Workers Comp Zone


I could never get used to the idea of seeing the Rams in St. Louis. I was a fan of Roman Gabriel, Jon Arnett, Deacon Jones, Jack Youngblood and Ollie Matson, and they wore blue and gold in LA.

Seeing the same gear in St. Louis always seemed a sacrilege.

There should be an NFL rule against using the same team name and logo when a team migrates to another state. But of course there never will be, given the fact the NFL is a $12.5 billion business (for an interesting profile on the NFL today, check the link at the bottom of this post to a recent New York Times piece written by Mark Leibovich).

But now we have the Rams moving back to LA.

The Rams have now dropped a ham-handed demand that players sign an agreement providing that Missouri law applies.To their credit, the NFL Players Association resisted this Rams ploy.

In the future, Rams hurt due to a definable, specific incident will be covered by California law.

What about c/t claims? The 2013 legislation signed by Governor Brown was aimed at curbing some athlete cumulative trauma claims.  AB 1309, which amended Labor Code 3600.5, bars certain professional athlete claims where the athlete is hired outside of California and is “temporarily within this state”.

Most current Rams players were hired in Missouri but will now be based out of California. Practically speaking they will not be temporarily within the California, but permanently within California.

However, in litigation over cumulative claims that arise in the near future, I can imagine that some defense attorney will attempt to raise Labor Code 3600.5(c)(3).

That section says(for purposes of c/t claims) that a pro athlete is temporarily within the state if within the last 365 consecutive days immediately preceding the last day of work within the state the pro athlete performs less than 20% of duty days in California during that 365 day period.

However, Labor Code 3600.5 (d)(1) now contains the two-seasons for California-based teams or 20% of duty days in California (or for California based team) rule that appears to provide an exception to Labor Code 3500,5(c), though with the 3600.5 (d) proviso that the athlete have worked for fewer than seven seasons for non-California based teams.

These sorts of rules will take on added importance given the quickly mounting evidence regarding the impact of head trauma on players.

Several weeks ago Jeff Miller, the NFL’s senior vp for health and safety policy admitted in testimony before the House Energy and Commerce Committee that there is a link between football and degenerative brain disorders like CTE (chronic traumatic encephalopathy). CTE has now been found in scores of players.

As the New York Times journalists covering the story noted, “To many, it was an echo of big tobacco’s confusion in 1997 that smoking causes cancer and heart disease.”

So we’ll likely see more of these cases come through the California workers’ comp system (disclosure: several of our attorneys at Boxer & Gerson handle claims for pro football players).

But wasn’t there a class action settlement covering player concussions? Yes and no.

That’s an interesting story in itself.

In the federal court class action (at the U.S. District Court Eastern District of  Pennsylvania), the judge approved a settlement on 4/22/2015. That settlement includes terms that do not bar players from state workers’ comp claims. Among things it did do was create a $10 million education fund, a $75 million fund to assess player cognitive function, and $675 to compensate various levels of cognitive impairment, dementia, ALS and Alzheimers. Schedules were set up to outline payout depending on various factors. The settlement covered living NFL players who retired before the approval of the settlement and survivors of deceased former players.

But that settlement is under attack by seven retired players in a proceeding which is now at the U.S. Court of Appeal Third Circuit (at the bottom of this post you can see a link to their brief , which also includes information of the terms of the approved settlement). The case is “In re National Football League Players Concussion Injury Litigation”, a petition on appeal from an order of the U.S District Court which granted class certification.

Distilling down the arguments, the players  (Sean Morey, Alan Faneca, Ben Hamilton, Robert Royal, Roderick Cartwright, Jeff Rohrer, and Sean Considine) argue that the certified class fails to fairly and adequately represent the interests of the class and that multiple conflicts lead many in the class without adequate representation. The District Court did not rule on their petition to intervene.

They charge that the family of a player who died of CTE before the settlement approval would receive $4 million but a player who dies after approval would receive nothing. CTE is not compensated unless the player died before the settlement.

Their brief, filed July 21, 2014, contains a list of many other alleged flaws in the class action settlement. The case was argued in November 2015 at a three judge panel of the Third Circuit in Philadelphia, but so far there has been no ruling. After the recent admission on CTE by Miller, the NFL vp, the attorney representing the class objectors wrote to the Third Circuit, noting the significance of the NFL’s admission and that it buttressed the objectors’ arguments.

A decision should be coming before long.

Here is a link to the Mark Leibovich profile on the NFL management culture:

Here is a link to the brief filed by the class objectors at the Third Circuit:

Here is a link to a site containing briefs of the parties at the Third Circuit:

Stay tuned.

Julius Young