SBJ/October 31-November 6, 2011/Labor and Agents

NFL, union still fighting workers' comp battle

The NFL and the players union’s battle over workers’ compensation, one of the last unresolved issues from the spring and summer of labor discontent, spilled into a Louisiana court last week, with the NFLPA contending that the league has no say in where players can file such claims, even if their contracts stipulate otherwise.

The move coincided with increased public pressure on the NFLPA from Congress to agree to HGH testing, an issue the league had thought was settled with the Aug. 4 ratification of the new 10-year collective-bargaining agreement.

The one issue the league knew was unresolved on that day was the increasingly contentious question of where players can file workers’ compensation claims. Most wish to file in generous California, while teams want them to file in their team’s home state.

The NFL is suing the NFLPA and eight former Saints players to enforce an Aug. 23 arbitrator’s decision that the players must revoke their claims in California and refile in Louisiana because their contracts specifically called on them to file in the Southern state.

But the NFLPA contends that even if their contracts called for them to file in the Saints’ home state, and even if the CBA in effect at the time allowed for this, it is irrelevant.

“The California Workers’ Compensation Appeals Board has ruled that any provision of an employment agreement between an NFL Player and Club that purports to limit the NFL Player’s ability to pursue workers’ compensation benefits in California is void and unenforceable,” the NFLPA said in a court brief last week.

California has one of the country’s most generous systems, allowing anyone who has physically done business in the state to file a claim for injury, and with no sunset provision. The Workers’ Compensation Appeals Board has ruled that NFL players who have competed in a game in the state, even if they were not directly injured in that contest, can file a claim.

It is one reason the reconstituted Arena Football League chose not to put a team in California. Several teams, including the Washington Redskins and New York Jets, have recently fought efforts by players to file in California, according to the NFLPA brief.

The Saints players all had clauses in their contracts stating if they were to file for workers’ compensation, it had to be in Louisiana. Nevertheless, they filed in California, and the NFL took the case to an arbitrator.

Irwin Kishner, a lawyer with Herrick Feinstein who wrote a legal article in 2010 on why California’s workers’ compensation system is a problem for sports leagues, said he sides with the NFL in this case.

“There were two well-represented parties that freely executed a contract,” he said. “It is not saying you can’t avail yourself of California, the contract just says you [choose to] avail yourself of Louisiana.”

Kishner still expects the case to go far, perhaps even to the Supreme Court to decide on the constitutional merits of how California’s workers’ compensation system purports to have a say over contracts in other states.

The NFLPA in its brief argued that the Supreme Court has ruled that an employee cannot negotiate down their rights in a contract, and so the provisions are unenforceable.

As a subtext to the case, it is the first legal battle between the NFL and NFLPA since the new CBA, and thus is out of Judge David Doty’s court in Minnesota.

Doty, as part of the 1993 antitrust settlement that resulted in the CBA that ran through March 2011, oversaw labor relations between the two sides. Any dispute went to a special master, and then on appeal to Doty, whom the league viewed as being overly player friendly.

The new CBA, signed on Aug. 4, eliminated Doty’s role. Twenty days later the NFL filed the lawsuit against the players and NFLPA in the Louisiana court.

The NFLPA is represented by Dewey & LeBoeuf. Adams and Reese, a local New Orleans firm, submitted the NFL complaint.

The case is named New Orleans Saints, L.L.C. et al v. Cleeland. Cam Cleeland is one of the eight former players.

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