Sheilla Dingus
February 13, 2017
Updated February 16.2017
Just prior to Super Bowl LI, NFLPA Executive Director DeMaurice Smith made news when he blasted Chicago Bears chairman George McCaskey for endorsing a bill currently before the Illinois senate which would reduce workers’ compensation benefits to professional athletes. Illinois, which to this point has been one of the most progressive states in regard to workers’ comp, has as part of their state Workers Compensation Act, a provision that pays a wage differential benefit to permanently disabled workers through age 67. Senate Bill 0012 proposes to cut this benefit in regard to professional athletes at age 35.
When the bill, along with the fact that the owners of professional sports teams in Chicago, including the Chicago Bears support the bill, became known, Smith lashed out, referring to the bill as “just another way to bankroll the coffers of the rich owners who own these teams at the expense of the players who actually do all the work.” He further stated:
The NFLPA also posted the following to its Twitter account:
Bears owner & @GovRauner try to strip away #workerscomp from all @ChicagoBears players. Here’s how we’ll fight back: https://t.co/Bnlhew6pJg pic.twitter.com/XgPqSAo4Nd
— NFLPA (@NFLPA) February 3, 2017
A number of news sources, primarily in Chicago have picked up on the owners’ rebuttal of Smith’s claims, by way of a letter submitted to the Senate in support of the “reform” bill.
Owners’ Position:
In the letter, the principle reasons stated for support of the bill include:
Currently, the court’s interpretation of the Illinois wage differential laws assumes that a professional athlete will continue his athletic career until he reaches the age of 67. Clearly, this is an error that needs correction. According to Ram Financial Group, the average career of professional athletes is: 3.5 years for an NFL player; 4.8 years for an NBA player; 5.6 for an MLB player; and 5.5 years for an NHL player.
Total and average workers’ compensation payout in Illinois far exceeds the amounts in any other state;. . . and no other state has players filing wage differential claims for benefits through age 67.
The states of Florida, Texas and Missouri have separate workers comp provisions for professional athletes, and Michigan specifically limits highly paid professional athletes from collecting any wage differential benefits.
While those statements are truthful, there’s actually much more here than meets the eye. When initially looking at the first bullet point, which states average sports length career averages for professional athletes one might tend to agree that the provision should be changed. But these same athletes if not disabled would continue to work beyond their sports career retirements. Is there a good reason why, if they are disabled to the point of being permanently unable to work in other occupations that they should be compensated differently than other workers and penalized for the simple fact that they are professional athletes?
When examining the second bullet point which states that Illinois payouts exceed that of other states one is tempted to assume the taxpayers are footing the bill. They are NOT. Workers’ comp is funded by employers through premiums paid to workers’ compensation insurers. Therefore tax payers are not on the hook for these or other workers’ compensation claims.
NFLPA Position:
The NFLPA has posted an official statement on their website rebutting the arguments made by the owners group. Notable points include:
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There is no good reason to treat professional athletes differently from other employees who get injured on the job.
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This is NOT a state budget issue. The proposed legislation will have no impact on the Illinois budget, which is how club owners and Senator Radogno are trying to sneak this bill through. This bill has NO impact on the taxpayers of the state.
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Claiming this is a “wage-differential issue” is a dangerous distraction. The workers’ compensation system is designed to help all employees receive lost wages and medical care in the event of a workplace injury. Taking away either of those benefits is essentially changing the entire right, which is harmful to all workers everywhere and can lead to a change in the rights of employees in other professions.
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The Bears in their “letter” to the Senate note, “we have reviewed the proposed amendment to Section 8(d)(2) of the Illinois Workers Compensation Act” and note they “express[ed] their full and complete support of the proposed amendment”, which certainly is not too surprising since they wrote the bill and are asking the Senator to advance it. This is merely an attempt by the owners of these clubs to use the state legislature to save money on injured employee-athletes when no other employer in the state is being given such a break, and with no apparent justification for such a cost-saving measure. Indeed, these teams are financially secure and can afford to pay what all other employers are required to pay in Illinois. (emphasis mine)
I find the last point in the NFLPA statement particularly disturbing. It appears that sports teams are trying to trim costs that no other employer in the state will benefit from in a way that has great potential harm to the athletes they employ. In an interview with workerscompensation.com, NFLPA assistant executive director George Atallah said, “We want one of two outcomes: For the NFL to call the Chicago Bears and tell them to stop this, or for the state senator to pull this bill on behalf of the Bears and the other professional sport teams who essentially wrote it for her.”
The NFLPA said workers’ compensation is a social contract set up for fairness, whether a worker is a professional athlete or not. “Is the next step to eliminate benefits for oft-injured employees like firefighters or police officers?” they ask.
Answering yes, Maxime Rieman, director of product marketing at CoverWallet, an online insurance platform that simplifies insurance for businesses out of New York, NY said the bill questions what is a fair career length for more than just high-paid football players.
“It raises the question of other employment areas,” she said, adding a New York City officer’s average career length is 20 years. “Is this law going to reduce regulations as well?”
MLSPU Position:
The players’ union for Major League Soccer has also taken a position against Illinois Senate Bill 12. Union Director Bob Foose, in an interview with Empire of Soccer, reiterated DeMaurice Smith’s feelings in regard to the proposed legislation, “Very simply, it’s just a money grab by the owners, the teams. It’s not going to save the taxpayers any money. It is going to reduce the workers compensation benefits for athletes who get hurt on the job which is close to all of them and the money that is saved will just be kept by the teams. It’s an attempt by the teams to shirk their responsibilities under the workers compensation laws and to treat athletes differently than any other worker. There’s no real justification for it other than that.”
Like the NFLPA, the MLSPU poses that the bill will most significantly impact athletes making less than $100,000 per year, and states that there are at least nine active players for the Chicago Fire who fall into that category.
“The reality is that the workers compensation laws are intended to apply to workers, they’re not sports-specific,” Foose said. “To treat athletes differently is inconsistent and unprincipled. We don’t carve out other workers from these provisions. There are situations where an athlete and a different team employee could suffer an injury on the job so this provision would treat the athlete different than the team employee for the same injury caused by the same event. There’s no principled reason for this other than to enrich the owners of the teams.”
The NFLPA statement gave an example of how this could occur:
A 23-year-old rookie running back is tackled into the sidelines in his first pre-season game, striking a 23-year-old coach. Both employees suffer career-ending injuries. Under the proposed language in SB 12, the outcome of their wage differential recovery would be completely different. The coach would have access to benefits through age 67, but the rookie would see his capped at age 35. This is unfair, unreasonable and unnecessary. Why is the player punished and his co-employee is provided full benefits? This does nothing to lower the state budget since workers’ compensation is paid for by the private employer.
Foose reinforced the NFLPA position further in stating, “The NFLPA’s DeMaurice Smith said they have a 100 percent injury rate, I don’t know if we’re quite that high but we’re awfully close. In other words, athletes get hurt on the job and those injuries are costly in their ability to earn a future living in many, many cases.”
Mr. Foose’s last statement is very important. One must remember this is not a pay-out for minor injuries but for total and permanent disability that not only impacts the athlete in regard to his playing career but post-sports vocations.
NHLPA Position
On 2/15/17 TSN reported that the NHLPA has joined with the football and soccer players associations in opposition of this bill. According to TSN, “An NHLPA source said the union has communicated with Blackhawks players about the bill and may follow the NFLPA’s lead, urging players against signing with the Blackhawks if the bill is passed.” The Signal Group and Chicago lobbying firm Nicolay & Dart have been hired by the unions representing NHL, NFL, MLB, and NBA players to try to prevent the legal change, according to TSN’s Rick Westhead. “Pro athletes in Illinois should care about this,” said Rob Chamberlain, a lobbyist with The Signal Group. “This change would treat them differently from any other employee in the state of Illinois, including their own coaches.” In addition, two NHL player agents who spoke on condition of anonymity because they represent players currently signed to the Chicago Blackhawks, said that they would advise their player-clients not to sign with the Blackhawks if the bill is passed.
My Take:
One of the more troubling aspects of this bill, at least to me, is the manner in which its sponsors are trying to push it through. It is part of a huge budget bill for the state of Illinois with the workers comp provision buried amid layers of other legislative proposals, all the while having absolutely nothing to do with the state budget. Like many other special interest perks, at both state and federal levels, its sponsors attempt to “sneak” it through as part of a bigger package that otherwise has nothing to do with the whole of the legislation.
George Atallah rightly stated in an interview with workerscompensation.com:
“It’s the women’s basketball player who makes $30-60,000 a year who can’t play and is out of work. It is the minor league hockey player, the minor league baseball player, minor league soccer player, pick your sport, they are all going to be affected by this,” reports the NFLPA. Atallah said Senate Bill 12 is nothing more than an attempt to use the legislation system to carve out different classes of laws for different classes of employees. “That’s not right,”
This bill appears to play upon the resentment many people feel toward the high salaries of professional athletes or apathy toward them in regard to the percieved salaries. What many may never take into consideration is how this affects athletes like minor league baseball players who are struggling to make minimum wage as opposed more “visible” sports where higher salaries tend to make headlines, or the guy who gets hurt in training camp and never has the opportunity to earn that potential income. But – as I’ve written numerous times before – many, if not the majority of players are not millionaires. Numerous pro-football players have a six-figure salary, and while this is by no means shabby, it’s not out of line with what countless other professionals make without the extreme injury risk. Regardless of whether a player is on the high or low end of the salary scale, he plays under a non-guaranteed contract which can be voided at will and frequently is when injuries become a concern. This is especially true of “non-star” players who are often apparently seen as plug and play cogs in mechanics of football. If passed, this will greatly harm athletes whose careers have ended prematurely due to injury while benefiting team owners who are exponentially wealthier than even their highest paid athletes.
This bill is all the more troubling when it is examined closely. The state of Illinois caps the wage differential award at $1,075 weekly or $55,000 per year, therefore it would make no difference if an NFL player earned the league minimum of $450,000 per year or a larger salary in the millions, he would draw under the current wage differential $55,000 per year. Athletes in minor leagues or d-leagues would receive much less. While an athlete may not have a sports career past the age of 35 as the owners argue, it is likely that athlete would continue to work in some field if not disabled. Why should he or she be singled out as the only occupation to loose this benefit?
Furthermore, NFL teams (and likely others) frequently push athletes back into play before it is prudent through the over-use of prescription painkillers, often inflicting permanent damage to the player’s musculoskeletal system, and sometimes internal organs in the process. Many athletes trust their team doctors and trainers to look out for their best interest and return to play unaware of the risk, or do so in spite of the danger because of the threat of loosing their jobs should they fail to get back in the game. Ultra-wealthy team owners should not be given a free (or even discounted) ticket in regard to accountability on the part of their employees, any more than grocery stores, or hospitals, or construction companies, or any other employer, especially considering the “return to play culture of sports” could be as much at fault for some disabilities as the initial injury incurred. Considering the revenues sports teams generate is their any reason why their responsibility to specific employees – notably the players without whom there would be no team should be minimized? Is there any justifiable reason they should be dealt a “get out of jail free card” when it comes to workers’ comp responsibilities when other employers aren’t?
Instead of trying to “reform” the Illinois workers’ comp program, other states should see it as a model of caring for workers (including those in professional sports) who find themselves totally and permanently disabled as a result of injury incurred as a result of their work. The fact that Florida, Texas, Missouri, and Michigan treat professional athletes differently should not be reason for a state with a progressive worker’s compensation policy to move backward. Instead, it should be viewed as something other states should correct, since they are curtailing benefits to those most at risk of becoming severely injured.
But the NFLPA should not get off the hook here either.
Although I agree with the NFLPA’s position on this issue, I feel they’re relying too heavily on state law for protections that should be collectively bargained. As we’re seeing in Illinois, laws can change, and as such can’t be taken for granted in regard to players’ health. Most players do not leave football immediately as the result of a catastrophic injury which suddenly ends their playing career or the ability to do other gainful work which is the scenario in which the workers’ compensation differential would cover long term wages. Many do, however leave professional sports with the after-effects of cumulative injuries which do impact the type of work they’re able to perform upon retirement.
Latent injury is also a huge risk for pro athletes, especially those in contact sports such as football, hockey, and even rodeo and horseracing, in regard to brain injuries sustained while performing their jobs. Former Titans tight end Frank Wycheck, whose symptoms lead him to believe he has CTE recently weighed in on what it’s like to suffer the after effects of repeated blows over the course of a professional football career. Though he fondly recalls his playing years and currently works as an analyst for the Titans, he suffers migraines, anxiety and depression as a result of the more than 25 concussions he’s aware of suffering as a result of football.
“I worry about, I’m scared about the time if I actually get to that point where these guys [who have committed suicide] have snapped,” Wycheck said, via Paul Kuharsky of ESPN.com. “What has made them snap? And that is what I am scared of, that there is something that is going to come over me that is going to make me snap.
“I don’t think I am going to do it, but those guys you would never think in a million years would. And that’s the scary part about it. There is no one that can tell you really anything. It’s just, the damage is done.”
While Wycheck is able to work many others aren’t so fortunate.
Numerous retirees, healthy and otherwise often state that the NFLPA is the union for current and future players but not former NFLers. Even healthy former players have voiced concern that health insurance lasts only five years after retirement. After that the COBRA provisions available strain the budgets of many ex-players and are completely unaffordable for others.
The NFLPA has bargained for various levels of disability benefits for retired players which look great on paper but are very difficult to obtain in reality except at the lowest levels. Most benefits are denied on technicalities by a disability plan board composed equally of NFL and union representatives. Most insiders I’ve spoken with believe this is financially motivated because what isn’t contributed by owners comes off the salary cap impacting current players. I’ve written in detail about this in the cases of Jesse Solomon and Darryl Ashmore, whose claim was denied without even a review of his medical records. These men are representative of hundreds more.
Bottom line – a better job can be done to provide for injured athletes at the state levels through legislation that provides equal benefits to athletes as other citizens and through the union, not only in negotiating for player benefits but striving to represent and care for all who have ever played the game. It’s time for everyone to come clean.
Sheilla Dingus founded Advocacy for Fairness in Sports in October 2016, after a stint with Defenders of the Wall, a New England Patriots based blog where she dived deep into the legal aspects of Deflategate. Along the way, she observed many inequities in sports and felt a need to address some of the under-reported stories in sports law. She draws from her background as a former professional dancer, who like many of the athletes she writes about, took an early retirement due to orthopedic injuries. After a return trip to college she worked for a legal software company, with seven years as a Project Manager and Analyst. She brings her analytical skills to the table in breaking down complex lawsuits, and enjoys pursuing her longtime interest in journalism.
