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Paul Anderson: MLS Must Act with Urgency

By Paul D. Anderson Consulting, LLC

Major League Soccer and the Players Union barely missed a work stoppage—agreeing to a five-year CBA that will continue to restrict players’ rights.

The season is now in full swing. But certain issues remain unresolved.

As MLS and the Players Union hammer out the specifics of the new CBA, health and safety should be deemed an urgent priority. MLS has an obligation to maintain a safe work environment. This means that MLS must promulgate rules that are in the best interest of the players.

The Substitution Rule is the antithesis of this obligation. Under this Rule, a team is only allowed three substitutions per game. There is no exception for injured or concussed players. This has the obvious effect of putting “strategy” above the health and safety of the players. Moreover, it creates external pressure on the players, coaches and medical staff to ignore suspected concussions due to the threat of forcing a team to play shorthanded shortfooted.

Concussions are already difficult to diagnosis. It’s unrealistic to rely upon a concussed player to remove himself from play. Compounding the problem is the threat that if a player is forthright with the medical staff, he could be viewed as letting his team down, especially if it forces the team to play with only 10 players. Quite opposite to creating an environment that incentivizes players to report their injuries, the Substitution Rule impedes this, thus creating a dangerous work environment. This also impacts the medical team’s evaluation of the player.

In 2012, an MLS-affiliated doctor admitted the Rule hindered a practitioner’s ability to exercise his or her clinical judgment: “What’s different are the rules as in soccer, we have rules about substitution that make it difficult to do the kinds of evaluations that we would do in the NFL or even in the NFL,” Dr. Ruben Echemendia said.

While the dissenters have argued that allowing a concussion-substitution exception would create an incentive for cheaters, this position consistently rings hollow. Setting aside the fact that soccer (and basketball) players are notorious for their acting skills in order to draw penalties, the reality remains that new rules often create incentives to find grey areas. When balanced against the threat of a fatal brain injury, it is obvious which is more important.

It’s time for MLS and the Players to modify the Substitution Rule. The Rule’s failures have already been noted this season. Major League Baseball chose to buck the status quo when it outlawed collisions at home plate. While seen initially as a drastic change by the dissenters, MLB and the Players realized that safety trumps convenience.

MLS must provide more than mere lip service or face the threat of liability. If it wants to continue to flourish as a league, it must act with urgency to protect its most valuable assets.

This column was printed with permission of www.NFLConcussionLitigation.com

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McCann Analyzes Leeman v. NHL

Michael McCann, a good friend of Hackney Publications and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law, wrote a superb piece yesterday on Leeman v. NHL, “the newest sports concussion lawsuit,” for SI.com.

McCann sets the table by writing that: “The legal fallout of concussions in sports took a major turn this evening, as 10 retired NHL players sued the league in the U.S. District Court for the District of Columbia for failing to protect them from concussions. The plaintiffs, led by former All-Star Gary Leeman, seek for the court to certify their class. A certified class would make Leeman v. NHL very threatening, as it would allow these 10 players to sue on behalf of thousands of other retired NHL players. If successful in a trial, a certified class could obtain massive damages, perhaps in excess of a billion dollars.”hockey

He goes on to highlight four possible defenses, including:

  • Blame the NHLPA
  • Outdated and non-legal arguments
  • Uncertain causation
  • Assumption of risk

In his concluding paragraph, he assesses the possibility of a settlement.

“NHL lawyers probably feel confident they will convince a judge to dismiss Leeman v. NHL,” he writes. ”Some NHL owners, however, will probably prefer a more risk-averse strategy and will encourage settlement talks. A settlement could take on the features of the NFL’s concessions: improved benefits for retired NHL players and funding for research to make the sport safer. Don’t expect settlement talks anytime soon. The NHL concussion litigation has just begun and will probably take months, if not years, before there is any resolution.”

A good read, here is the link: http://sportsillustrated.cnn.com/nhl/news/20131125/leeman-v-nhl-concussion-lawsuit-analysis/#ixzz2llAaW4X3

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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 )

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