By Eric Farber & Ron Mahurin
In our last article for Sports Litigation Alert, we discussed the effect of Mathews v. Tennessee Titans on California Pro-Athlete Workers’ Compensation – Taking Stock of the 9th Circuit’s Decision in the Matthews Case, Volume 9, Issue 17, September 21, 2012. On January 15, 2013, an En Banc review[1] of McKinley v. Arizona Cardinals, Santa Ana Workers’ Compensation Appeals Board, Case No. ADJ7460656 further attacks retired Pro-Athlete rights to file workers’ compensation cases.
California Workers’ Compensation for retired professional athletes has been a mainstay of benefits for retired team sport athletes for many years. California’s broad public policy to protect employees has allowed retired athletes, regardless of the team they played for during their career, to file Workers’ Compensation cases in California for their current state of injuries. Most retired NFL, NBA, NHL, WNBA & MLB players are plagued with injuries because of their playing days for the rest of their life. California Workers’ Compensation has helped thousands of these players recover benefits to cover medical care and compensation for a long time.
However, the California Workers’ Compensation benefits are not immune to the same forces that try to block access to the Courts in personal injury and consumer cases.
Insurance companies and large corporations have been trying to limit consumers’ access to courts for years through ‘tort-reform.’ The NFL and NBA are no different.
Despite California’s strong public policy to protect workers, the California courts have allowed the teams and leagues to slowly chip away at the protections California has to offer.
McKinley v. Arizona Cardinals holds that outside of a strong showing to set aside, a player with a reasonable Forum Selection clause specific to Workers’ Compensation in their player contract will deny the California courts of jurisdiction and be upheld. It further shifts the burden from the Employer to prove the Forum Selection clause is invalid to the Employee to prove it is not.
Dennis McKinley played for the Arizona Cardinals from 1999-2003. His Cardinals player contract contained a Forum Selection clause specific to Workers’ Compensation. The Court importantly noted that McKinley played eighty total games for the Cardinals, forty in Arizona and forty in sixteen other states, including seven games in California. McKinley also participated in a five-day training camp in Southern California.
McKinley’s claim against the Cardinals rests in California’s authority to award benefits for cumulative injuries and that McKinley’s play and practice time in California contributed, even if a small amount, to these injuries. However, the Court noted that the majority of McKinley’s work was either the training facility in Tempe, Arizona or on the Cardinal’s field.
Like hundreds, if not thousands before him, McKinley filed for cumulative trauma California Workers’ Compensation benefits after learning about the benefits from a friend. The Cardinals challenged the Court’s jurisdiction based on the Forum Selection Clause in his player’s contact. The Court stated that it did have jurisdiction under the Workers’ Compensation statutory scheme but declined to exercise jurisdiction to award benefits for McKinley’s injuries based on the specific Forum Selection clause. The Court reviewed the validity of the Forum Selection clause under the United States Supreme Court’s decision in M/S Bremen v. Zapata Off-Shore, (1972) 407 U.S. 1, 15 [92 S. Ct. 1907, 32 L. Ed. 2d 513] under the following factors: (1) the clause was the product of “fraud or overreaching,” (2) “enforcement would be unreasonable and unjust,” (3) proceedings “in the contractual forum will be so gravely difficult and inconvenient that [the party challenging the clause] will for all practical purposes be deprived of his day in court,” and (4) “enforcement would contravene a strong public policy of the forum in which suit is brought, whether declared by statute or by judicial decision.” In analyzing each of the factors against McKinley’s claim the Court could not find a strong reason to set it aside.
In the Court’s opinion, they also firmly disposed of the notion that paying income taxes in California entitles players to benefits. California’s Workers’ Compensation scheme is statutory and the scheme does not confer jurisdiction based on paying taxes in the state. Yet, the court did suggest that most sports teams have enough contacts with California to create jurisdiction for workers’ compensation cases, but again each case will have to be reviewed individually. The Court reviewed this under an International Shoe analysis of minimum contacts.
McKinley will most likely be appealed to a higher court. However, as of now, the ruling stands and is likely to affect many cases currently before the Workers’ Compensation board as well as potential cases.
What does this mean for the Retired Pro-Athlete Workers’ Compensation benefits? For now, McKinley is only binding upon those players with Forum Selection clauses. To date these have been limited to NFL contracts with certain teams. We can certainly expect that from here on out all team sports contracts will contain these clauses as well.
It should be strongly noted, the Court did not foreclose all players with Forum Selection clauses in their contracts from maintaining an action, only those without a strong showing that the clause be set aside. Each case must be analyzed against the individual circumstances for that player. For example, a player who entered into a contact in the State of California or one who played a significant number of games in the state, even though played for out-of-state teams, may still be entitled to benefits, despite the Forum Selection clause.
We expect the over-taxed and financially strapped California courts to continue to find ways to limit access to these crucial benefits. Hopefully, the leagues and teams can work with the players’ associations to finally take care of the players in a way that filing Workers’ Compensation cases won’t be necessary.
Eric Farber is the Managing Shareholder of Farber & Company Attorneys, P.C. Ron Mahurin, is the director of firms’ Pro-Athlete Workers’ Compensation practice. Farber & Company Attorneys, P.C. is a full service practice located in California specializing in issues for athletes & entertainers. Farber & Company filed the first CTE based California Workers’ Compensation case as well as the first ALS (Lou Gehrig’s disease) case caused by NFL concussions. Farber & Company Attorneys is wholly dedicated to helping players through its pro-athlete Workers’ Compensation Practice and its support for the Gridiron Greats Assistance Fund and other Pro-Athlete Charitable Foundations. Please visit www.farberandco.com or www.GridIronGreats.org and http://www.kevinturnerfoundation.org for more information on how you can help retired players.
[1] An En Banc review of a case is binding across all California Workers’ Compensation boards unless overturned by a higher court.
