Sports and Entertainment Blog
Blog posts are edited by our board member- Taylor Dolan
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.