MIAMI DOLPHIINS
Mercury's Congressional Document
This is a memo I wrote to NFL Commissioner Roger Goodell
To: Roger Goodell,
From: Eugene Mercury Morris
Date: June 04, 2007
Ref: UNCOVERING OF MISCONDUCT
As I am sure you are aware, I am presently awaiting the decision from the 11th Circuit Court of Appeals on the matter before the Court involving my Retirement Benefits due under the 1991 Specific Release Agreement. My next stop will be the Supreme Court.
In my investigation regarding the actions of the Trustees, Management and the NFLPA; I have discovered serious violations under ERISA. It is my contention that The Groom Law Group, in 1998, with intent manipulated the terms of the Plan under ERISA and reduced the accrued Benefit amount for Retired Players Disability Claims by limiting the retro active payment recovery to only 42 months.
In order to legally reduce the accrued benefit amount under ERISA, you must first file for a specific exemption under Section 302 of the ERISA Code. (Including a 5308 form)
I spoke with the Department of Labor and the Internal Revenue Service and both concur that they (both departments) do not have any record of the Bert bell / Pete Rozelle Plan ever applying for such an exemption by the Secretary of Labor and or the Secretary of Treasury; nor can they find any record of the Letter of Approval of such an exemption by any Government Department in 1998,
In fact, both Departments have no record of the Retirement Board Counsel, The Groom Law Group ever applying for such an exemption in 1998. Five years later, the Amendment (5.7) appears on a list of amendments approved in a 2003 Determination letter from the IRS.
However, there is no supporting documentation regarding the actual approval of an exemption under Sec. 302 anywhere from 1998 to the present, 2007 or in any Government documents related to the changes made in the Plan’s Terms by the Groom Law Group.
In my Case, the Retirement Board Counsel tried to use the ERISA anti-cutback rule as a defense, the enclosed documentation points to the fact that Sec. 8.5 c under “Restrictions” in the language of the Bert Bell Plan under “Definitions” specifically did not allow the reduction of any benefit by Amendment under Sec 8 of the Bert Bell Plan.
The term, “Shall not” was replaced by The Groom Law Group with the term “may not”.
As stated in Webster’s:
“May’ is relatively rare in negative constructions, few people use ‘may not’;
therefore ‘cannot’ and ‘can’t’ are usual in such contexts”.
The Words Cannot and can’t give no discretion to the user. Inserting “may” or “may not” allows the Trustee’s an ambiguous form of discretion and choice of interpretation to “re-construe” the Benefit Rights under Sec. 8.5 c of the Bert Bell Plan.
Why do you think the Retirement Board’s Counsel changed this specific language of The Plan’s Terms under Sec. 8 of the Bert Bell Plan?
Under “definitions” on page 4 of the Bert Bell Plan it states:
Sec. 1.9 Retirement Board: “Now or hereafter designated and constituted
pursuant to Article 8 of this Plan”
Is it becoming clear to you now Commissioner Goodell that The Groom Law Group manipulated the language of the Plan and eliminated the ERISA governed restrictions prohibiting specific “Actions” by the Retirement Board.
Sec. 8.5 C No action of the Retirement Board shall:
Reduce, as a direct result of an Amendment the value of any Benefit
already earned or otherwise payable under the plan.
Under ERISA and the Plan’s Terms; “The Retirement Board, has the broadest discretion permitted under the act.” (where there is no permission, “under the act” there is no discretion)
When the Groom Law Group quietly moved Sec. 8.5 c to Section 10.1 c that move gave The Board Trustees a misapplied interpretation of “may” or “may not”; as opposed to “can” and “cannot”. They changed the ERISA mandatory meaning of “shall not” to the Retirement Board option of “May”. The Plans Terms under 10.1c state the following”:
10.1c The Retirement Board “May” generally amend or terminate this Plan, but“May not”
c Reduce as a direct result of an amendment of the value of any benefit
already earned or otherwise payable under the Plan.
If you notice the Plans terms no longer say, they can’t or shall not; this “discretion” is now switched to the Trustees “sole interpretation” and not the Plans terms.
That simple change of the Plan’s Terms removed the ERISA governed directive of Sec. 8 of the Bert Bell Plan. These actions of the Retirement Board were (and still are) subject to the restrictions outlined in Sec. 8.4 of the Bert Bell Plan where twice in the language it begins and ends with “subject to the restrictions of Sec. 8.5”, therefore removing that specific section was necessary in order to control the interpretation of the Plans Terms.
That allowed Groom to change the Plan’s Terms in order to give the “appearance” of “absolute discretion” in the interpretation of the Plan’s Terms to the Retirement Board to now say that the 42 month limit in Retro Active payments now did not reduce the accrued value of the Disability Benefit; which is false.
The pretense alone violates ERISA Law under “Valid Plan Purpose”.
That means under ERISA you have to have a good reason and a “valid purpose” why you want to change the terms of the Plan. Creating a 42 month limit on retro active disability amounts for retired Players is against the retired Player’s best interest.
I have now informed you of the “appearance” of an on going Fraud perpetrated by the Defendant’s Counsel The Groom Law Group.
For the record:
At the same time, in 1998, Mr. Commissioner, the Retirement Board placed a limit on the recovery of a Disability Benefit formerly paying the Retired Players retroactive portion back to the date of his Disability, has now been reduced to a 42 month limit on the recovery of the retroactive Disability Payment under the “new” 10.1 C. (Terminations and Amendments). This “Action” was not possible or legal under 8.5c which is why that language was removed from the restrictions of Sec. 8 of the Bert Bell Plan.
The Trustees then increased the future Retirement Benefits for the Current Players while at the same time reducing the retroactive Disability Benefit recovery of the Disabled Retired Players.
Ironically, the new “exception” to Sec 5.1 under Total and Permanent “Disability” is stated in the New Plan Document as Sec. 5.7 … being the 42 month limit clause added by the Retirement Board to the language of the Plan as an amendment in Oct of 1998.
The 2003 Determination letter indicates that on October 29, 1998 the amendment under 5.7 was passed and adopted, effective November 1st, 1998.
The problem is that under the terms of the Plan under Sec 5.1 now occurs, on its face, as ambiguous meaning it now can be read two different ways, while the “settled” language calls for a payment that is retroactive back to the date of the Players disability (as is provided on the Physician’s report form) The amendment is now the “exception” which states that the retroactive payment now does not in fact go back to the date of the disability. That makes 8.5c conflict with 5.7; in fact Sec. 5.7 is now in conflict with 10.1c.
The imposing of a limitation on the amount the Player is able to recover does in fact reduce the accrued benefit amount by limiting the recovery to only 42 months.
If a Player fought the Retirement Board for ten years, that Player now, would not recover 120 months, he would be limited to only 42 months on recovery effectively reducing the accrued benefit amount. This can only be done via Sec. 302 under a business financial hardship which they did not request, under ERISA and IRS Laws in 1998.
What does the Amendment under Sec. 5.7 do for the Disabled Players …
Does it affect a Disabled Players’ Benefit? …. Or does it improve the Players
Disability Benefit? What is the “Valid Plan Purpose” for Sec 5.7 as an
Amendment?
I am writing to you in order to exhaust my administrative remedies by appealing to you under the Integrity Clause “By Law” of the NFL.
The one that says, “The Commissioner is in charge of the Integrity of the Game, its Management and its Players”.
For the record Webster’s defines the term “integrity” as a noun.
The synonym for integrity is honesty which is implied as:
“A trustworthiness and incorruptibility to the degree that one is incapable of
being false to an agreement, contract, responsibility or pledge.”
Just as you did with Pac Man Jones, Michael Vick and other Players, with “zeal”, you “acted in the best interest of the Game”. I expect you to use that same “Integrity” clause with the same “zeal” to disclose this fraud both to the affected persons;
i.e.: Players whose Disability Benefits were illegally limited to 42 months since 1998, and the Court. As a lawyer, you are also versed in the Code of Professional Responsibility and if you’re not, Doug Ell is aware of his ethical responsibility as a member of the Bar.
When a lawyer has knowledge of a Fraud he must report the Fraud to the affected parties and then if nothing happens, “someone” must then “by rule” notify the Court; I am Pro Se, which would make that my responsibility.
I filed a Bar Complaint against John McAllister docketed under “Conflict of Interest” and he was subsequently removed from this Case. It is time to come to the realization that misconduct occurred before you became Commissioner and it is continuing on your watch.
It is time to clean up the “White Collar Crime” that has been uncovered, for which the Retirement Board is now ironically scrambling to get an exempt Status under Sec. 302.
(See documents from Department of Labor and the IRS). I have talked to the IRS, the Department of Labor, ERISA Attorneys and Certified Public Accountants. They all concur that ERISA laws were violated unless The Groom Law Group can produce documentation to prove that in 1998 the NFL went through a business financial hardship.
That would create the necessity of an exemption under 302 of the ERISA code, however, during the same time in 1998 you increased and improved the Retirement Benefit Options for Current Players … something doesn’t add up.
As you know they, the Media, have been searching for “facts and truth” about the plight of the Retired Players. Gene Upshaw in a February 7th email stated:
“Facts and the truth is something they (Retired Players) can’t stand”.
Given the current climate, I suggest you research my “facts” and evaluate the evidence in this situation and respond like a Commissioner in charge of “Integrity” when cleaning up your house.
The Fans are counting on you to be truthful and honest and if mistakes were made be man enough to own it.
If you have the Approval Letters from 1998, I am sure that you will be anxious to prove that I am mistaken and misinformed. As the Commissioner and as a Lawyer you are aware of the ethical and fiduciary responsibility you have to the Public; the people who drive the “engine of success” of the NFL.
You know that the Fans of the Game have successfully helped you build this Sports Empire with their tremendous support back then and now. The public and the Retired Players community via the Media want to make sure you’re not disrespecting the “Old Heroes” of the Game.
That same support from the generations of old and new Fans clearly is the principal reason and direct cause of the enormous financial success you, the current NFL Players and Owners enjoy today.
In this Country, the success of today’s Business in this Sport was built by the middle class Fans and Players of the 60’s and ‘70’s and 80’s.
In those days the business slogan was:
“Share in the wealth that you helped to create”. Like IBM stock in the 1960’s our investment of “life and limb” should reflect in the financial success we helped create. Like company stock, our benefits should rise with the financial success of the league we built and passed on to the current Players.
“It should be obvious to all players that the amount of the benefit
payments are entirely dependent upon one basic factor—namely,
adopting measures to produce the highest possible income for the
Benefit Plan.” Pete Rozelle, NFL Commissioner, May 20th, 1960
Clearly this should be the next step for the NFL.
For the record:
Labor racketeering is a crime under the Hobbs Act. (18 U.S. * 1951) and may also violate the criminal and civil provisions of the Racketeering Influenced and Corrupt Organization Act. (“RICO”), 18 U.S.C. * 1961 -68.
The filling of false and misleading reports with the government, or aiding one who does is a crime punishable by a fine of not more than $100,000.00 and a prison term not to exceed 10 years. 29 U.S.C. 1131.
Possible criminal violations have occurred by the concealment of such evidence under ERISA Sec. 204 (g) 29 USC 1054 (g):26 U.S.C. 411 (d) (c) and 29 USC 1131
Mr. Goodell, when you’re right, you’re right and when you’re not, you’re not.
As you can see, at some point, all the litigation in the world will not change these facts or cover up this misconduct that is happening under your leadership.
As the Commissioner involving the Integrity of the Game, its Management and its Players; I am requesting a response within 5 working days in order to begin to clear up these matters before you.
It’s time for the internal use and “Internal Enforcement” of the “Integrity Clause” within the NFL.
Govern yourself accordingly.
Eugene “Mercury” Morris
