American football gameIntroduction:

On both a statewide and national level, the National Football League (NFL) has been inundated with workers’ compensation claims by professional athletes who sustain serious injuries from play. See, e.g.,  Kiannah Sepeda-Miller, “Illinois bill would rein in pro athletes’ worker comp claims,” The State Journal Register, Feb, 20, 2017. In Illinois, for example, the legislature is debating whether “injured pro athletes be allowed to earn worker compensation benefits until they are 67 years old, like other workers, even if their athletic careers normally would have ended more than 30 years earlier.” Id. Moreover, this is a national controversy, with arguments being made on both sides. See, e.g., Sally Jenkins, “Commentary: NFL Needs to Cure Its Medical Procedures,” The Washington Post (Reprinted in the Valley News), Mar. 11, 2017. In any event, this is an important legal topic that will demand the help of attorneys, expert witnesses, and fact-finders.

Discussion:

There are two questions at issue here: (1). whether the NFL provides adequate medical care for its players (and what the legal standard for that care should be), and (2). whether the NFL should be obligated to provide the same level and type of workers’ compensation benefits for its injured athletes as the law requires for other non-athletic industries. Each issue has its own legal dimension.  Specifically:

(A). The NFL’s Legal Obligation: Healthcare for Athletes:  As one nationally-renowned publication explains, “The NFL can’t treat players for pain just by aligning their chakras, everyone understands that. But there is simply no legitimate rationale for some of the league’s crude, expedient and abusive drug practices revealed in court filings… .Medicine in the league is a matter of competing pressures and opposing priorities, and until those conflicts are resolved, the league continues to be at risk.” Id. In particular, the study published by The Washington Post, based upon its investigation of pertinent litigation, suggests that many players have drug problems because they lack adequate medical care provided by the NFL. See id. If such is the case, dozens of lawsuits have been and will continue to be filed, alleging medical malpractice/negligence, and perhaps even attempting to hold the League responsible for the drug addictions of specific athletes. All of these matters beg the question of what the NFL’s medical responsibility is to its players when injuries arise. Clearly, attorneys on both sides will be heavily involved, but they will require the help of expert witnesses.  In particular, medical experts, athletic and sports injury experts, experts in addiction, and experts in sports regulation will all play important roles in assisting judges and juries on every side of the equation. In fact, these experts may be the key to swaying a certain adjudicator or jury: their theories and specialized knowledge may be the deciding factor in lawsuits of this nature, which do not appear to be going anywhere. Both prospective plaintiffs and the NFL will want to avail themselves of expert guidance at every phase of litigation and even beforehand, in order to help determine what rights and/or liabilities each side might have. Based upon the fact that Congress does not seem to have addressed this issue with any degree of depth or finality, litigation of this type will not only continue but may be the sole means for these disputes to be resolved. Even if cases of this type get arbitrated or mediated, all parties will need to be informed by the specialized knowledge of experts in sports, medicine, and related fields.

(B). Workers’ Compensation Cases:  Potential Liability for the League?:  The second set of lawsuits that are  being considered by at least one state legislature, Illinois, involve the rights of NFL players who sustain injuries and then wish to be covered by workers’ compensation insurance to the same extent and for the same amount of time as their non-athletic counterparts. See. e.g., Kiannah Sepeda-Miller, supra. In many states, such as Iowa and Illinois, for example, workers’ compensation benefits last until an individual reaches age 67. See, e.g., Linley Sanders, “Proposed Iowa workers’ comp changes concern injured workers,” The Washington Times, Mar. 3, 2017; See also id. The question posed to professional athletes is whether they should receive the same protections, and this legal controversy has come to light in several states, including California.  As US News & World Report explains, “It’s not the first time NFL teams have urged lawmakers to rein in compensation claims. California passed a measure in 2013 pushed by the NFL that restricted out-of-state players from filing there. States differ in how much they require employers to compensate injured workers for decreased earning potential. Bears officials argue that no state offers payment for as long or as much as Illinois does, but the players association contends that some state compensation laws are comparable.” Kiannah Sepeda-Miller, “How Long Should Injured Pro Athletes Get Workers Comp?,” US News & World Report, Feb. 20, 2017.

To some extent, Illinois is at the center of this issue for now, because its legislature is currently considering how to resolve this matter and whether players should receive comparable workers’ compensation coverage to that of employees in non-athletic fields. In support of the pending legislation, its proponents have argued that “the Illinois legislation is backed by Chicago’s other major sports teams — the National Basketball Association’s Bulls, the National Hockey League’s Blackhawks and the Cubs and White Sox of Major League Baseball. All of them joined the Bears in signing a letter last month to Senate leadership urging them to OK the provision.” Id.  This has some interesting implications and a few key questions remain: (1). Absent federal guidance, will different states (and therefore, different players and teams) receive different workers’ compensation coverage?, (2). If there are disparities by state and no federal edicts on the matter, will players prevail in arguing that such disparate policies are unfair?, and (3). Even if such laws do get passed, is it likely that they will withstand judicial scrutiny?

With respect to the first question, absent a universal statute from Capitol Hill, it does seem that different states and athletes might be subject to different workers’ compensation policies, which could help make certain players determine where they do or do not wish to be located, professionally. As far as the second question is concerned, it is clear that such disparities could certainly lead to an increase in litigation by professional athletes against the NFL and other professional sports leagues in general. In the face of such lawsuits, expert witnesses will play an indispensable role, as their theories and scientific knowledge may be all that stands between the logic/fairness of different policies in different states. The type of experts that might be involves are myriad and include: workers’ compensation experts, legislative experts, sports and sports medicine/injury experts, and experts in employment matters, to name a few.

The third question is a hard one to answer.  Will individual state policies that might lead to disparate results on workers’ compensation matters be able to withstand court scrutiny? There is no clear answer, as good arguments can be made on both sides. On the one hand, players have a compelling claim that location should not matter and that League policies should be uniform. The disadvantages to such legislation seem clear—they might encourage players to “forum shop” when choosing where to locate themselves, family members, and ultimately, play sports. Players might opt for states without limitations on workers’ compensation benefits, as those who sustain injuries early in their careers may feel they have no alternative sources of income/healthcare.  As one member of the NFL Players Association (NFLPA) articulated, ““NFL Players Association spokesman George Atallah said the benefits provide a lifeline to players whose athletic careers end suddenly — especially lower paid athletes performing just on practice teams or in minor leagues, who may lack sufficient savings and education to fall back on.” Id.

On the other hand, there are a number of persuasive arguments that favor states like Illinois, California, and others taking matters into their own hands and limiting such coverage. In general, each state has its own workers’ compensation policies, so it can be argued that there is no reason such different rules should not also apply to professional football players. Moreover, since Illinois has enacted this policy with other professional athletes, such as baseball and hockey players, it can be persuasively claimed that this is merely an attempt to make all professional athletes subject to uniform policies. There are also states’ rights claims that exist. Certainly, with respect to the worker’s compensation issue, the matter is not cut and dried. Legislation does not cover professional athletes in every state, nor is it clear how a state or even federal court would determine this controversy. What is evident is this: attorneys in the field will stay busy and so will both sides of the litigation, be it an athlete, a League, or a state. For an example of the arguments favoring limiting these benefits, “The Bears say Illinois law regulating compensation is overly generous. They also argue the existing rules attract players from other states to file claims in Illinois. ‘Will there be savings? Yes, there will be savings,’ said Bears attorney Cliff Stein. But the Bears say the measure is really about being fair to other Illinois workers with longer careers in other fields.” Id.

Conclusion:

The issues mentioned herein may be clear in terms of what legal questions can arise, but there is certainly room for doubt as to what the courts will decide on each matter. The only clear conclusion at this point is that attorneys for both sides will have their hands full in 2017 and beyond. More importantly, such litigators will need the help of expert witnesses at every stage of the litigation. Whether the experts are workers’ compensation specialists, employment experts, sports medicine, medical malpractice experts, or some other kind, their advice and testimony may be the key factor in helping the courts decide how to resolve these complex legal issues.

By: Kat S. Hatziavramidis, Attorney-at-Law