Losing Streak: Athletes Seeking Workers’ Comp. In California Suffer Setbacks

Feb 26, 2014

 Jeremy R. Lacks

Manatt, Phelps & Phillips, LLP



Sports Law

Feb 25, 2014

Losing Streak: Athletes Seeking Workers’ Comp. In California Suffer Setbacks

February 7, 2014 | Author: Jeremy R. Lacks

Professional athletes seeking to take advantage of California’s historically beneficial workers’ compensation scheme suffered back-to-back defeats to close out 2013.  Even as public attention to the long-term effects of cumulative injuries to professional athletes has increased, recent developments in both California’s legislature and courts have drastically limited the ability of athletes of visiting teams from collecting disability benefits for injuries they claim were suffered within the state.

California’s workers’ compensation scheme has historically permitted out-of-state athletes to bring claims in the state if they could show that their disability resulted from a cumulative injury and that playing in California, even on a limited basis, contributed to that injury.  With the recent rise in medical awareness of traumatic brain injuries in retired athletes, the policy became something of a lifeline for thousands of retired professional athletes suffering the effects of repeated concussions and other debilitating injuries.  According to the Los Angeles Times, more than 3,400 former NFL players filed workers’ compensation claims in California claiming head and brain injuries since 2006.1

But greater awareness of these injuries has also led professional sports teams and leagues to aggressively challenge the players’ ability to recover benefits under California’s scheme.  In a landmark 2012 ruling, the Ninth Circuit Court of Appeals held that a longtime NFL player, Bruce Matthews, could not maintain a cumulative trauma claim in California despite playing 13 times in the state over the course of his 19-year playing career.2  The court held that Matthews failed to allege any specific or discrete injury occurring in California and that his claim of cumulative injury over the course of his career did not make it clear that he was “within the category of employees to whom California extends workers’ compensation coverage.”  Another suit brought by dozens of former NFL players in the Northern District of California challenging an arbitration order that barred the players from seeking workers’ compensation in the state was settled in July 2013.

Then, in October 2013, Governor Jerry Brown signed into law a controversial measure that precludes athletes who did not play a significant portion of their careers for a California team from qualifying for disability benefits in the state.  The law, AB 1309, was subject to more than a year of intense lobbying from the NFL and other professional sports leagues seeking to minimize their financial exposure for injuries incurred by athletes on the playing field.  Under the law, athletes are required to have spent at least two complete seasons, or at least 20% of their careers, playing for a California team to be eligible for workers’ compensation in the state.  In addition, players who played seven or more seasons for teams outside the state are not allowed to bring claims at all, even if those athletes also played in California for two or more seasons.  The law applies to all claims brought after September 15, 2013 and covers major and minor league athletes playing professional football, baseball, basketball, ice hockey and soccer.

State legislators said the tighter restrictions will prevent California from being unfairly targeted by out-of-state athletes.  Opponents of the law argue that it allows the leagues and their franchises to avoid liability for thousands of serious claims, including many involving cumulative injuries like head and brain trauma.  But, despite opposition from organized labor in the state, AB 1309 generated little resistance among lawmakers, with only five legislators voting against the measure.  

Most recently, in December 2013, the Second Appellate District Court ruled in Federal Insurance Company v. Workers’ Compensation Appeals Board3 that a retired women’s professional basketball player, Adrienne Johnson, could not collect a workers’ compensation award under the cumulative trauma theory for a 2003 knee injury that ultimately ended her playing career.  Johnson, formerly a member of the WNBA’s Connecticut Sun, played only one game in California during the 2003 season, and the court concluded that the state’s tenuous relationship to Johnson’s injury was insufficient to make her application reasonable.  As the court held, “A single basketball game played by a professional player does not create a legitimate interest in injuries that cannot be traced factually to one game.”

Johnson played the entire 2003 season for the Connecticut Sun, but an MRI following the season revealed a knee injury that required surgery.  Although she signed with a new team for the 2005 season, Johnson ultimately did not play in any professional games following her surgery.  Johnson’s disability claim was based on chronic conditions related to ongoing discomfort in her knee, hip and shoulder, which she claimed resulted from the knee injury sustained during her playing career.

The court, overturning a decision of the Workers’ Compensation Appeals Board (WCAB), determined that, for purposes of California law on cumulative trauma, Johnson’s injury did not arise until after July 20, 2003, the date of her only game in California.  The court continued that “[t]he effects of participating in one of 34 games do not amount to a cumulative injury warranting the invocation of California law” and that, unless the injury could be factually traced to that single game, California did not have a legitimate interest in Johnson’s injuries.  Therefore, the court concluded, “The effect of the California game on the injury is at best de minimis.”

The court then reviewed Johnson’s other possible contacts with California, including her employment relationship and her state of residence. During her playing career, Johnson lived in Florida and New Jersey and was living in Kentucky when she brought her workers’ compensation claim.  For these reasons, the court concluded that “California does not have a sufficient relationship with Johnson’s injuries to make the application of California’s workers’ compensation law reasonable.”

The court’s decision was contrary to other WCAB rulings cited by Johnson, including a case involving a WNBA coach, which have held that a limited number of games in California created sufficient contact with the state to apply its law.  Although the court acknowledged these decisions, it disposed of them as not binding.  At first blush, the ruling also seemed to contradict a 2001 appellate ruling that California law applied to the claims of a retired NFL player who had played only one game in California during his career.4  In that case, however, the player had identified a specific injury suffered in California alongside his claim for cumulative trauma.

The passage of AB 1309 and the Federal Insurance Co. decision impact different classes of athletes.  The new law substantially raises the bar for all athletes hoping to recover disability benefits in California going forward.  For in-state players, even one season played in California will be insufficient to sustain a cumulative trauma claim.  Meanwhile, players who enjoyed long careers for teams located outside the state are barred from bringing claims completely, even if they played multiple games per season in the state.  The Federal Insurance Co. decision, on the other hand, affects retired athletes who played for visiting teams and have pending claims under the prior law.  The case establishes a negative precedent for athletes with limited contacts to the state who seek to rely on the cumulative trauma theory to support their disability claims.  More broadly, these developments represent an undeniable setback for all professional athletes, whether past, present or future, as injured athletes will undoubtedly find it more difficult, if not impossible, to benefit from what was once considered the most athlete-friendly workers’ compensation scheme in the nation.

This Newsletter is modified from an article that appeared in the Daily Journal on December 23, 2013.

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8 Responses so far | Have Your Say!

  1. Larry Kaminski
    February 26th, 2014 at 11:56 am #


    I would suggest that anyone who played in the AFL/NFL where games were held in several cities and if your training camp was located in California for a substantial period of time or you scrimmaged in CA that you contact…BermanMore Gonzales…Santa Ana, CA…contacy Kieth More with your information.
    He is an excellent attorney and has worked on this issue.

  2. conrad Dobler
    February 26th, 2014 at 11:58 am #

    California teams will be looking to trade all injured players to different teams before their careers are up.

  3. John Hogan
    February 26th, 2014 at 4:43 pm #

    A rather easy solutions would seem to be making the NFL disability plan more inclusive. Their Line of Duty benefit is somewhat similar to most Workers Comp systems. More importantly, if retired NFL player had life time medical insurance – at least work NFL related injuries, there would not be the need for the California system. The reason that so many retired players have submitted California claims is that many injuries and disabilities from football – including the effects of concussions – do not manifest as severe problems until a number of years after the career is over. Most states’ workers comp law require the injury to manifest within a very short time, which just doesn’t fit the needs of former NFL Players.

  4. Dave Pear
    February 26th, 2014 at 8:07 pm #

    The league keeps denying earned disability benefits to retired players,

    (esp. the pre-1993 retired players)

    Why does the NFL discriminate against retired, injured and disabled players?

    I know the answer, because they can!

    Dave Pear
    Pro Bowl 1978
    Super Bowl XV
    Social Security Disability at the age of 50

  5. Ange Coniglio
    February 27th, 2014 at 5:27 am #

    Sad that if the NFL and the NFLPA would just ‘do the right thing’ and give ALL LIVING former players retirement, medical and disability benefits similar to those of Baseball, the NFL wouldn’t have to depend on the taxpayers to bear the burden, in the form of state services or Social Security benefits.

  6. Sharon Hawkins
    February 28th, 2014 at 12:49 pm #

    Wow. I feel fortunate Wayne played his 10 years with the O. Raiders. He is part of the Workers’ Comp law suit out of Los Angeles. The law firm, Rose, Klein, Marias, handles our case It was filed in March, 2010, by Dr. Eleanor Perfetto (Ralph Wenzel’s widow). Our great attorney is Ron Feenberg. I highly recommend his services.

  7. Joe S.
    March 6th, 2014 at 9:42 pm #

    Clearly this is the representation of “collusion of power” and money, but needs to be approached differently. I hope Bruce Mathew’s lawyer didn’t take money under the table. Bruce Mathew’s claim should have been argued from the point of non-specificity concerning injury. Cumulative Traumatic Injuries or Repetitive Stress Injuries, within the confines of the NFL, are non-specific. The claim is the entire body; being under traumatic stress. This is irrefutable! It purely a circumstantial claim that should be tried by a jury.
    Also, the belief that WC was not designed for NFL players is a farce! To dismiss this line of thinking, parallel cases that have high-risk, high end employment who have used WC in California.

  8. Joe S.
    March 10th, 2014 at 2:12 pm #

    Additional thoughts: this ruling is an assault on the full spectrum of entertainers as well as other workers. The lawyers for the WC California claimants need to establish a united, coordinated coalition of MLB, NBA, NFL, MLS, IBF, UFA-MMA, SAG, etc…that will insist on the reinforcement of an individual’s right to due process and fairness, no matter their income or social status. This would be a golden moment and plenty of publicity for any attorney!