Click photo for larger image. After the NFL This is the second of two reports on former Steelers player Mike Webster and the NFL's pension and disability plan. NFL's disability plan puts former players under close scrutiny Research's benefits too late Yesterday: Webster v. NFL: A family's fight The blame: It falls on NFL, not the Rooneys

"We'll continue to be unable to make everyone happy."

-- Doug Ell

WASHINGTON -- From his 11th-story office window high above Pennsylvania Avenue, Doug Ell has a grand view of the Old Executive Office Building and the White House.

Ell rules from this eminently powerful vantage point, although he shouldn't appear that menacing to the retired professional football players over whom he presides. He is 6 feet 2. He is gray-haired and middle-aged. He is possessed of the lanky body of a runner rather than a man who played the game, which he never did. Yet NFL retirees who come up against him hold him in equal parts contempt and fear.

For Ell just might be the most staunch defender these former players have confronted.

What this lawyer from the prestigious Groom Law Group defends so staunchly is the league's Bert Bell/Pete Rozelle Retirement and Disability Plan. He calls it the Plan. And he guards it dearly.

"We'll continue to be unable to make everybody happy," Ell said last month, crossing his legs and sitting comfortably on the sofa in his corner office of what is considered the nation's largest pension/disability law firm. "But the Plan does a very good deal. It pays out a lot of money in disability benefits to players."

America's most brutal professional sport pays nearly $1 million in disability benefits each month, Ell said. It comes from a $1 billion pot entrusted to Mellon Global Securities Services, a Boston-headquartered division of Pittsburgh-based Mellon Bank. It is administered through a Retirement Board, whose six seats are equally divided between the NFL Players Association and the league's Management Council as per Collective Bargaining Agreements through the 1980s and 1990s. But Ell is the ultimate gatekeeper. He is the attorney who goes head-to-head in courtroom contests, such as the two dozen appeals that have gone directly to U.S. District Court, as would cases in any industry's disability plan under the Employee Retirement Income Security Act.

Post-Gazette Mike Webster in a 1981 photo with two of his children, Brooke, then 4, and Colin, 2. Click photo for larger image.

In 1994, former Steelers offensive lineman Steve Courson tried to gain higher disability benefits and took the Plan to federal court in Pittsburgh, where he lost to Ell.

The estate of former Steelers star Mike Webster, staking an appeal for an additional $1.14 million in benefits in part on a claim that the late Hall of Fame center was totally and permanently disabled upon his retirement in 1991, recently took its case to federal court in Baltimore, where the Plan is headquartered and where this challenge likewise comes up against Ell.

"We don't always win them the first time around," Ell said. The unspoken conclusion being: But we don't always suffer defeat in the end.

"They don't like losses up there," said Jacksonville, Fla., attorney Joe Camerlenga, who has been on that end against the Plan and Ell. Another attorney, San Diego Chargers Hall of Famer Ron Mix, added that sometimes rather than face defeat, "they settle."

Ell talked about winning a case a little more than a year ago when a 9th Circuit Court decision in California overturned a decision in which the Plan was ordered to pay $180,000 in disability to former San Francisco and Miami running back Delvin Williams. In 1997, a federal district judge's award of $1.8 million to former Chargers lineman Walt Sweeney was overturned on appeal.

Like any good athlete, this lawyer is competitive. Like any good lawyer, he often leaves angry foes in his wake.

Call for changes

Critics in the form of opposing counsel and NFL retirees find fault with the Plan that Ell initially helped to merge after another CBA agreement in June 1994 from the original Bell model and the Rozelle plan.

Some of these critics wish to see a few changes to the system: A less daunting process to seek disability, an arbiter to hear appeals -- rather than the same six-member Retirement Board ruling on the original case and then any appeal -- and more retirees receiving benefits.

In the end, the same as the game, there is a scoreboard for the Plan's disability benefits.

Of more than 3,500 National Football League Players Association members, about 232 receive some sort of disability benefits. Of those, 104 get partial payments -- a minimum of $1,500 per month -- and 128 get full disability -- a minimum of $4,000 per month.

"That's low. Oh my God," said Mike Utley, a former Detroit Lions offensive lineman who was paralyzed in 1991, though he never received disability from the Plan because he got an out-of-court settlement from the Lions.

"I mean, what do you have to be to get anything, on your death bed? By my calculation, [$1 billion in assets] is $100 million a year in interest."

"There's a lot of money in that fund," added Bob Fitzsimmons, the Wheeling, W.Va., lawyer who befriended Webster in 1997 and represented him, serving as co-counsel on the federal court case with Cyril Smith of Baltimore. "And they need to spread it around a little bit more."

Presenting the counterpoint is Mix, the former Charger turned attorney who has represented players seeking Plan benefits. He says the 232 beneficiaries are "a significant number."

"Particularly since all of those disability formulas hadn't been in place the entire history of the NFL. Some of them, the partial disabilities, have been massaged into their present form in the past 10 years or so."

Besides, Mix added, retirees can seek financial help in other ways from the NFLPA: The Player's Assistance Fund offers up to $10,000 for medical problems and $7,500 for financial crises, with 529 players by 2002 receiving such help. The Dire Need Fund offers $5,000.

The process

The first step in every attempt to receive disability from the Plan is filing an application.

That's the part that stymies many retirees, the fear of enduring an arduous process they hear about from peers and see in drawn-out court cases. About 500 former NFL players apply each year for disability, yet many say there are many more candidates. Camerlenga said, "A lot of retired players just don't know it's there."

The burden of proof starts with the retiree, who must show the board -- through medical reports, expert testimony and, likely, financial records -- that he cannot hold a decent job because of some physical or mental impairment. The Retirement Board then may assign another doctor or doctors of its choosing to examine the player and, as in Webster's case, hire a private investigator such as former Raiders defensive tackle Tom Keating to verify medical and financial history.

"It's a pretty high standard to reach: One can't hold any meaningful employment," Mix said of the threshold to prove disability.

"An ERISA claim is difficult to establish because it's within the discretion of the Plan trustees. In order to overturn a trustees' decision [in federal court], you have to show abuse of discretion. And that's another pretty high standard."

Camerlenga has won some and lost some against Ell and the Plan.

"The one problem we have, it almost seems to be a who-you-know process," the attorney and player agent said. "If you have the proper contacts, your application will slide right through. If you don't, you may make somebody angry and fight them in the courts. We've seen it both ways."

Ell disagrees, calling the board impartial.

Still, influence seems permissible from some ends. Steelers owner Dan Rooney, for one, lobbied the board on Webster's behalf.

The board, which by Ell's reckoning has voted 6-0 on every Webster issue, seemed to side with its appointed doctor's findings that the physicality of the profession contributed to Webster's deterioration. At issue, however, remains the start date of his brain injury. The board affixed a September 1996 start, backdating from the time of his initial disability claim in 1999 by using their mandated 42-month clock. Webster's estate seeks a March 1991 start, upon his NFL retirement, and a date that the NFL's doctor apparently found agreeable.

"I understand about arguing over timeliness of disability, but there's a murky area there, too," Courson said. "If they decide they don't want to pay something, they'll do anything to knock it off its tracks. The Retirement Board, basically, they're main mentality is to protect the Plan.

"In a way, I can't blame them. They know the game of football isn't the healthiest occupation in the world. But there's a fine line between protecting the fund and taking care of the players."

Camerlenga agreed, echoing Ell's comment that the Retirement Board members are fiduciary trustees. They aren't allowed by NFL/NFLPA rules and under the federal disability act to blithely dole out dollars to every retired player. But to him there is such a thing as being stingy.

"Sometimes, it's like trying to get them to write a check out of their own bank accounts," he said. "Once their minds are made up, its difficult to change their minds."

That raises a red flag in some corners: The six board members deciding a retiree's original claim also hear and rule on any appeal.

Why not arbitration, binding or non-binding?

It's a system used in other sports, particularly for salary arbitration, and in other businesses for labor disputes, grievances and disability appeals.

"The NFL, under the Collective Bargaining Agreement, has great arbitration rules inside it," Camerlenga said. "You can use the NFL-NFLPA arbiter ... to handle those claims. I think that would be a fantastic idea."

Other avenues

Disability isn't a former player's only avenue if the game causes him postcareer pain: He also can seek workman's compensation through his state, something that happens with a half-dozen former Steelers, Penguins and Pirates every year. The maximum benefit for anyone injured in 2005 is $716 per week, although a 1993 amendment to the Pennsylvania workman's compensation act required that professional athletes in the state receive less in benefits than everyday workers -- such as a Steeler getting at least $12 less a week than a steelworker based on an assigned salary around the state average of $55,000 annually, which most pro athletes earn in a month or two.

Former Steelers offensive lineman Tunch Ilkin suffers from chronic back, shoulder and knee pain that precludes him from jogging to this day -- "I never liked running anyway," he said, joking -- and testified about the aching post-NFL life in front of the state Legislature in 1993, when the workman's comp act was amended. Yet he doesn't collect anything other than his NFL pension, $3,200 a month for 14 years of service, while he makes a living as a Steelers radio announcer, self-employed sports talk-show host and television analyst. He knows both sides of equation, having been a player representative who participated in CBA talks and heard retirees from previous generations plead to receive more benefits through such new contracts.

"Of course, the pension benefits, the 401Ks -- it's a lot better now than when we played," Ilkin said. "Players today are really well taken care of when they're out of the game. Hey, that's life. We had it a lot better than the guys before us."

The vested NFL retirees of today not only receive a better pension and have a 401K plan in place, but they also can get an annuity benefit from the $1.5 billion pot set aside for such retirement perks.

The gatekeeper for that?

The lawyer in that 11th-floor Pennsylvania Avenue office: Doug Ell.

"In part, I would describe my job as somebody who helps to put money available for football players for life," he said. "These plans are intended to be there when they need it."