By Jeff Birren
Former NFL player Larry Tripplett recently lost a California workers’ compensation case. The decision could have far-reaching consequences for professional athletes who played for non-California teams but who wish to participate in the Golden State’s workers’ compensation gravy train. Less than ten years ago, it would have been an easy victory, but state courts and legislature have begun to slam the door on many such cases.
Larry Tripplett
Tripplett was born in Los Angeles and played defensive tackle at Westchester High School. Tripplett attended the University of Washington. He was a redshirt freshman in 1997, became a starter in 1999, and was an All-American in 2000 and 2001.
Tripplett selected David Dunn as his agent. Dunn, a founder of Athletes First agency, was based in Orange County, California. The Indianapolis Colts selected Tripplett in the second round of the 2002 NFL Draft. Tripplett testified that Dunn negotiated his rookie contract from the Athletes First Orange County office. He played for the Colts from 2002 through 2005, including a preseason game in San Diego on August 14, 2004, and a regular season game in San Francisco on October 9, 2005; thus two of the 110 games in his career.
His time in Indianapolis was not a huge success and Tripplett was released after the 2005 season. A Bleacher Report story labeled Tripplett the Colts’ eleventh biggest recent draft bust (Bleacher Report: “The Fifteenth Biggest Draft Busts In Recent Memory” Tyler Ward, 2-23-11).
Tripplett signed with the Buffalo Bills and started every Bills game during the 2006 and 2007 NFL seasons. He was released following the 2007 season, and signed with Seattle in April 2008. He was subsequently cut on August 30, 2008, ending his NFL career.
Tripplett in California’s Workers’ Compensation System
In 2009, Tripplett hired the law firm of Leviton, Diaz and Ginocchio to file a California “cumulative trauma” workers’ compensation case. The firm is based in Orange County. The application named the Colts, Bills and Seahawks as defendants. It alleged injuries “to multiple body parts throughout the course of his National Football League (NFL) career. Each of the defendant teams and insurers denied his claim” (Tripplett v. Workers Compensation Appeals Board, Indianapolis Colts, et al, (“Tripplett”) California Court of Appeal, Fourth Appellate District, Division Three, Case No. G054825, filed 6-28-18, at 3.).
The Bills and the Seahawks also disputed California jurisdiction. The workers compensation judge (“WCJ”) held a trial limited to this issue. The parties stipulated that Tripplett had sustained injuries while playing, but those issues were not before the court (Id.). Triplett testified that he was living in Los Angeles when his agent negotiated his contract in Newport Beach, and he signed his contract in Dunn’s Newport Beach office. At the end of Tripplett’s testimony, he “elected against the Indianapolis Colts” (Id.). “Election” in this context means that Tripplett would proceed solely against the Colts, the team that had not contested jurisdiction, and if Tripplett recovered, the Colts could seek a pro rata recovery from the Bills and Seahawks. The Colts protested, in vain (Id.).
The case went to trial on September 14, 2015. Tripplett again testified that he was hired in California by the Colts (Id. at 4). California Labor Code §5305 imposes workers compensation liability over out-of-state employers where the injured employee is a resident of the state at the time of the injury and that the contract of hire was made in this state.
Tripplett, the Colts’ Robert Terpening, and Tripplett’s agent signed the contract on July 26, 2002 at the start of summer camp. Tripplett’s signature on the contract is on the same page as that of Terpening, indicating that Tripplett was at the Colts’ facility in Indiana when he signed the contract, and not in California (Id.). Furthermore, although his agency also signed the contract, the agent actually signing was Dunn’s associate, Joby Branion. Moreover, his signature is on a separate page that shows that it was faxed that day from a telephone number in Buffalo, New York (Id.).
Tripplett then backed away from his prior testimony and claimed, “I honestly don’t remember” where he signed his contract (Id.). He added that he “put a lot of trust” in his agent and “whatever he advised me to do, that’s what I signed.” However, he was forced to admit that he retained the final say (Id.).
Terpening testified that “Tripplett likely signed the contract in Indianapolis” and that Tripplett could not participate in summer camp until he signed (Id.).
The WCJ decided that Tripplett had sustained cumulative trauma to multiple body parts causing a 67% permanent disability. The WCJ also found that the contract was entered into in California, as the agent negotiated the contract in California. There were no changes to the contract per the testimony of the defense witness. The signing of the contract was a condition subsequent to the acceptance by the agent assumed to be in California” (Id.).
The Colts filed a Petition for Reconsideration with the Workers Compensation Appeals Board (“WCAB”), contending that the WCJ “erred in finding jurisdiction because there was no substantial evidence to support its determination that Tripplett’s contract for hire was made in California” (Id.). The WCAB agreed, stating that the evidence demonstrated that neither Tripplett nor his agent were in California when the contract was accepted and signed (Id.). The WCAB noted there was no other basis for California jurisdiction, and the “limited number of games” that Tripplett played in California “would support a timely objection to adjudication of the claim in California” (Id. at 6). It was Tripplett’s turn to appeal.
Tripplett in the Court of Appeal
The Court stated that the WCAB’s findings of facts are conclusive if supported by substantial evidence, but that their interpretation of the Act is reviewed de novo, though it “is entitled to deference” (Id.), citing Macklin v. Workers Comp. Appeals Bd., (2015) 240 Cal. App. 4th 1229, 1237-1238). (See SLA, Volume 21, Issue #21, “California Court of Appeal Keeps Them Guessing When It Comes to Workers Comp,” 11-15-13.)
The Court disposed of Tripplett’s assertion that the Colts had waived the subject matter jurisdiction argument by failing to raise a timely objection. The workers’ compensation statute “is solely a creation of the Legislature, and thus its fundamental subject matter jurisdiction is limited by statute” (Id.). In the absence of a statute that affirmatively confers subject matter jurisdiction over a claim, the WCAB “lacks the power to adjudicate the claim” (Id. at 7). Finally, for seventy years it has been the law in California that subject matter may not be waived by a party, and thus this issue “can be raised at any time” (Id.) (On wonders what took the Colts so long to raise the issue).
Thus the real issue was whether or not Tripplett was actually hired in California. Tripplett asserted that the contract was entered in California, and the signing was, as stated by the trial court, “a condition subsequent” (Id.). The argument fell on deaf ears, as the Court had actually read the contract. The contract stated that it only became effective after execution (Id.). There was also no evidence that “any party believed that a binding agreement had been formed prior to execution of the written agreement” (Id. at 8). Tripplett cited several cases to support his contention, but none of such cases dealt with where the employee was hired. For this issue, “when courts have grappled with the issue of determining the location at which an injured employee was hired for purposes of workers compensation law, they have done so by applying traditional principles of contract formation” (Id. at 10). The site of the contract’s formation was the critical issue in the case, and his counsel had the contract through discovery, so it is telling that apparently neither Dunn nor Branion testified in the case.
The Court spent a page looking at non-sports cases before turning to two sports cases. In Bowen v. WCAB, (1999) 73 Cal. App. 4th 15, “the court relied on traditional principles of offer and acceptance” (Id. at 11). However, this case “is distinguishable because Indianapolis never sent Tripplett’s proposed employment agreement to him in California, and he did not sign it here. Indeed, no party signed the agreement in California. Rather, Tripplett claims it is the mere act that his agent negotiated the contract terms in California establishes he was ‘hired’ in this state. It is not enough” (Id.).
In a prior Arizona Cardinals case, “the WCAB rejected a similar claim of hiring based on the agent’s negotiation and signing of an employment agreement within the state” (Id., emphasis in the original). Since that player “had the ability to entirely reject the contract after it was negotiated, we conclude that his signature on the contract was not a mere condition subsequent” (Id. at 11-12, emphasis in the original). Similarly, “Tripplett retained the ability to reject the contact his agent negotiated,” and Tripplett admitted that he “had the final say” (Id. at 12). “Thus, Tripplett’s agent’s negotiation of terms to be included in a written employment contract was not sufficient to bind Tripplett to anything. And because those negotiations were the only contracted-related activity that took place in California, there is no basis to conclude the contract was formed in California” (Id.).
Tripplett cited another case that was swept away by the Court as it involved an oral agreement that could have been binding, but “Tripplett’s written agreement with Indianapolis–which stated it was effective only when executed–could not” (Id.). Furthermore, the contract “includes an integration clause that specifies it supersedes any prior oral agreement entered into between the parties. Thus, the written agreement Tripplett signed” in Indianapolis “was the only agreement governing his employment relationship with the team.” Since there was not a binding employment agreement entered into in California, the WCAB had not erred in finding that California lacked “jurisdiction over his work-related injury” (Id.).
Tripplett made a last-ditch effort to invoke California jurisdiction. He asserted that WCAB still had “jurisdiction over his injury because he played two games in California during his career, which contributed to his cumulative injury. We disagree” (Id. at 13). The Court relied on Federal Ins. Co. v. Workers’ Appeals Bd., (2013) 221 Cal. App. 4th 1116, (Johnson). The Johnson court stated that a cumulative trauma injury “occurs” when the injury has actually “ripened into a disability” (Johnson, 221 Cal. App. 4th at 1130), (see SLA, Issue 12, Volume 20, “Golden State, Golden Payouts, 10-30-15). A single game may eventually contribute to the cumulative trauma condition but that was not enough. The “injury occurs not at the time of each, distinct, fragmented exposure or trauma, but at the time the cumulative effect of the injuries has ripened into disability” (Id.).
The Court’s “Johnson’s analysis suggests Tripplett’s cumulative injury likewise occurred at this retirement, than during any particular game–including either of the two games he played in California. Thus, his cumulative injury had not ‘ripened into disability’ when he played two games in California” (Id. at 14). Furthermore, even without Johnson, “we would have to reject his assertion that the WCAB erred in finding no jurisdiction”. The Court is “bound by the WCAB’s findings, if supported by substantial evidence”. The “burden was on Tripplett to demonstrate why that evidence could not support a finding that the WCAB lacked jurisdiction and he has not done so” (Id., emphasis in the original). Incredibly, Tripplett cited Johnson. Ms. Johnson played a game in California close to the end of her last season, though even that was not enough to create California subject matter jurisdiction, while Tripplett played two and half seasons after his last California game. He tried to distinguish Johnson by stating that he resided in California, but conceded that WCAB jurisdiction “cannot be conferred or withheld on the basis of residency within the state” (Id.). With that, the court initially ended.
The decision was issued on June 28, 2018 and the NFL, NBA, MLB, NHL, all of their franchises, Worldwide Wrestling Entertainment, Inc., and Great Divide Insurance Company requested that the unpublished opinion be included in the official reports. On July 24, 2014 the Court granted the request, and ordered that the opinion be published in the Official Reports. It will thus apply to all pending California workers compensation cases.
As a result of Tripplett, the mere negotiation of terms of the contract, as opposed to actual signing of the employment agreement, will not be enough for non-Californians to get their lucrative cumulative trauma cases heard in the state. Since many states do not recognize cumulative trauma claims, this will be very welcome news for teams and leagues throughout North America. Moreover, the language that eliminates all prior negotiation discussions from becoming part of the actual contract is found not only in all NFL player contracts but also in all contracts in the other leagues as well. And it will be the location of the actual signing of the contract that matters, not where one of the negotiators was during phone call discussions. One wonders how many pending similar cases were just foreclosed by the published Tripplett opinion.
Birren is an adjunct professor at Southwestern University School of Law and former general counsel of the Oakland Raiders.
