By Richard C. Giller, Esq.
The establishment of the four-team, three-game, College Football Playoff system four years ago essentially relegated the remaining 37 post-season bowl games to little more than exhibition games. Since that relegation, more and more college players on the non-CFP bowl teams, who are potential first or second day NFL draft picks, are opting out of playing in their final game of their collegiate careers. That decision is a personal one that involves a number of factors, such as the teams’ ranking in the polls, the prestige of the bowl game involved, the players’ prior post-season experience, his current or past injury history and, as discussed below, whether the student-athlete had the foresight to secure a permanent total disability (PTD) insurance policy with a loss-of-value (LOV) rider before his last season, as a hedge against the financial impact a serious injury sustained during that season might have on the value of his first professional contract. With a PTD/LOV insurance policy in place, the decision about whether or not to play in a bowl game may be significantly easier.
As of December 9, 2018, fourteen future NFL draft picks have already announced that they will not play in their teams’ bowl games. Not only is that number expected to rise before the end of this bowl season and for seasons to come. The opinions offered by athletes, coaches, teammates and commentators about the pros and cons of skipping a bowl game are as varied as the prestige and history of the bowl games themselves. Those post-season exhibition games include the December 29, 2018 College Football Playoff games taking place at the Orange Bowl (established in 1935) and the Cotton Bowl (first played in 1937), culminating with the January 7, 2019 National Championship Game. There are four other well-known bowl games played on or right before January 1 each year, including the historic Rose Bowl (dating back to 1902 and nicknamed the “Granddaddy of them All”), the Sugar Bowl (dating back to 1935), the Peach Bowl (established in 1968) and the Fiesta Bowl (first played in 1971). Some of the lesser known bowl games include the five-year old Cheribundi Tart Cherry Boca Raton Bowl and the four-year old Raycom Media Camellia Bowl. In much the same way that having an insurance policy in place makes the decision about skipping a bowl game easier, the decision also depends on the importance of the bowl game itself. A projected first, second or third round NFL draft pick might well skip the Bad Boy Mowers Gasparilla Bowl but he would likely never miss the Rose Bowl game.
With respect to the varying opinions of athletes, coaches and commentators about skipping a bowl game, Cincinnati Bengals offensive lineman Eric Winston, and current president of the NFL Players Association, described the choice as the “first business decision” the student-athlete has to make. Winston has also suggested that, when making that decision, the player should ask himself: “Is this last game worth it? How much can I improve, and where would I drop to with an injury?” Arizona Cardinal wide receiver Christian Kirk echoed those sentiments during his final year at Texas A&M: “I think it’s a business decision, for sure. If you feel like it’s in the best interest for you [to sit out] and you want to go ahead and make that step, then make it. If you want to stick around and play, then go ahead and play.” When Michigan defensive lineman Rashan Gary, a projected top ten draft pick, recently announced that he was going to skip playing in the Chic-fil-A Peach Bowl this year, his teammate Josh Metellus was quoted as saying: “I love it. His decision is his decision. I love Rashan. It’s just one of those things.”
Not surprisingly, coaches effected by these decisions and hometown writers and commentators take a more jaundiced view of the decision by a future NFL draft pick to skip a single, meaningless game to protect his future earning capacity. For example, after learning that two Oklahoma State players are skipping this year’s Auto Zone Liberty Bowl game (apparently the first two players in the school’s history to do so), OSU head coach Mike Gundy made the following comments: “I think it’s become very popular now. I hate to see that happen but, as I’ve said before, we live in a society today where things are considerably different than they ever have been before and young people feel that there’s a better opportunity for them somewhere else, then they’re going to make that decision to move on. So we do the same.”
According to John Schultz, a writer for the Davenport, Iowa based Quad-City Times newspaper, University of Iowa tight end Noah Fant should play in the Outback Bowl this year. Mr. Shultz claims that, because the University “helped Fant develop his body and skills and gave him a platform upon which to display them,” the student-athlete is somehow obligated to play in the bowl game regardless of how it might impact his financial future. Shultz further opined: “It seems a small price to play in one more game, to finish what you started. It seems a slap in the face to his teammates and coaches to skip that game. It seems … disloyal.” This, of course, begs the question as to what type of monetary loyalty would be shown by the school or Fant’s teammates if the tight end suffered a career ending injury in a meaningless bowl game.
This bowl season has seen an increase in not only the number of student-athletes opting out of playing in their team’s bowl game but also the number of top NFL prospects. This year, five players projected to go in the first ten picks of the 2019 NFL Draft, and eight possible first round picks in total, are skipping the last college football game of their careers. Here’s a chart of the players who have already declared that they will not play in their respective bowl games.
Player
POS
College
Bowl Skipping & Date
Draft Projection
Nick Bosa
DE
Ohio State
Rose Bowl (1/1/19)
Declared for the NFL Draft in Oct. and announced that he was done playing football at OSU.
Consensus No. 1
Greedy Williams
CB
LSU
Fiesta Bowl (1/1/19)
Top 5
Ed Oliver
DL
Houston
The Armed Forces Bowl (12/22)
Top 8
Rashan Gary
DL
Michigan
Chic-fil-A Peach Bowl (12/29)
Top 9
N’Keal Harry
WR
Ariz. State
Las Vegas Bowl (12/15)
Top 10 to Late 1st Rd.
Kelvin Harmon
WR
N.C. State
TaxSlayer Gator Bowl (12/31)
Top 11 to 2nd Round
Will Grier
QB
W. Virginia
Camping World Bowl (12/28)
1st or 2nd Round
Noah Fant
TE
Iowa
Outback Bowl (1/1/19)
1st or 2nd Round
Germaine Pratt
LB
N.C. State
TaxSlayer Gator Bowl (12/31)
2nd Round
Justice Hill
RB
Okla. State
Auto Zone Liberty Bowl (12/31)
2nd Round
Deebo Samuel
WR
So. Carolina
Belk Bowl (12/29)
Missed much of 2015 and 2017 seasons plus parts of 2016 with injuries
2nd or 3rd Round
Yodny Cajuste
OT
W. Virginia
Camping World Bowl (12/28)
2nd or 3rd Round
Donnell Greene
OT
Minnesota
Quick Lane Bowl (12/26)
Recent meniscus surgery
3rd to 5th Round
Larry Williams
G
Okla. State
Auto Zone Liberty Bowl (12/31)
3rd to 5th Round
Two college football seasons ago was the first time that two top ten draft picks skipped their last college football game: Leonard Fournette of LSU (the number four overall pick in the 2017 NFL Draft) and Christian McCaffrey of Stanford (the eighth overall pick that year). Their decisions to skip the Citrus and Sun Bowl games did not seem to impact their draft status at all. As the trailblazers in this area, Fournette and McCaffrey may well have been influenced by the millions of dollars that former Notre Dame linebacker Jaylon Smith lost because he played in the January 1, 2016 Battle Frog Fiesta Bowl and suffered a terrible left knee injury during that game, tearing both his ACL and his LCL.
Prior to the 2016 Fiesta Bowl, Jaylon Smith had been projected to be top twenty NFL draft pick and some pundits predicted that he could have been drafted in the top five. However, because of the significant knee injury and resulting nerve damage he sustained in the bowl game, Smith fell into the second round of the draft. He was ultimately selected as the 34th overall pick by the Dallas Cowboys which was much higher than many people thought, given the seriousness of his knee injury. The difference between the value of the contract Smith signed as the 34th pick and the contract he would have signed had he been drafted as the 20th overall pick was nearly $3.7 million, and if the top five pick predictions had been accurate, the loss in value between the 5th and 34th pick would have been closer to $17 million.
The same year that Fournette and McCaffrey decided to skip their bowl games, University of Michigan senior tight-end Jake Butt made a different decision and played in the 2016 Orange Bowl (played on 12/30/16) to his detriment. In that game, Butt tore the ACL and suffered nerve damage in his right knee (the second ACL tear in the same knee) which, prior to physical therapy, had completely immobilized his leg. Before the bowl game he had been projected to be a second or third-round NFL draft pick but, because of his injury, he fell to the fifth round. Recently, when asked about whether players should skip playing in a bowl game, Butt is quoted on the Sports Illustrated website as saying: “There are a lot of people who question these kids and say, ‘Hey you are getting a free education, you need to go out there and take the field for your school,’ but you can look at stories like me and Jaylon [Smith] and realize that is not the case. You have to do what is best for you. A lot of the kids sitting out are in a position to change their live, their family’s lives, and their future family’s lives. In college you are playing for free, for the love of the game and for your teammate. What happened to Jaylon and me, it brings to light some of the decisions these college players go through. This is going to be their first big life decision. Am I playing in this bowl game or not? Because that can really affect your future.”
Before his final season at Notre Dame, Smith had purchased a combined $10 million PTD/LOV insurance policy which provided him with $5 million in PTD coverage and an additional $5 million in LOV coverage. In other words, if Jaylon Smith’s knee injury had been severe enough to preclude him from ever playing professionally, he would have had a claim for $5 million under the PTD portion of his policy. In contrast, LOV insurance covers the difference between the anticipated value of a player’s first (or next) professional contract and the reduced value of the contract he actually signs after sustaining a material injury during the policy period. As a general rule, insurance companies only offer LOV insurance for 60% of the anticipated value of the player’s first (or next) professional contract and, in LOV parlance, that insured amount is known as the “threshold” amount. The wholesale broker and underwriters at the issuing insurance company are generally responsible for evaluating and establishing the threshold amount based on pre-draft projections.
Published reports claim that Smith received a $700,000 payout for his LOV claim. Smith signed a $6.5 million contract with the Dallas Cowboys so, if the $700,000 LOV payment is correct, the insured threshold amount was most likely set at $7.2 which, in turn, equates to a projected first year contract of approximately $10.25 million (at 70%) or $12 million (at 60%). Based on the 2016 NFL slotted contracts for first round draft picks, it appears that the wholesale broker and the underwriters determined that, if healthy, Smith was projected to be selected between overall pick numbers 14 and 20 of that year’s NFL Draft. Had Smith dropped further in the draft then he did, his LOV claim would have increased in correlation to the value of the contract he signed, up to a maximum of $5 million. Considering that the last player selected in 2016 signed a contract for just under $2.5 million, Smith’s LOV claim would have never reached the $5 million limits unless he had gone undrafted and signed a contract for $2.2 million.
Because insurers only offer LOV coverage for 60% of the projected value of a player’s future contract, an athlete can never be made completely whole by a LOV payout. Nevertheless, such a payout certainly helps reduce the adverse financial impact resulting from a significant injury and, depending on the income tax consequences of a PTD/LOV payout (reported by many as constituting a tax free benefit), together with the fact that a player does not pay a percentage of his insurance payout to his agent, the value of a LOV payout may come close to making the player whole. If Jaylon Smith received a $700,000 LOV payment, he is clearly in a much better financial condition because of that insurance coverage than if he had not had the foresight to buy a policy.
Set out below is the insurance status of the fourteen players listed above who will not be participating in their school’s bowl games this year.
Player
Insurance Purchased
Nick Bosa
PTD with LOV
Greedy Williams
PTD with LOV
Ed Oliver
PTD with LOV
Rashan Gary
PTD with LOV
N’Keal Harry
PTD with LOV
Kelvin Harmon
Unknown = probably no coverage
Will Grier
PTD only
Noah Fant
Unknown
Germaine Pratt
Unknown
Justice Hill
PTD only
Deebo Samuel
NCAA Plan PTD
Yodny Cajuste
PTD only
Donnell Greene
Unknown
Larry Williams
Unknown
This author has been a consistent and outspoken proponent of student-athletes securing PTD insurance coverage with appropriate and sufficient policy limits and, where appropriate, purchasing additional LOV coverage to insure against an injury impacting their future earning capacity. Additionally, as one of the only lawyers in the country with a breadth of experience including obtaining substantial LOV payouts and successfully resolving LOV claims for numerous professional athletes, I also know well that such payouts can soften the financial blow an injury can wreak on players. For those college football players still contemplating whether or not to play in their final college football game, the decision may be easier for those who had the foresight to purchase a PTD/LOV insurance policy before the start of their final collegiate season and who do not have a history of major injuries. The reverse is also true, if an athlete does not have any insurance protection, it is impossible to fault them for deciding to skip playing in a lesser bowl game as a different type of hedge against the financial impact a serious injury sustained during that game might have on the value of his first professional contract.
Richard C. Giller is an attorney at Reed Smith.
