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D ock e t 99-3279

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. e du/thir dc ir c uit_2000/112Filed 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 Cou rt 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 F ootball League's retirement plans, denying a request to rec lassify disability benefits to a higher pay status, was arb itrary and capricious. Stephen P. Courson contends that the NF L 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 retire ment plan. Thus, Courson contends he is entitled to a higher l evel of disability benefits. Because we find the Board's de cision was reasonable and supported by substantial evidenc e, we will affirm the judgment of the District Court.

I.

This appeal presents the unfortunate account of a f ormer professional football player who once dominated the playing

field as an offensive lineman in the National Footb all

2League ("NFL") but, due to alcohol-induced cardiomy opathy,

is now in need of a heart transplant. In 1977, Cour son was drafted by the Pittsburgh Steelers Football Club. C ourson played professional football for the Steelers from the time

he was drafted in 1977 until the end of the 1983 se ason. He was traded to the Tampa Bay Buccaneers Football Club in 1984 and played for that team during the 1984 an d 1985 seasons. After the conclusion of Tampa Bay's 1 986 mini-camp, Courson asked to be traded. Tampa Bay ag reed and released him two weeks later. Courson then spen t the next month in Myrtle Beach, working out with weight s 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 to ok 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 fo r his autobiography, which was eventually published in 19 91 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. Cours on concluded that, "[o]ther than football, I didn't kn ow of too many legitimate professions in which one could make that kind of dough. And without a college degree and wit h few marketable skills, it would be difficult for me to earn even a moderately decent wage." Consequently, Courson de cided to pursue a career in professional wrestling. He th ought he could make a lot of money fast and then retire.

In his book, False Glory, Courson describes his fir st match in Charleroi, Pennsylvania, in which he quick ly disposed of his opponent by giving "him a couple of hip tosses, [throwing] him off the ropes, lift[ing] him , bodyslamm[ing] him to the canvas, and then cover[ing] h im up. Bing-bang-boom." Around the same time, Courson competed in his first and only weight lifting compe tition. At a September 10, 1988 event, Courson bench pressed 6 05 pounds to win the super-heavyweight class, describi ng the victory as "exhilarating."

3During his career in the NFL, Courson was exposed t o

the use of anabolic-androgenic steroids ("AAS") amo ng his teammates and other NFL players. In order to compet e with other NFL players who used AAS, Courson began inges ting AAS to increase his size, strength, speed, and aggr ession. Courson continued to ingest AAS after he retired fr om the

NFL.

At about the same time as he was ingesting AAS, Courson also began consuming large amounts of alcoh ol, primarily as a means to control the pain resulting from football injuries. According to Courson, his drinki ng eventually led to his addiction to alcohol because the pain remained constant yet more alcohol was needed as hi s tolerance level increased. Courson could have chose n narcotic painkillers, which he claims were frequent ly provided by team physicians, to quell his pain but, instead,

he chose alcohol. Courson continued to drink excess ively

until he became ill in the fall of 1988.

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

In October 1992, Courson applied for disability ben efits 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 establ ished through a collective bargaining agreement between t he National Football League Players' Association ("the Players' Association") and the National Football League Mana gement Council ("the Management Council"). The Bert Bell P lan provides the following relevant categories of benef its:

41) a monthly pension of "no less than $4,000 if

disability results from a football injury in curred while an Active Player;" and

2) a monthly pension of "no less than $750 i f 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, "Footb all Injury" benefits and "Other Than Football Injury" b enefits.

The Bert Bell Plan provides for the creation of a Retirement Board composed of six voting members, th ree of whom are selected by the Players' Association and t hree of whom are selected by the Management Council, and on e non-voting member, the Commissioner of the NFL. Wit h regard to the powers of the Retirement Board, the p lan

states:

the Retirement Board shall have all necessar y powers incident to the creation, administrat ion, implementation and operation of the Plan and Trust, including but not limited to the power:

A) To define and amend the terms of the Pla n 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 t he nature and cause of his disability with an onset da te of November 1988. His application included a report fr om cardiologist Mark E. Thompson, M.D., who confirmed that Courson was totally and permanently disabled and th at 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 T han Football Injury" benefits under the Bert Bell Plan retroactive to December 1, 1988, the first month following the onset date of his disability.

5In 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 Retiremen t Plan (the "Rozelle Plan"), an ERISA plan similar to the Bert Bell Plan, to be merged to form a new plan, the Bert Bel l/Pete Rozelle NFL Player Retirement Plan (the "Player Ret irement Plan" or the "New Plan"). The Player Retirement Pla n, which governs eligibility determinations for benefits pay able after July 1, 1993, is also an employee pension benefit p lan within the meaning of section 3(2)(A) of ERISA, 29 U.S.C. S 1002(2)(A). Under the Player Retirement Plan, eli gible players who had been awarded benefits under the Ber t Bell Plan and the Rozelle Plan (collectively referred to as the "Predecessor Plans") will continue to receive disab ility

benefits.

As was true for the Predecessor Plans, eligibility terms and benefit levels under the Player Retirement Plan were established through collective bargaining between t he Players' Association and the Management Council and memorialized in the governing plan document. Like t he Predecessor Plans, the Player Retirement Plan is administered by a joint Retirement Board composed o f six voting members, three selected by the Players' Asso ciation and three selected by the Management Council. The p lan document provides in pertinent part:

[t]he Retirement Board will have full and ab solute discretion, authority and power to interpret , control, implement, and manage the Plan and the Trust . Such authority includes, but is not limited to, t he 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 submi tted to, and decided by, the Medical Advisory Physician or an arbitrator pursuant to Secti on 8.3);

. . .

6Player Retirement Plan, S 8.2 at 32.

The plan document also sets forth the following fou r-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 $4,0 00 if the disability(ies) results from League football activities, arises while the Player is an Ac tive Player, and causes the Player to be totally and permanently disabled "shortly after" the disability(ies) first arises.

(b) (Active Nonfootball) The monthly total a nd permanent disability benefit will be no less than $4,000 if the disability(ies) does not resul t from League football activities, but does arise w hile the Player is an Active Player and does cause th e Player to be totally and permanently disable d "shortly after" the disability(ies) first ar ises.

(c) (Football Degenerative) The monthly tota l 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 an d 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 permane nt disability benefit will be no less than $1,5 00 if (1) the total and permanent disability arises fr om other than League football activities while the Player is a Vested Inactive Player, or (2) t he disability(ies) arises out of League footbal l activities, and results in total and permane nt disability after the later of (i) age 45, or (ii) 12 years after the end of the Player's last Cre dited Season. The minimum benefits provided under this Section 5.1(d) will be offset by any di sability benefits provided by an employer other than the League or an Employer, but will not be offse t by worker's compensation.

7Id., S 5.1(a) - (d) at 21-22. As used in subsection s (a) and

(b) above, the phrase "shortly after" includes Play ers who become totally and permanently disabled within six months after the disability first arises. If a Player beco mes totally and permanently disabled more than twelve months af ter the disability first arises, the disability will be conclusively deemed not to fall within the "shortly after" provi sion. The

Retirement Board is vested with the discretion to d ecide whether the "shortly after" standard is satisfied i n cases where the Player becomes totally and permanently di sabled
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 Footba ll Degenerative classifications, a player falling unde r one of these three classifications is automatically entitl ed to an additional monthly benefit under the NFL Player Supplemental Disability Plan (the "Supplemental Pla n").1 The purpose of the Supplemental Plan is to provide addi tional disability benefits to certain players who also rec eive total and permanent disability benefits under the Player Retirement Plan. Like the Player Retirement Plan, e ligibility terms and benefit levels under the Supplemental Pla n are determined through collective bargaining between th e Players' Association and the Management Council and memorialized in the governing plan document. The Supplemental Plan is administered by a Disability B oard composed of six voting members, three of whom are selected by the Players' Association and three of w hom are appointed by the Management Council. The Disability Board has absolute discretion and final authority i n interpreting the Supplemental Plan, adopting rules and regulations regarding the administration of the pla n, 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 t o $200,000 per year for Players whose claims fall wit hin one of these three categories. On the other hand, Playe rs whose

___________________________________________________ ______________

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

8claims are classified in the Inactive category do n ot receive

benefits under the Supplemental Plan.

Courson petitioned the Player Retirement Plan's Retirement Board in May of 1996 to reclassify his d isability from Inactive to one of the three higher-paying classifications--Active Football, Football Degenera tive, 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 activitie s" for purposes of the Player Retirement Plan's disability

classification scheme.

The Retirement Board unanimously denied Courson's reclassification request under the Player Retiremen t Plan in a letter decision dated July 18, 1996. The Board's decision

left intact Courson's current classification of Ina ctive for which he receives payments of $1,750 per month. The Board concluded that Courson did not qualify for ei ther Active Football, Football Degenerative, or Active N onfootball benefits because: (1) his disability did not arise during the time he was an Active Player; (2) even if his disab ility did arise during the time he was an Active Player, it d id not cause him to become totally and permanently disable d within 12 months of the onset date of the disabling condition; (3) the taking of AAS and the consumptio n of alcohol are not League football activities; and (4) even if the taking of AAS was considered a League football acti vity,

there is no established scientific evidence that th ere is a causal relationship between the use of AAS and the development of dilated cardiomyopathy.

In accordance with the decision review provisions o f the Player Retirement Plan, Courson appealed the Retire ment
Board's denial and submitted additional documentati on 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 en titled to

benefits under the Bert Bell Plan from June 1986 th rough
November 1988 because alcoholism rendered him disab led during this period. He further argued that his alco holism was a "League football activity" which entitled him to the higher-paying Football Injury benefits during this period.

9Courson also claimed that his heart condition resul ted from

"League football activities" which entitled him to Football Injury benefits under the Bert Bell Plan from Novem ber 1988 through July 1, 1993.

The Retirement Board reviewed the supplemental documentation Courson submitted. In addition, the Retirement Board sought and obtained more informati on about the medical and non-medical issues related to AAS and alcohol use, all of which was made available fo r Courson's review. After considering all of the reco rd evidence, the Retirement Board, on August 11, 1997, unanimously affirmed its previous determination tha t Courson only qualified for "Other Than Football Inj ury" benefits under the Bert Bell Plan for the period De cember 1, 1988 through July 1, 1993 and "Inactive" benefits u nder the Player Retirement Plan on an ongoing basis ther eafter.
The Retirement Board further found that Courson was not totally and permanently disabled from June 1986 thr ough November 1988 under the Bert Bell Plan eligibility rules.

Having exhausted his administrative remedies, Cours on then filed this action in the District Court agains t the defendants, claiming that his application for benef its was denied in violation of ERISA. The parties subsequen tly filed cross-motions for summary judgment. The District Co urt, finding that the Retirement Board's decision was re asonable and supported by substantial evidence, entered an o rder on March 31, 1999, granting summary judgment in favor of the defendants. Courson subsequently filed this tim ely appeal.

II.

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

10101, 115 (1989)). Under all of the plans at issue h ere, 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 standa rd on
the basis of the administrative record before the B oard when it made its decisions. Hullett v. Towers, Perr in, Forster & Crosby, Inc., 38 F.3d 107, 114 (3d Cir. 1994) (ci ting Firestone, supra, at 115).

Under this deferential standard, a plan administrat or's interpretation of a plan may be disturbed "only if it is `without reason, unsupported by substantial evidenc e or erroneous as a matter of law.' " Abnathya v. Hoffma nnLaRoche, Inc., 2 F.3d 40, 45 (3d Cir. 1993) (quotin g Adamo v. Anchor Hocking Corp., 720 F.Supp. 491, 500 (W.D. Pa. 1989)). A decision is supported by "substantial evi dence if there is sufficient evidence for a reasonable perso n 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 me rits of Courson's appeal.

III.

Courson maintains that the Retirement Board's decis ion was arbitrary and capricious as it was against the weight of

substantial evidence. The Retirement Board addresse d three distinct claims presented by Courson: (1) a c laim for total and permanent disability benefits from 1986 t hrough November 1988 due to alcoholism; (2) a request for reclassification of disability benefits from"Other Than Football Injury" to "Football Injury" for the perio d November 1988 to July 1, 1993; and (3) a request for reclass ification of disability benefits from "Inactive" to either "A ctive Nonfootball," "Active Football," or "Football Degen erative" benefits for the period July 1, 1993 to present. 2 We will address each of these claims seriatim. Before proce eding 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 evid ence to date simply does not support a link between AAS and cardiomyopa thy.

11meaning of the terms "totally and permanently disab led"

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 dis abled under the New Plan in the following situation:

An Active Player or a Vested Inactive Player . . . will be deemed to be totally and permanently disable d if the

Retirement Board finds that he has become to tally

disabled to the extent that he is substantia lly prevented from or substantially unable to en gage in any occupation or employment for remuneratio n or profit, but expressly excluding any disabili ty 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 merel y because such person is employed by the League or an Employer, manages personal or family investm ents, is employed by or associated with a charitable organization, or is employed out of benevole nce.

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

A Player or Vested Inactive Player, other th an a Retired Player, shall be deemed to be totally and pe rmanently
disabled if the Retirement Board shall find that he has become totally disabled to the extent that h e is prevented from or unable to engage in any oc cupation or employment for remuneration or profit, bu t 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 disabil ity has been made, the eligibility criteria set forth p reviously

for the various levels of benefits must be reviewed in light of the nature and cause of an individual Player's d isability. Under the New Plan, the four-part classification sc heme is

12used (Active Football, Active Nonfootball, Football

Degenerative, Inactive); under the Old Plan, disabi lities are categorized as either "Football Injury" or"Other Th an Football Injury."

Under the New Plan, the key to determining the corr ect benefit category is whether the disability arises o r results from "League football activities." The New Plan pro vides the following definition of "Arising out of League foot ball
activities":

"Arising out of League football activities" means a disablement arising out of any League pre-se ason, regular-season, or post-season game, or any combination thereof, or out of League footba ll activity supervised by an Employer, including all req uired 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 traini ng, 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 cl assifying the disability is determining whether the disabilit y"results from a football injury." The Old Plan defines"Arisi ng out of

football activities" as follows:

"Arising out of football activities" shall m ean a disablement arising out of any Game or any p re-season or post-season game of the League or out of football activity supervised by an Employer, includin g all required or directed activities. "Arising ou t of football activities" shall not include any disablemen t resulting from other employment or activity initiated by the Player outside of official pre-season traini ng, including athletic activity for recreational or for th e general purpose of maintaining or achieving playing condition.

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

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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 ac tivities." We refer to this definition because it provides some guidance i n determining whether Courson's disability "result[ed] from a football in jury" for purposes of total and permanent disability benefits.

13definitions in mind, we turn now to a discussion of the

three claims raised by Courson before the Retiremen t

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 un der 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 dis abled during this period due to alcoholism. Courson furth er contends that his addiction to alcohol arose as a r esult of the failure by the NFL and its member clubs for who m he played, despite knowledge of Courson's use and abus e of alcohol, to follow NFL policies regarding such abus e. Moreover, Courson contends that by providing alcoho l to Players after games, the Steelers supervised and di rected his alcohol consumption, thus making it a football activity. Thus, Courson submits that because his alcoholism resulted from a football activity, he is entitled t o"Football Injury" benefits. The Board's decision to the contr ary, Courson argues, was against the weight of substanti al
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 belo w, Courson's assertion, however, misstates the basis o f the
Board's decision and the record evidence.

Courson further argues that the Board failed to con sider that the temporary ability to engage in purely phys ical feats of strength does not necessarily mean that one is c apable 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 i n Mitchell that given the characteristics of chronic fatigue syndrome, it was not inconsistent for the plaintiff 's physician to conclude that the plaintiff was totall y unable

14to engage in substantial gainful activity even thou gh his

ability to perform isolated activities such as stan ding, pushing, pulling and communicating was only "somewh at" limited. Id. at 440 n.7. To further support his pos ition, 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 alcoholi sm. Courson claims he has displayed many of the same si gns of disabling alcoholism as the claimant in McShea and , just as the claimant in McShea was not precluded from recei ving social security disability benefits due to periods of lucidity and sobriety, so, too, should Courson not be preclu ded from receiving disability benefits just because the record indicates periodic activity and sobriety. Id. at 11 8.

Our decision in Mitchell, however, can be distingui shed
on the facts here. The so-called "isolated" activit ies performed by Courson were much more than "standing, pushing, pulling and communicating." Moreover, the

Retirement Board considered the nature of the activ ities performed by Courson from June of 1986 through November 1988 in light of his claimed alcoholism, a s well as other evidence, and concluded that he was not substantially prevented from or substantially unabl e to engage in any occupation or employment for remunera tion or profit.

Finally, Courson contends that the Retirement Board ignored substantial evidence that Courson was, in f act, totally disabled from alcoholism for the period Jun e 1986 to

November 1988. The substantial evidence which Cours on contends the Board ignored consists of the report o f Paul Freyder, Courson's affidavit, and his federal incom e 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 i s clear
that the Retirement Board considered all of the evi dence, including Paul Freyder's report, Courson's affidavi t, and his federal income tax returns, and that its decision w as based
on substantial evidence. The Retirement Board consi dered Paul Freyder's report and found it to be completely implausible in light of the facts reported earlier by Courson

15in his book, False Glory. Freyder, a human services

consultant, opined that Courson's alcoholism "consu med his life and substantially prevented him from or re ndered him unable to find (and maintain) any employment[fr om June 1986 through November 1988]." Freyder's report was based entirely on an extensive interview he conduct ed with

Courson in 1997.

On the other hand, in False Glory, which was publis hed in 1991, Courson described his post-football experi ences very differently than he described them to Freyder in 1997. For instance, in False Glory, Courson stated that a fter the Buccaneers released him, Courson then spent the nex t month in Myrtle Beach working out with weights and running every day to stay in condition with the exp ectation that another NFL team would express an interest in him. In October, Courson vacationed in Munich. Upon returni ng from Germany, Courson rented a cabin in Wyoming and began taking notes for his book. In the spring of 1 988, upon learning that he was impoverished as a result of a number of bad investments, Courson decided to pursu e a career in professional wrestling. Around the same t ime, Courson also competed in a weight lifting competiti on. There is no indication from these post-football act ivities that alcoholism substantially prevented Courson fro m 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 lig ht 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 impre ssion from his statements in False Glory that he was not really looking for work until his investments severely dec reased in the spring of 1988, at which point he decided to go into professional wrestling to make some fast money. Thu s, the

16record evidence here shows that his lack of substan tial

income is attributable to a conscious decision on h is part not to seek employment until he discovered his impoverished situation -- not because he viewed him self as disabled in any way and incapable of working.

Moreover, Dr. Thompson's report and Courson's initi al application for disability benefits both state that the onset date of his total and permanent disability is Novem ber 26, 1988. Other than Freyder's report and Courson's aff idavit which are based on the self-serving statements of C ourson made in 1997, no other evidence, medical or otherwi se, 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 substa ntial

evidence.

B.

Reclassification of Disability Benefits- November 1 988 to July 1993

Courson further argues that the Retirement Board's denial of his request for reclassification of his d isability benefits from "Other Than Football Injury" to "Foot ball Injury" for the period November 1988 to July 1, 199 3 was arbitrary and capricious. He claims that he is enti tled to the reclassification because his cardiomyopathy is a total and permanent disability which resulted from a foot ball injury, i.e., an abuse of alcohol which was supervi sed and condoned by the Steelers and Buccaneers. While we c an appreciate counsel's zealousness to fashion an argu ment on Courson's behalf in support of reclassifying his be nefits to "Football Injury" benefits under the Old Plan, we d o not find any merit to his argument.

The Retirement Board carefully considered whether

Courson's self-described alcohol abuse was an activ ity "supervised by," or "required or directed" by, the Steelers or Buccaneers. In particular, the Retirement Board considered: (1) the NFL policy expressly prohibitin g serious misuse of alcohol; (2) that the Steelers provided a lcohol to

17players after games but only a maximum of two cans of

beer per player; (3) then Steelers' coach Chuck Nol l's statement that Courson displayed no outward signs t hat he was alcoholic or abusing alcohol; and (4) Courson's earlier statements in False Glory that episodes of heavy dr inking occurred at bars or at home, not at the club facili ties, that

he did not believe he was an alcoholic because he d id not match the typical profile -- he was rarely late for work, never started a fight in a bar, and did not drink e very 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 A AS consumption did not constitute activities "required ," "directed," or "supervised" by the NFL or either th e Steelers or Buccaneers. The Board completely rejected Courso n's argument that the teams' alleged failure to supervi se 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 ti me, 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, t he 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 clea rly shows that Courson decided to overindulge in alcoho l consumption on his own initiative, on his own time, in contravention of League policy. Moreover, no preced ent exists for finding that the failure to supervise Co urson's alcohol intake somehow renders that activity one th at "arises out of football activities" as meant by the Plan. Given these facts, it would be unreasonable to conc lude that Courson's alcohol abuse was an activity "super vised", "required or directed" by the Steelers or Buccaneer s. Although alcohol consumption may have caused or contributed to Courson's cardiomyopathy, such alcoh ol consumption was not an activity "supervised,""requi red or

18directed" by an NFL team. Therefore, Courson's argu ment

that his disability arose from a football injury la cks merit. The Retirement Board's denial of his request to rec lassify 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 rec lassify his disability from "Inactive" to "Active Nonfootba ll" benefits was arbitrary and capricious. In support of his arg ument, Courson submits that he presented substantial evide nce establishing his eligibility for "Active Nonfootbal l" benefits under the New Plan. Specifically, Courson claims he presented substantial evidence proving: (1) that hi s alcoholism arose while he was an active Player, and (2) that his alcoholism caused him to be totally and permane ntly
disabled within twelve months of his retirement. Co urson further contends that the Retirement Board rejected his claim solely on the basis that Courson failed to es tablish 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 dis ease 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 foot ball activities." In all other respects, Courson has mai ntained that his disability did result from a League footba ll activity, alcohol consumption. He cannot have it both ways. Nonetheless, Courson meets this prerequisite since the Retirement Board's conclusion that his disability d id not result from a League football activity is reasonabl e and supported by substantial evidence. Courson's claim of eligibility for "Active Nonfootball" benefits fails , however, because he has not shown that his disability,

19cardiomyopathy, arose while he was an active Player and

that it caused him to be totally and permanently di sabled 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 evide nce that supports his conclusory statement.

Courson's second reclassification argument pertains to the Retirement Board's denial of his request to rec lassify his disability from "Inactive" to either "Active Fo otball" 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" contradict ed the substantial evidence. Specifically, Courson contend s that the Retirement Board ignored the simple and indispu table facts -- that alcohol consumption was managed by th e Steelers; managing the activity is the equivalent o f supervising the activity; since his disability was caused by alcohol consumption which was an activity supervise d by the Steelers, the disability was caused by a "Leagu e football activity."

In support of his argument, Courson submits that th e 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 NF L was

___________________________________________________ ______________

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

Although Courson became totally and permanently dis abled from cardiomyopathy within six months after his disabili ty first arose (i.e., November 26, 1988), he cannot show that the cardiom yopathy arose while he was an active player. Other than the singl e report in 1985 of atrial fibrillation, nothing in the record indicate s 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 year s.

20fully aware of alcohol abuse by certain players and declined

to act or to enforce its own policies; and (c) Cour son drank incessantly at first to quell the pain from footbal l injuries which led to his uncontrollable urge to drink conti nuously. Moreover, Courson claims the Retirement Board refus ed to acknowledge sworn statements of his former teammate s regarding the widespread availability of alcohol af ter home and away games. Thus, Courson maintains that he is

entitled to "Active Football" benefits because his disability results from "League football activities,"first aro se while he was an active Player and caused him to be unable to find or maintain employment within twelve months of his

retirement.

As we stated earlier, the evidence supports a contr ary 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 condone d 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-impose d. If anything, the evidence shows that the League and me mber teams discouraged alcohol abuse. To this end, when

Courson mentioned his alcohol abuse to the Buccanee rs, they referred him to a psychiatrist for counseling. When he played for the Steelers, Courson did not exhibit an y behavior that indicated that he had a drinking prob lem. As he admitted in his book, Courson's binge drinking o ccurred
in bars and at home--not in the clubhouse.5 Courson 's use of alcohol to quell the pain from his football inju ries was clearly self-imposed and thus not " `supervised' or `required or directed' " by any NFL team. Accordingly, becaus e Courson has failed to establish that his disability resulted

___________________________________________________ ______________

5. Courson refers to the affidavits of teammates re garding widespread alcohol consumption in the clubhouse. However, an e xamination 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 car eer (1980-1991). Nothing in Mr. Wolfley's affidavit supports Courson 's theory that the NFL " `supervised' or `required or directed' " alcohol consumption.

21from a "League football activity," he is not eligib le for

"Active Football" benefits.

In the alternative, Courson argues that if we find the
Retirement Board's decision that Courson did not be come totally and permanently disabled until November 198 8 was supported by substantial evidence, he is nonetheles s entitled to "Football Degenerative" benefits. Cours on 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 cons umption, and he became totally and permanently disabled at t he age of 33 and within three years after the end of his l ast Credited Season (1985). As discussed previously, ho wever, 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 Boar d'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

22