As football season approaches, many Americans will be discussing Sunday night’s games around the Monday morning water cooler. One topic of conversation may be the recent lawsuits players have filed against the National Football League™ for closed head injuries and post-concussion syndrome. Certainly, within the legal community, many have been discussing the merits of these lawsuits. However, as food for thought, is there a possibility that these lawsuits will never even reach that stage of litigation where defenses like the players’ assumption of the risk will even be addressed? More specifically, is there a real possibility that the NFL™ could successfully argue that the lawsuits are completely barred by exclusive remedy provisions contained in workers’ compensation laws?
At the foundation of states’ workers’ compensation statutes is the theory that workers’ compensation benefits and claims born out of work-related injuries are the exclusive remedy for employees who are injured in the course and scope of their employment. While there are narrow exceptions, generally, an employee is barred from bringing a civil action against his or her employer. At least where I practice, whether a person is considered an employee for purposes of workers’ compensation benefits is ultimately an issue of fact, requiring an examination of several factors that go to the amount of control the business has over how the individual performs his or her job duties.
Whether the NFL™ is actually an employer appears to be a widely-discussed topic in the legal community, with commentators split on the issue. While many different post-concussion syndrome lawsuits have been filed, a lawsuit directly involving several former and current players has been filed in the Eastern District of Pennsylvania, alleging 13 counts against the League as well as counts against Riddell, a manufacturer of sports equipment. The plaintiffs in this lawsuit argue that the NFL™ is not an employer because the individual teams are considered separate entities under the law, citing to American Needle v. NFL, 130 S. Ct. 2201 (2010), a case involving intellectual property and antitrust laws. While that case holds that each team is a separate legal entity, the Court also concedes that those teams often have to achieve a common goal of promoting the League.
Furthermore, Plaintiffs’ complaint actually contains allegations that contradict their assertion that the NFL™ is not their employer, including alleging that it governs the conduct of the individual teams, establishes rules and policies for those teams and players, and gives money to the individual teams. If an employer-employee relationship is established by control over the players, plaintiffs’ own complaint makes a persuasive argument for the NFL™ that their claims are barred by exclusive remedy provisions contained in workers’ compensation statues. Buttressing this is the National Football League’s collective bargaining agreement with the teams and its players. The 2011 agreement encompasses 316 pages and contains terms specifying rules that both teams and players must abide by in almost every aspect of conduct related to the performance of the players’ job duties. This agreement arguably exerts a considerable amount of control over how teams and players are allowed and/or required to perform their jobs. In addition, historically speaking, most of us are familiar with the National Football League’s ability to punish players for acts committed inside and outside the stadiums, including driving with a suspended license (Vince Jackson), shooting oneself in the leg at a nightclub (Plaxico Burress), excessive or inappropriate celebration (Terrell Owens), or violating the League’s uniform policy (Chad Ochocinco). Certainly, this amount of control over the players supports a viable argument that the National Football League™ could be an employer within a workers’ compensation arena.
That being said, obviously this issue is not as clear cut as it seems, especially when considering the players’ allegations date back to 1968. Additionally, the 2011 collective bargaining agreement leaves room for arguments on both sides. Specifically, the agreement does not define the League’s relationship to the players, and while it mandates workers’ compensation rules, the responsibility of insurance is left to the individual teams. Moreover, the 2011 collective bargaining agreement is not the only one at issue, and it remains to be seen what prior agreements could affect a successful outcome for the League. One thing is certain: the NFL™ could certainly attempt this argument as it provides a viable option for releasing it from paying any damages to the players in defense to not only this lawsuit, but future lawsuits for work-related injuries.