Guest Post: Why AB 1309 is Wrong

The following is a guest post from Dawn Neufeld, Esq. Over the past month, she has tirelessly worked to defeat the bill. Here’s her eloquent argument against the passage of AB 1309.

I felt like I got the wind knocked out of me today.  Straight sucker punched in a brawl I didn’t know I was involved in until a little over a month ago.  An early morning email informed me that California assembly bill 1309 was going before the assembly today for a vote.  After watching the bill unanimously pass out of the insurance committee last week, I figured it would easily pass out of the assembly today with little fanfare or opposition.  It did.  And I feel sick.

AB 1309 will effectively exclude professional athletes from filing workman’s comp claims in the state of California.  If passed, it will retroactively wipe out pending claims as well, some that have been in the pipeline for 4-5 years.  There are approximately 1,000 pending workman’s comp claims in the state that would be precluded if the bill passes, including Ryan’s which was filed almost 2.5 years ago.  We were completely unaware of the bill until we received a status update from Ryan’s attorney a little while back.  That’s when I started researching the bill, unaware that it was being fast-tracked through the state assembly.  The bill is on its way to the senate for consideration – no doubt it will be fast-tracked there as well.

So what is AB 1309?  AB 1309 was authored by Insurance Committee Chairman Perea to address abuse of California’s ultra-lenient workman’s comp system.  As is, the system lends itself to abuse by allowing former professional athletes to file claims in CA even if their contacts with the state are minimal.  I’ll be the first to admit that I appreciate the need to “fix” the system.  I’ve heard stories of lawyers hunting down and recruiting former players to file claims.  During the insurance committee hearing, Assemblywoman Torres noted that an insurance company’s statistics showed that claims paid out to approximately 2% of claimants involved former athletes whose only contact with California was their agents.  They had never played for a California team, played a game in California, or even lived in California.  But because of the system’s set up, they were somehow able to file a successful claim.  I don’t think anyone would argue that this is fair except for those athletes and their lawyers.

So to close the “loopholes” and prohibit athletes from “taking advantage” of the system, AB 1309 was introduced.  The original version of the bill would preclude a claim if the athlete played on another pro-team in another state, regardless of how long he played in California.  Players like LaDainian Tomlinson, Tim Brown or the late Junior Seau would all be precluded from filing a claim because they played on out-of-state teams even though they spent a majority of their career on a California team.

Assemblyman Perea attempted to address these concerns by amending the bill to include what I’m calling the 80-8 rule.  The amendment would allow players who played 80% of their career or 8 years on a California team to file a workman’s comp claim.  This may seem reasonable to some, but when looked at through the reality lens of football, it’s easy to understand why the amendment is nonsensical.

FACTS:

• The average NFL career is 3.5 years – there are probably a handful of players who will actually play 8 years on one team, let alone 8 years total in the NFL
• The duration of most NFL contracts are 1-4 years.  These contracts are not guaranteed, and players often move from team to team after being cut or their contracts expire.  It’s the well-known transient nature of the league.  NFL wives often joke about starting moving companies because we do it so often we’d know what we were doing (moving expenses aren’t paid for by the way).  Ryan played on 8 professional football teams over the course of his 10 year career.  8 teams.  His story is not unique – it’s the norm unless you’re one of the big-name franchise players like Tony Romo or Eli Manning who might play on one or two teams their whole career.  Very few NFL players will spend 8 years on one team.

So while Mr. Perea’s 80-8 amendment seems reasonable on its face, it is easy to understand that when applied in the real world of pro-football, most players (including players who spend several years playing for a California team like CB Chris Johnson) would still be excluded from filing a claim.

Another major problem with the bill is that it creates a one-year limitations period for filing a claim.  Professional athletes would have ONE YEAR from the time an injury is suffered/diagnosed to file the CA claim.  ONE YEAR.  Again, in theory, I don’t think this sounds unreasonable.  But when applied to the reality of pro-football, it’s flat out ludicrous.

Football is a very physical, full-contact sport.  DUH.  Players get hurt all the time.  It’s a miracle if a player makes it to the end of the season without getting banged up.  And if you’re a guy like Ryan who isn’t a superstar and you’re constantly at risk of being replaced, you have no choice but to get out on that field and play, regardless of what hurts and how bad.  When Ryan developed plantar fasciitis in both feet one season, he wasn’t thinking, “Man, I need to file that CA workman’s comp claim.”  He was thinking, “I better get my *ss on that field or I’m getting cut and I won’t be able to support my family.”

Team trainers and doctors treat players after every practice, every game.  Players have offseason surgery in droves. That means there’s a diagnosis by a licensed physician and that the players have one year from that diagnosis to file their claims or recovery for that injury will be barred.  Again, when considered in “real life” and not legislative fantasy land, this is ridiculous.

There are some other factors to consider when looking at the limitations period.  And I’m going to keep it real right now because I think it’s hard for people outside of football to understand and appreciate how devastating this law would be for former players with legitimate claims.  Ryan’s last NFL season was in 2007.  He attempted to play in the UFL in 2009-2010 but was plagued by injuries and was beginning to show clear signs of cognitive impairment.  But he medicated (painkillers are often times easily accessible for pro-athletes) and played through the pain.  The culture of football conditions these athletes to believe that being injured is a sign of weakness.  They are told they have to be tough.  They lose their jobs if they complain.  So they deny.  And deny.  And deny again that there is anything wrong.  I finally had to threaten Ryan with divorce if he didn’t seek medical treatment for his issues – the constant pain and post-concussion problems were taking a heavy toll on our marriage.  Only then did Ryan seek help.  Even now it’s hard for him to admit the havoc football has wreaked on his body.  How do you file a workman’s comp claim within a year’s time if you can’t admit you’re having problems?

Another major component of AB 1309 is the retroactive nature of the bill.  Once passed, all claims that don’t meet these very stringent requirements will be extinguished.  Gone.  Complete.  Over.  That means all of the time, energy and effort expended on these cases by the players, their attorneys, medical professionals, and even the CA workman’s comp system will be wasted.  If Assemblyman Perea’s goal in passing this bill is fairness (as he’s stated), then the retroactivity should be a major concern for everyone.

So here’s what we’ve established so far: AB 1309 on its face sounds reasonable, but when we factor in the reality of football and the unfairness of the retroactivity, this bill is not reasonable at all.  Because I lived the football life – the constant moving around, the devastating injuries, etc. – it is easy for me to appreciate why this bill is so unfair.  I can also appreciate why others are a bit quicker to pull the trigger and pass it if they have no clue what life in the big leagues is like.

Last week during the insurance committee hearing on AB 1309, Insurance Committee Vice-Chair Hagman erroneously stated that NFL players have lifetime health care coverage.  That is 100% false.  Know how I know?  Our NFL insurance will run out at the end of August and we’ll have to find affordable coverage that will cover Ryan’s pre-existing conditions and Will’s autism (we’ll ignore all of my health issues for now – it’s too depressing for me to think about).  Someone else mentioned during the hearing that pro-athletes make millions of dollars as if that should have any bearing on the right to file a workman’s comp claim.  But that’s also not true.  It was clear to me that these state representatives, like so many other people who hear headlines of $60 million contracts, think all pro-athletes are rolling in the dough.  The average NFL player isn’t making millions of dollars.  I can tell you for a fact that the guys who played in the ’70’s and ’80’s weren’t making millions.  Their salaries were comparable to the salaries the state representatives considering this bill are making now.  It’s admittedly a good living, but the constant fallacy of the multi-million dollar athlete taking advantage of and abusing the California system is just wrong.

With all of this misinformation spreading as justification for passing this bill, it’s important to take a step back and examine who supports AB 1309.  The proponents include the major sports leagues and teams who are responsible for maintaining workman’s comp insurance – the same workman’s comp insurance that would provide former players with resources to pay for their extensive post-career healthcare costs.  The NFL has recently pledged MILLIONS of dollars to concussion research in the name of player safety and has rolled out an ad campaign pledging support for former players.  Yet they are aggressively pushing a law that would bar these same players they claim to care about from collecting benefits because they don’t want to pay a 1-2% increase in premium costs that “might” be imposed if AB 1309 isn’t passed.  Go ahead – try to make that make sense…

I had a disturbing epiphany today.  I listened to a brief radio interview with Senator Darrell Steinberg who will be considering this bill in the very near future.  Here’s what I got out of his comments (and the comments of the radio broadcaster) – this bill is about stopping greedy athletes with minimal California contacts from abusing the system.  Greedy athletes.  Minimal states contacts.  Abusing the system.  I’ll tell you what – the AB 1309 proponents are getting their money’s worth out of the lobbyists they’ve hired to push this bill.  Now the athletes are the bad guys.  The athletes who pay taxes in the state of California, who played for California teams, who live in the state, who have family in the state, who have contributed to the workman’s comp system to the tune of about $48 million/year, are the bad guys.  They are spoiled rich crybabies trying to work the system.  Surely the NFL isn’t the one being greedy.

Here are some important considerations:

• The NFL is a $9 BILLION/year business.  That’s “billion” with a big ol’ fat “B!”  I can assure you the average “greedy” football player isn’t making billions.
• California collected roughly $171 million dollars in taxes from professional athletes last year.  People may not realized that out-of-state football players are double-taxed – if they travel to California, they pay taxes in their team state AND California for the money earned for that game.  The state benefits from these players coming into their state but now state reps want to pass a bill that would deny these players workman’s comp benefits.  And we won’t even get into the players who did play for a California team and paid out the behind in taxes who will be precluded from filing a workman’s comp claim under AB 1309.

And you would think from the banter I’ve heard that the mere act of filing a claim guarantees benefits for the former athlete.  Wrong again.  These guys still have to prove their claims.  They have to sit through depositions and go through EXTENSIVE medical exams to determine what injuries, if any, are covered.  Why not let these guys have their day in court and allow their claims to be heard?!?  One reason I’ve heard is that the system is too backlogged because of all of these claims.  So the fix for that is to prohibit players from filing claims?  Imagine you had a lawsuit filed in a regular court that’s been pending for a couple of years, but because of backlogged dockets, the legislature decides to wipe out 95% of the cases including yours.  I bet you’d be pissed – you’d want an opportunity to prove your case and be heard.

Professional athletes are being singled out and prohibited from filing workman’s comp claims because the major leagues don’t want to incur the costs of taking care of their former athletes.  Yes, there is undoubtedly abuse of the system – but for every guy taking advantage of it, there are countless athletes who have legitimate claims who will not be able to file claims.  Close the loopholes, tighten the requirements for filing – but do so in a manner that doesn’t exclude everyone but a handful of athletes who defied the odds and are lucky enough to meet the bill’s conditions.  I’m not asking you to have sympathy for former players – I understand that’s hard.  They are “multi-millionaires” after all.  But I am asking that they be treated just like any other worker in California and that they aren’t singled out and held to a higher standard than everyone else because they were lucky enough to play pro sports (only 2% of college football players will play in the NFL – talent will only get you so far).

Think about it – the state of California will gain nothing by passing this law.  Taxpayers aren’t paying out of pocket for these claims.  But the NFL and other leagues and teams will save money on premiums while former pro-athletes will be prohibited from filing claims and receiving benefits for their injuries.  It doesn’t take a rocket scientist to figure out who truly stands to benefit from the passage of AB 1309.

The full text of the proposed bill can be viewed here.