Fifth Circuit Substitutes Decision in Matter Where It Reversed the Win for NFL Player Seeking Additional Disability Benefits under NFL Player Retirement Plan

In Cloud v. The Bert Bell/Pete Rozelle NFL Player Retirement Plan, No. 22-10710, __F.4th__, 2024 WL 1130511 (5th Cir. Mar. 15, 2024), the Fifth Circuit panel withdrew its opinion in Cloud v. Bert Bell/Pete Rozelle NFL Player Retirement Plan, 83 F.4th 423 (5th Cir. 2023), which we wrote about here, and substituted it with a new opinion. The new opinion includes the following changes:

• The new opinion clarifies that when Cloud sought a higher tier of benefits in 2014 that he sought “reclassification to” totally and permanently disabled benefits (instead of “line of duty” benefits). The original decision just noted that Cloud sought the higher tier of benefits but did not call it a request for reclassification.
• The court deleted this sentence from the decision: “What’s more, the doctor report is from 2012 and therefore cannot be used to show changed circumstances from 2014 to 2016.”

Despite recognizing the disturbing nature of “the NFL Plan’s disregard of players’ rights under ERISA” the outcome is the same for Cloud.

In a separate opinion, Cloud v. Bert Bell/Pete Rozelle NFL Player Ret. Plan, No. 22-10710, __F.4th__, 2024 WL 1143287 (5th Cir. Mar. 15, 2024), the Fifth Circuit denied the petition for panel rehearing. In the en banc poll, five judges voted in favor of rehearing (Richman, Elrod, Graves, Ho, and Douglas), and eleven voted against rehearing (Jones, Smith, Stewart, Southwick, Haynes, Higginson, Willett, Duncan, Engelhardt, Oldham, and Wilson). Judge James E. Graves, Jr. dissented from the denial of rehearing. Judge Graves opined that Could did make a showing of changed circumstances during the administrative claims process. Cloud was also seeking reclassification for a different impairment than the one that originally qualified him for totally and permanently disabled benefits. Because Judge Graves found that Cloud supported his 2016 claim for reclassification, he disagrees with the panel that Cloud did not and cannot demonstrate changed circumstances.