A Hobbled Star Battles the NFL

Published in The Wall Street Journal, Sat., Dec. 3, 2005

Doctors say football left Victor Washington
'totally disabled.' Two decades later,
the league still disagrees.

By ELLEN E. SCHULTZ
Staff Reporter of THE WALL STREET JOURNAL
December 3, 2005; Page A1

Football propelled Victor Washington from an orphanage in Elizabeth, N.J., to the National Football League. He starred as a rookie and was selected for the Pro Bowl after the 1971-72 season. But few teams he faced gave him more trouble than the NFL itself, after his playing days.

Seven years after injuries ended his career, Mr. Washington applied for NFL disability benefits. He had racked up injuries to a knee and shoulder (in 1973), back (1974) and elbow (1976). Doctors hired by the league said the injuries -- and depression from chronic pain -- had left him totally and permanently disabled.

But the NFL didn't see it that way. League officials agreed he had a disability. But they said it wasn't football-related, so his benefit would be lower.

Mr. Washington appealed, and after more medical reviews, the case went to an arbitrator, who also found he didn't have a football-related disability. The arbitrator used a novel rationale: The NFL's disability plan referred to disability from "a football injury" -- but the player had several.

That was in 1986. After years of more appeals, evaluations and trustee rulings, and then litigation, the status of Mr. Washington, now 59 years old, is back in the hands of the NFL plan for one final determination.

Scores of other players from the 1960s to the 1980s have faced similar long fights with the league over disability. They played, for the most part, before the era of whopping pay packages that today's stars negotiate. Although most NFL players suffer injuries of one sort or another during their careers, only 90 of the more than 7,000 former pro players covered by the NFL disability plan receive football disability benefits.

The NFL plan says it pays all legitimate disability claims. In contesting the former players' claims over the years, the league says, it was doing what any prudent employer would to protect the plan.

"The trustees have to make some tough calls," says Douglas Ell, a lawyer with the Groom Law Group, which represents the NFL plan. "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."

Mr. Ell dismisses Mr. Washington's claim that his football injuries have rendered him disabled. "He says that football made him crazy," says Mr. Ell. Many football players, the lawyer says, blame football for creating their problems after retirement.

It isn't just old football players who can face such a gauntlet. Workers in any industry, dealing with any employer-sponsored insurance plan from pensions to health care, fall under the auspices of a decades-old federal law that can make obtaining benefits an ordeal. The law, paradoxically, is one whose explicit purpose was to protect benefits.

It is the Employee Retirement Income Security Act, known as Erisa. Congress passed it in 1974 to prevent abuse of workers' pension rights. But thanks in part to court interpretations, the statute has evolved into one that covers far broader territory and can have an unanticipated effect, tilting the playing field in favor of employers and serving as a legal shield for them.

PURSUING BENEFITS

In what would turn out to be a pivotal provision, the law essentially exempted private employers' benefits plans from state laws. And though the law was designed primarily to cover pensions, the Supreme Court ruled in 1987 that it covers other benefits, such as disability and health care, as well.

The high court also has ruled that no punitive damages can be awarded in Erisa cases. That means there's little downside to delaying or resisting approval of a claim, since the worst that can happen is that the employer will later be ordered to pay. For employees, however, the lack of punitive damages means it is often difficult to afford -- or even find -- legal representation.

These legal hurdles were among the challenges Mr. Washington faced when, several years after leaving the NFL, he found his health deteriorating.

The son of a 16-year-old single mother in New Jersey, he was reared by a series of relatives. When this family safety net unraveled, he spent three of his teen years in an orphanage in Elizabeth, N.J.

He thrived in the new structure and developed his aptitude for football, baseball and track. In 1965, a recruiter for the University of Wyoming saw him playing high-school football in Plainfield, N.J., and offered him a full scholarship. He played well at Wyoming, but was expelled in his junior year for fighting.

With the endorsement of one of his college coaches, Mr. Washington went on to play three seasons in the professional Canadian Football League. The San Francisco 49ers then picked him in the 1970 NFL draft. He was the team's rookie of the year in 1971-72, runner-up for that honor in the NFC conference, and went to the Pro Bowl at the end of the season. The 5-foot-11, 195-pound Mr. Washington later played for the Houston Oilers and Buffalo Bills. Playing as a defensive back, running back and wide receiver, he took the field against the likes of Joe Namath, Terry Bradshaw and O.J. Simpson. At his peak he was earning about $50,000 a year.

Mr. Washington often played on artificial turf, at the time not much more than a carpet over poured concrete. He recalls sailing though the air in a 1973 preseason game and looking down. "I knew my knee was going to hit first, and there was nothing I could do about it," he says. "I never complained about being hurt, because I was hurt all the time. That whole year I played on that cracked kneecap."

As his injuries mounted during his career, he says teams gave him painkillers and Valium so he could keep playing. "I took every play like it was my last play -- that's the only way to play," Mr. Washington says.

In 1976, knee trouble sidelined him for good. Leaving pro football after nine years was hard. At age 30, he suddenly lost everything: career, income, friends, identity. His marriage unraveled. He moved in with his grandmother in New Jersey and enrolled in business courses at a community college. In pain and depressed, he says, he couldn't concentrate or sit still. He didn't have health coverage and couldn't afford physical therapy.

Mr. Washington's exit after an injury wasn't unusual. NFL players on average leave after 3.2 years, most having been hurt at some point. Players from the 1960s to 1980s played when helmets and padding were more primitive and when rules on physical contact were looser. Team doctors would prescribe potent mixes of amphetamines and painkillers to keep players in the game, according to court records in benefits disputes, and some players bulked up on steroids.

A survey released in October by the Center for the Study of Retired Athletes at the University of North Carolina said that nearly a quarter of former players had three or more concussions in their careers and that later, these men were five times as likely as other ex-players to be diagnosed with mild cognitive impairment. Last year, the researchers also found by questioning 2,488 former pro players that 22% had knee surgery and 10% had back or disc surgery after their careers ended.

An NFL spokesman says such studies are flawed because they rely on the ex-players' word. The league's medical liaison, Elliott Pellman, who also heads the New York Jets' medical department, says there is little credible research on whether football leads to serious medical problems later in life.

Dr. Pellman says the league has studied players who had multiple concussions and found that "they had all returned to normal. Does that mean there may or may not be problems 10 to 15 years from now? I don't know, but the early objective data says no."

Dr. Pellman says the NFL hasn't studied former players' health because they are no longer employees and are geographically scattered.

About 130 former NFL players file claims for disability benefits a year, but few get them.

Of the 7,561 ex-players from the 1960s until today covered by the plan, only 135 receive disability benefits.

Ninety of those have a disability the NFL plan deems football-related. Their benefit is at least $4,000 a month, plus a supplement that can bring it up to more than $9,000 a month. Another 45 receive nonfootball disability benefits, which pay a minimum of $1,500 a month.

The total amount the league paid in disability last year: $1.2 million a month, or $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.

Why so little? Part of the reason is that while the NFL plan offers generous benefits by the standards of other employers, it requires players to be "totally and permanently disabled," meaning that they are essentially unable to work.

When the NFL and the players initially negotiated the benefits in the late 1960s, it's unlikely they foresaw the complexity the future held. Few players have severe 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, osteo-arthritis, 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 use of painkillers and steroids, along with substance abuse.

And when it comes to areas like depression or head injuries, determinations can be especially subjective. In Mr. Washington's case, for example, the NFL plan trustees have claimed that his difficult childhood led to his depression.

By the early 1990s, the Players Association was pushing for better disability benefits, concerned that the existing benefits of $750 a month for nonfootball-related disabilities and $4,000 for football-related disabilities weren't adequate. They got them -- but the decisions didn't get any simpler. The NFL maintains that the generosity of the benefits -- now exceeding $110,000 a year -- attracted more unqualified applicants.

Retired players disagree and say the result was a backlash against applicants. "Injuries may not put you in a wheelchair for the rest of your life, but you still have injuries," says Randy Beisler, who was a guard and defensive end with the Philadelphia Eagles, 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% disabled, he gave up seeking benefits after his claim had dragged on for five years.

Former players also say the players union has turned its back on retired players, favoring active players instead.

The union says the NFL plan has been run well, providing valuable benefits to eligible players, while deterring false claims. Doug Allen, assistant director of the Players Association, says the NFL plan has won most of the lawsuits filed against it, which confirms the trustees were right in the first place. Of more than 20 lawsuits filed by retired players in the past decade, all but four were initially decided in favor of the NFL plan, says Mr. Ell, the plan's lawyer. Of those four, two were reversed on appeal, and two are pending in the appeals court.

"The number of times the courts have agreed shows the quality of the leadership," says Mr. Allen. "One of the things we want to make sure of is that the plan is kept safe so that the owners can have confidence that the bargain they made will be upheld."

Thanks to Erisa, the retirement-security law, disability-plan trustees have wide discretion in deciding who has a disability, and their decisions are hard to challenge. Claimants unhappy with trustees' rulings must follow an elaborate Erisa-prescribed appeals procedure that allows weeks or months for each party to act in each step of the process. Until the process is pursued to the end, an employee or retiree can't take a dispute to court.

For Otis Armstrong, who suffered a career-ending cervical-spine injury in a 1980 game and later had pain and numbness in all his extremities, the process from first claim to a court filing took five years. It was "replete with delays, confusion, stalemates and inconstancy on the part of the" plan's board of trustees, Judge John Kane of federal court in Denver later wrote. For the former Denver Broncos running back, the judge wrote in 1986, "each time he nears the goal line and is about to obtain the disability benefits which the plan promises to injured players, the yard markers are changed and the clock is stopped." The NFL plan ultimately paid the benefit.

Mr. Washington filed his claim in May 1983. Orthopedists hired by the NFL plan enumerated his painful problems, such as arthritis, degenerative joint disease and an inability to fully extend one knee. A Rutgers University professor of psychiatry hired by the NFL wrote -- according to later court files -- 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."

Nevertheless, the NFL plan concluded Mr. Washington's disability wasn't football-related, and approved a benefit of just $750 a month instead of the $4,000 a month he would have collected had the NFL decided his disability was caused by football.

Mr. Washington appealed this status. The NFL sent him for more medical evaluations. The psychiatrists and other specialists who saw him this time said he suffered from physical injuries, post-traumatic stress syndrome and depression related to chronic pain. They said he had a total disability related to football.

In March 1985, the plan's trustees split 3-3 on whether his disability was football-related and thus would bring him the higher level of benefits. The three trustees representing players said it was. Team-owner trustees said they thought his depression was the result of his troubles as a youth, not chronic pain caused by his football injuries.

With the trustees deadlocked, the decision went to an arbitrator, who a year later noted the plan's definition of a football-related disability as the result of "a football injury." Focusing on the word "a," the arbitrator said this meant it must be from a single injury. Because Mr. Washington had several, the arbitrator ruled in 1986, he wasn't eligible for the higher benefits.

Based on this interpretation, the NFL plan denied the claims of several other former players that were pending at the time.

Mr. Washington continued to collect $750 a month in non-football disability benefits. Annual medical evaluations required of disability recipients continued to conclude he was totally disabled as a result of football.

Then in 1993, the NFL and the players union adopted a new disability plan which gave Mr. Washington a new chance to apply for benefits. The NFL trustees denied the claim, saying once again that while Mr. Washington was disabled, it wasn't because of football. They provided no explanation for disagreeing with medical opinions.

Mr. Washington appealed again. The NFL plan hired a private investigator -- standard procedure in disability cases -- to question his neighbors, friends, minister and ex-wife, seeking evidence that his injuries were exaggerated and that he'd held a paid job.

In 1998, the NFL plan offered Mr. Washington $400,000 to settle his long disability dispute. The sum was equal to retroactive football-related-disability payments back to 1993, a year when the program changed. The settlement didn't acknowledge he was due such a higher level of benefits, however, and indeed, it said that from then on, he'd still get just $1,500 a month.

Mr. Washington says he didn't feel he was in a position to turn the settlement down. His grandmother had died in 1989, leaving him her house. He sold it and moved to Phoenix, because he'd played there once in a college game, against Arizona State University, and knew a former player who lived there. "I knew the desert was dry and warm, and decided that was where I needed to be," he says. "I had to come up with a program to try to get well."

To become part of a community in his new home, he joined the local Black Republican group, which was trying to get the state to make Martin Luther King's birthday a holiday. He also became an ordained pastor in a local Baptist church, working as a volunteer minister.

Nonetheless, by the time he received a settlement offer, Mr. Washington says he had given up his church work, because it was physically too draining. At home, he had sole custody of his three-month old son, the product of a brief marriage. He says he used the settlement money to pay off his legal fees, and to move to a neighborhood with good schools. He settled into the routine of taking care of his son and visiting his mother, who was in a nursing home nearby.

A new dispute arose in 2001 when Mr. Washington turned 55 and his benefit converted to a pension. He thought it would convert at the higher level, and wrote to the plan. The response: a letter from an NFL lawyer saying that his settlement barred him from making any further claims. Mr. Washington wrote more letters asking that his claim be reconsidered, but the trustees, without informing him, voted in spring 2002 to reject his claim.

A year later, Mr. Washington learned about the case of another ex-player who'd also been told his disability wasn't football-related because it didn't stem from a single injury but several. That player, Donald Brumm, had sued, and in 1993 an appellate court declared the NFL's decision to deny benefits arbitrary and capricious. Said the Eighth Circuit Court in Minneapolis: "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.' "

Mr. Washington himself now sued, 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 Brumm decision five years earlier.

He faced a well-funded foe. The NFL, with its billions in annual revenue, is allowed to pay the cost of defending a player's suit out of the money in the pension plan itself, which totals more than $784 million. Tax filings show the NFL plan paid the Groom Law Group in Washington, which includes Mr. Ell, $3.1 million in 2003. Mr. Ell says the cost of defending disability claims is "more than a million a year," and the rest of the fee pays for work Groom does on the investment side, regulatory compliance and other expenses, such as travel costs.

In March, a federal judge in Phoenix ruled the NFL plan had breached a duty to Mr. Washington by not disclosing relevant facts. The judge set aside the settlement and ordered the NFL plan to determine whether Mr. Washington is eligible for football-related disability payments.

Once again, doctors hired by the league will be evaluating the former player. But even if the plan determines he was disabled by football, it still could say he doesn't qualify for football-related disability benefits. The reason is an amendment the league adopted in 1998, the year of the now-dead settlement. It states that psychological disability, the kind Mr. Washington claims, doesn't qualify as a football-related disability unless it stems from a brain injury.

And should Mr. Washington prevail on the appeal, and win his claim, the NFL plan might argue he isn't entitled to retroactive payments, thanks to another amendment that limits back-payments.

"The NFL keeps changing the rules of the game while it's in play" to keep former players from collecting benefits, says Susan Martin, a lawyer at Martin & Bonnett in Phoenix, who is representing Mr. Washington. "And it drags these cases out so long that people give up, or die."

The NFL has filed an appeal of the Phoenix judge's decision.

Mr. Washington faces another peril: The NFL plan has indicated in court documents that if the trustees determine Mr. Washington is not totally and permanently disabled as a result of football, it could demand that he repay the $400,000 with interest.

Write to Ellen E. Schultz at ellen.schultz@wsj.com¹

Copyright 2005 Dow Jones & Company, Inc. All Rights Reserved

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