An ongoing issue in the NFL concerns injured players who file for workers’ comp benefits in states where they played games rather than in the state where the team is based. We first covered the issue last year here and here, describing what was originally known as “the Bengals’ situation,” which expanded to the point that hundreds of retired, injured players were filing in California because of its unique circumstance.

The California system vs. newer contracts

We quoted from an April piece from The New York Times: “California provides the only workers’ compensation system that allows retired pro athletes to file claims for long-term injuries sustained on playing fields years or even decades before. Quietly, hundreds of football players have received awards or settlements worth at least $100,000 and 700 more players are pursuing claims, many of them by satisfying California’s unique requirement that they played at least one game within state borders.”

By last spring, teams that were watching or fighting similar actions included at least the Bengals, Dolphins, Saints, Titans and Rams. The Titans and Bengals had already begun inserting specific language into player contracts restricting workers’ comp actions to their home states.

The battle expands

Now, the Miami Dolphins are fighting on another front. According to a Feb. 14 article in the Pittsburgh Post-Gazette the workers’ comp issue has become part of “the war” between owners and players:

Kendall M. Newson caught just two passes in his National Football League career, but now the former Miami Dolphin is the star of a legal battle, fought Downtown last week, in the war between the teams and players.

Lawyers for the Dolphins asked U.S. Magistrate Judge Lisa Pupo Lenihan to put the kibosh on Mr. Newson’s workers’ compensation case related to a 2005 knee injury, sustained in a preseason game at Heinz Field, that ended his career. They said the claim should be decided by an arbitrator, not by Workers’ Compensation Judge Pamela L. Briston.

Lawyers for Mr. Newson and the NFL Players Association countered that there was no legal precedent for a federal judge stopping a state workers’ compensation case and added that such a measure would be especially damaging due to the current contract dispute between the league and players.

In other words, the scenario is escalating. For Newson, prevailing under Pennsylvania law would mean the difference of nearly $4,000 a year plus medical benefits that his attorneys say are better than those available in Florida. Dolphins’ management wants the case to be settled via arbitration in Florida: one player’s benefits may not seem like much, but increased benefits for hundreds of players, over time, add up significantly.

Florida’s new workers’ comp bill

An unrelated issue in Florida is a new bill that is designed to:

• modernize and set standards for certain underwriting ratings
• create a new position within the Office of Insurance Regulation, called the Worker’s Compensation Administrator, which would
• reduce overlap among current responsibilities spread over several offices.

According to a Feb. 10 piece at InsuranceJournal.com, “In 2003, lawmakers created a new subplan D that was designed to provide coverage to small employees with 15 or fewer employees and non-profit organizations. Primarily, the subplan was provided as a safety net for small contractors after lawmakers ended workers’ compensation exemptions in the construction industry. Unlike the other three subplans that had actuarially sound rates, subplan D rates were capped at a small percentage above rates charged in the voluntary market and were assessable policies. The subplan quickly ran up a deficit and in 2004 lawmakers appropriated money from the state’s Workers’ Compensation Administrative Trust Fund to retire the shortage. They also eliminated the subplans in favor of a three tier rating plan.”

In other words, the former “fix” for small contractors didn’t work out. Reportedly, this bill is on a fast-track to becoming new legislation. We’ll keep tracking it and report as developments are known.

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Frequently enough, a worker’s compensation case may be so complex as to demand legal representation. However, sometimes what seems like a cut-and-dried situation to an injured worker may result in a smaller award than envisioned–or even a denial. Have you, a friend or a loved one been injured on the job? Whether you’re merely seeking answers about your rights or believe a lawsuit may be necessary, be sure to seek counsel with attorneys trained and experienced in workers’ compensation. Here’s some resources:

Workers compensation basics

Injury on the job

Filing a claim

In an April 6 article, The New York Times reported on what was then an under-the-radar, developing story involving the NFL and workers comp benefits in California.

At the time, apparently only a few league insiders and legal types were following the developments of what was being cast as “the Bengals situation,” involving hundreds of retired, injured players getting better benefits by filing under California’s surprising set of rules:

Hundreds of players pursuing claims

“California provides the only workers’ compensation system that allows retired pro athletes to file claims for long-term injuries sustained on playing fields years or even decades before. Quietly, hundreds of football players have received awards or settlements worth at least $100,000 and 700 more players are pursuing claims, many of them by satisfying California’s unique requirement that they played at least one game within state borders.”

That “one game” thang seems to be the crux of the dust-up.  So much so, that some NFL teams have challenged the status quo:

“ ‘It was the sheer number of claims that really started to get the attention of certainly the Bengals and, I think, of other clubs as well; it became an extreme cost,’ said Sam Duran, a lawyer based in Cincinnati who represents the Bengals in workers’ compensation matters. ‘These players have workers’ compensation rights. Those rights happen to be in Ohio.’ ”

In other words, NFL teams are pushing to bring the cases back to their states of origin: If you played for a team based in Ohio, file in Ohio, etc.

The problem, of course, is that the “home states’” benefits that get awarded are often meager, compared to what the former players can get by filing in California.  So injured players have often ignored contract clauses that were “aimed at restricting workers’ compensation option” and filed in California, leading teams to sue players in state court.

A legal maze

The result? “The Bengals situation, as it has become known among the few people paying attention to it, has developed into a knot of legal strings, cases, venues and precedents that even those involved have difficulty untying.”

For example, the Miami Dolphins are taking the tack that such matters must be decided via the arbitration regs in place as part of the players union’s collective bargaining agreement. (Florida law, apparently, does not recognize professional athletes as “employees.”)

From the union’s point of view, contract clauses such as used by the Bengals and Titans are legally unenforceable because of certain California statutes; furthermore, neither “could the union itself bargain away those rights on behalf of players collectively in current negotiations over a new labor agreement.” Perhaps even more compelling, union attorneys contend that the players are backed up by decades-old U.S. Supreme Court rulings that allow “employees from states with limited workers’ compensation benefits . . . [to] file in any state that will accept them.”

The cases of dozens of former Bengals’ players started in state court but got moved to federal court (still in Ohio) and may be decided later this month.

In some cases, state courts have even crossed swords: “After an Ohio judge granted the Bengals’ motion to vacate the California awards pursued by Wilson and other Bengals, the California workers’ compensation judge Joanne M. Coane rebuked not only the team but the Ohio court for issuing the ruling, saying the [Ohio] court was ‘not legally empowered’ and that the ruling ‘has no legal effect.’ ”

Proposed bill could affect all Louisiana workers

More recently, the “Bengals situation” has lost its low-key status. From the April 16 BusinessWeek: “An attempt by the New Orleans Saints to lessen its workers’ compensation costs for injured players mushroomed Thursday into an issue that would apply to all businesses and employees in Louisiana.”

From an April 15 nola.com piece via the Times-Picayune: “A bill that started out trying to lower the New Orleans Saints’ payouts of workers compensation benefits to injured players was expanded in a House committee Thursday to apply to all employers and employees in the state.”

Wow–how’d that happen?

BusinessWeek says, “The Saints were pushing a bill by Rep. Cameron Henry that would require professional athletes for Louisiana teams to be subject to workers’ compensation benefits under Louisiana law if they are injured in a game or practice.”

The Times-Picayune piece says, “Because of possible ‘legal infirmities’ of carving out a niche in the law only for professional athletes, Henry got the panel to amend it to apply to all Louisiana companies whose workers are injured while working out of state.”

Players union disputes bill’s legality

BusinessWeek also makes a distinction not found in the NYT article, which mentions the Dolphins’ preference for arbitration via collective bargaining. According to BW, the players union favors arbitration, too, and in fact disputes the legitimacy of the bill: “The NFL Players Association argued that the claims complaints should be addressed in the collective bargaining agreement between players and team owners and that Henry’s bill will end up in court if it passes.

” ‘With all due respect to Louisiana and any other state, you can’t deal with our issues in California. Only we can deal with that,’ said players union general counsel Richard Berthelsen.”

Some question the need for filing claims for injuries that may go back decades. Berthelsen is indirectly quoted in the BW account, indicating that “many of these claims are being filed decades later because the teams didn’t properly notify players of their workers’ compensation rights to make those claims.”

Another state rep wants to slow down, according to the TP: “Rep. Herbert Dixon, D-Alexandria, the committee’s vice chairman, urged Henry to delay action on his bill since the amended version deals ‘with all employees in Louisiana’ who work out of state, not just athletes. Ponti [another state rep, who voted against the bill] agreed: ‘It leaves a lot of questions unanswered.’ ”

‘Unintended consequences’

BW quoted Ponti:  ” ‘I’m concerned about passing something that we don’t know the unintended consequences of. Is this not something the players and owners could work out in their contract negotiations?’ said Rep. Erich Ponti, R-Baton Rouge, chairman of the committee.”

Sounds like this complicated issue will take quite a while to work through the courts, so it just may be up to collective bargaining to address it in the next NFL-players union negotiations.

Meanwhile, oddly enough,  Rep. Henry’s out-of-date Web page makes no mention of House Bill 1097, but a copy can be found here.

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Whether you’re an injured employee or an aggrieved employer, if you’re facing legal problems regarding workplace injuries, be sure to seek counsel with attorneys trained and experienced in workers’ compensation. Here’s some resources:

Workers compensation basics

Injury on the job

Choosing an attorney