Creating a Level Playing Field: The Case for Bringing Workers’ Compensation for Professional Athletes into a Single Federal System by Extending the Longshore Act
57 Loy. L. Rev. 793 (2011)
67 Pages Posted: 28 Sep 2012 Last revised: 13 Nov 2015
Date Written: 2012
The applicability of the workers’ compensation systems to professional athletes varies widely, depending on state law — and it is in need of a complete overhaul.
The tension between professional sports team employers, professional athlete employees, and workers’ compensation systems has existed worldwide since the early 1900s. Yet the topic has not sustained serious interest until the last decade, when American professional sports teams were “hit” with a rash of claims originating under California law. Prior to October 2013, California's workers’ compensation statutes had been liberally construed to cover out-of-state professional athletes [workers] temporarily doing business in the state, such that athletes who played only one game going back to the 1970s could establish a claim under the standard of cumulative trauma. In October 2013, California passed legislation (AB 1309) which severely limits the ability of athletes to file claims in the state under the standard of cumulative trauma.
Although such claims from former National Football League (NFL) players have generated the most attention, the subject of workers’ compensation across the professional sports spectrum, including minor league or smaller, non-unionized sports leagues, is affecting approaches to injuries and economics.
This Law Review Comment proposes a new jurisdictional home for professional athletes seeking workers’ compensation at the federal level rather than the state level. Professional athletes represent a special class of workers with multistate claims that are not adequately resolved in the current state statutory scheme of workers’ compensation and should be dealt with federally. Moreover, the spotlight on concussions increases the need for a federal-based workers' compensation system. Historically, the federal government has stepped in to regulate workers’ compensation schemes for workers that have complicated jurisdictional issues, most notably through the Longshore and Harbor Workers’ Compensation Act (LHWCA or Longshore Act) and its extensions, such as the Defense Base Act. The Comment examines workers’ compensation history, coverage/jurisdiction, state statutes, categories of injury and benefits, the insurance and claims procedure. It also explains what happens when workers’ compensation laws conflict and bleed across jurisdictional boundaries, which is at the heart of the controversy between professional team employers and their athlete employees. The Comment, officially released in 2012, also foreshadowed the passage of AB 1309 in 2013. And while the passage of California's AB 1309 may have closed a “loophole,” the issue of professional athletes' and workers' compensation remains a prominent concern for the sports industry.
A system to provide uniform and adequate workers’ compensation coverage for such employees, similar to what is offered through the Defense Base Act extension of the Longshore Act, would address such jurisdictional concerns. The Comment concludes with a proposed federal statute.
Keywords: Workers' Compensation, professional athlete, cumulative trauma, concussions, NFL, Longshore, Defense Base Act, federal, Commerce Clause
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