Sunday's New York Daily News sports section reveals a bizarre case of lawyers making mincemeat of conversational implicature. Victor Washington, who played for a number of different National Football League teams in the 1970s, suffered a number of different on-the-field injuries — including to his back, his elbow, and his right kneecap. The NFL, however, has managed to avoid paying Washington a higher rate of monthly benefits under its retirement and disability plan thanks to a particularly uncooperative reading of the phrase "a football injury":
In 1986, an arbitrator — using the kind of warped logic that would make Kafka green with envy — decided that Washington should get $750 a month for non-football related injuries, instead of the $4,000 he would receive if his problems were football-related. The plan's language, the arbitrator said, specified the higher payment for "a football injury." Since Washington suffered multiple injuries, he was out of luck.
"Who would ever know the letter 'A' had so much power?" Washington asks, half laughing, half moaning.
Washington has been stuck in litigation ever since. He agreed to a lump-sum payment in 1998 without realizing that the arbitrator's perverse construal of "a football injury" had been tossed out by a federal court considering the case of another retired NFL player, Donald Brumm. Washington sued to overturn the settlement, on the grounds that the NFL did not inform him of the Brumm ruling. A federal judge decided in Washington's favor in 2005, but after the NFL appealed, the Ninth U.S. Circuit Court of Appeals ruled last month that Washington is stuck with his current settlement. And all because of a one-letter indefinite article?
Until the early 1990s, the NFL's disability plan stated that a retired player would be eligible for "Level 1" benefits if he has been "totally and permanently disabled" due to "a football injury incurred while an Active Player." He would only receive "Level 2" benefits if his "total and permanent disability results from other than a football injury." In 1987, when seven players sought Level 1 benefits, their claims were submitted to an arbitrator, Sam Kagel. Kagel concluded that a player could only get Level 1 benefits if he was disabled from "one identifiable football injury." Donald Brumm was subsequently denied his Level 1 benefits under the standards set by the Kagel arbitration. A district court then upheld the retirement board's decision because Brumm's disability was not the result of one single injury but rather the cumulative effect of several injuries.
In 1993, however, the Eighth U.S. Circuit Court of Appeals heard Brumm v. Bert Bell NFL Retirement Plan and ruled that Brumm should get his Level 1 benefits after determining that the retirement board had acted "arbitrarily and capriciously." The decision read:
We conclude that the interpretation applied in Brumm's case, if not flatly contrary to the language of the Plan, represents at the least a startling construction. To require that disability result from a single, identifiable football injury when the relevant Plan language speaks of "a football injury incurred while an Active player" is to place undue and inappropriate emphasis on the word "a". "Injury" can mean either an "act or a result involving an impairment or destruction of . . . health" Webster's Third New International Dictionary (1986). Therefore, the key phrase from Section 5.1, "a football injury", could refer to either a single injury (act) or a cumulative one (result). The apparent dichotomy set up by Section 5.1 — between "results from a football injury" and "results from other than a football injury" — is consistent with the latter meaning. In sum, we believe that the Board's proposed construction of the relevant language impermissibly crossed the line between interpretation and amendment.
There seem to be two separate questions of implicature here. First, does the singular indefinite article a in "a football injury" imply that a player can only be injured once to receive the higher level of benefits? That's an uncooperative reading for anyone not trained as a lawyer, since despite its singularity a(n) is not typically considered to have the logical force of "one and only one." Second, even if a(n) is read in the limited, lawyerly way, does the word it modifies, injury, need to refer to a single harming act? The appeals court consulted a dictionary to decide that "a football injury" could in fact be the cumulative result of a number of individual acts on the playing field.
Victor Washington's benefits claim had also been held hostage to the perverse reading of "a football injury." According to last month's appeals court ruling, the arbitrator Kagel had awarded Washington the lower level of benefits in 1987 because his medical experts had not identified "'a injury' that resulted in his having to leave football." That's not a typo: Kagel really referred to "a injury" and not "an injury." That, presumably, was intended to drive home the uncooperative "one and only one" reading, by treating the article a legalistically rather than conversationally. The legal emphasis on the word a would apparently be lost if it underwent the regular addition of the epenthetic consonant /n/ to create an before a word beginning with a vowel like injury.
As I understand it, Washington didn't lose out this time around because of the pesky article a but because of yet another legal technicality. The appeals court ruled that knowledge of the 1993 Brumm decision could only have helped Washington out under the NFL's old disability plan. Since Brumm, the NFL has created new benefits categories for retired players: Football Degenerative and Inactive. Washington's old Level 2 benefits (for a disability resulting from "other than a football injury") translated into Inactive benefits under the new system, for disability arising from "other than League football activities." Washington wanted his benefits to be reclassified as Football Degenerative, for disability from "League football activities." Since the Brumm case only pertains to the old categories, the NFL's failure to disclose that ruling doesn't apply to Washington's consideration under the new categories. I still don't see how Washington's on-the-field injuries could be seen as anything other than "League football activities," but since the troublesome phrase "a football injury" is no longer in the picture, the appeals court felt that Brumm was irrelevant to Washington's current benefits status.
Still, it was a willfully obtuse interpretation of the article a that set Washington down this road in the first place. Sometimes, to quote Mr. Bumble in Oliver Twist, the law is a ass.
[Update, 10/24/07: Rob Pérez writes in:
I read your posting on "a football injury" with interest. In patent law, the opposite is generally true. Where "a widget" is recited in a patent claim, a device having at least one widget would be infringing (assuming all other recited elements were present). If we want to mean one and only one, we would normally say something like "exactly one".
Also, Michael Covarrubias at Wishydig takes exception with my description of the /n/ in an as "epenthetic."]
Posted by Benjamin Zimmer at October 22, 2007 11:04 AM