By Eric Farber[17]
On February 22, 2013 Henry Perea (D-Fresno), the head of the Insurance Committee in the California State Legislature introduced Bill AB 1309. AB 1309 attempts to ‘reform’ California workers’ compensation laws for pro-athletes. In short, the bill, if it passes will effectively end the longstanding workers’ compensation benefits California has offered to most pro-athletes.
Current Workers’ Compensation laws in California have several unique elements that have made it attractive for Pro-Athletes, even if they never played for California teams, to file cases in the state. First, if a worker suffered injury in the state, California recognizes them as temporary workers. California law does not recognize contracts clauses that restrict California Workers’ Compensation benefits[18]. Players who came to California for practice or games and suffered injury that to a medical degree of certainty contributed to their injuries can invoke Workers’ Compensation jurisdiction regardless of their contract. California also recognizes the concept of the Cumulative Trauma. Rather than seek benefits for a specific injury, such as a concussion or a sprained knee, a worker can seek damages for the long term effects of multiple concussions or the deterioration of their joints from their career as a professional athlete. Finally, California has a pliable Statute of Limitations. Workers have one year from the time they discover they have a compensable industrial injury to file their claim or one year from the date of their last treatment for an industrial injury. Players can also use this date as the date of injury rather than their last day of work which can often result in higher benefits.
AB 1309 would amend the definitions in Sections 3600.5 & 5412 of the Labor Code to restrict and severely diminish claims from Professional Athletes in California. In essence, the amendments would effectively end professional athlete workers’ compensation in California for the majority of players across the country. For professional athletes, the bill changes temporary employees in California to those who worked at least 90 days in the state during their final 365 days for a particular team. The bill also creates exclusive jurisdiction in the employers’ home state if the employer has workers’ compensation insurance in that state similar to California — however doesn’t specify how similar. The bill would change the date of injury for athletes to the last day of work as a professional athlete and amends the statute of limitations to end a year after diagnosis rather than when a professional athlete learns their injury was caused by their play in the league and it is compensable. Further the bill reduces cumulative trauma claims for professional athletes by attempting to shift the responsibility to employers after they played — often to employers who have no connection to the State. Importantly, AB 1309 makes itself retroactive to all cases currently filed — affecting thousands of cases.
If AB 1309 passes it would have a significant effect on the health care for retired professional athletes. The physical demands of professional sports cause significant and serious injuries to players. The repetitive motion injuries and constant hits to the bodies cause long term consequences that are often unknown for many years. Many of our clients have had twenty or more surgeries. Most have trouble walking, sleeping and many need hip, knee and shoulder replacements in their early forties. They often live in some level of constant pain. In the hundreds of athletes I have worked with over a nineteen year career as a sports attorney I have only encountered one pro-athlete that did not say they live in almost constant pain to some part of their body. Many can no longer work in regular jobs because of the various physical ailments.
Worse than the orthopedic injuries are the long term effects of repetitive Mild Traumatic Brain Injury (TBI). The science is beginning to reveal what has been known for many years in the sports community—the impact of almost every play in football, soccer and hockey and other contact sports causes diseases like Chronic Traumatic Encephalopathy (CTE)and Amyotrophic Lateral Sclerosis (ALS), commonly known as Lou Gehrig Disease. Research shows the rate of occurrence CTE and ALS among football and soccer players is far above the average. Stories of players with early onset dementia, ALS and other serious neurological and cognitive problems are now reported on a regular basis in our national news. Because most neurological and brain diseases don’t appear for many years after the incidents that cause them the amendments regarding the statute of limitations will have chilling effect on all players regardless of where they played.
Players who have severe injuries have few places to turn. The benefits offered by the leagues is not enough to cover the types of medical conditions they are battling and without California Workers’ Compensation many are forced to turn to state and federal assistance — such as Social Security disability. Currently the law puts the cost of these medical benefits on the employers because the workers compensation system not only awards payment for injuries but can also force teams and their insurers to cover medical expenses for life. Team owners and the leagues are now taking the prospect of paying out these players very seriously and have taken the fight away from the judges and moved it to the legislature.
The Bill supporters believe that California is unfairly burdened by the mass of athlete claims, stating over 4500 claims have been filed over the past 30 years resulting in approximately $750,000,000 in payouts[19]. However, the state of California is only paying these claims if an insurance company covering the team has gone bankrupt, leaving the California Insurance Guarantee Association (CIGA) with the tab.
California Workers’ Compensation claims are often the last place retired professional athletes can turn for help with medical bills and compensation because of their playing days. The bill effectively shifts the burden of health care from the teams and their insurance companies to state and federal programs. Opponents of the bill believe that the pressures of the professional sports teams and leagues attempt to unfairly single out and deny professional athletes the same benefits as any other type of worker in California. Workers’ Compensation is an employer funded system. The teams are responsible for maintaining insurance and California rightly protects it’s workers — including temporary ones. Teams regularly and consistently do business in California and should be subject to the same laws any other employer in the state is required to adhere to. Players are subject to California law and pay taxes for every game they play in California.
Opponents argue the Bill would deny professional athletes their due process in California that other taxpayers are entitled to. Further, it exonerates teams from their basic duty to take care of their workers. The proposed law not only creates an unfair situation for players around the country but would also create bad situations for long time California players. California employees who play their entire careers in California and then spend their last year in another state would be forbidden from filing claims. If the new bill were to pass, California athletes such as Joe Montana, Steve Young and Ronnie Lott would not be able to file California claims.
[17] Eric Farber is the Managing Attorney of Farber & Company. He has been representing athletes and entertainers in litigation for over 19 years. Farber & Company is a proud supporter of the Gridiron Greats Assistance Fund and the Kevin Turner Foundation. Mr. Turner is a retired pro football player who was diagnosed with ALS in 2010. KevinTurnerFoundation.org.
[18] Although the case law regarding Contract Clauses is a also changing. On January 15, 2013, in McKinley v. Arizona Cardinals, the WCAB, in an en banc decision, ruled that a forum selection clause in a professional athlete contract will be upheld unless there is a significant reason not to enforce. McKinley is currently on appeal.
[19] Hitzlik, Mike , “Pro Sports Leagues Aim to Put Workers’ Comp Out of Play” Los Angeles Times, March 1, 2013
