Labor & Agents: Ketroser departs agency Labor & Agents: Unionizing UFC fighters Cindrich renounces NFL agent business Walters, Swartz's agency targets esports Labor & Agents: UFC antitrust suit Ex-ESPNer moves to other side of table Labor & Agents: Montag adds clients Development program helps NHL players Labor & Agents: Rosenhaus sues client NBPA spending on employees up 40 percent
SBJ/January 23-29, 2012/Labor and Agents
Workers’ comp cases could rise to high court
Published January 23, 2012, Page 4
Unlike the concussion litigation that has received plenty of attention — there are at least 16 federal lawsuits that have been filed by former players against the league — the workers’ comp fight has the players union playing a prominent role, and it’s a battle that could be played out in courts for years to come. Some observers say the matter could proceed all the way to the U.S. Supreme Court.
Where the NFL's workers' compensation lawsuits stand.
Like the concussion cases, the workers’ comp lawsuits are essentially the same: The players signed contracts binding them to file workers’ comp claims in a jurisdiction designated by the team, and then they chose to file claims in another jurisdiction that they found more favorable, California in most cases.
On workers’ comp matters, California is regarded among the states as one that awards higher damages and allows for more expansive benefits. Teams outside of the state also must incur the cost of local
The league and players last summer negotiated over workers’ compensation during the collective-bargaining process, but the parties, diametrically opposed on this single issue, agreed to leave the subject unresolved. (Another disputed issue, HGH testing, did make its way into the CBA, though the sides now disagree over how to implement the testing.)
The NFLPA contends federal and state laws do not allow private contracts to take away employees’ rights to file injury claims in places they have worked. The NFL disagrees with that assertion.
“According to the [NFLPA’s] logic, every NFL player is entitled to
|The NFL got mixed results in workers’ comp cases against Bruce Matthews (top), Kendall Newson and Tom Tupa (above).
Several weeks later, the court ruled in the NFL’s favor, deciding the players must file in Illinois, a decision the NFLPA soon after appealed to the 7th Circuit.
The NFL won a similar victory early last year in a case brought in California federal court by the NFLPA and hall of famer Bruce Matthews. Matthews, who spent the final years of his career with the Tennessee Titans, sought to overturn an arbitrator’s decision that Tennessee law had to be used in the player’s claim even though the claim had been filed in California. The NFLPA and Matthews appealed that loss to the 9th Circuit.
The NFL in a court filing in Louisiana earlier this month cited both the Illinois and California cases as evidence in another case. There, an arbitrator ruled eight former New Orleans Saints players could not file in California, and the league sued the NFLPA and the players in federal court to enforce that decision.
The NFL did not, however, mention in that filing that not every court agrees with the league. In Pennsylvania last May, a federal court ruled in favor of former Miami Dolphins player Kendall Newson, allowing him to file a claim in that state. The team objected, pointing to a provision in Newson’s contract requiring him to file in Florida. The court, unlike the others, disagreed.
“The Pennsylvania Workers’ Compensation Court has concluded, as have others, that private contracts cannot effectively waive the Commonwealth’s statutorily-enacted public policy regarding workers’ compensation benefits,” the court ruled. In other words, if a worker claims an injury occurred in that state, a private contract cannot trump Pennsylvania law granting access to file there.
The Dolphins and the NFL have not appealed the decision.
Similarly, a Maryland state court ruled in 2009, and a state appeals court affirmed last year, that former Washington Redskins punter Tom Tupa could file a case in that state even though his contract stipulated he had to file in Virginia.
“The forum selection clause in Tupa’s contract would contravene Maryland’s public policy,” the state appeals court wrote as part of its decision last year.
Given the many cases, this is an issue that likely will get to the Supreme Court, said John Goldman, a Herrick Feinstein partner.
“If the 7th and 9th Circuits come to a different conclusion, that is one for the Supreme Court,” he said. “It is an important enough issue.”