Workers’ compensation latest battleground for NFL

September 27, 2013 - by: David Kim 0 COMMENTS
David Kim

When is $765 million a bargain? Apparently, when you’re the National Football League. By now most people know that the NFL agreed to pay $765 million last month to settle a lawsuit brought by more than 4,500 players and their families, who alleged that the league concealed what it knew about the dangers of concussion-related brain injuries. Attorneys for the plaintiffs point to the fact that immediate care is needed for retired players with severe neurological disorders, such as ALS, Parkinson’s and Alzheimer’s disease, many who would never receive remuneration during their lifetime should the case be litigated over many years. In addition, there was a concern that individualized claims could become complex due to the fact that certain former players with short NFL careers played the vast majority of their football outside of the NFL (college, high school, etc.). This settlement ensures that thousands of retired players obtain compensation needed for current and future medical injuries and exams. While this is true, most agree that the NFL has to be ecstatic with this deal. With annual revenues hovering around $10 billion, the NFL is paying a mere fraction to avoid a potential finding of liability as well as a public relations nightmare. And if anything, Commission Roger Goodell has admitted that one of his primary objectives is “protecting the shield.” Instead of spending years defending allegations that the league knew concealed and misled players about the long-term dangers of concussions, the NFL can say this settlement not only helps retired players in need but also funds future baseline medical exams and research and education funds intended to take appropriate preventative measures. While the settlement’s details are still being analyzed and debated, including questions (and confusion) from some former players about who is or is not eligible under its terms, another fight is brewing between the NFL and its former players that has not quite received the same national attention. That is because the battleground is California. Just a few weeks ago, the California Senate passed a bill (which previously passed the California Assembly) that would preclude workers’ compensation claims by athletes from non-California teams, as well as athletes who played only a portion of their career with California teams. The bill is currently before California’s governor, who many expect will sign it into law. Who helped lobby and push this bill through? You guessed it. The NFL, along with the other five other professional sports leagues that the bill affects: MLB, NBA, WNBA, NHL, and MLS. California’s statute of limitations on workers’ compensation claims is much less restrictive than in other states, and California is one of the few states that cover “cumulative” injuries such as brain trauma incurred over a period of time. As a result, former athletes who played for visiting non-California-based teams have been making claims in California for years, especially former NFL players seeking compensation for repeated head trauma and related brain injuries, because they cannot do so anywhere else. Many of these claims are made by little-known athletes who enjoyed relatively short careers, earned the league minimum, or never even made it to the “big” leagues. On the one hand, this bill’s impact is arguably limited to professional sports. Teams and their insurers pay the costs of successful workers’ compensation claims, not taxpayers. In addition, insurance premiums are often determined on an industry-specific basis and therefore the claims activity of professional sports leagues don’t directly affect other industries. On the other hand, there are concerns that this measure could lead to future legislation depriving workers in other industries from filing claims in California, or to legislation in other states’ creating carve-outs for specific classes of workers. In addition, there is a belief that if players are prohibited from obtaining workers’ compensation in California, they will have to turn to Medicaid, Social Security, or other forms of government assistance, leaving the public to foot the bill. The reality is that oftentimes legislation begets legislation. We may think of “athletes” as those men and women on SportsCenter and TV commercials making millions of dollars and whose lives have no similarity to ours. However, the fact is an athlete’s injury is considered a workplace injury just as if he or she was injured on the job as a foreman, truck driver, or messenger. And just because the California bill applies only to athletes doesn’t mean the next piece of legislation won’t apply to you, your class of workers, or your state.

Biogenesis and the (Bad) Boys of Summer

August 16, 2013 - by: David Kim 0 COMMENTS
David Kim

For some people, summer evokes thoughts of sunshine and long walks on the beach with sand under their bare feet (sounds like the setting of a Nicholas Sparks novel … or so I’m told). For me, I think of baseball. As an annual subscriber to MLB Extra Innings, I think of the plethora of games waiting for me when I get home from work, especially those of my hometown Red Sox. I constantly check my fantasy baseball team to see what moves I can make to catapult me up the standings. When I’m working late, the text from my wife doesn’t just ask when I’m coming home, but also provides me with spirit-lifting updates: “McCutchen just hit a three-run bomb.” Pause. Fist pump. Back to work.

But this summer, my fellow baseball fans and I aren’t the only ones thinking and talking about America’s pastime. Biogenesis has dominated the headlines, culminating in the suspension of 13 major and minor league baseball players this month, in addition to last month’s suspension of Ryan Braun. Interestingly, none of these players actually tested positive for performance enhancing drugs (except for Braun back in 2011, who successfully appealed based on a technicality, and has now been introduced to my friend karma). A failed test would establish per se grounds for a 50-game suspension pursuant to the Joint Drug Agreement (JDA) between Major League Baseball and the Player’s Union.

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