Category Archives: Hockey
Players Unions Send Memo Hoping to Thwart Today’s Passage of California Workers Comp Bill 1309
The players unions for professional football, basketball, baseball, hockey, and soccer have sent a memo to California lawmakers, urging them to vote no on a workers compensation bill that would gut that state’s unique law, which protects professional athletes on teams in that state as well as those who work for teams in other states, but compete in California.
A change in the law could dramatically affect any concussion-related benefits that pro athletes may receive.
The memo, which is signed by the heads of each union, follows:
We are writing to you as the Executive Directors of our respective Players Associations–the (NFLPA), (WNBPA), (NBPA), (MLBPA), (NHLPA), (PHPA), and the (MLSPU)–to express our firm and unanimous opposition to current efforts by pro sports teams and leagues to limit or eliminate workers compensation benefits for our members in California.
AB 1309 ignores the fact that all workers compensation costs for most professional athletes, other than Major League Baseball, are paid out of the athletes side of the salary cap. As part of the collective bargaining process, athletes agreed to have less money available for salaries in order to ensure that they will have workers compensation benefits.
The only cost to California is a relatively small amount from the California Insurance Guarantee Association (CIGA) fund. Apparently, the cost to the CIGA fund for professional athletes is $4 million annually. Our players have agreed to work with Assembly member Perea to fix the asserted CIGA problem by changing the statute to no longer allow out-of-state professional teams were there players to have access to CIGA coverage. Assembly member Perea has chosen not to take the CIGA language.
And the proponents fail to mention that out-of-state athletes pay California personal income taxes on a formula that resulted in California receiving $161 million in 2010 and that is expected to be about $300 million in revenue to California in 2013.
Another glaring inequity of AB 1309 is the retroactive application of this bill. As written, this bill would apply to all pending claims; even claims that have been fully litigated and are awaiting decision, discriminating against a single class of injured workers. Thousands of injured players whose cases are in suit would be left without remedy. To use an ex post facto law to deprive people of their rights is wrong.
The proponents of the bill commissioned a study by the Milliman firm. This study expressly states that it is based upon unverifiable information, lack of information, and that if additional information became available the results could vary. In other words, it is unreliable.
Finally, the author amended the so-called “Joe Montana rule”, but adopted language that would say that a player who played most of his career in California still would not be eligible to file a workers compensation claim in this state if they did not play eight years or 80% of their career with one California team. This language sets a very unrealistic bar for most professional athletes to reach as the average professional athlete plays less than five years.
Again, we would like to restate that other than the CIGA costs mentioned above, out-of-state professional athletes filing claims in California have no financial impact on the employers or the taxpayers of the state. We, the undersigned union leaders overwhelmingly agree that no costs for our player’s workers compensation coverage should be paid for by anyone other than the leagues of our respective sports.
If you have any questions, please contact Aaron Read, Randy Perry or Terry McHale at (916) 448-3444.
(Editor’s Note: The actual text of the bill can be found here: http://bit.ly/ZBO60d )
Posted in Football, Hockey, Other Sports, Professional
Tagged employment, labor, union, workers comp
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Fierce NHL Enforcer’s Lawsuit Dismissed on a Technicality
(Editor’s Note: This article first appear on Paul Anderson’s blog: http://nflconcussionlitigation.com. Mr. Anderson, nationally recognized for his coverage and analysis of the lawsuits filed by former NFL players against the NFL, also serves as editor of Concussion Litigation Reporter.)
The late Derek Boogaard tragically died of an apparent overdose on May 13, 2011.
At the time of his death, Boogaard still had three years remaining on his guaranteed contract with the New York Rangers.
After his family learned the NHLPA was not going to file a grievance on Derek’s behalf to recover the $4.8 million remaining on his contract, the family sought legal counsel elsewhere.
Instead of pursing a claim for medical malpractice against the various team doctors whom, on multiple occasions, allegedly overprescribed Boogaard with painkillers (See, John Branch’s hard-hitting reporting), the family apparently received more suspect legal advice.
On September 21, 2012, Boogaard’s family filed a lawsuit against the NHLPA and Roman Stoykewych, the associate general counsel for the NHLPA.
The lawsuit was doomed from the beginning.
The family asserted a breach of the duty of fair representation (DFR) claim against the NHLPA for allegedly failing to pursue a grievance against the Rangers.
A DFR claim is extremely difficult to win. The Boogaard family had to prove that the NHLPA and/or Stoykewych acted arbitrarily or in bad faith.
But, before you can even get to the merits of the case, a party must have filed the DFR claim within 6 months from the date “a plaintiff learns or should have learned about the union’s decision” not to pursue a grievance.
The Boogaard family waited more than 6 months – they first learned that the NHLPA was not going to pursue a grievance on December 2, 2011.
Thus, it was too late, and the NHLPA’s motion to dismiss — converted to a summary judgment motion — was granted.
Even a plea for equitable relief was unavailing.
The court, according to documents first obtained by NFLConcussionLitigation.com, stated that the Boogaard’s “quest for an attorney was lackluster at best.”
Geez, talk about rough justice — never mind the fact that the parents were likely still grieving over the death of their child. I’m sure the last thing on their mind was filing a lawsuit. Sometimes, however, the law can just be plain rough, but the judge applied the law and he got it right, although it may seem unfair.
Despite this and other allegations asserted by the Boogaard family, the court found that “no extraordinary circumstances existed” to excuse the family for not filing suit within 6 months.
Therefore, Boogaard’s lawsuit was barred by the statute of limitations and his case was dismissed with prejudice.
In other words, the NHLPA and Stoykewych won on a “technicality.” Though, it’s unlikely the Boogard family would have been successful on their DFR claim, in any event.
Although their lawsuit was dismissed, I still think they have[1] a potential wrongful death suit against the NHL and various team doctors – assuming the New York Time’s report is true.
At only 28 years old, Boogaard, a fierce enforcer, was diagnosed with CTE.
It’s certainly conceivable the multiple fisticuffs to the head, masked by the deadly concoction of painkillers, mixed with the gross negligence of others were the contributing causes of Derek’s death.
Unfortunately, without the benefit of a meritorious lawsuit and the discovery process, we may never know whether others were, at least partially, responsible for Derek’s tragic and untimely demise.
[1] Though time is quickly running out. New York’s wrongful death statute of limitations is two years. In other words, it may expire on May 13, 2013.
AAN Issues New Guideline Today on Sports Concussions
The American Academy of Neurology (AAN) has released an evidence-based guideline for evaluating and managing athletes with concussion. This new guideline replaces the 1997 AAN guideline on the same topic. The new guideline was published today in the online issue of Neurology®, the medical journal of the American Academy of Neurology.
The AAN is an association of more than 25,000 neurologists and neuroscience professionals.
The guideline was developed through an objective evidence-based review of the literature by a multidisciplinary committee of experts and has been endorsed by a broad range of athletic, medical and patient groups.
“Among the most important recommendations the Academy is making is that any athlete suspected of experiencing a concussion immediately be removed from play,” said co-lead guideline author Christopher C. Giza, MD, with the David Geffen School of Medicine and Mattel Children’s Hospital at UCLA and a member of the AAN. “We’ve moved away from the concussion grading systems we first established in 1997 and are now recommending concussion and return to play be assessed in each athlete individually. There is no set timeline for safe return to play.”
The updated guideline recommends athletes with suspected concussion be immediately taken out of the game and not returned until assessed by a licensed health care professional trained in concussion, return to play slowly and only after all acute symptoms are gone. Athletes of high school age and younger with a concussion should be managed more conservatively in regard to return to play, as evidence shows that they take longer to recover than college athletes.
The guideline was developed reviewing all available evidence published through June 2012. These practice recommendations are based on an evaluation of the best available research. In recognition that scientific study and clinical care for sports concussions involves multiple specialties, a broad range of expertise was incorporated in the author panel. To develop this document, the authors spent thousands of work hours locating and analyzing scientific studies. The authors excluded studies that did not provide enough evidence to make recommendations, such as reports on individual patients or expert opinion. At least two authors independently analyzed and graded each study.
According to the guideline:
• Among the sports in the studies evaluated, risk of concussion is greatest in football and rugby, followed by hockey and soccer. The risk of concussion for young women and girls is greatest in soccer and basketball.
• An athlete who has a history of one or more concussions is at greater risk for being diagnosed with another concussion.
• The first 10 days after a concussion appears to be the period of greatest risk for being diagnosed with another concussion.
• There is no clear evidence that one type of football helmet can better protect against concussion over another kind of helmet. Helmets should fit properly and be well maintained.
• Licensed health professionals trained in treating concussion should look for ongoing symptoms (especially headache and fogginess), history of concussions and younger age in the athlete. Each of these factors has been linked to a longer recovery after a concussion.
• Risk factors linked to chronic neurobehavioral impairment in professional athletes include prior concussion, longer exposure to the sport and having the ApoE4 gene.
• Concussion is a clinical diagnosis. Symptom checklists, the Standardized Assessment of Concussion (SAC), neuropsychological testing (paper-and-pencil and computerized) and the Balance Error Scoring System may be helpful tools in diagnosing and managing concussions but should not be used alone for making a diagnosis.
Signs and symptoms of a concussion include:
• Headache and sensitivity to light and sound
• Changes to reaction time, balance and coordination
• Changes in memory, judgment, speech and sleep
• Loss of consciousness or a “blackout” (happens in less than 10 percent of cases)
“If in doubt, sit it out,” said Jeffrey S. Kutcher, MD, with the University of Michigan Medical School in Ann Arbor and a member of the AAN. “Being seen by a trained professional is extremely important after a concussion. If headaches or other symptoms return with the start of exercise, stop the activity and consult a doctor. You only get one brain; treat it well.”
The guideline states that while an athlete should immediately be removed from play following a concussion, there is currently insufficient evidence to support absolute rest after concussion. Activities that do not worsen symptoms and do not pose a risk of repeat concussion may be part of concussion management.
The guideline is endorsed by the National Football League Players Association, the American Football Coaches Association, the Child Neurology Society, the National Association of Emergency Medical Service Physicians, the National Academy of Neuropsychology, the National Association of School Psychologists, the National Athletic Trainers Association and the Neurocritical Care Society.
Posted in College, Football, General, High School, Hockey, Litigation, Other Sports, Professional
Tagged guideline, return-to-play, testing
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