Professional sports represents an odd situation for workers' compensation schemes. There is a high degree of risk of injury or even death, especially for the more violent sports such as football, or sports involving speed and/or endurance such as cycling.
Work in professional sports really comes down to being all about performance on play day. Enhancements to performance are encouraged except to the extent that enhancements may be outlawed either by the sports governing body or by law (and even then enhancements are encouraged, just more quietly, as we have seen throughout the history of cycling).
Like most jobs the worker in professional sports has a "shelf life" but this is typically much, much shorter than the average nine-to-fiver. Consequently for the short life of a professional athlete the pay grade must be much higher on a per unit basis than the nine-to-fiver; and since work comp is based on payroll this inflates the premium (which of course is absorbed by the various income streams).
In professional sports there is tremendous peer pressure to perform despite the athlete's health, or lack there of. And the support crew around the professional athlete encourages and provides assistance to assure top performance at and during show time.
This is because professional sports is big business. Television rights, stadium tickets, food and beverage concessions - all of this adds up to billions of dollars per year in economic activity related to the entertainment of enthusiasts.
Primarily involving football, but applicable to other sports, we are seeing an increase in litigation claiming the practices of sports leagues, which are not a part of the workers' compensation system because the leagues are not the employer - the teams are - seeking redress for what athletes are now claiming to be essentially intentionally inflicted injuries, or in the least a negligent ignorance of the safety for athletes.
This morning WorkCompCentral News reported a new lawsuit filed by eleven National Football League (NFL) players against the league over the use of the drug Toradol, contending that the league ignored the drug's blood-thinning side effects, which enhanced their concussions and other injuries.
"The Toradol label states that 'Toradol inhibits platelet function and is therefore, contraindicated in patients . . . at high risk of bleeding,'" the complaint states. "Toradol is not to be used if the recipient has a closed head injury or bleeding in the brain. 'The bleeding risk of Toradol is an utmost concern in collision sports such as football. Even a small increase in bleeding risk can exacerbate high-risk injuries, such as concussions, spinal cord, spleen, and kidney trauma.'"
Marc S. Albert, one of the plaintiffs' attorneys on the case, told our reporter that the exclusive remedy of workers' compensation should not be an issue in the case, because the players have opted to sue the NFL, as opposed to their individual teams. Many players are opting to file civil suits, because teams' workers' compensation carriers are denying claims for concussion-related injuries, Albert said.
"This is an epidemic, it happened in every locker room, it is something the NFL certainly knew about," Albert said of the Toradol use. "It is league practice, so to speak, by every team doctor in every locker room. It is being given in wholesale format, so to speak. It is why the league is the defendant in this case."
The complaint that Albert and his fellow attorneys filed mentions "cattle calls," where groups of players were called to receive Toradol injections shortly before game time, regardless of the type of injuries they had.
The other brain injury suits against the NFL also name as defendants helmet manufacturers and others, and allege negligence about infliction of chronic traumatic encephalopathy (CTE). CTE is a progressive and degenerative disease seen in people who have suffered multiple concussions or other forms of head trauma.
Just yesterday WorkCompCentral reported on the case of National Hockey League star, Derek Boogaard, who died of a drug overdose. According to the story, Boogaard CTE and his doctors said that even if Boogaard had survived his drug overdose he would have probably suffered from dementia-like symptoms.
To complicate matters relative to risk (for both the athlete and the employer/team), there is a trend to limit forums to seek benefits. Florida earlier this year passed a law restricting professional athletes from seeking benefits in states other than where their team is based, the 12th state in the nation to recognize "extraterritorial reciprocity" regarding workers' compensation claims. Michigan yesterday moved a bill through the state senate purporting to do the same thing.
Perhaps what this recent acrimony between athletes and their employers is telling us is that workers' compensation is inadequate to deal with the modern issues of professional sports. I wonder if this is just a small representation of a larger social issue - that work comp is archaic relative to the modern economy and that the risks have changed dramatically.
We know that Texas style non-subscription fans are seeking to change the status quo in neighboring Oklahoma to provide for voluntary protection systems. Is this the new trend to bring health and indemnity programs in line with the new economy ("new" relative to the age of the workers' compensation scheme)? I think it is.
I see all of this as evidence that things are changing, and that the pace of change is quickening. Obviously such things don't change overnight, but I would wager that the work comp world is going to be a much different landscape in 20 years, or even 10.
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