Retirement Heist: how companies plunder and profit from the nest eggs of American workers

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.

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