unraveled, and he moved in with his grandmother in New Jersey. He enrolled in business courses at a community college, but, in pain and depressed, he couldn’t concentrate or sit still. It would take more than two decades for the league to acknowledge that concussions cause brain damage. Seven years after leaving the game, Washington, who didn’t have health coverage and couldn’t afford physical therapy, applied for football disability benefits and went through the gauntlet of doctors the league hires to evaluate players’ claims. Orthopedists hired by the NFL plan enumerated his ailments, which included arthritis, degenerative joint disease, and an inability to fully extend one knee. A Rutgers University professor of psychiatry hired by the NFL concluded that depression and difficulty with concentration, “combined with his physical injury and significant pain (both knee and back) indeed render him disabled by his football related injuries.”
One would think that awarding the benefits would be a simple call. But league officials, though agreeing that Washington had a disability, deemed that it wasn’t football-related, so his benefit would be $750 a month instead of $4,000.[18] Washington appealed, and after more medical reviews, league doctors again concluded that Washington was disabled totally by football injuries. The determination went to the trustees for a vote, and they deadlocked: Three trustees representing players agreed his disability was caused by football; team-owner trustees said that Washington’s problems were the result of a crummy childhood, a failed marriage, and money troubles. It was all in his head—but not the result of a concussion. In 1986, three years after Washington first applied for benefits, the decision went to an arbitrator, who noted that the plan defined a football- related disability as being the result of “a football injury.” Focusing on the word “a,” the arbitrator said this meant a former player had to have a
TIME OUT
Based on this creative interpretation, the NFL plan denied the claims of many other former players that were pending at the time. If Washington’s claim had been brought before a state court, it would have come under state insurance laws regarding unfair claims denials, where a judge may have concluded that the arbitrator’s decision was “arbitrary and capricious,” a legal standard referring to a decision that has no reasonable basis.
But employees benefits cases fall under ERISA, which “preempts,” or overrides, state laws, including insurance laws about fairness. Where does that leave plaintiffs? In a black hole.
When Congress created ERISA in 1974, it assumed that the law would apply to pension plans, so it granted trustees of a pension plan broad “discretion” to make decisions, such as how to invest money and how to determine who is eligible for benefits. When it comes to pensions, this can be a straightforward decision: If the rules say that a person who works five years is eligible for a pension, then he’s eligible.
But in 1987, the Supreme Court ruled that ERISA covers not only pensions but other benefits, such as medical and disability plans. Suddenly, trustees were deciding what constitutes a disability. But few players have disabilities as clear-cut as those of wide receiver Darryl Stingley, who was paralyzed during a preseason game in 1978. The more common injuries cited in disability claims—cervical-spine injuries, osteoarthritis, and knee, hip, and other joint injuries—can’t be as easily measured. Debilitating problems may not show up for years and can be exacerbated by the use of painkillers and steroids, along with substance abuse.
And when it comes to depression or head injuries, determinations can be especially subjective. For years, the NFL steadfastly maintained that there was little credible research linking football with developing health problems, such as arthritis, heart disease, or cognitive impairment, in later life. This was like the tobacco industry insisting that smoking doesn’t cause lung damage.
Though Congress didn’t intend trustees to have so much power to decide who gets benefits, employers have blocked and tackled every effort to create rules similar to those existing in state courts. The wellpublicized medical-claims denial cases in the 1990s weren’t really about rogue behavior by HMOs; rather, they were merely examples of what employers and insurers could do when unfettered by state insurance laws. Benefits provided in the workplace are all shielded by ERISA, which is why the employer-plan market has been so lucrative for insurers. Disability, long-term care, life insurance—if it’s provided in the workplace, even if the employee pays 100 percent of the cost, it falls under ERISA, and has no state-law protections for unfair denials or for compensatory or punitive damages.
Ironically, the very people who decided that benefits would fall under ERISA are themselves exempt from that federal law: Congress. All government employees are exempt from ERISA, which means that judges, lawmakers, police, and municipal meter readers have access to state courts to ensure their benefits, while their neighbors who are employed by private businesses do not.[19]
Vic Washington could have created a league of his own out of all the players the NFL denied paying disability to. Scores of other players from the 1960s to the 1980s faced similar long fights with the league over disability. Although most NFL players suffer injuries of one sort or another during their careers, only ninety of the more than seven thousand former pro players covered by the NFL disability plan were receiving football disability benefits at the time Washington was pursuing his claim in the courts.[20] And the total amount the league was paying in disability benefits was a mere $1.2 million a month, or just $14.5 million for the year. Of that, about $8 million came from the league’s more than $5.2 billion in annual revenue, and the rest was paid from the players’ pension plan, the Bert Bell/Pete Rozelle NFL Player Retirement Plan.
The NFL has maintained that the generosity of the benefits attracts unqualified applicants, which is why it has to aggressively hold the line to protect the plan. “The trustees have to make some tough calls,” said a key league attorney, Douglas Ell. He maintained that many former players are too quick to blame football for causing their problems and that the league wants to avoid awarding benefits to someone “sitting in his den drinking beer and feeling sad and thinking football made him crazy. The trustees are fiduciaries, and can’t just say, ‘This guy was in the Hall of Fame’… and pay him extra money he doesn’t qualify for.”
Certainly, players from the 1970s and 1980s didn’t have the gargantuan pay packages that today’s stars negotiate and have therefore had an incentive to apply for football disability benefits, but that doesn’t mean they’re all mooches. “Injuries may not put you in a wheelchair for the rest of your life, but you still have injuries,” said Randy Beisler, who was a guard and defensive end with the Philadelphia Eagles, San Francisco 49ers, and Kansas City Chiefs until a broken neck put him out of the game in 1978. Although NFL doctors concluded in the 1990s that he was 80 percent disabled, he gave up seeking benefits after his claim dragged on for five years.
NO FOUL, NO PENALTY
Another hurdle for employees and retirees: ERISA doesn’t say anything about punitive damages; there are no damages for wrongful death, financial loss, or pain and suffering. With no penalties for egregious conduct, employers have little disincentive to aggressively deny claims. The worst that can happen is that the plans can later be ordered to provide the benefit.
Basically, under federal benefits law, if you mug an old man and steal his wallet, the worst that can happen is that you’ll have to give the wallet back. If the old guy dies from his injuries, you won’t have to do even that.
Mike Webster had been a center on the offensive line for the Pittsburgh Steelers from 1974 to 1988, then played two more seasons for the Kansas City Chiefs. He played 177 consecutive games—the fifth highest in league history—and the games took a toll. Webster suffered multiple concussions in his career, and when he retired in 1991 he was so cognitively impaired that he was unable to hold a job. According to court papers, he earned $10,000 in 1992, and $1,000 in 1993, from signing football cards and making appearances. In the 1994–95 season, the Chiefs hired him as a “conditioning coach,” mostly because team officials felt sorry for him. Webster had been homeless at various points in the 1990s and slept in his car, train stations, and the Chiefs’ equipment room.
In 1998, Webster applied for disability benefits, and a series of doctors, including a neurologist, a psychiatrist, and a psychologist, concluded that he was totally and permanently disabled; one noted that he suffered from a “traumatic or punch drunk encephalopathy, caused by multiple head blows received while playing in the NFL.” And they all concluded that his disability arose when he was an active player, in 1991.
