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Brendan Smith
Legal Times
01-16-2008

Wilber Marshall -- a 45-year-old retired linebacker who won two Super Bowl rings with the Washington Redskins and Chicago Bears -- took home a win from the 4th U.S. Circuit Court of Appeals in his longstanding dispute with the National Football League over disability benefits.

In its unanimous decision Monday, the 4th Circuit reinstated a bankruptcy judge's decision that awarded Marshall approximately $72,000 in disability benefits, plus attorney fees and court costs. The NFL Retirement Board had denied the benefits for eight months in 2001, but the 4th Circuit found the board chose an arbitrary starting date for reinstating Marshall's benefits based on one doctor's report, despite a prior history of his disabilities from past medical reports. The decision reversed a ruling by U.S. District Judge Gerald Bruce Lee in the Eastern District of Virginia, who found the board's later starting date was reasonable.

Marshall, who filed for bankruptcy in 2002, is hobbled by degenerative arthritis in his knees, ankles, hands, elbows and spine. "It's not just one joint. It's your whole body," he says. "There are so many appeals. Appeals, appeals, appeals. How many [retired] players can keep fighting?"

William "Dan" Sullivan, a partner at Tighe Patton Armstrong Teasdale, represented Marshall, who lives in Sterling, Va. Sullivan says the NFL pension plan contains "an inherent potential for inconsistencies" not only from conflicting disability reports from different doctors but also the Retirement Board's actions.

"What seems to be most inconsistent is the board's treatment of the facts they get in a particular case in what I would say is a stingy approach to recognizing the pain and the suffering and the disabilities that last a lifetime after 12 seasons of playing rough as a linebacker in the NFL," Sullivan says. "These things crush people. If they're going to have a pension plan that is intended to deal with what the NFL does to its players over the course of years, they ought to have a pension plan that deals with it rather than trying to slough off its responsibility."

Marshall, a University of Florida standout who was picked in the first round of the 1984 draft by the Bears, played for the Redskins from the 1988 to 1992 seasons, including the Redskins' 37-24 win over the Buffalo Bills in Super Bowl XXVI in 1992. Marshall led the defense with 11 tackles, one sack and two forced fumbles in the victorious end to "perhaps the greatest all-around season in franchise history," according to the Redskins Web site.

After leaving the Redskins, Marshall, a three-time Pro Bowl player, was signed for single seasons with the Houston Oilers, Arizona Cardinals and New York Jets, but his rapidly declining health forced him to retire in 1995.

Marshall's battle with the NFL began in 1997 when he first applied for disability benefits, with his case later bouncing among doctors approved by the Retirement Board who issued contradictory opinions about whether Marshall was permanently disabled or capable of performing sedentary work. The board includes three voting members from the NFL Management Council and three from the NFL Players Association.

In 1998, a physician found Marshall was permanently disabled, resulting in the board awarding retroactive disability benefits back to April 1997. But in 2000, another doctor found Marshall could do sedentary work, with the board then terminating his benefits the following year. After another appeal, two more doctors ruled again that Marshall was permanently disabled, resulting in another reinstatement of his benefits in 2002. That same year, Marshall filed for bankruptcy, leading to a lawsuit in 2004 from both the bankruptcy trustee and Marshall against the NFL Player Retirement Plan over the denied benefits in 2001.

Marshall says the doctors approved by the Retirement Board are not impartial. "They have a right to say whatever they're going to say, but who's paying them?" he asks.

Sullivan says there are no debts left to be resolved in Marshall's bankruptcy, so Marshall will collect the $72,000 in unpaid disability benefits and will be repaid for court costs and attorney fees.

Lonie Hassel with the Groom Law Group, a D.C.-based employee benefits specialty firm, represented the NFL Player Retirement Plan. She couldn't be reached for comment Monday. The defendant's brief stated that the Retirement Board "did the best it could given the medical disagreement" over Marshall's permanent disability.

"The bottom line here is that the board followed the [retirement] plan exactly," the brief stated. "A close medical issue, and a disagreement among physicians, does not make the actions of the board an 'abuse of discretion.'"