Representing professional athletes as a workers’ compensation lawyer comes with its own unique set of challenges. In this episode of Workers Comp Matters, host Alan Pierce talks to Gerry Carney about some of these challenges including the jurisdictional aspects of a case that can maximize or minimize benefits. Gerry also discusses some of the Chronic Traumatic Encephalopathy (CTE) and head injury claims he’s seen and his view of the class action lawsuit filed against the NFL that was recently settled.
Gerard Carney is the founder of Carney Law Firm and has dedicated his entire career to the representation of injured workers and their families.
Special thanks to our sponsors, Casepacer and PInow.
Workers Comp Matters
Workers Comp Claims in Professional Sports
Intro: This is Workers Comp Matters, hosted by attorney Alan S. Pierce, the only Legal Talk Network program that focuses entirely on the people and the law in workers’ compensation cases. Nationally recognized trial attorney, expert, and author Alan S. Pierce is a leader committed to making a difference when workers’ comp matters.
Alan Pierce: Welcome to another edition at Legal Talk Network and Workers Comp Matters. This is Alan Pierce. I am an attorney at Pierce, Pierce & Napolitano in Salem, and we are bringing you another edition of Workers Comp Matters with today’s guest, Gerard Gerry Carney of the Carney Law Firm in Boston.
Before we get into our topic, we want to thank our sponsor Case Pacer, practice management software dedicated to the busy trial attorney. To learn more, go to HYPERLINK “http://www.casepacer.com” casepacer.com.
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Gerry Carney is a well-known and well-respected workers’ comp lawyer here in the Commonwealth of Massachusetts. He is the Founder of the Carney Law Firm, where he practices, with among others, his son Brendan. He has dedicated his entire career to the representation of injured workers and their families. He is widely recognized in the legal community as an authority in the field of workers’ compensation law, both on the national as well as the local level.
Gerry also represents professional athletes in injury claims and he has been an active member of the National Football League Players Association Workers’ Compensation Panel for more than 20 years.
So today I want to welcome Gerry and we are going to talk about the interesting issues that may arise when representing professional athletes, such as players from the NFL and other of our professional organized sports. So, Gerry, welcome to Workers Comp Matters.
Gerry Carney: Thank you Alan. Thank you for your generous welcome and it’s a pleasure for me today to be on Workers Comp Matters with you.
Alan Pierce: Well, let’s get right into it because workers’ comp is a bit of a niche practice in the general field of law and representing people such as players for the NFL or some of the other professional sports leagues is a niche within a niche and I know that my comfort level is that when the occasion comes by me that I might be called upon to field an inquiry from a professional athlete, you are one of the guys that I call, because frankly, you folks have a whole series of issues that we may not see generally in our usual workers’ comp practice.
So, let’s maybe start off by isolating what might be some of the unique challenges to representing professional athletes such as a professional football player from the NFL.
Gerry Carney: Well, one of the first issues that comes to mind Alan is the fact that when you are before a judge who may for the first time be hearing a claim by a professional athlete for workers’ compensation, there might be a bit of a bias that you have to overcome about a highly paid professional athlete seeking injury benefits under workers’ comp.
Generally speaking, it is clear what we try and do initially is to point out that our statute has long recognized that professional athletes are entitled to workers’ comp benefits here in Massachusetts for a period of disability that extends beyond their salary rights payments from the team. So, it has long been recognized.
The first workers’ comp claim for professional athlete that was adjudicated here in Massachusetts dates back to 1979 and a complete hearing decision was rendered back in 1979, and since then there’s been many hundreds of professional athlete claims pursued here in Massachusetts alone.
Alan Pierce: Yeah, you mention that there is an exclusion for coverage in Massachusetts at least and perhaps you can expand as to whether that includes other jurisdictions, so long as the player is covered under their contract. In other words, Aaron Rodgers just went down; Julian Edelman, one of our star receivers, went down, they are still under contract, so I am going to assume they would not have a workers’ compensation claim, or at least not one yet. Is that correct?
Gerry Carney: Well, as you know Alan, every state has their own individual workers’ compensation statute. Here in Massachusetts our statute clearly indicates that a professional athlete is excluded from entitlement to workers’ comp indemnity benefits for a period of disability in which he or she remains entitled to salary payments from the team, but that’s a limited exclusion.
Alan Pierce: What about medical benefits?
Gerry Carney: Medical benefits are typically provided by the team. The team is typically spending hundreds of thousands of dollars per year, if not over $1 million per year in premiums for coverage which the team would normally submit medical bills for treatment for active roster players to their comp insurer for payment.
Alan Pierce: Now, being a member of the NFL Players Association Panel, you obviously have colleagues in all of the jurisdictions where there are likely to be professional teams. There is probably 20 plus jurisdictions for the NFL alone given the fact that there are 32 teams, several in each state. Don’t you have to go through an analysis every time you get a case as to where it might be best to bring a claim because eligibility and amounts of benefits vary from state to state and how do you do that?
Gerry Carney: Absolute Alan. One of the functions of the NFL Players Association Workers’ Comp Panel is for us to communicate regularly with each other when a player gets injured to discuss the jurisdictional aspects of where the best jurisdiction might be for the particular player to maximize benefits, keeping in mind that some jurisdictions such as Florida, Texas and a number of other states have significantly limited the benefit which an injured player may be entitled to by statute. So, in that sense obviously if a player who was playing for a Florida team happens to be injured in another jurisdiction such as Massachusetts, it very well may be that Massachusetts is the best place for that player to initiate his claim for workers’ comp.
Alan Pierce: Now, we both know from practicing in Massachusetts that Massachusetts at least will assert jurisdiction if the injury occurred within the borders of Massachusetts, which obviously if the injury occurred at Gillette Stadium in Foxborough, no matter what team you are playing for, Massachusetts would have jurisdiction. But it also has to do with where the contract was entered into between the team and the player. Can we assume that most Patriots’ players, their contracts are executed in Massachusetts or do you sometimes find a different state that might have jurisdiction?
Gerry Carney: The typical scenario is that the player or his agent who has legal authority to execute a contract on behalf of the player would execute their contract first and have it returned to the team and the team would execute here in Foxborough if it was the New England Patriots. So that would obviously be the contract of hire here in Massachusetts.
Alan Pierce: You mentioned at the beginning the taking a case before a judge who may not have seen a professional athlete case before may have some questions, if not preconceived notions, about why would somebody who is making millions of dollars need a workers’ compensation claim. Give us an idea of the statistics in terms of the number of players and the relatively few that might be making a salary in that range and what happens to the rank and file guy trying out for a team, injured at practice on a taxi squad or practice squad and what happens in their life when they get hurt or their career ends?
Gerry Carney: As you know Alan, the salaries for professional football players and all other professional athletes vary tremendously from a practice squad player up to a veteran, a seasoned veteran.
So, for example, the present minimum practice squad salary for 2017 is $7,200 per week for the player and that is only paid during the 16-week season and that would assume that the player is on the practice squad for the full 16-week season as far as football is concerned.
So, we have seen cases where, unfortunately, might have a first year player attempting to make a team. He sustains a serious career-ending injury while on the practice squad. And perhaps that player has not a real opportunity to have alternative earnings outside of his professional sport.
I have represented players for example who unfortunately had a career-ending injury, and one player comes in mind, unfortunately he was making a minimum wage as a security guard in East St. Louis, Missouri. So, it varies.
What I want to emphasize is the fact that most professional athlete player unions, as well as the NFLPA, have emphasized the importance of players of workers’ compensation benefits, primarily because of the medical benefit aspect of workers’ comp. As you know, the typical health insurance policy specifically excludes coverage for medical expenses for injuries that occur in the workplace.
So, the workers’ comp medical benefit has always been a focus of most professional athlete unions to ensure that players are covered for their injuries, for medical treatment, and as you know, many of these injuries have long-lasting effects. A player may 5, 10, 15, 20 years after his career has ended may be in need of knee replacement surgery, shoulder replacement surgery, any number of other significant medical procedures that but for workers’ comp that particular player would not have medical coverage for those particular medical treatments that are necessary.
Alan Pierce: All right. Well, before we move on we are going to take a quick break for a message from our sponsors and we will be right back with Gerry Carney and workers’ compensation and NFL players. We will be right back.
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Alan Pierce: And we are back. We left off with Gerry Carney and discussions regarding representing a professional football player, professional athlete.
Gerry, we kind of were focusing on the individual problems that might come up in Massachusetts versus Florida versus Texas, what might you say to our listeners that might represent some of the common issues and problems that transcend jurisdictional or state boundary lines that are of significance to anybody, either bringing a workers’ comp claim for an athlete or representing an athlete?
Gerry Carney: Well Alan, there are certainly unique issues that present itself in representing a professional athlete in workers’ compensation claims. One of the issues that has raised its head for many, many years in professional athlete workers’ compensation cases is the issue of offset. Professional athletes may have their salary continued for a period of time after their injury, in some jurisdictions they are not precluded from bringing a workers’ comp claim while they are continuing to be paid.
However, obviously that raises the issue of what is the offset, should it be a dollar-for-dollar offset or should it be a time offset for the period in which the player also receives salary.
Those issues have been litigated for many, many years and finally the NFLPA and the League in their last collective bargaining agreement in 2011 resolved the offset issues once and for all, and made it clear that the teams were entitled to an offset only for the period of time that the player received both salary and workers’ comp benefits and not a dollar-for-dollar offset.
Other types of issues that are often raised in the professional athletes’ workers’ compensation case are jurisdictional issues. In many player contracts today, the teams have included as an addendum to the standard player contract a forum selection clause and a choice of law provision to indicate, for example, a Florida team would have a clause as an addendum indicating that the laws of the State of Florida are to be applied as well as that it should be litigated in the State of Florida.
However, interestingly, this issue has also been litigated. A recent case that comes to mind was a case that was litigated by a colleague of mine on the NFLPA Workers’ Comp Panel, Ed Abes, who is a WILG member as well. And he had a case of a Florida player, Miami Dolphins player who was injured playing a game in Pittsburgh and Florida asserted that the case should not be heard in Pennsylvania because of the fact that there was a forum selection clause, there was also a choice of law provision indicating that the Florida Law should apply.
The case was brought in Pennsylvania clearly because of the fact that the Florida workers’ comp benefits were deemed to be grossly inadequate in relation to the benefits that were available in the State of Pennsylvania.
The case went up to the highest court in Pennsylvania and they held that the forum selection clause and the choice of law provisions would not apply in the State of Pennsylvania because of the fact that the Pennsylvania statute clearly said that a player or a team cannot contract away the player’s rights to workers’ compensation benefits in that state. And many states also would have the same type of statutory provision.
Alan Pierce: Yeah, I think we have something more general in Massachusetts that you can’t be precluded from signing off your rights under the Mass workers’ comp statute; it isn’t restricted to NFL players, so I would assume we might expect the same result in Mass?
Gerry Carney: Absolutely. I would hope so. The issue has not been raised as yet, but I would certainly tend to believe that that would be the outcome of any litigation involving that issue here in Massachusetts.
Alan Pierce: Yeah. I remember a few years back a lot of claims were being filed in California, because California had a fairly generous jurisdictional statute and perhaps as a result of a large number of claims, and a lot of them were the head injury claims, which we are going to get into in a sec, I think around 2013 California amended its statute to restrict injury claims unless the injury occurred there. I think under the prior law, so long as the team played a game in California, whether the injury occurred or not in California was sufficient for the player to bring a claim there.
Gerry Carney: Right.
Alan Pierce: Hence, there might have been a thousand or more claims filed in California.
Gerry Carney: Prior to that amendment Alan, many players were bringing claims based on cumulative trauma and as long as they had played a game in California, that was enough to establish that there was a cumulative effect and players were compensated. However, there was litigation of a Tennessee Titans player Bruce Matthews who brought a claim in California and the eventual outcome of it was not only the California courts, but also the litigation that limited a player’s right to bring a workers’ comp claim in California unless there was actual injury in the State of California.
Alan Pierce: Gerry, we could probably fill a show or two in discussing head injury and concussions among players, but in the remaining time we have, can you give us an overview of the type of head injury claims you are seeing, how they are being resolved and perhaps a word or two on the large settlement, a class action type of litigation that was concluded not so long ago.
Gerry Carney: Well Alan, certainly in the last few years as you are well aware, CTE in traumatic brain injury cases has become a very hot topic, not only for NFL players, but all professional athletes. Boston University School of Medicine Dr. Ann McKee has done remarkable research in establishing the risk of CTE from repeated head trauma.
As far as workers’ comp is concerned, we have certainly had several cases where concussion has resulted in career-ending injuries for football players and claims have been successfully brought for those players and they continue to receive medical, ongoing medical here in Massachusetts, which as you know in an accepted liability case, those medical benefits are potentially lifetime benefits and they are certainly going to be necessary as time goes on.
As far as, as you probably know, there also was a NFL concussion litigation that was brought in the US District Court for the Eastern District of Pennsylvania. And it was initially approved, the class action and the class action settlement was initially approved in 2015; however, certain class members appealed and the Third Circuit denied their petition for a rehearing. The disgruntled class members actually filed petitions for writ of certiorari in the US Supreme Court, which was denied.
So, the actual NFL Concussion Settlement became effective in January of this year and to briefly summarize the benefits that are provided; first of all, there’s a Baseline Assessment Program that provides for neuropsychological and neurological exams for eligible retired NFL players.
The players that are covered by this Concussion Settlement have to have been retired from the NFL prior to July 7 of 2014. The testing also provides for counseling and/or treatment if they are diagnosed with a moderate cognitive impairment during this baseline exam.
There are also monetary awards that are available in this NFL Concussion Settlement, where there’s a diagnosis of death with CTE, which presently can only be diagnosed through a postmortem. That death would have to have occurred prior to April 22, 2015.
There are also monetary awards for diagnoses of ALS, Parkinson’s, Alzheimer’s and a level II neurocognitive moderate dementia impairment. And finally, the settlement also required educational programs for health and safety for a wide range, going all the way down to youth football. So, these programs are being implemented.
So that’s a basic summary. Anybody who wants to inquire about more details of the settlement, they can get the details online at HYPERLINK “www.nflconcussionsettlement.com” www.nflconcussionsettlement.com.
Alan Pierce: And if somebody wants to reach out to you and get some information, give us your contact information.
Gerry Carney: Yes. I am Gerard Carney, obviously at Carney Law Firm, here in Boston at 10 High Street, Boston, MA 02110 and I can be found at HYPERLINK “http://www.carnlaw.com” www.carnlaw.com.
Alan Pierce: Well, thank you very much. I would like to again thank our guest Gerry Carney for joining us. Please rate us on Apple Podcasts. And for those of you listening, please tune into our next show and go out and make it a day that matters. Bye-bye.
Outro: Thanks for listening to Workers Comp Matters today on the Legal Talk Network, hosted by attorney Alan S. Pierce, where we try to make a difference in workers’ comp legal cases for people injured at work. Be sure to listen to other Workers Comp Matters shows on the Legal Talk Network, your only choice for legal talk.