U.S. District Judge Karen Gren Scholer of Dallas ruled Tuesday that even though former NFL player Michael Cloud lost his case seeking higher benefits due to his injuries on appeal, his lawyers still “achieved some degree of success on the merits” of their case and deserve to be compensated under federal law.
In a 34-page order, Judge Scholer found that the NFL and its retirement fund must pay Cloud’s lawyers at Barlow Garsek & Simon in Fort Worth $1,232,058.75 for their pretrial and trial work, $550,000 for their appellate work and $30,074.72 in costs.
The judge wrote that the federal Employee Retirement Income Security Act of 1974, commonly known as ERISA, states that “the court in its discretion may allow a reasonable attorney’s fee and costs of action to either party.”
“The Supreme Court has held that attorney’s fees and costs … are not limited to the ‘prevailing party.’ … Rather, the court may award fees and costs if a party has achieved ‘some degree of success on the merits,’” Judge Scholer wrote.
Cloud’s NFL career spanned seven seasons with the Kansas City Chiefs, New York Giants and New England Patriots. He was a running back on the Patriots’ team that won Super Bowl XXXVIII. His pro career ended in 2006 after a series of debilitating injuries, notably a concussion on Oct. 31, 2004, from a violent helmet-to-helmet collision with a defensive back.
Cloud suffered from serious cognitive impairments caused by traumatic brain injuries that rendered him totally and permanently disabled. He applied for disability benefits from the NFL pension fund and was awarded a benefit level below the highest. He sued, claiming that the NFL violated ERISA by denying him the benefits he deserved.
After a six-day bench trial in May 2022, Judge Scholer issued an 84-page opinion with 212 findings of fact that “detailed multiple abuses by defendant in its process for awarding benefits” and ruled the NFL had denied Cloud “a full and fair review of his benefits determination.”
“Based on the undisputed evidence, including admissions in sworn trial testimony by defendant’s own witnesses, it was made clear to the court that defendant’s process was part of a larger strategy to ensure that former NFL players suffering from the devastating effects of severe head trauma incurred while playing for the NFL were denied the highest level of benefits,” wrote Judge Scholer, who also awarded legal fees to the plaintiff’s attorneys.
The judge’s finding of facts also noted that the paralegal from the Groom Law Group who prepared Cloud’s file included false information about the doctor’s report and that the board spent only about 10 minutes discussing 100 cases, including Cloud’s, before rejecting their petitions.
The NFL appealed to the U.S. Court of Appeals for the Fifth Circuit, which reversed Judge Scholer’s decision but on the narrowest of grounds. In fact, the Fifth Circuit judges even highlighted Judge Scholer’s “thorough findings — devastating in detail — which expose[d] the NFL Plan’s disturbing lack of safeguards to ensure fair and meaningful review of disability claims” and “chronicled a lopsided system aggressively stacked against disabled players.”
“Despite defendant asking it to reverse the fee order, the Fifth Circuit did not mention, let alone expressly reverse, the fee order,” Judge Scholer pointed out in her decision this week. “Nor did it expressly find that any of the court’s findings of fact were clearly erroneous.
Judge Scholer wrote that the findings of fact “constitute a declaration from this court vindicating at least some of the relief plaintiff sought.”
“They establish that plaintiff was right in believing that the NFL Plan did not follow its own procedures and handled his case in a deficient manner inconsistent with its own rules and regulations,” the judge wrote. “And the Fifth Circuit’s affirmation of those findings of fact reinforce this outcome. This relief is neither procedural nor trivial because it goes to the heart of plaintiff’s case. Plaintiff stated from the outset that one of his primary goals was to clarify his rights under the NFL Plan. It is not trivial to expose the abuses to which plaintiff was subjected and to have two different reviewing courts confirm that defendant’s actions were wrong.”
Judge Scholer ruled that rejecting the request for attorney fees “would do nothing to discourage defendant — and Groom Law Group, who served as its advisors — from wrongfully denying appropriate disability benefits to other former players suffering from traumatic brain injuries incurred while playing for the NFL.”
“Denying the motion would also place a chilling effect on former players, such as Michael Cloud, and the lawyers who rightfully take up the cause on their behalf, to take a stand against defendant’s egregious practice of denying benefits to otherwise qualified applicants,” the judge concluded.
The case is Michael Cloud v. The Bert Bell/Pete Rozelle NFL Player Retirement Plan, Northern District of Texas, Case No. 3:20-CV-01277.