. By contrast, he was advised
in 1996 that his request for reclassification under the new Plan
was rejected by the Board because his disability “did not arise
out of League football activities.” Brumm bears directly on
the former, but not at all on the latter. For this reason, know-
ing what Brumm had to say about the meaning of the phrase,
“a football injury,” would not be helpful to a participant, to
a plan administrator, or to a court in arriving at a reasonable
construction of “League football activities.” Cf. Chappel v.
Lab. Corp. of Am., 232 F.3d 719, 726 (9th Cir. 2000) (holding
that a plan administrator who knows, or should know, that a
claimant may not be aware of a mandatory arbitration clause
and a time limit for seeking arbitration, breaches its fiduciary
duty by failing to notify the participant of required proce-
dures).

  [3] In these circumstances, we hold that the Board and Plan
did not breach their fiduciary duties by failing to disclose
Brumm.

                               II

                               A

   [4] In his cross-appeal, Washington argues that the district
court should have held that the settlement is invalid on the
alternative ground that his release of all future benefits claims
was not knowing and voluntary. To the extent his argument
depends upon his not knowing about Brumm, we have already
explained why Brumm was not material to classification under
the new Plan. To the extent Washington maintains that his
release was not knowing and voluntary because he and his
attorney believed the waiver only covered claims for disabil-
                  WASHINGTON v. BELL/ROZELLE               12941
ity benefits payable up to age 55 and did not extend to claims
for retirement benefits, it fails as Washington expressly
waived “any and all claims for disability benefits” “of every
kind and nature” except for those amounts described in the
agreement. Under § 5.4 of the Plan, retirement benefits are
paid at the rate of whichever disability category “previously
applied.” Accordingly, as the district court pointed out, Wash-
ington’s release of “any and all” claims for disability benefits
also constituted a release of all claims for retirement benefits.
That consequence is plain from the language of the settlement
agreement and the Plan. The agreement further acknowledges
that “[e]ach party has been represented . . . by counsel of its
own choosing and each party and the party’s representatives
have read the Agreement and are fully aware of its contents
and legal effect.” Given this, no reasonable trier of fact could
find that Washington’s release was not knowing and volun-
tary.

                               B

   [5] Washington also challenges dismissal of his request that
the Plan be enjoined from requiring Washington to pay $200
for the cost of photocopying his records. However, the district
court did not abuse its discretion in declining injunctive relief
on the basis that the relief sought was neither ripe nor other-
wise warranted.

  REVERSED IN PART; AFFIRMED IN PART.



FISHER, Circuit Judge, concurring in part, dissenting in part:

   I agree with the majority that the district court did not
abuse its discretion in declining to award injunctive relief
with respect to the Board’s attempted imposition of fees. I
further agree that if the Eighth Circuit’s decision in Brumm v.
Bert Bell NFL Retirement Plan, 995 F.2d 1433 (8th Cir.
12942             WASHINGTON v. BELL/ROZELLE
1993), would have been material to a reasonable person’s
decision to enter into the settlement agreement at issue here,
the Board had a fiduciary duty to disclose it. I disagree, how-
ever, with the majority’s conclusion that Brumm was not
material to a reasonable employee’s decision-making process
in this circumstance, and I therefore dissent from Part I of the
majority’s opinion.

   We have not yet articulated the test for materiality in the
context of an ERISA fiduciary’s failure to disclose. See Cal.
Ironworkers Field Pension Trust v. Loomis Sayles & Co., 259
F.3d 1036, 1045 (9th Cir. 2001) (agreeing with district courts
that facts were not material without articulating standard for
materiality). I agree with the majority’s suggestion, however,
that the proper standard for materiality lies in analogous situa-
tions involving an ERISA fiduciary’s misrepresentations. See
Fischer v. Philadelphia Elec. Co., 994 F.2d 130, 135 (3d Cir.
1993) (concluding that a fiduciary’s misrepresentation “is
material if there is a substantial likelihood that it would mis-
lead a reasonable employee in making an adequately informed
decision about if and when to retire”); Krohn v. Huron Mem’l
Hosp., 173 F.3d 542, 547 (6th Cir. 1999) (observing that “a
misrepresentation is material [in the ERISA context] if there
is a substantial likelihood that it would mislead a reasonable
employee in making an adequately informed decision in pur-
suing disability benefits to which she may be entitled”).

  I disagree with the majority’s conclusion that ignorance of
Brumm was not substantially likely to have misled a reason-
able employee in making “an adequately informed decision”
whether to agree to the December 1998 settlement agreement.
Actually Brumm’s invalidation of the criteria by which the
Board had previously denied Washington’s claims for
football-related benefits would have been material to a rea-
sonable employee in Washington’s position in two ways.

  First, knowledge of Brumm would likely affect a reason-
able employee’s decision on whether, and for how much, to
                     WASHINGTON v. BELL/ROZELLE                      12943
relinquish his claims under the old Plan. Even if it were evi-
dent from the new Plan’s language that the Board could no
longer deny Washington football-related disability benefits
due to Washington’s inability to trace his disability to a single
injury, it would not have been evident to Washington that the
Board acted arbitrarily and capriciously in doing so between
1983 and 1993. The Board notified Washington of his
increased benefits under the new Plan, but did not disclose to
him that the criteria it had used in its denial of his claim for
football-related benefits had been held unreasonable, and that
the new Plan was a response to this holding. Although the
majority is correct that Washington’s latest claim was for
reclassification under the new Plan, the plain terms of the set-
tlement agreement required Washington to surrender more
than this most recent claim. The settlement agreement speci-
fied that it constituted “full satisfaction of any and all claims
of Mr. Washington for past and future disability benefits
under the Player Retirement Plan as in effect during the term
of the 1993 collective bargaining agreement . . . or under any
plan in effect during any prior collective bargaining agree-
ments between the National Football League Players Associa-
tion of the National Football League Management Council.”
(Emphasis added).1 The majority’s position that Brumm was
   1
     Nor had Washington given up on claiming benefits after the 1987 arbi-
tration. Between 1987 and 1992, Washington gathered three more medical
opinions supporting his claim that his disability was related to his football
injuries, and sought a settlement agreement with the Board in 1992. The
Board explicitly invoked the conclusions of the 1987 arbitration in reject-
ing Washington’s settlement proposal. At that time, the Board stated its
position that it had “met its fiduciary responsibilities with regard to”
Washington. There is no record that at any point between this 1992 asser-
tion by the Board and the 1998 settlement negotiations, the Board dis-
closed that at least one federal appeals court had held that the Board’s
invocation of the Kagel criteria before 1993 was a violation of the Board’s
fiduciary duties. Thus, as far as we can tell from the record, Washington
would not have known during settlement negotiations that the Board had
reason to think that it had abrogated its fiduciary responsibilities to him
or other disabled players whose claims under the old Plan the Board had
denied in relying on the Kagel criteria.
12944                WASHINGTON v. BELL/ROZELLE
not relevant because the new Plan’s language mooted the
Board’s previous imposition of the “single football injury”
requirement ignores that the settlement required Washington
to relinquish any claims under the old Plan. There is a sub-
stantial likelihood that a reasonable employee who knew that
the Board’s reasons for denying his prior claims had been
held to be arbitrary and capricious by a federal appeals court
— and that in response to this decision, the employer had
revamped the relevant sections of the retirement plan —
would evaluate the costs of such relinquishment much differ-
ently from one who knew only that the Plan had changed.2

   Second, knowledge that the Board could no longer rely on
its previous reason for denying Washington’s attempts to get
football-related benefits might have increased Washington’s
estimated chances at ultimately securing such benefits, and
thus whether and for how much to settle. The Board gave no
  2
    I note that even if ERISA’s six-year statute of limitations with respect
to a fiduciary’s breach of its duties, see 29 U.S.C. § 1113(1), barred Wash-
ington from suing the Board for some portion of the benefits to which he
argued he was entitled under the old Plan, Washington undoubtedly could
have pursued claims for any breach of fiduciary duty between 1992 and
1998. It is unclear what constitutes “the date of the last action which con-
stituted a part of the [alleged] breach or violation” with respect to the use
of the Kagel criteria to deny Washington football-related benefits under
the old Plan. § 1113(1)(A). The final part of that breach might plausibly
be placed in April 1987, when the Board first applied the Kagel criteria
to deny Washington football-related benefits; in June 1992, when the
Board again invoked the arbitration agreement to deny Washington’s
renewed request for football-related benefits; in June 1993, the last month
the Board paid Washington the $750 monthly benefit under the old Plan;
or in April 1996, when the Board appeared to consider the invalidated
arbitration criteria in denying Washington reclassification under the new
Plan. The barring effect of the statute of limitations depends on the date
on which the breach is considered complete, but at least some of these
dates were within six years of the December 1998 settlement agreement.
Thus, the settlement agreement’s clause surrendering any claims Washing-
ton might have had under the old Plan was not simply empty language,
and knowing that such claims were bolstered by Brumm would have been
material to a reasonable person relinquishing them.
                  WASHINGTON v. BELL/ROZELLE               12945
new reasons for denying Washington’s request for reclassifi-
cation under the “Football Degenerative” category in 1993,
instead simply stating that “based on the evidence before it,
the Board determined that your disability did not arise out of
League football activities.” The Board’s records from its
April 18, 1996 meeting indicate that the “evidence before it”
consisted of Washington’s letters dated February 29, 1996
and the “Arbitration Decision dated 7/10/87.” There is a sub-
stantial likelihood that a reasonable employee would estimate
he had a better chance of succeeding in his appeal for Football
Degenerative benefits under the new Plan, which require a
showing that his disability “arises out of League football
activities,” if he knew that the only evidence before the Board
were his letters and a decision based on invalidated criteria for
determining “a football injury.” After all, the Board’s previ-
ous denial of Washington’s request under the old Plan had
explicitly relied upon the invalidated criteria, and the Board
did not provide any further explanation for its conclusion that
Washington’s disability did not “arise out of League football
activities.” It is, of course, possible that the Board eschewed
any reliance on the conclusions of the 1987 arbitration — and
the invalidated criteria therein — that the Board had “before
it” when deciding that Washington did not qualify for the
higher monthly benefit even under the new Plan’s broader
language. However, the Board’s records and communications
with Washington provide no such assurance, and a reasonable
employee would not necessarily have assumed such scruples
on the part of his employer-cum-adversary.

   I therefore conclude that there was a “substantial likeli-
hood” that the Board’s failure to disclose the invalidation of
the criteria by which Washington’s previous classification
request had been denied would have prevented “a reasonable
employee [from] making an adequately informed decision
about” whether and for how much to relinquish all claims
under the old Plan and to settle a claim for reclassification
under the new Plan. See Fischer, 994 F.2d at 135. Thus, the
Eighth Circuit’s holding in Brumm was material, the Board
12946            WASHINGTON v. BELL/ROZELLE
violated its fiduciary duties to Washington by failing to dis-
close it to Washington and this failure to disclose was an ade-
quate ground upon which to rescind the settlement agreement.
I would affirm the district court.
