By Michael Burwick (Partner), with assistance from Ben Schwartz (Summer Associate), of Greenspoon Marder LLP
Never in its history has the American public been so focused on health and well-being as in the past two years. The COVID-19 pandemic has demonstrated to the nation and the world that we are all mortal, and nobody is immune from diseases, accidents and injuries. In the world of professional sports, we have seen athletes fall victim to the pandemic. Seasons have been truncated, and major sporting events have been cancelled. Even now, with vaccines in widespread use, we are all awaiting the new normal, a world that may be post-COVID but that surely will not mirror the world as we knew it before the outbreak of this global pandemic.
At such time when all of us are concerned with health and safety, there is a balancing act occurring in the world of professional sports. Professional sports leagues and their respective teams must weigh the freedom of players to live their lives and make their own, individual health decisions, even with the threat of disease, against the potential that players will bring illness into the locker room, onto the field, the court, or the ice; potentially infecting teammates, opposing teams or staff members.
One issue that is currently in the spotlight does not involve coronavirus at all. It is the practice of players working out away from dedicated team facilities and training staff and becoming injured as a result thereof. Denver Broncos right tackle, Ja’Wuan James, is one player that has at the center of such a controversy.
In 2019, James signed a four-year, $51 million contract with the Broncos. During the 2019-20 season, James played only three games as the result of a knee injury. In the 2020-21 season, James opted out because of the COVID-19 pandemic.
On May 4, 2021, James tore his Achilles tendon during a workout away from the Broncos’ training facilities, a season-ending injury. Under the NFL’s collective bargaining agreement (CBA), the Broncos organization was able to avoid paying his $9.85 million base salary for 2021-22 by classifying the injury as a “non-football injury” because the injury occurred at a training facility that was unaffiliated with the Broncos. James was initially placed on the reserve / non-football injury list and was ultimately released by the Broncos.
Ironically, James had been working out at a Broncos facility until the NFL Players Association (NFLPA) urged players to stop working out on-site due to COVID-19 concerns. Subsequently, the NFL released a memorandum, detailing the fact that NFL teams have no contractual obligation to pay players who are injured away from team facilities and citing the CBA. Many players in the League were totally unaware of this provision of the CBA. Kansas City Chiefs quarterback, Patrick Mahomes, asked on Twitter, “So they are going to take his contract for working out in the off-season???” in response to an Adam Shefter tweet about Denver not being contractually obligated to pay James.
Aside from the collective bargaining agreement issues that are raised by this scenario, it is important to understand that this “off-campus injury” provision was basically theoretical until the pandemic. As COVID-19 has come to impact every aspect of our society, we have had to make difficult decisions about our lives and the lives of our family members. Do we send our kids to in-person school? Is an elderly parent safe in a nursing home? Can I go to a physical workplace? And, in the NFL setting, is it safe to work out with the team at its facility or should I exercise at a private gym or training facility?
It is easy to see how James fell into this unfortunate situation. Because of COVID and the way that the disease had infected significant numbers of various NFL teams, the NFLPA issued guidance on team workouts to its membership. James followed this advice and worked out away from team facilities (presumably to avoid COVID exposure). Unfortunately, he suffered an injury and the Broncos organization, relying on the CBA, was able to avoid paying him and was also able to cut him from the team.
Article 21 of the 2020 NFL Collective Bargaining Agreement is entitled, “Offseason Workouts.” Section 4 thereof is entitled, “Injuries.” This provision states that “Any player injured during the offseason workouts will be protected in the same manner as if injured during the Club’s preseason training camp, provided he is working out at the Club’s facility under the direction of a Club official.”
Article 20 of the 2020 NFL CBA is entitled, “Other Provisions.” Section 3 thereof is entitled, “Non-football Injury” and states, “(a) A player who is placed on a non-football injury or illness list (N-F/I) will not be entitled to any compensation under his contract while on such list but, except as provided below, his contract will continue to run while in such status. (b) A player on N-F/I who is in the final year of his contract (including an option year) will have his contract tolled. However, if the player is physically able to perform his football services on or before the sixth regular season game, the Club must pay the player his negotiated Paragraph 5 Salary (pro rata) for the balance of the season in order to toll such player’s contract. If such player is taken off N-F/I during the period when such action is allowed by League rules, his contract will not be tolled.”
Article 4 (NFL Player Contract) Section 9 (Forfeiture of Salary) provides that: “Any player who…is unavailable to the team due to a non-football injury that resulted from a material breach of Paragraph 3 of his NFL Player Contract…may be required to forfeit signing bonus, roster bonus, option bonus and/or reporting bonus, and no other salary, for each League Year in which a Forfeitable Breach occurs.”
Clearly, the law was on the side of the Broncos. However, this is really a direct result of a CBA that is extremely ownership friendly. Although we can all think of exceptional players in professional football, the NFL CBA is really a more team-favorable document than the CBAs of the other major men’s professional sports leagues.
The 2017 National Basketball League (NBA) CBA, currently in force, makes it much more difficult to void an NBA contract in comparison to the NFL. The NBA’s CBA is much more player friendly and less ownership friendly than the NFL’s CBA. Although basketball is a team sport, the league is dominated by superstars and the League’s CBA reflects that. Section 3 (Allowable Amendments) of Article 2 (Uniform Player Contract) provides that: “In their individual contract negotiations, a player and a Team may amend the provisions of a Uniform Player Contract, but only in the following respects…by agreeing upon provisions…stating that the Base Compensation provided for by a Uniform Player Contract…shall be, in whole or in part, and subject to the standard conditions or limitations set forth…and any additional conditions or limitations that are negotiated by the player and Team…protected in the event that such Contract is terminated by the Team by reason of the player’s: (iii) disability or unfitness to play skilled basketball resulting from a basketball-related injury not covered by an insurance policy procured by a Team for the player’s benefit, or disability or unfitness to play skilled basketball resulting from any injury or illness not covered by an insurance policy procured by a Team for the player’s benefit (“injury or illness”), provided that a Contract can contain protection in only one of the two categories set forth in this Section 3.”
The 2017 Major League Baseball (MLB) CBA, which expires later this year, provides in Section E (Injury) of Article IX (Termination Pay) that:
“If a Player’s Contract is terminated by a Club by reason of the Player’s failure to render his services due to a disability resulting directly from injury sustained in the course and within the scope of his employment under the Contract, and notice is received by the Club in accordance with Regulation 2 of the Uniform Player’s Contract, the Player shall be entitled to receive from the Club the unpaid balance of the full salary for the year in which the injury was sustained, less all workers’ compensation payments received by the Player as compensation for loss of income for the specific period for which the Club is compensating him in full.”
MLB contracts are fully guaranteed. The only way to void MLB contracts, removing the guarantee, is if athletes engage in prohibited activities such as participation in other sports where there is substantial risk of injury. As Appendix A (Regulations) of the MLB CBA notes with respect to a player injury:
“Disability directly resulting from injury sustained in the course and within the scope of his employment under this contract shall not impair the right of the Player to receive his full salary for the period of such disability or for the season in which the injury was sustained.”
The 2012 National Hockey League (NHL) CBA (extended through 2026) is also quite player friendly. Section 6 of Article 15 (Training Camp) provides that:
“Any Player who becomes disabled during Training Camp, or who reports to Training Camp disabled as a result of a hockey related injury incurred during the off-season, and who has qualified during the preceding season, including Playoffs, for at least fifty (50) games credit for the purposes of the Pension Plan or is on a one-way SPC, shall receive his Paragraph 1 NHL Salary and Signing Bonus until he receives appropriate medical clearance. All other Players will be paid a “Daily Rate”…until they receive appropriate medical clearance.”
Elsewhere, the NHL CBA essentially validates that, off-site injuries are hockey-related and are fully subject to the terms of NHL contracts. This runs directly counter to the NFL CBA.
In summary, the NFL Collective Bargaining Agreement is the most league friendly. The MLB CBA guarantees salaries completely. The NHL CBA is similar in terms of guarantees, except for occasional buyouts. Most NBA contracts are also guaranteed within the scope of the NBA CBA which is, as noted above, very player friendly.
The four leagues’ CBAs have different language regarding how athlete injuries should be treated. A substantial burden falls upon the players unions to ensure that their athletes are being protected when they agree to collective bargaining agreements. The Ja’Wuan James case should serve as a stark reminder to athletes that it is incumbent upon them (and their agents) to understand the risks of off-site training. The NFLPA also has a role in keeping athletes informed about potential liabilities. If the PA is telling players not to attend voluntary offseason workouts, it must also tell them about the risks of off-site workouts. Specifically in the NFL, athletes and agents need to understand that guaranteed money isn’t guaranteed if certain rules are broken. However, agents should really push harder for more guarantees.
Only the NFLPA can change the CBA language in negotiation with the League. But don’t count on that. The teams will almost certainly remain free to make such decisions regarding whether to pay players who are injured away from team facilities on a case-by-case basis. Moreover, the new NFL CBA is valid through 2030.
As an attorney who counsels professional athletes, agents should generally insist that their players limit workouts and training to prescribed team facilities or negotiate language in the players’ contracts whereby the team agrees to waive its right to decline to pay injured players who suffer such injuries at non-sanctioned training facilities. In the NFL, even in a post-COVID world, this will remain a contentious issue.