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Workers Comp in the NFL

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Tom Tupa was an NFL punter from 1988 to 2005. His 17-season career with seven teams ended abruptly on August 19, 2005 during a warm-ups for a preseason game. Tupa punted a ball and immediately fell to the ground complaining of back pain. It was the last time he stepped foot on the field as an NFL player.

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Football is inherently a violent sport; a game wrought with injuries. Players know this and because of the nature of the game, they are very rarely awarded workers compensation benefits. Tupa, as it was recently proved, is an exception.

Yesterday, Maryland’s high court rejected the idea that football injuries should not be considered accidental because of the rough nature of the sport.

Tupa’s injury happened “out of and in the course of (his) employment,” the Maryland Court of Appeals said in its 16-page opinion.

“He was warming up for a game when he landed awkwardly and thereafter sought immediate medical treatment,” Judge John Eldridge wrote in the opinion. “Ample evidence was presented to show that Tupa suffered a compensable accidental injury during the course of his employment.

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The team and insurers argued that Tupa’s injury was not an accidental personal injury within the meaning of Maryland’s workers’ compensation law. The court rejected that argument.

Just two weeks ago it was another story with a another player, however.

Bruce Matthews played for the NFL with several teams for 19 years before retiring from the sport in 2002. In 2008 he filed a workers comp claim in California, stating that he was injured in various locations throughout the state during his career, but failed to specify which injuries occurred in California.

But the state court wasn’t having it.

“He did not allege any specific injury in California or a need for medical services in California,” the ruling reads. “Matthews likewise did not allege in his complaint before the district court that he suffered any discrete injury in California. Nor has he directed us to anything in the record indicating that he tried to prove injury in California, or any burden on the state’s resources.”

The court noted that employees cannot bargain away state minimum labor standards in arbitration or collective bargaining agreements. But it said that argument does not apply in Matthews’ case, because he did not prove that he has a claim under California workers’ comp law.

In addition to potentially increasing workers comp claims, the NFL also has the issue of lawsuits stemming from player concussions. A fight is currently underway between the league and insurers over who will pay to defend the NFL against lawsuits involving more than 2,400 former players.

The NFL remains in hot water and seems to be hemorrhaging money on legal services.

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Will the sport become a safer one? Will the league eventually run out of funds. Both are highly unlikely.

Or are they?

Former Players Sue the NFL

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Risk Management, along with numerous other publications, have covered the serious problem of concussions — and their repercussions — within the NFL. From the sad stories of Andre Waters, Terry Long and Tom McHale, the bad press surrounding the situation has worsened as science has begun to link frequent, recurring concussions to brain damage.

Many feel the NFL is to blame. Fingers have been pointed and now papers are being served as 11 ex-players filed a class-action lawsuit Friday in federal court in New Orleans. According to the documents, each has developed mental or physical problems from concussions suffered during their professional football careers. As the lawsuit states:

“Wanting their players on the field instead of training tables, and in an attempt to protect a multibillion dollar business, the NFL has purposefully attempted to obfuscate the issue and has repeatedly refuted the connection between concussions and brain injury to the disgust of Congress, which has blasted the NFL’s handling of the issue on multiple occasions.”

And it’s not only the NFL that is being taken to court over these allegations. Helmet maker Riddell was also named as a defendant in the suit. According to a recent report, the company marketed its football helmets as reducing or preventing concussions despite having no scientific or medical evidence to support the claim.

It is certainly easy to put the blame on the league and the maker of helmets worn during play, and in no way should they be considered innocent. But what about personal responsibility? What about risk management for thy self? Football is inherently a dangerous sport to be played at the players own risk. Should others be held fully responsible for a game that has, since the first game was played in 1869, been known to cause various injuries and even death (mostly indirectly)?

 

Lawsuit Over NFL “Spygate” Revisited

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Carl Mayer is a Jets fan — a season ticket holder who drives from his Princeton, N.J. home to Giants Stadium to watch the gridiron action each season. Mayer was rightfully upset when, during the Jets’ 2007 home opener, the New England Patriots were caught videotaping his team’s signals. So the Jets fan, who works as a lawyer, decided to take action — he sued for $185 million.

“The game will become more and more corrupt if there is no remedy,” said his lawyer, Bruce Afran. “The NFL will degenerate into the WWE (World Wrestling Entertainment).”

Though his original suit was dismissed, he is asking the appeals court to revive it, stating that he hopes to learn the extent of the Patriots’ taping. Taping that brought about a $500,000 fine against Patriots coach Bill Belichick along with the loss of their first-round draft choice. But that punishment, enacted by the NFL, didn’t calm the angry Jets fans. They claim they were literally robbed of fair football games.

In the suit, Afran and Mayer claim that an investigation led by U.S. Sen. Arlen Specter, D-Pa., revealed that the Patriots’ secret taping went on for seven years.
In their appellate brief, the plaintiffs lawyers said the case was about “a massive, systematic organizational scheme to steal opponents’ signals and cheat ticket-holders of a contest played according to NFL rules.”

In the suit, Afran and Mayer claim that an investigation led by U.S. Sen. Arlen Specter, D-Pa., revealed that the Patriots’ secret taping went on for seven years.

In their appellate brief, the plaintiffs lawyers said the case was about “a massive, systematic organizational scheme to steal opponents’ signals and cheat ticket-holders of a contest played according to NFL rules.”

The brief said that “such pervasive cheating has consistently given the Patriots an unfair, illegal advantage over its opponents and systematically deprived plaintiffs of the right to witness football matches played fairly as advertised and according to NFL rules, which is what plaintiffs contracted for.”

In the 3rd Circuit Court of appeals yesterday — that was the question: Is the purchase of a Jets ticket the purchase of a contract between fans and the NFL and do consumer protection laws apply? The decision of whether or not this case will make it to trial is expected within two to three months.

What do you think? Is the purchase of a ticket a contract entitling the ticket holder to a fair game?

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More Headaches for the NFL

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In recent months, the concern about concussions and their long-term effects among NFL players has gained widespread attention. In the past month alone, two high-profile players — running backs Clinton Portis of the Washington Redskins and Brian Westbrook of the Philadelphia Eagles — have sustained concussions that have put their seasons in jeopardy. Meanwhile, in a hearing before the House Judiciary Committee last month, NFL Commissioner Roger Goodell defended the league’s policies amid heated criticism and accusations that the league has failed to protect and care for its players.

“I have been clear: medical considerations must always come first,” Goodell said. “We are changing the culture of our game for the better. Our goal is to make our game as safe as possible for those who choose to play it and treat our retired players with the respect and care they deserve.”

But after a weekend that saw both starting quarterbacks from last year’s Super Bowl — Ben Roethlisberger of the Pittsburgh Steelers and Kurt Warner of the Arizona Cardinals — leave their games early after suffering blows to the head and three members of the St. Louis Rams — quarterback Marc Bulger, linebacker Chris Chamberlain and offensive tackle Jason Smith — forced to undergo tests for possible concussions of their own, the NFL has decided to implement a new approach to handling concussions.

According to the plan, teams will be required to use independent neurologists to treat players with brain injuries. While teams already employ their own medical staff, outside consultation will eliminate potential of conflicts of interest from team owners and coaches who want injured players to return to the field more quickly than is medically advisable. While no deadline for implementation has been put in place, about half of the league’s 32 teams have approved doctors in place already.

But the independent, objective aspect of this is the key change.

These newly appointed neurologists would be “independent of the teams themselves, and they’re rendering an opinion that is guided by expertise in concussions,” the NFLPA’s Mayer said. “They’re not part of the club medical staff, so they’re an independent voice with regard to whether the player’s ready to return or not.”

The league has also called for other players to report teammates who they suspect are suffering from concussion symptoms but the players’ union opposes the requirement.

“If every player were a medical doctor that could recognize symptoms of concussions, then that would be a great idea,” said NFL Players Association assistant executive director George Atallah. “I hope that the league — instead of asking players to police each other — would consider calling on team medical staffs and independent doctors to police the situation closely.”

Some players, like Washington Redskins fullback Mike Sellers have even gone so far as to characterize players who report teammates as “snitches,” which speaks to a larger cultural problem among NFL players. Evidently in a game that values “toughness,” acknowledging an injury of any kind is frowned upon. According to an Associated Press survey of 160 current players, 30 report having hidden concussion symptoms from team personnel and half reported having at least one concussion during their career.

So it would seem that the NFL’s fight against brain injury will not only require a change in policy but a change in attitude as well.

For more on the NFL and concussions, check out the December issue of Risk Management, coming soon.

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