AB 1309 A Question of Fairness: Really?

“Politics is like football,” President John F. Kennedy once said and the passage of AB 1309 by the California State Assembly makes the proverbial political football real – too real in fact for many NFL players.

Terrelle Smith, a retired NFL player with a 10-year career as a fullback for the New Orleans Saints, Cleveland Browns and Detroit Lions, is one of those players. It was December 10, 2000, Smith’s rookie year with the Saints and the team was looking to make a run for the championship.

The Saints were facing the 49ers in San Francisco. Fullbacks, Smith describes, as the “janitors of the NFL with their job to clear the way for other players to make the big plays.”  Throughout his career Smith used his body and technique to clear those paths and the 49ers game was no exception. The hits he took that game didn’t seem significant to the fans watching, or even Smith, until a few hours later.

“During the flight home I felt something wasn’t quite right,” Smith said. “I was in a lot of pain and by the time we landed I couldn’t move and they had to call the paramedics. I was told that I had several bulging disks and needed an immediate operation.”

Smith was sidelined for the rest of the 2000 season and in the end suffered a broken back and has since undergone several surgeries. His team went on to finish first in NFC West that year.

A native of California, Smith went to grade school in California, played football in California since the age of 6 and maintained a home base in the state throughout his college and pro careers. He currently lives in Riverside with his wife and four children.

California Assemblyman Henry Perea, a Democrat, Chair of the Insurance Committee and author of AB 1309 calls it “‘Californians First’ a bill to close an out-of-state pro athlete payout loophole in the state workers’ compensation system.” Under AB 1309, Smith is one of those “out-of-state” workers that will be denied compensation benefits simply because he was a professional athlete. Smith is definitely a Californian just not one that is included in Perea’s view of ‘Californians First’.

Under AB 1309, a professional athlete employed at the minor or major league level in the sport of baseball, basketball, football, hockey, or soccer, would be prohibited from filing a workers’ compensation claim in the state of California unless they played their last season for a California team.  In cases of cumulative trauma, only athletes who were employed in California for 90 days out of their last year would be eligible to file. An exception would allow players who have played at least 80% of their career or 8 years with a California team to make a claim.

This legislation has been introduced while at the same time efforts are underway to bring a fourth NFL team to California.  Negotiations have focused on adding a team to Los Angeles while keeping the San Diego Chargers, the San Francisco 49ers and the Oakland Raiders. Nine of the bills current eleven legislative sponsors represent districts that are considered part of an area impacted by an existing or proposed NFL team.

The owners of all 16 California professional teams are supporting the bill.

Perea says, “It’s a question of fairness” but fairness to whom?

“This bill doesn’t close a loophole but cuts off workers’ compensation rights for players that were injured in California,” says DeMaurice Smith Executive Director of the NFL Players Association.

AB 1309 if adopted could lead to some absurd results and will bar many NFL players who have played, practiced or are injured in California from receiving compensation. For example,  a player  injured in his rookie year while playing for a California team, is then cut at the end of the season and picked up by a non-California team for following season (but while on the team roster never actually plays in a game), would be prohibited from receiving compensation under AB 1309 for the injuries he incurred during his California employment.

Additionally, players that work in California regularly, like the Dallas Cowboys who train in Thousand Oaks, California, would be prohibited under AB 1309 from filing a claim for workers’ compensation in California if they are injured during camp while staff and management of the team remain eligible.

Although the proponents of the bill focus on the small percentage of professional players that earn multi-million dollar salaries, the reality is that the majority of the minor and major league athletes impacted by AB 1309 have very low salaries and frequent work related injuries.

Arena Football players earn just over $800 a game. Recently increased from $400.

Minor League Baseball players earn $1,110 a month during the season.

Minor League Hockey players earn $32,500 a year.

The bill arbitrarily discriminates against a small class of workers. The Bureau of Labor Statistics reported, as of May 2012, there were 12,450 individuals nationally registered as an athlete or sports competitor (8,810 if you focus only on spectator sports).

Given the trends in workplace safety it’s hard to understand how arguing for less protection for athletes is fair. While athletes made up less than one percent of all workplace fatalities during the 1992-2002 period, their occupational fatality rate was nearly five times greater than the rate for workers overall. Also, while the overall occupational fatality rate declined over that same period, the rate for athletes increased.

Geographically, the largest number of fatal workplace injuries to athletes occurred in Florida (11.0 percent) and the second largest in California (9.6 percent). Note that several states, including Florida, do not require workers’ compensation insurance coverage for professional athletes.

While the above stats focus on fatalities for all athletes, the immediate impact of AB 1309 will be felt by the thousand of former NFL players that have claims currently pending in California. Many of those cases have been pending for more than three years. The bill provides that changes in the workers’ compensation laws would apply retroactively to all pending (or not yet filed) claims for benefits by athletes. Players who have paid for the benefit of workers’ compensation and are currently entitled to protection under the law, would lose their vested rights.

“I have things that are happening to me physically that are  just lingering because I am waiting to see if I am covered,” say Ernie Conwell who played 12 years in the NFL with the New Orleans Saints the St. Louis Rams.

“I am one of those guys that wakes up in the middle of the night and shoulders are aching and sometimes I can’t lift my arms above my head,” Conwell says.

Over his career, Conwell has had close to 20 surgeries about 11 on just his knees.  He like, Terrelle Smith, is postponing needed surgeries and treatment while waiting for his workers’ compensation case to be resolved.

“Saints and Rams didn’t dispute that I am injured.  My past employers don’t deny that my injuries occurred while I was playing for them.”  Conwell added, “It would be difficult for a team to dispute a player’s injuries given the detailed medical records the teams keep on the players, their injuries, treatments and numerous surgeries.”

Based on studies over the past 15 years and on the testimonials of former players, escaping injury is impossible. Nearly two-thirds suffer an injury serious enough to require surgery or sideline them eight games or more. In addition, six of every 10 players suffer a concussion; more than a quarter will suffer more than one, and the odds are that any player who suffers a concussion will later experience headaches and memory problems.

The injuries often have a long latency period and do not manifest themselves sometimes for five or ten years. Obvious known conditions that fit in this category are dementia, Alzheimers, long-term depression, and ALS (Lou Gehrigs disease) caused by the cumulative impact of repeated concussive collisions.

Less talked about but just as real is knee and hip injuries that also take several years before a total replacement is necessary. Under AB 1309 employers would be relieved of liability and in many cases the cost of medical care for the player is then pushed to taxpayer funded programs like social security, Medicare and Medicaid.

“As soon as I tell an insurance company that I played in NFL I can’t even get a quote. If I can get a quote it is outrageously high and excludes all my pre-existing conditions” is a common statement by former players.

Players who work fewer than three seasons don’t qualify for long-term health benefits and nearly 60 percent of players who later apply for disability benefits (a program administrated jointly by management and the NFLPA) are denied benefits. Currently, about 3,000 former players are fighting the league for medical compensation.

They are filing their insurance claims in California because it is the only state where they are eligible to file an insurance claim against their team. Many other states do not even recognize cumulative trauma claims.

“I am not doing anything I am not entitled too,” says Terrelle Smith.  “Workers’ compensation will give me a start in helping me get my health in order so that I can take care of myself and my family.  I budgeted, saved and planned for my life after football.  I shouldn’t have to deplete my savings and go into debt to pay for treatment from injuries I received on the job.”

“Workers compensation isn’t a ploy to game the system.  It is really about getting medical coverage and some compensation to help players heal and deal with injuries post career,” says Conwell.

Truth. Who’s Really Paying?

In support of AB 1309, Perea says that claims by athletes are a drain on the California workers’ compensation system and wind up hitting all California employers with higher premiums and surcharges that pay for outstanding claims left by failed insurance companies.

“These changes to the law are necessary to ensure that our workers’ compensation system is no longer being overly-burdened by claims that belong in other states – especially since in many cases California’s businesses are being asked to foot the bill,” claims Perea.

This argument is simply untrue says, Modesto “Doc” Diaz, Managing Partner of Leviton Diaz & Ginocchio, Inc. He says workers’ compensation paid to athletes is not taxpayer supported.

“Athletes are taxed on earnings when playing a game in California, whether or not that player resides in the state.  In fact, the tax even covers signing and performance bonuses regardless of whether such activities take place in California, (on a pro-rata basis),” says Diaz.

“California is one of the more aggressive states in taxing athletes,” added Diaz. “It seems unrealistic to ask these athletes to contribute to the tax base of California and then deny them basic access to the courts of this state for purposes of pursuing workers’ compensation benefits if they can otherwise demonstrate that they have sustained injury within the borders of the state.”

As for covering the cost of workers compensation insurance, DeMaurice Smith, said  “a prorated share of a team’s workers’ compensation bill is calculated into athletes’ salary caps, so, in effect, players are paying for their own insurance coverage. They pay for their own benefits.”

“AB 1309 will correct an inefficiency for California employers, California employees, and the workers’ compensation system itself,” said John E. York, San Francisco 49ers Chief Executive Officer in a recent statement.

Smith strongly disagrees, “This bill is designed to make [team] owners richer and is yet one more step of removing themselves (owners) from accountability.”

Having passed in the Assembly, the bill has been sent to the State Senate where it is currently in committee.

Football wrote George Will “is violence punctuated by committee meetings.” As usual, George got it right.

Follow Melissa Mahler on Twitter: @Melissa_PPI and click here to visit her Pro Player Insider page.