Thursday, September 22, 2011

Professional Athletes' Workers' Compensation? NOT IN MY HOUSE (California)!

One of the little discussed, but increasingly important NFL Collective Bargaining Agreement (CBA) issue in professional sports law is matters relating to professional athletes' workers' compensation claims. A disagreement has arose because numerous professional athletes have decided to choose California as the jurisdiction in which to file their workers' compensation claims, even if he had never played a game for a California home-team due to the belief that when it comes to Workers' Compensation Claims, California has plaintiff favored policies when it comes to work injuries that result from playing professional sports. This strategy was employed  much to the chagrin of the players' out-of-state employer who think that their players (employees) should be required to file their workers' compensation claims in the employers' home-state and have begun including contract provisions that preclude the players from bringing such injury related claims under California law.

However, even though this is an emerging and important issue within professional sports, the NFLPA and Owners punted on this issue, and decided to ratify the CBA and commence the football season  with this issue unresolved.  Nonetheless, both sides agreed to continue to negotiate in good faith regarding these emerging workers' compensation issues.  CBA Article 41 § (5)-(6) states that a joint committee will be formed to negotiate a possible California Workers' Compensation Alternative Dispute Resolution program on a trial basis.  This was agreed to with the big caveat that both sides retain their respective positions with respect to all current pending litigation. An example of such pending litigation was the case of the Chicago Bears versus three of their former players in The Chicago Bears Football Club Inc., et al. v. Michael Haynes, et al. No. 11 C 2668.  In her decision, U.S.  District Judge Elaine Bucklo affirmed an arbitrator's decision that the former Bears players were required to file their workers' compensation claims with the Illinois Workers' Compensation Commission instead of in California because their player contracts' required them to.

But why would a Chicago Bear  file his workers' compensation claim in California anyways?  For that answer, allow me to turn over the floor to Attorney Greg Grinberg; a Northern California Workers' Compensation Attorney who writes the blog wcdefenseca, a blog dedicated to California Workers' Compensation issues. 

California Workers’ Compensation has received much attention from the general public recently – the efforts of professional sports associations such as the NFL has made the news for the continuous effort to curb California’s intervention in non-California teams’ workers’ compensation costs.

That sounds confusing, right?  Well, California law allows workers’ compensation benefits for specific injuries, such as when an employee gets hurt from a specific event such as a tackle, a poor swing, etc.  But California also allows compensation for what is known as a “cumulative trauma,” where the employee says that he or she sustained an injury over time and no one event or action caused the injury.

So a football player can claim his injury to various body parts (don’t forget to add the psyche, difficulty sleeping, and heart disease) is the direct result of his career.  Well, during his career he might have been traded half a dozen times and played for teams on both coasts and a few spots in between.  Who has to pay up?

Under California’s Labor Code, in cases of a cumulative trauma, the last available employer to contribute to the cumulative trauma is on the hook.  Sometimes employers are unavailable because they have immunity, such as the Federal Government, and sometimes employers are unavailable because they don’t exist anymore (try filing a cumulative trauma claim against Borders Bookstores in ten years).

So a typical cumulative trauma applicant (in California Workers’ Compensation, the injured employees are applicants, not plaintiffs), will make a list of all his or her employers, the most recent first, that contributed to the cumulative trauma injury.  Then, the latest will present a defense, until no defenses are left and the most recent employer is on the hook!

But one of the defenses is jurisdiction – the injury had to have occurred in California, or the contract of employment must have been made in California.  So if a quarterback never played a game in California for the Packers but not the Dolphins, the Dolphins would not fall under California’s jurisdiction, and the Packers would.

That means that under California law, a football player who played a single game in California can recover for an injury caused by a 15-year career.

But employers, such as professional football teams have responded by contracting around California law, requiring professional athletes to bring their workers’ compensation claims in the home states of the teams.  The enforceability of these provisions seem to have promise, but who can say what the future will bring? 

California need only decline to enforce these contract provisions – after all, neither workers nor their unions can contract to limit workers’ compensation benefits or rights in California.

Unless the Leagues are willing to allow a boycott of California, Workers’ Compensation will continue to be a source of liability for the professional sports industry.
Thanks Greg!  Workers' compensation issues are definitely an emerging issue within professional sports law.  Not only have NFL players filed their workers' compensation claims in California, but the practice has caught on with other professional sports leagues' players as well.  I'm sure  NBA Commissioner David Stern and MLB Commissioner Bud Selig were disappointed that NFL Commissioner Roger Goodell and the NFLPA could not come to an agreement regarding this contentious issue, and it will be interesting to see if and how Stern or Selig tackle this issue in their respective and ongoing CBA negotiations.  I'll be sure to keep track of the issue and provide updates as they come. 

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