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Case 1:10-cv-00777-PLM Doc #23 Filed 09/30/10 Page 1 of 10 Page ID#104

UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ROGER “ROCKY” ROSEMA,

Plaintiff,
Case No. 1:10-cv-00777-PLM
v
Hon. Paul L. Maloney
THE BERT BELL/PETE ROZELLE NFL
RETIREMENT PLAN BENEFITS
ADMINISTRATORS, et al

Defendants.

CUMMINGS, McCLOREY, DAVIS & ACHO, P.L.C. CLARK HILL PLC


By: JAMES R. ACHO (P-62175) By: JAMES L. WERNSTROM (P-23071)
33900 Schoolcraft 200 Ottawa Avenue NW, Suite 500
Livonia, MI 48150 Grand Rapids, MI 49503
(734) 261-2400 (616) 608-1100
Attorneys for Plaintiff Attorneys for Defendant Bert Bell/Pete Rozelle
NFL Retirement Plan Benefits Administrators

BRIEF IN SUPPORT OF PLAINTIFF’S


MOTION FOR SUMMARY JUDGMENT
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TABLE OF CONTENTS

PAGE

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

MOST APPROPRIATE AUTHORITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

CONCISE STATEMENT OF ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

RELIEF REQUESTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

CERTIFICATE OF SERVICE

INDEX OF EXHIBITS

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INDEX OF AUTHORITIES

PAGE

CASES

American Council of Certified Podiatric Physicians and Surgeons


v. American Board of Podiatric Surgery, Inc., 185 F.3d 606, 619
(6 th Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Gaydosh v. Lewis, 410 F.2d 262 (D.C. Cir. 1969). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Gordon v. ILWV-PMA Benefit Funds, 616 F.2d 433 (9 th Cir., 1980). . . . . . . . . . . . . . . . . . . . . 5

Horace v. Auto Specialties Mfg. Co., 663 F.Supp. 54 (W.D. Mich. 1987). . . . . . . . . . . . . . . . . . 5

Lowenstern v. International Association of Machinists and Aerospace


Workers, AFL-CIO, 479 F.2d 1211, 1213 (D.C. Cir. 1973). . . . . . . . . . . . . . . . . . . . . . . . . . . 4

COURT RULES

Fed. R. Civ. P. 56(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

STATUTES

29 U.S.C. 1132(a)(I)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

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CONCISE STATEMENT OF ISSUES PRESENTED

WAS ROGER ROSEMA W RONGFULLY DENIED HIS


PENSION BENEFITS BY THE NATIONAL FOOTBALL
LEAGUE PLAYERS ASSOCIATION?

Plaintiff would say: YES

Defendant would say: NO

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PLAINTIFF’S BRIEF IN SUPPORT OF


HIS MOTION FOR SUMMARY JUDGMENT

NOW COMES the Plaintiff, ROGER ROSEMA, by and through his attorneys,

CUMMINGS, McCLOREY, DAVIS & ACHO, P.L.C. by JAMES R. ACHO, and for his Brief

in Support of his Motion for Summary Judgment, states as follows:

STATEMENT OF FACTS

Plaintiff Rosema is considered one of the greatest athletes in the history of Grand Rapids,

having once been called “one of the greatest high school football players I’ve ever seen” by former

U.S. President Gerald Ford. Plaintiff graduated from Grand Rapids Central in 1964 and, like

President Ford, was inducted into the Grand Rapids Sports Hall of Fame. (Exhibit A: Cpl ¶8). From

1964-1967, Plaintiff Rosema was a standout football player at the University of Michigan. Plaintiff

earned numerous accolades, including All Big Ten, and was chosen to play in the prestigious Senior

Bowl in 1967. (Exhibit A: Cpl ¶9).

In 1968, Plaintiff Rosema was drafted by the St. Louis Cardinals Football Club, now known

as the Arizona Cardinals. The team has been owned by the Bidwill Family since 1932, when the

franchise was first located in Chicago. He was drafted in the fifth round of the NFL, being the 123

pick overall. (Exhibit A: Cpl ¶10). From 1968-1971, Plaintiff Rosema was a solid contributor to

the St. Louis Cardinals football team, until his release in 1971 due to injury. Plaintiff was not placed

on injured reserve, but simply given his outright release. In a rare act of generosity, Cardinals owner

Bill Bidwill called Plaintiff Rosema and told him he would receive a third (3 rd) game check so that

“years from now you’ll get your pension . . . you’ll appreciate this years from now, kid.” Plaintiff

was bewildered, but did receive a third (3 rd) game check. He believed he would be signed by

another team, though, and would play several more years. This was not to be. In 1972, Plaintiff

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signed with the Washington Redskins football club, but never played for the Redskins due to an

injury in the preseason. (Exhibit A: Cpl ¶11).

Pursuant to the Defendants’ NFL Retirement Plan, players who participated in the NFL prior

to 1990 had to have played or been accredited for four seasons in order to vest for an NFL pension.

(Exhibit A: Cpl ¶12). Under the Defendants’ plan, three game checks in any given season means

that said season counts toward accreditation for one full season towards the vesting requirement.

(Exhibit A: Cpl ¶13).

The relevant plan provision is section 1.10. (Exhibit B: NFL Player Retirement Plan Section

1.10). Plan section 1.10 defines the term Credited Season. It states as follows:

1.10 “Credited Season” means a Plan Year in which a Player:

(a) is an Active Player (including an injured Player who otherwise satisfies the
definition of “Active Player”) on the date of three or more Games, not including
Game dates when he was on the Future List;

(b) after April 1, 1970, is injured in the course and scope of his employment for
an Employer and by reason of such injury, and pursuant to an injury grievance
settlement or an injury settlement waiver, receives payment equivalent to his
salary for three or more Games or for a number of Games which, when added
to the number of Games in such Plan year for which he otherwise has credit,
totals three or more;

(c) after reporting to at least one official pre-season training camp ro official practice
session during such Plan year, (1) dies, (2) becomes totally and permanently disabled
under Section 5.1(a) or Section 5.1(b), or (3) incurs a disability that subsequently
qualifies for a benefit under Section 6.1;

(d) is absent from employment by an Employer while serving in the Armed Forces
of the United States, provided such Player returns as an Active Player, after first
being eligible for discharge from military service, by the later of (i) ninety days or
any longer period prescribed by applicable law, or (ii) the opening of the official pre-
season training camp;

(e) for payments on or after June 1, 1993, was absent from employment by an
Employer while serving in the Armed Forces of the United States during the periods
set forth in the table below if (1) during the one year period ending on the date he

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entered the Armed Forces, such Player either played professional football for an
Employer or signed a contract (or similar document) stipulating his intent to play
professional football for an Employer, and (2) such Player was alive on the date set
forth in the table below for the corresponding period:

For Plan Years: Such Player Was Alive On:

April 1, 1941 through March 31 June 6, 1994

April 1, 1950 through March 31 May 1, 1996

April 1, 1960 through March 31 January 13, 2000

provided that Credited Seasons under this Section 1.10(e) will be granted only if and
to the extent necessary for such Player to become a Vested Player; or

(f) effective April 1, 2001, has a season with at least eight games on the practice
squad in a Plan Year (either before or after April 1, 2001) in which he did not
otherwise earn a Credited Season, provided that he is otherwise vested and earns a
Credited Season in 2001 or later. A Player may earn a maximum of one Credited
Season under this Section 1.10(f) regardless of the number of seasons in which he
has at least eight games on the practice squad (as such term is or may be defined in
Article XXXIV of the CBA).

It is uncontroverted that Rosema played all of the 1968, 1969 and 1970 seasons for the

Cardinals. On August 3, 2010, the Arizona Cardinals provided documentation proving Mr. Rosema

received three game checks for the 1971 NFL season. (See Exhibit C, Letter from Arizona

Cardinals). Having been paid for three games for the 1971 season means that Plaintiff Rosema

meets the three game check threshold for his fourth season, thus vesting for his pension. He

immediately qualified upon receiving the third game check in 1971. Following his release in 1971,

and subsequent injury in 1972, Mr. Rosema filed an injury grievance against the Cardinals. As a

result he was awarded workers compensation benefits for the rest of the 1971 and all of the 1972

season for which he was a member of the Washington Redskins. (See Exhibit D, Transcript). In all,

Plaintiff has qualified for five (5) NFL seasons, yet upon application for his pension, was wrongfully

denied by the Defendant Retirement Board.

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ARGUMENT

Summary judgment is proper when the evidence shows "that there is no genuine issue as to

any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ.

P. 56(c). This rule mandates that summary judgment be granted, "against a party who fails to make

a showing sufficient to establish the existence of an element essential to that party's case, and on

which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986). In making its determination, the Court, "must consider all the facts in light most favorable

to the nonmovant and must give the nonmovant the benefit of every reasonable inference."

American Council of Certified Podiatric Physicians and Surgeons v. American Board of Podiatric

Surgery, Inc., 185 F.3d 606, 619 (6 th Cir. 1998). As will be discussed below, even viewing the facts

in a light most favorable to the Defendant, Defendant has failed to raise a material question of fact

with respect to Count I. Therefore, Plaintiff is entitled to Summary Judgment on Count I of

Plaintiff's Complaint.

The Employee Retirement Income Security Act of 1974 (ERISA) establishes minimum

standards for pension plans in private industry and provides for extensive rules on the federal

income tax effects of transactions associated with employee benefit plans. ERISA was enacted to

protect the interests of employee benefit plan participants like Mr. Rosema and their beneficiaries.

When evaluating claims of wrongful denial of earned pension benefits, it is well established

that court review will be limited to analyzing the record to determine whether the administrative

denial was based upon substantial evidence and was neither arbitrary nor capricious. Lowenstern

v. International Association of Machinists and Aerospace Workers, AFL-CIO, 479 F.2d 1211,

1213 (D.C. Cir. 1973) (Judge Winter of the Fourth Circuit Court of Appeals sitting by designation.)

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Gaydosh v. Lewis, 410 F.2d 262 (D.C. Cir. 1969), Gordon v. ILWV-PMA Benefit Funds, 616 F.2d

433 (9 th Cir., 1980). The court must determine in Mr. Rosema’s situation whether substantial

evidence as been provided to prove Mr. Rosema satisfied the requirements for pension eligibility

according to the NFL Player Retirement Plan. Horace v. Auto Specialties Mfg. Co., 663 F.Supp.

54 (W.D. Mich., 1987).

Mr. Rosema has satisfied the necessary requirements to be eligible to receive his pension.

Starting in 1968, Mr. Rosema earned four (4) credited seasons as an Active Player upon his release

from the Cardinals in 1971. (See Exhibits B and C). Further, Mr. Rosema earned a fifth (5 th)

credited season in 1972 by receiving workers compensation as a settlement for an injury grievance

against the Cardinals and Washington Redskins. This initial injury came as a Cardinal, and it was

exacerbated, along with a new injury, when he played in the preseason for the Washington Redskins

in 1972. (See Exhibit D). In light of the Arizona Cardinal’s explicit confirmation that Mr. Rosema

earned three game checks in 1971, there is no longer any material issue of fact in question to allow

the NFL to deny Mr. Rosema the pension benefits he has rightfully earned. Any denial of Mr.

Rosema’s pension benefit would be arbitrary and capricious. Further, with the award of benefits

for injuries suffered in 1971 and 1972, Plaintiff has proven he qualifies for five years under the Plan.

Therefore, Plaintiff requests summary judgment pursuant to 29 U.S.C. 1132(a)(I)(B), “To

recover benefits due him under the terms of the plan, to enforce rights under the terms of the plan,

[and] to clarify his rights to future benefits under the terms of the plan.” The discontinuation of

Plaintiff’s disability benefit payments and the determination that Plaintiff’s disability benefits were

overpaid are in direct violation of the terms of the Plan. Plaintiff seeks retroactive pay of all back

benefits, as well as forward benefits owed.

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CONCLUSION

WHEREFORE, Roger Rosema respectfully requests that this Court (1) grant summary for

one or more of the reasons set forth herein, (2) award Plaintiff $90,000 in back pension benefits and

enter a judgment that Plaintiff is entitled to his pension moving forward, and (3) grant any additional

relief it may deem appropriate, including all interest and attorney fees.

Respectfully submitted,

/s/ JAMES R. ACHO


James R. Acho (P-62175)
Cummings, McClorey, Davis & Acho, P.L.C.
33900 Schoolcraft Road
Livonia, MI 48150
(734) 261-2400
Attorneys for Plaintiff
Dated: September 30, 2010 Email: jacho@cmda-law.com

CERTIFICATE OF SERVICE

I hereby certify that on September 30, 2010, I electronically filed the foregoing paper with the Clerk
of the Court using the ECF system which will send notification of such filing to the following:
JAMES L. WERNSTROM, ESQ.

and I hereby certify that I have mailed by United States Postal Service the paper to the following non-
ECF participants: N/A

/s/ James R. Acho


Cummings, McClorey, Davis & Acho, P.L.C.
33900 Schoolcraft
Livonia, MI 48150
Phone: (734) 261-2400
Primary E-mail: jacho@cmda-law.com
P-62175

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