Sports and Entertainment Blog
Blog posts are edited by our board member- Taylor Dolan
The Future of Workers' Compensation Benefits for Professional Athletes: How Illinois is Changing the Game By: Andrew Balland
A recent Illinois State Senate proposal could cause an uproar among professional athletes if other states adopt similar legislation. On January 11, 2017, the 100th Illinois General Assembly introduced Senate Bill 12 to amend the state’s Workers’ Compensation Act. [i] The bill, sponsored by Republican State Senator Christine Radogno as part of the “state budget compromise,” [ii] seeks to lower the cutoff age at which professional athletes can receive disability for work-related injuries by more than 30 years. [iii] While the bill remains on assignment, [iv] its passage could drastically affect the Chicago sports market’s desirability, particularly for oft-injured athletes like football and hockey players.
Section 8(d)(1) of 820 ILCS 305/8 currently awards workers’ compensation benefits to all Illinois employees accidentally injured at work. [v] As it stands, any employee is entitled to receive disability benefits equal to two-thirds of his or her salary until the age of 67, or five years after the date of one’s injury, whichever is longer. [vi] If Senate Bill 12 passes, professional athletes would only be able to recover benefits until the age of 35, or five years after the date of their injury, whichever is longer. [vii]
The bill’s language suggests the legislature finds it unfair to compensate athletes for longer than the expected length of their athletic careers. Senate Bill 12 would only allow professional athletes to recover for the “expected remaining duration of the employee’s professional sports athletic career,” which the legislature sets at age 35. [viii] This mark is a rebuttable presumption, however, because Senate Bill 12 enables the employer or employee to “successfully prove, by a preponderance of the evidence, that the expected remaining duration of such employee’s professional sports athletic career has a shorter or longer duration” (emphasis added). [ix]
Patty Schuh, a spokeswoman for Senator Radogno, defended the bill claiming that “[e]veryone knows a professional athlete does not work in that career [until] age 67.” [x] In addition, all major Chicago sports clubs—the Bears, Blackhawks, Bulls, Cubs, and White Sox—endorse Senate Bill 12, [xi] likely because it substantially decreases the amount teams would have to pay their disabled athletes. Facing criticism from pro-athlete organizations, the owners of the Bears released a statement to the media saying the team “supports changes to the system that protect athletes’ rights under the workers’ compensation system while acknowledging athletes are not competing professionally until age 67.” [xii]
Despite the support from team owners, the NFLPA is leading a charge against the bill, hoping to use the free agent market to signal other club owners and states to avoid seeking similar legislation. [xiii] DeMarurice Smith, the NFLPA director, took to a Chicago sports talk show to denounce Senate Bill 12: “I will tell you from the bottom of my heart that this union will tell every potential free-agent player, if this bill passes, to not [go] to the Bears.” [xiv]
The NFLPA also released an article challenging the bill’s legitimacy and explaining the disparate impact it will have on employees of the same organization. The Association contends that the legislation will not affect the state budget because every Illinois worker “has the right to file and receive lost-wage benefits, which has [no] impact on taxpayers in the state” because the teams, as employers, pay workers’ compensation benefits. [xv]
The NFLPA questioned the bill’s fairness because it could subject employees of the same organization to unequal treatment. [xvi] “A 23-year-old rookie running back tackled into the sidelines in his first pre-season game [could strike] a 23-year-old coach” causing career-ending injuries for both employees, yet the coach would have “access to benefits through age 67, but the rookie would see his capped at age 35.” [xvii] This situation, to the NFLPA, is inherently unfair. [xviii]
Other players’ unions have joined the NFLPA in opposing Senate Bill 12. Bob Foose, director of the Major League Soccer Players Union, agreed with the NFLPA, calling the bill “a money grab by the owners” that will not benefit the Illinois taxpayers. [xix] Foose thinks it’s a mere “attempt by the teams to shirk their responsibilities under the workers’ compensation laws and to treat athletes differently than any other worker.” [xx]
Foose’s assertion suggests the Chicago sports teams lobbied the State Senate because they were tired of paying their players’ disability. Certainly, the bill targets athletes without scrutinizing any other industry to determine the average age at which employees can no longer work. Even if the owners are simply catching a windfall, the players’ associations are ready to resort to lobbying efforts of their own. Per TSN, the unions representing the NHL, NFL, MLB, and NBA hired the Signal Group and Nicolay & Dart, a Chicago lobbying firm, to combat the law’s change. [xxi]
While the future of Senate Bill 12 is unclear, it might only be the beginning of a political and legal battle between owners and players. If another state was to adopt a similar measure, the workers’ compensation issue could become a national debate. While the states have the authority to regulate workers’ compensation benefits, one could see how disparate treatment of athletes among the states could affect interstate commerce. Indeed, Congress has not been shy about exercising its power under the commerce clause to regulate professional sports in the past; [xxii] however, the question remains whether Congress will intervene this time around, or will Congress leave this decision to the states?
[i] Bill Status of SB0012, Feb. 8, 2017. http://www.ilga.gov/legislation/BillStatus.asp?DocNum=0012&GAID=14&DocTypeID=SB&LegID=98855&SessionID=91&SpecSess=&Session=&GA=100
[ii] NFLPA, The Importance of Workers Comp & Facts about Senate Bill 12, Feb. 8, 2017.
[iii] Bill Status of SB0012.
[vi] Levi Deiss, Title: Senate Bill 12 - Proposed Workers' Compensation Reform, Feb. 9, 2017.
[viii] Bill Status of SB0012.
[x] Tom Goldman, NFL Players Union Works To Block Illinois Workers’ Comp Bill, NPR, Feb. 15, 2017.
[xiii] NFLPA, The Importance of Workers Comp & Facts about Senate Bill 12.
[xiv] Emma Baccellieri, NFLPA To Steer Players Away From Bears If Illinois Passes Law Limiting Disability Benefits For Pro Athletes, Deadspin, Feb. 4, 2017. http://deadspin.com/nflpa-to-steer-players-away-from-bears-if-illinois-pass-1792002975
[xv] NFLPA, The Importance of Workers Comp & Facts about Senate Bill 12.
[xix] Christian Araos, MLS Players Union joins NFLPA in opposing Illinois Senate Bill, Empire of Soccer, Feb. 8. 2017.
[xxi] Rick Westhead, NHLPA joins fight against change to Illinois workers’ compensation law, TSN, Feb. 15, 2017.
[xxii] Christopher Beam, Interference! Why is Congress always meddling with sports?, Slate, Dec. 9, 2009.
Despite public influence, athletes contractually limited in capacity to protest By: Marissa Ditkowsky
It is no surprise that with their positions in the public eye and range of diverse backgrounds, athletic figures have been expressing their concerns about our current political climate and participating in greater social and political movements. The concern, however, is retaliation, and what actions the athletes’ employers can take in barring such protest.
Colin Kaepernick, quarterback of the San Francisco 49ers, made headlines in August when he did not stand for the performance of the national anthem to protest systemic racism against black Americans. Despite both public criticism and celebration, the 49ers released a statement: “The national anthem is and always will be a special part of the pre-game ceremony. It is an opportunity to honor our country and reflect on the great liberties we are afforded as its citizens. In respecting such American principles as freedom of religion and freedom of expression, we recognize the right of an individual to choose and participate, or not, in our celebration of the national anthem.”[i]
In the following weeks, many players across the NFL joined Kaepernick in his protest, including teammate Eric Reid, Jeremy Lane of the Seattle Seahawks, Brandon Marshall of the Denver Broncos, and more.[ii] Other NFL athletes protested in various ways as well. Richard Sherman of the Seattle Seahawks held a press conference in September at which he took no questions, but spoke for two minutes about police brutality in relation to the protests of his peers.[iii] Martellus Bennett and Devin McCourty of the New England Patriots, among other players across the NFL, raised their fists during or after the national anthem.[iv] Other teams, such as the Kansas Chiefs, have locked arms and stood in a united front.[v]
However, in other professional sports leagues, athletes that attempt to protest in the same manner as Kaepernick may face harsher consequences. Collective bargaining agreements, league rules, and independent contracts with clubs could serve as barriers for athletes who want to protest. For example, many league CBAs and team contracts include a clause allowing for punishment of any player that damages the integrity of the league or club. Extreme circumstances or forms of protest could be construed as damaging this integrity, given a broad interpretation. Although kneeling for the national anthem would likely not prove so extreme, other league rules specifically prohibit such an act.
The National Basketball Association (NBA) rules, for example, state that, “Players, coaches and trainers are to stand and line up in a dignified posture along the sidelines or on the foul line during the playing of the National Anthem.”[vi] Refusing to stand for the anthem could, therefore, put NBA players in breach of contract. This rule could explain why, up to this point, NBA players have not engaged in such protests, and why the NBA and NBPA sent a joint letter to players promising to take meaningful steps to resolve racial inequality that would not involve athlete protest in violation of league policies.[vii]
However, past NBA protests have, in fact, defied league policies. In December 2014, Cleveland Cavaliers athletes LeBron James and Kyrie Irving, and current and former Brooklyn Nets athletes Jarrett Jack, Alan Anderson, Deron Williams, and Kevin Garnett, wore black T-shirts that said “I Can’t Breathe” during warm-ups.[viii] The phrase was related to the death of Eric Garner, who died while in the chokehold of New York police officers. Although the shirts violated league uniform rules, the players were not fined.[ix]
The Women’s National Basketball Association rules contain similar language regarding the national anthem and uniform rules.[x] WNBA athletes have, however, joined in protest by kneeling for the national anthem. The entire Indiana Fever team kneeled during the national anthem of a first-round play-off game in September.[xi] Two Phoenix Mercury players joined the Fever athletes in kneeling. None of the players have been fined.[xii]
In the past, WNBA teams have also defied league policies. Teams New York Liberty, Phoenix Mercure, and Indiana Fever were initially fined $5,000, plus $500 per player, for wearing plain black warm-up shirts in solidarity with Black Lives Matter in July.[xiii] The fines were eventually rescinded, however.[xiv] Although the fines evidently did not prevent Indiana Fever from kneeling during the national anthem, such fines do carry a chilling effect for free speech of athletes, even when the fines are technically and legally in line with WNBA rules.
An athlete has very few legal options for challenging a fine imposed by a club or league in response to that athlete’s protest. Should an NBA or WNBA athlete, for example, believe he or she has been unfairly sanctioned for violating league rules by protesting during the national anthem at a game and decide to file a lawsuit, such a case would likely be dismissed. While professional athletes’ right to protest during the national anthem might appear to be an issue of free speech, private individuals and organizations, such as leagues and teams, are not bound by the First Amendment. Additionally, contractual obligations bind players to their terms and set out disciplinary possibilities.
Statutory relief is also unlikely. Even the states that are most protective of employees, such as New York, only protect legal off-duty activities that do not compete with the employer’s business-related interests, take place on the employer’s property, or use the employer’s equipment.[xv] If protesting on-the-job and using their influence is important to athletes in all leagues, they should consider renegotiating their contracts to include such a protection. It is possible that the rights of an athlete to protest could be a matter for further negotiation, discussion, and inquiry in deciding future seasons’ rules and contractual agreements.
[i] Steve Wyche, Colin Kaepernick Explains Why He Sat During National Anthem, National Football League, Aug. 27, 2016, http://www.nfl.com/news/story/0ap3000000691077/article/colin-kaepernick-explains-why-he-sat-during-national-anthem.
[ii] Mark Sandritter, A Timeline of Colin Kaepernick’s National Anthem Protest and Athletes Who Joined Him, Nov. 6, 2016, http://www.sbnation.com/2016/9/11/12869726/colin-kaepernick-national-anthem-protest-seahawks-brandon-marshall-nfl.
[iii] Andrew Joseph, Richard Sherman walked out of his press conference after a strong statement against police brutality, Sept. 21, 2016, http://ftw.usatoday.com/2016/09/richard-sherman-press-conference-police-seattle-seahawks-nfl.
[iv] Sandritter, Timeline.
[vi] National Basketball Association, Official Rules of the National Basketball, 2016-17, Accessed Dec. 11, 2016, https://turnernbahangtime.files.wordpress.com/2015/11/official-nba-rule-book-2015-16.pdf.
[vii] Brian Winhorst, NBA, players’ union outline joint ‘meaningful action’ plan in letter, Sept. 22, 2016, http://www.espn.com/nba/story/_/id/17608163/nba-players-union-eye-options-anthem-protests.
[viii] Chris Strauss and Nate Scott, LeBron James, Kyrie Irving and Nets players wear ‘I Can’t Breathe’ shirts before Cavs game, Dec. 8, 2014, http://ftw.usatoday.com/2014/12/kyrie-irving-i-cant-breathe-t-shirt-before-cavaliers-eric-garner-lebron-james.
[ix] Winhorst, NBA, players’ union outline joint ‘meaningful action’ plan.
[x] Women’s National Basketball Association, 2016 Official Rule Book, Accessed Dec. 11, 2016, http://www.wnba.com/wp-content/uploads/sites/27/2016/05/2016-wnba-rule-book.pdf.
[xi] Mechelle Voepel, Entire Fever Team Kneels During National Anthem; 2 Mercury Plyers Join Them, Sept. 22, 2016, http://www.espn.com/wnba/story/_/id/17606361/entire-indiana-fever-team-kneels-national-anthem.
[xii] Winhorst, NBA, players’ union outline joint ‘meaningful action’ plan.
[xiii] Associated Press, WNBA fines Indiana Fever, players for wearing black shirts in wake of recent shootings, July 21, 2016, http://fox59.com/2016/07/21/wnba-fines-indiana-fever-and-two-other-teams-and-players-for-wearing-shirts-in-wake-of-shootings/.
[xiv] Voepel, Entire Fever Team Kneels.
[xv] NY Labor Law § 201-d (McKinney 1993).
Deflategate: Due Process and the Role of the National Football League Players Association By: Marissa Ditkowsky
If you watch the news or have even a mild interest in sports, chances are the term “deflategate” rings a bell. If it doesn’t, “deflategate” became the nickname for New England Patriots Quarterback Tom Brady’s alleged role in, or knowledge of, game football deflation in the 2015 American Football Conference Championship Game against the Indianapolis Colts. The questions presented in the “deflategate” case, formally known as Nat’l Football League Mgmt. Council v. Nat’l Football League Players Ass’n, however, spanned far beyond the simple, “Did Tom Brady know about the deflation? Were the balls purposely deflated? Was Tom Brady directly involved?” While the NFL was directly responsible for independently investigating those claims, the questions presented to the federal court were predominantly procedural and contractual. Namely, the courts needed to address the question of whether the NFL and Commissioner Roger Goodell adhered to procedural requirements set out in the collective bargaining agreement (CBA) between the National Football League Players Association (NFLPA) and the NFL. Nat’l Football League Mgmt. Council, 820 F.3d 527, 536-37 (2nd Cir. 2016). The fundamental fairness of the investigation and due process in arbitration were also in question. Id. at 545. Hence, the National Football League Players Association (NFLPA)[i] played a major role in the recent “deflategate” proceedings. Even though Brady already served his four-game suspension, the issues discussed in the case are important in understanding the relationship between the NFL and its athletes, the future of disciplinary policies within the NFL, and the vital role the NFLPA plays in advocating for NFL athletes and in negotiating CBA provisions.
Through the NFL’s independent investigation, the NFL determined that it was more probable than not that New England personnel violated the Playing Rules.[ii] [iii] The NFL also determined that it was more probable than not that Brady was “at least generally aware of the inappropriate activities . . . involving the release of air from Patriots’ game balls.”[iv] After going through arbitration to dispute the punishment, and the affirmation of the four-game suspension as a result of the arbitration, the NFLPA and Brady challenged Goodell and the NFL on lack of notice, consistency of disciplinary action in comparable scenarios, denial of testimony of potentially key witnesses, and denial of access to investigation files. NFL Mgmt. Council, 820 F.3d at 537-38. In addition, the NFLPA and Brady noted that the investigation and arbitration were both unfairly completed. Id.
The NFLPA argued that the NFL’s four-game suspension was unprecedented and contrary to the 2011 CBA. According to the NFLPA, no player in NFL history had ever received a suspension for alleged football tampering. Brief for Appellees Nat’l Football League Players Ass’n and Brady at 9, Nat’l Football League Mgmt. Council, 820 F.3d 527 (2nd Cir. 2016) (No. 15-2801(L)). Furthering their defense, the NFLPA maintained that the CBA states that first offenses for equipment violations can only be punished with fines, the amounts for which were also collectively bargained. Id. at 9-10. In addition, the NFLPA claimed that the report did not find that Brady directly participated in or ordered any ball deflation. Id. at 11. The NFL relied on Brady’s failure to cooperate with the private investigation. Id. The NFLPA maintained that Goodell compared the equipment infraction to steroid use, which is subject to a four-game suspension, and he “substituted his own brand of industrial justice for the applicable bargained-for fine.” Id. at 3. The NFL is also required to provide notice of prohibited conduct and disciplinary actions under the 2011 CBA. Id. at 12-13. According to the NFLPA, Brady only received notice of the potential for a fine that he had deflated or known about the deflation of footballs; Brady received no notice of the potential for a four-game suspension. Id. at 46. The NFL also provided no notice that failing to provide electronic communications would result in disciplinary actions, as required by the 2011 CBA. Id. at 20.
The NFLPA and Brady also questioned the fairness of the independent investigation and the arbitration process. Paul, Weiss, the firm hired to conduct the investigation, regularly represented the NFL, and even acted as co-arbitration counsel for the NFL in defending Brady's four-game suspension. Id. at 19-21. The arbitration itself resulted in an unprecedented punishment based on evidence that did not directly link Brady to the deflation. The Wells Report only stated that it was “unlikely” that the Patriots’ equipment staff “would deflate game balls without Brady's knowledge and approval,” or his “awareness and consent.” Id. at 21. In the hearing phase, Goodell also denied testimony from NFL Executive Vice President and General Counsel Jeff Pash, who co-led the investigation with Paul, Weiss’ Tom Wells. Id. at 56-58. Furthermore, the NFL also failed to produce its investigative materials for Brady’s use at the arbitral hearing. Id. at 53-55. The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) joined the NFLPA in its concerns and filed an amicus brief urging the Second Circuit to vacate Goodell’s disciplinary action against Brady. As the AFL-CIO stated, Goodell “failed to follow basic procedural fairness and acted arbitrarily as an employer seeking to justify his own disciplinary decision rather than as a neutral arbitrator considering an appeal.” Brief for the AFL-CIO as Amicus Curiae Supporting Respondents at 4, Nat’l Football League Mgmt. Council, 820 F.3d 527 (2nd Cir. 2016) (No. 15-2801(L)).
Following the trial, the district court ruled in favor of Brady and the NFLPA. The court held that the lack of notice, the denial of Brady’s motion to compel Pash’s testimony, and the denial to produce investigative files for Brady’s use at the arbitral hearing created issues of legality and general fairness. Nat’l Football League Mgmt. Council, 125 F. Supp. 3d 449, 463 (S.D.N.Y. 2015). However, the U.S. Court of Appeals Second Circuit reversed the district court decision, holding that Goodell acted within the scope of his authority based on the collective bargaining agreement. NFL Mgmt. Council, 820 F.3d 527 at 532. According to the 2011 CBA, the Commissioner was authorized to impose discipline for “conduct detrimental to the integrity of, or public confidence, in the game of professional football” broadly. Id. The court argued that as long as Goodell did not ignore the spirit or plain language of the CBA, it was not up to the court to decide whether the punishment was appropriate. Id. at 536-37. The court maintained that Goodell was within his discretion as an arbitrator on all counts. Id. at 532. Neither the NFLPA nor Brady will appeal to the Supreme Court of the United States. Joseph Zucker, NFLPA Announces it Won’t Appeal Tom Brady’s Deflategate Ruling to Supreme Court, Bleacher Report, Oct. 2, 2016, http://bleacherreport.com/articles/2667211-nflpa-announces-it-wont-appeal-tom-bradys-deflategate-ruling-to-supreme-court; Megan French, Tom Brady Announces He Will Not Appeal Deflategate Ruling to Supreme Court, US Weekly, July 15, 2016, http://www.usmagazine.com/celebrity-news/news/tom-brady-will-not-appeal-deflategate-ruling-w429427.
Both the NFL and NFLPA must comply not only with the CBA, but also the Wagner Act, also known as the National Labor Relations Act[v], and the Taft-Hartley Act, also known as the Labor Management Relations Act (LMRA).[vi] Although the LMRA prohibited unions from adopting unfair practices, such as coercion and charging excessive fees, the Act also outlawed pre-entry closed shop rules and limited secondary boycotts. The Act states: Industrial strife which interferes with the normal flow of commerce and with the full production of articles and commodities for commerce, can be avoided or substantially minimized if employers, employees, and labor organizations each recognize under law one another's legitimate rights in their relations with each other, and above all recognize under law that neither party has any right in its relations with any other to engage in acts or practices which jeopardize the public health, safety, or interest.29 U.S.C.A. § 141 (1947).
Although the Act appears neutral on its face, the Act, as noted by the Second Circuit, asserts a preference for private arbitration and limited judicial intervention in CBAs, assuming the acts of the arbitrator remain in the spirit of the CBA. NFL Mgmt. Council, 820 F.3d 527 at 536. The court stated that in its interpretation of the LMRA, it was not the court’s job to whether the punishment was appropriate. Id. at 536-37. Despite arguments about fundamental fairness and violations of the collective bargaining agreement, the court held that Goodell, at least arguably, acted within the scope of his authority within the CBA in comparing the knowledge of deflation to steroid use, concluding that Brady had participated in a scheme to tamper with game balls, not providing Brady with interview notes and memoranda from the investigation process, and in delegating disciplinary authority. Id. at 540-41, 542, 547, 548. This interpretation, however, unnecessarily provides an arbitrator, who inherently has more power than employees, with the benefit of the doubt.
The result of this case could potentially set precedent that paves the way for biased and fundamentally unfair arbitration processes, resulting in inappropriate disciplinary action and abuse of arbitration power for all employees, regardless of sector. This case is an attack on the power of CBAs negotiated by unions for the benefit of working people. Regardless of whether Brady was responsible or had knowledge of the deflation, the process by which the NFL handles its investigations directly impacts all NFL clubs and players. The NFLPA, of course, has a stake in that potential. The politics of fandom can be dividing, but when the NFLPA steps in, it can be certain that the potential precedent of a case could have a negative impact on the athletes of the sport as a whole, regardless of whether Brady had anything to do with or had any knowledge of the football deflation. Perhaps the NFLPA will fight to include more stringent due process policies for NFL-led investigations in the next CBA, but unfortunately, that will have to wait until the current CBA expires and the next CBA is negotiated for 2020.
[i] The National Football League Players Association (NFLPA) is a labor union representing the athletes of the National Football League (NFL). The NFLPA is the only player association that is currently affiliated with the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), which is a federation of unions across a number of professions and sectors. The NFLPA is responsible for collective bargaining to ensure players are receiving fair compensation and benefits, guarantee player safety, and protect players generally.
[ii] The NFL uses a preponderance of the evidence standard in determining guilt through its investigations. The same standard is used for civil litigation. Conversely, in criminal cases, circumstances must be proven beyond a reasonable doubt. Brief for Appellants Nat’l Football League Mgmt. Council, Nat’l Football League, and McGuirk at 22, Nat’l Football League Mgmt. Council v. Nat’l Football League Players Ass’n, 820 F.3d 527 (2nd Cir. 2016) (No. 15-2801(L)).
[iii] Brief for Appellants Nat’l Football League Mgmt. Council, Nat’l Football League, and McGuirk at 2, 13, 121, Nat’l Football League Mgmt. Council v. Nat’l Football League Players Ass’n, 820 F.3d 527 (2nd Cir. 2016) (No. 15-2801(L)).
[iv] Id. at 2, 122.
[v] 29 U.S.C. §§ 151-169 (1935).
[vi] 29 U.S.C. §§ 401-531 (1947).
Professional football is a 100% injury sport. This applies to injuries that occur during a player’s time on the field, from off-season workouts to post-season games. As employees of a National Football League (NFL) club, if an NFL player suffers an injury, workers’ compensation statutes are a naturally available recourse.1 Workers’ compensation is a system of compensation for employees who suffer from injuries arising out of and in the course of employment.2 While payment for work-related medical injuries can be lifetime awards, compensation for lost wages is capped, typically compensating lost pay at a percentage of original wages. Further, in a somewhat perturbing manner, medical and wages compensation is oftentimes limited to pre-set percentages based on lost of function of the injured body part in question.
Other limitations, usually based on jurisdiction, control what types of injuries and what specific body parts are compensable.3 Under a standard workers’ compensation scheme, an employer must secure itself against liability through insurance.4 Therefore, the cost of compensation liability passes to an employer’s consumers as an employer’s cost of production, but it also costs the courts themselves time, money, and docket space to file and adjudicate in any jurisdiction.5
The 2011 collective bargaining agreement (CBA) negotiated between the National Football League Players Association (NLFPA) and National Football League Management Council affects all present and future NFL players.6 Because workers’ compensation statutes vary widely, it is unsurprising that the CBA’s Article 41 on workers’ compensation, though comprehensive, does not delve deeply into specific workers’ compensation procedure.7 Maryland and Virginia, just a river apart, tackle workers’ compensation rather differently, though neither state precludes professional athletes from workers’ compensation benefits.
Pro-Football, Inc., trading as The Washington Redskins (Washington Football Club), is the only team in the NFL that has its headquarters and training facility in Virginia, but plays games and is incorporated in Maryland.8 Because all Washington Football Club home games are played in Maryland, and no other NFL team plays NFL games in Virginia, Washington Football Club players hold the exclusive right to file workers’ compensation claims in Virginia while simultaneously holding the advantage of also filing a claim for benefits (CFB) in Maryland.9 Thus, where a player chooses to file must be a symptom of the benefits available to him in a particular jurisdiction.
After a career-ending back injury during a pre-game warm up, former Washington Football Club punter Thomas Tupa first filed a CFB in Virginia, but then withdrew his claim and filed in Maryland, despite a forum selection clause in his employment contract that explicitly stated he would file all workers’ compensation claims in Virginia.10 On appeal, the Washington Football Club asserted that Maryland did not hold jurisdiction over Tupa’s claim because the employment contract’s forum selection clause was presumptively enforceable.11 The court held that under the plain and unambiguous language of the Maryland statute, an agreement exempting an employer from the duty to pay workers’ compensation due under the Maryland statute is void.12 A clause waiving an employee’s benefits is invalid, and the forum selection clause in Tupa’s employment contract was unenforceable.13 Therefore, Maryland did have jurisdiction over Tupa’s CFB.14
Because it is possibile to file a CFB in more than one state, Tupa shows that all workers’ compensation attorneys filing on behalf of NFL players must become intimately aware of indemnity benefit discrepancies among all possible jurisdictions. Maryland’s workers’ compensation statute (Maryland statute) creates a “comprehensive scheme to … provide sure and certain relief for injured [workers] … regardless of questions of fault.”15 An injury is compensable under Maryland statute if an employee sustains an accidental personal injury,16 and the injury itself, not the circumstances that caused the injury, must be unusual.17
Like Maryland, the Virginia Workers’ Compensation Commission interprets Virginia’s workers’ compensation code in a manner that is highly remedial.18 In Virginia, an injury is “a sudden structural change that arises out of and in the course of employment,” and is not necessarily an injury by accident.19 To receive benefits in Virginia, a claimant must prove his injury arose out of and in the course of employment that caused a sudden structural change to his body.20 Because an injury must be sudden, Virginia is not a cumulative trauma state.21 This means that repetitive trauma injuries with no specific date of injury, such as multiple career-spanning concussions, are not compensable under Virginia statute.22
In addition to what qualifies as a compensable injury, indemnity awards and their respective compensation rates also vary among states.23 Workers’ compensation indemnity awards in Maryland and Virginia include, but are not limited to, temporary total disability, temporary partial disability, permanent partial disability, and permanent total disability.24 A quick glance at these two workers’ compensation statutes shows that, depending on the injury and the type of award sought, an employee may file in the jurisdiction most favorable for his circumstances.25 It makes sense for any workers’ compensation attorney to “run the option”—to assess potential indemnity benefits, like those between Maryland and Virginia, in order to pursue the most lucrative award on behalf of an injured athlete.
Although neither Maryland nor Virginia’s statutes prohibit an employee from filing a CFB in both states, Tupa affirmatively holds that even a forum selection clause cannot prohibit a Washington Football Club player from filing in Maryland. Invalidating Tupa’s forum selection clause allowed him to adjudicate his claim and take up time and docket space at the Maryland Workers’ Compensation Commission. Maryland could very well have seized the opportunity to rid itself of future CFBs, but instead ruled that the policy behind the Maryland statute is powerful enough to void a forum selection clause. After landmark jurisdiction cases like Carnival Cruise Lines,26bypassing a forum selection clause is no easy feat, especially if both parties hold bargaining power,27 but Tupa demonstrates that the thumb pressing on a claimant’s side of the statutory workers’ compensation scale can be a heavy one. Tupa has opened up the field for Washington Football Club players to bypass forum selection clauses and has broadened opportunities to file in both Maryland and Virginia.
Every workers’ compensation attorney filing on behalf of NFL athletes holds a duty to zealously and competently represent her client to the best of her ability.28 Specific to the current and former players of the Washington Football Club, the scope of this duty now extends to becoming intimately aware of benefit differences between Maryland and Virginia workers’ compensation statute. In Tupa, the Maryland court moved the chains in favor of employee protection. In the absence of statutory language prohibiting employees from filing in both states, workers’ compensation attorneys may cleverly take advantage of this quasi-arbitrage to chase after the most promising indemnity benefits. After Tupa, failing to strategically choose in which state to file a CFB would be such an egregious oversight that it would border on malpractice. Therefore, filing in either or both Maryland and Virginia is not only just, but a perfect demonstration of effective counseling in action.