The NFL plan trustees, however, pointed to a medical report by a neurologist Webster had visited in 1996, who made no mention of a head injury. On this basis, the trustees concluded that there was doubt about the onset of Webster’s disability, and awarded him “degenerative” benefits rather than “active” benefits, making him ineligible for payments retroactive to 1991.
Webster appealed. His case dragged on. He died in 2002, at age fifty, while his appeal was pending. In 2003, the plan denied his appeal. The administrator of Webster’s estate then sued the NFL plan. In March 2005, a federal court said the plan had “abused its discretion,” because even if the trustees had found a “scintilla” of evidence to support their contention that Webster wasn’t disabled until 1996, that wasn’t enough to ignore the mountain of evidence presented by its own doctors. The court awarded Webster’s estate the value of the benefits he should have been paid.
RESUME PLAY
Vic Washington thought he had one more chance to qualify for disability benefits when the NFL and the players’ union adopted a new disability plan with more flexible rules in 1993. But the NFL trustees denied his claim, providing no explanation. When Washington appealed again, the league plan hired private investigators to question his neighbors, friends, minister, and ex-wife, seeking evidence that his injuries were exaggerated and that he’d held a paid job. It scrutinized his income tax returns for evidence he’d held a job. He had not.
Washington had moved to Phoenix, where he’d played once in a college game, against Arizona State University; his mother was in a nearby nursing home. He joined the local Black Republican group and was a volunteer minister in a local Baptist church.
Finally, in 1998, the NFL plan offered Washington $400,000 to settle his longstanding disability dispute, and he accepted it, taking advice from a former player turned attorney, who was unfamiliar with ERISA law and didn’t know that the NFL had just lost a critical Court of Appeals case in the Eighth Circuit in Minneapolis. A judge had ruled in favor of an ex-player who, like Washington, was denied football disability benefits because he had more than a single injury. “To require that a disability result from a single, identifiable football injury when the relevant plan language speaks of ‘a football injury while an active player’ is to place undue and inappropriate emphasis on the word ‘a.’ ” The judge concluded that the NFL’s decision to deny benefits was “arbitrary and capricious.”
When Washington later learned of the earlier case, he felt like he’d been duped into taking the settlement, and sued the league, asking a court to set aside his settlement on the ground that the NFL had breached a fiduciary duty by not telling him of the other decision five years earlier.
A STRONG DEFENSE
Washington was up against a tough team. To tackle players who file disability claims, the NFL has long relied on Groom Law Group, a Washington, D.C., law firm whose ranks include former officials from the Labor Department, the Treasury, and other agencies.
Groom’s star player in these football disputes is Douglas Ell, who has handled—and won—most of the NFL’s disability suits since 1994. Like other lawyers who defend plans, he said the trustees are only doing what the plan required to protect resources for everyone. “A lot of people say, ‘The evil NFL denies disability benefits,’ but that’s not the issue,” said Ell. “It’s whether the person met the terms of the plan.” There’s a reason the law gives the trustees the power to overrule the league’s own doctors. Without the legal protections ERISA provides employers, he said, they’d have to lower the benefits they pay, because they’d be paying ineligible claims. “The people running the plans shouldn’t be secondguessed by judges. We want to pay the player, not the lawyers.”
With Ell heading the NFL’s defense, the league has enjoyed an impressive winning streak in the courtroom. Of more than twenty lawsuits filed by retired players in the decade before Washington filed his suit, all but four were initially decided in favor of the NFL plan, and of those four, two were reversed on appeal.
Taking on the NFL, Washington faced a well-funded foe, as do most employees or retirees who challenge a pension decision: ERISA allows plan administrators to use pension assets to pay for fees associated with running the plans; these include fees to record keepers, investment managers, consultants, and… lawyers. Thus, the defense pockets are very deep. The NFL paid Groom Law Group $2.9 million from its pension assets in 2008, and roughly $25 million over the prior decade, though not all of that was for defense work. Former players, who may have little or no income other than Social Security disability benefits, usually crash into a wall when they try to find an attorney to represent them.
Like most people who initially flail about looking for legal help with their pensions, the players contact lawyers they pull from the Yellow Pages or Internet ads, oftentimes personal injury lawyers unfamiliar with the boggling quirks of the federal law—as evidenced by the fact that they often file the claims in state court, where they have a brief life.
Most people can’t afford hourly fees for an attorney, so they seek out lawyers who take cases on a contingency-fee basis. But few attorneys represent employees and retirees in ERISA cases because the most a plaintiff can recover is the benefit, not other damages that can finance the case. Yet another quirk of ERISA: The attorneys, if successful, are awarded fees only at the court’s discretion. Plaintiffs face a financial risk as well: If they lose, they could be required to pay the other side’s costs. Delvin Williams, a former 49ers and Miami Dolphins running back, successfully sued the NFL for seven years’ worth of back benefits, but the NFL appealed, and the Ninth Circuit not only reversed his victory but also ordered him to reimburse the NFL plan $75,000 for legal fees. The league’s plan deducts $625 a month from his disability checks. His debt will be paid off in 2012.
Washington had been fortunate enough to find an attorney willing to take his case on a contingency basis, and initially, it seemed as though he would prevail. In March 2005, a federal judge in Phoenix ruled that the NFL plan had breached a duty to Washington by not disclosing relevant facts. The judge ordered the NFL plan to reconsider Washington’s claim for football-related disability payments.
The league stalled, at one point saying they were suspending processing his claim until Washington sent twenty years’ worth of income tax returns. The league then appealed, and in 2007 the U.S. Ninth Circuit Court of Appeals reversed the lower court’s ruling and handed a victory to the NFL. Victor Washington’s long game in the courts was finally over.
Washington refused to believe it. He continued to mail copies of his records and appeals to lawmakers, the media, and anyone he thought would listen. He died of heart and renal failure in a Pennsylvania hospice on New Year’s Eve 2008. He was sixty-two. Elapsed time: twenty-eight years.
PENSION PARTISAN
Another quirk in ERISA ensures that most employees and retirees who dispute a benefits decision are knocked off the field before the game even starts. Before they can take a case to court, they must follow a lengthy claims-and-appeals procedure that can take months or years, trying to obtain critical documents and attempting to meet tricky deadlines.
And they must deal with the benefits clerks. Anyone who has waited on hold to talk to a benefits plan administrator at a call center in Bangalore knows what a Kafkaesque process this can be.
If anyone was up for the challenge, it was Fred Loewy. He had worked in a lab at Motorola Inc. near Phoenix, Arizona, for more than thirty-five years, analyzing systems failures in guided missiles and nuclear power plants. As a teenager in France, he had joined the partisans and fought the Nazis. So Loewy was not daunted by complex calculations or uneven battles.
But he had never tried to fight a benefits administrator. His battle began the day after he retired in 1998. Loewy (pronounced
