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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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Attorney Analyzes Oral Arguments held in NFL Concussion Litigation
Eric M. Sable, a recent graduate with magna cum laude honors from Widener University School of Law in Wilmington, Delaware and contributor to Sports Litigation Report, recently provided analysis to NFLconcussionlitigation.com about the arguments put forward in the NFL concussion litigation in Philadelphia.
He noted that event featured “two legal heavyweights”—Paul Clement (a former U.S. Solicitor General, who argued on behalf of the NFL) and David Frederick (a former Assistant Solicitor General and law clerk to Justice Byron White, who represented the former players). “Both have argued countless cases before the U.S. Supreme Court and are universally regarded as two of the nation’s preeminent appellate orators,” he wrote.
Ultimately, Sable suggested that “the players must be feeling confident considering the amount of focus” on Kline v. Security Guards, Inc., 386 F.3d 246 (3d Cir. 2004).
“In Kline, unionized employees brought a lawsuit against their employer for using video and audio surveillance equipment to illegally record them. The employer argued that the employees’ state law claims were preempted due to the collective bargaining agreement. However, the court found that the dispositive question was whether the claims required any interpretation of the collective bargaining agreement (“CBA”), and in this case it concluded that because the employer did not cite to any specific provisions requiring interpretation, resolution of the employees’ state claims were not dependent upon analysis of the CBA. Thus, complete preemption was unwarranted.
“Similar to Kline, the retired players argue that the NFL’s duty to its players – and failure to achieve that duty – is not specifically described in the CBA. Rather, it arises in the context of the NFL acting as the “superintendent” for the sport of football, and being in the unique position of having access to information on the neurological risks of concussions. According to Frederick, the NFL breached its duty to the players when it concealed this information, failed to warn its players, spread misinformation, and set up a “sham” Mild Traumatic Brain Injury Committee in 1994.”
Sable added that “the NFL attempts to distinguish Kline by arguing that here it is impossible to determine the scope of the NFL’s duty (as well as the union’s, the NFL member clubs’, or its players’ duties) without interpreting the CBA. Whereas the subject of the dispute in Kline was not mentioned in the CBA, in this case the CBA features health and safety provisions. Here, the NFL asserts that ‘the CBAs, in comprehensively assigning roles and responsibilities for regulating player safety, create a scheme in which the duties of any single actor, including the NFL, can be defined only by assessing the overall allocation of duties.’
“Judge Brody, however, interjected by asking whether the CBA was specific enough to cover the players’ claims. While Clement preferred to speak in broader terms, he did mention return-to-play rules and certain notification mechanisms specified in the CBA as provisions that require interpretation in determining the scope of the NFL’s duty to its players. Clement also mentioned several times that the CBA allocates the responsibility of player health and safety to the individual member clubs and argued the players cannot just sidestep the preemption issue by reaching over the clubs to the sue the league.”
To see the complete, and very thorough, article, visit: www.nflconcussionlitigation.com
NCAA Targeted Again on Concussion Issue
Ramogi Huma, president of the National College Players Association (NCPA), an advocacy group comprised of more than 17,000 current and former college athletes, said last week that NCAA football has “chosen to focus on a playoff payday,” instead of “players’ brains.”
Huma said that “the NCAA and conference commissioners are doing nothing to reduce the risk of serious brain trauma that these and other football players face each time they suit up. There are ways to minimize health risks associated with concussions.”
The NCPA Players Council, a steering committee comprised of current and former FBS football players, developed the Concussion Awareness and Reduction Emergency (CARE) Plan to reduce the risk of brain trauma, and provide much needed research and support for former college athletes participating in contact sports.
“Our plan can help protect players’ long-term health,” said Rashard Hall, a member of the NCPA’s Players Council who recently played his final football game for Clemson. “There should be no higher priority for NCAA football.”
The NCPA claimed that “there have been no visible reform efforts since Owen Thomas committed suicide while playing football for Penn in 2010. A postmortem examination revealed that he had CTE, chronic traumatic encephalopathy (CTE), a degenerative brain disease caused by repetitive brain trauma. A number of former NFL players who unexpectedly committed suicide were also found to have had CTE.”
The association further maintained that, other than the PAC-12 Conference, “all FBS conferences and the NCAA have ignored the NCPA’s request to discuss the CARE Plan.”
Said Huma: “While we see movement on concussion reform in the NFL and Pop Warner football, NCAA football has been asleep at the wheel. Those who run college football seem to be running from this serious issue.”
The NCPA CARE Plan recommends the following:
1. Reduce contact during practices.
2. Require independent concussion experts to be present during competitions.
3. Freeze the maximum number of regular season games.
4. Long-term monitoring and data collection of former college athletes that have participated in contact sports.
5. Support for former college athletes suffering from degenerative brain conditions associated with participation in college athletics.
6. Warn student-athletes in contact sports about CTE and degenerative brain conditions associated with contact sports as called for by the Sports Legacy Institute.
