Monday, June 10, 2013

AB 1309 Fails the Common Sense Test

The California Society of Industrial Medicine and Surgery and the California Neurology Society have come out to formally oppose California Assembly Bill 1309.

AB 1309 is the professional sports athlete exclusion bill that would remove the ability of designated professional athletes in football, basketball, baseball and hockey from utilizing California's continuing trauma theory if the athlete can not prove sufficient contacts within the state, as prescribed by the bill.

The bill is promoted by Assembly Member Henry Perea (D-Fresno). Perea says the ability of professional athletes not based in California is a "loophole" in the state's workers' compensation laws. He is joined by Senator Ted W. Lieu (D-Torrance) as a principal co-author and Senator Mark Wyland (R-Escondido) who has also agreed to co-author the bill.

Perea says that AB 1309 "would set clear jurisdictional standards on claims from professional athletes and close the loophole that currently allows out-of-state players to file cumulative trauma claims in California, regardless of whether they played for a California team or ever actually entered a California field to play. It would also close the loophole that allows out-of-state athletes to place 100 percent of the cumulative trauma liability on California-based teams despite having played a minimal amount of time for that team – while playing for multiple non-California teams in subsequent years."

Perea says that the "loophole" fails the "common-sense test."

The irony is that AB 1309 itself fails the common-sense test.

First off, AB 1309 targets ONLY professional football players, hockey players, baseball players and basketball players. What about other professional athletes? How about motocross racers? What about jockeys? Why not professional cheerleaders? And why are the coaches, assistant coaches, managers and back office people still able to avail themselves of this "loophole"? All of these workers cross state lines and may file for benefits, including continuous trauma injuries, in California without restriction.

What is most despicable about this proposed law is that it is SO arbitrary and discriminatory.

The ONLY difference is that the pro athletes get REAL, life altering injuries - particularly football players that the NFL would just like to keep quiet so that this modern day version of the Roman gladiator entertainment factory remains anesthetically pleasing to the consumers so they will continue to purchase ridiculously priced tickets and support outsized television commercial contracts.

The single biggest threat to the NFL now is the growing recognition that the sport considerably shortens athletes' lives and contributes substantially to organic brain disease. Constant sustained head trauma is the single most life-altering injury these athletes face, and it is a tragedy that the NFL would like to keep away from the public the fact that so many end up with dementia, Alzheimers, Parkinson's and other serious maladies tied directly to continuously sustained brain trauma.

The argument for this ridiculous bill is that athletes rarely step into this state. That argument is absurd.

Every time a television broadcast of an NFL game occurs in California before MILLIONS of California based fans those athletes have stepped into this state.

Every time an NFL game is broadcast into the television sets of California fans to entertain the masses the NFL receives MILLIONS of dollars in television broadcast rights.

And the same can be said for every other state too.

The NFL has no problem taking revenue from broadcast rights where their employees are placed virtually into this state across millions of television sets, but apparently does not like to recognize the fact that the millions of dollars received in broadcast rights would not exist but for the fact that they are placing their athletes into California.

There is no difference between playing a game live or via television where the same net result is that millions of people contribute millions of dollars in revenue for that entertainment.

Forum conveniens is a long standing, time honored legal principal that should not be discounted. Just because California offers a legal remedy that other states don't recognize does not mean that it is out of line, out of touch, irresponsible, or wrong.

Just the opposite - California's long standing tradition of being non-traditional, thinking outside of the box, leading the way, has created the most resilient, most robust, most diverse economy of the United States and one of the most vigorous economies of the entire world.

Why would 38 million people live here otherwise, and why would California have the greatest concentration of wealth in the world? Because California does things differently and the state traditionally recognizes the contribution of working people regardless of their income, their status, their location, their domicile.

Perea says that "the bill would not limit the ability of professional athletes or any other worker to file for cumulative trauma benefits in their home state or principal state of employment."

Hey, that's a great argument ... NOT! Because no other state recognizes "cumulative trauma benefits" like California does; because no other state recognizes the contribution of PEOPLE, aka The Working Class to its economy (and yes, despite large salaries for very short careers, professional athletes are largely working people putting their bodies on the line for the entertainment of the masses).

If California politicians had ANY balls (and there aren't too many of them left in the legislature) then this state would set a precedence and tell the NFL, "No F*cking Legislation" that would alter this state's long standing tradition of recognizing that employers need to own up to their use of workers in hazardous occupations no matter where they live.

California's great economy is built on one simple fact: that as a world class economy we rely on the sweat equity of everyone that contributes.

When the NFL is in town (whether in person, on television or any other medium), the town spends. It's okay if the NFL and the other sports franchises return the favor. They can afford it. The workers' compensation obligation to California's workers is particularly acute when an employer takes so much money from willing consumers.

The NFL and other professional sports franchises owe it to their workers to protect them, regardless of their incomes, regardless of their status, regardless of their jobs.

To allow otherwise is an affront to the working people of this state.


  1. David,
    I just read your take on AB 1309. I agree it fails the “common sense test”, but for conceptually different reasons.
    First, you are correct the Assembly is wrong to single out professional athletes, and not even all of those. The bill should be applied to all workers who have incidental California exposure. I have no argument with California’s expansive coverage of cumulative trauma. Your legislature has decided the form and function of workers’ compensation for your state and that is how it should be. Workers’ comp is more expensive in California than most jurisdictions for many reasons and the desire to provide more all-inclusive coverage for workers, medical providers, attorneys and other ancillary service providers is your choice.
    I take some issue with your singling out of professional athletes as recipients of “REAL” injuries. These types of injuries can, and do, happen to workers all across the spectrum. Granted there are professions that provided greater exposure, but we have known that for a long time and even have rate tables that quantify it. In no way do I want to minimize issues such as the NFL’s head trauma tragedy. Such issues need to be addressed within the frame work of the sport/business. I don’t have the answer to that, but I am pretty sure it is not California Workers’ Compensation.
    I am particularly concerned with your concept of televised presence in California as the equivalent of physical presence. I see no conceptual difference between that idea and presence in movies, by radio or even in photographs or drawings. By logical extension every item produced in another state, or country, used or consumed in California would qualify every person associated with that item for coverage. Obviously this is a matter on which you are passionate, but does not seem to me as well reasoned as the great majority of your blogs.
    A bit of California chauvinism shows through in this piece, but I am a Texan and thoroughly understand chauvinism. While California’s system may seem the right way to do things to you, I would submit that is a minority opinion across the country. Your call to federalize workers’ compensation is scary to me and should be to you as well. My fear is the system would end up looking like California’s. Yours should be it would end up looking like Mississippi’s (thought I was going to say Texas’ didn’t you).
    Thanks again for another thought provoking blog. It got me off the couch and to the laptop.


    1. Thanks for the response Sam! Yep - CA chauvinism, I like that term!

      I was pointing out the "virtual" contacts simply to make the point that Big Business (i.e. NFL) has no problem exploiting the pocket books of a state's citizens via TV rights, etc. and exploiting the services of the entertainers (i.e. athletes) but does have an issue returning the favor in that they attempt to alter the law of the state. The real fact is that the NFL is using a Los Angeles franchise as leverage to get this law passed and our legislators are buying into that scheme...

      There is no conceptual difference between the virtual appearance in the state and the movie or TV industry - I agree. But those industries aren't being singled out...

      And, BTW, I'm not at all in favor of federalizing work comp. I think that's a terrible idea. I'm simply saying that this kind of folderol contributes to those arguments in favor of a federal system.

      I know I haven't been in Austin lately - hopefully soon! Talk to you later Sam!

  2. David,
    I absolutely agree with your take on the way the NFL does business. It is difficult to enjoy the game as I once did. I also agree AB 1309 is wrong to single out the NFL (or other sports/business franchises). I don't like the idea the NFL is using an potential LA team as leverage on the bill, but that sort of tactic is hardly unique to the NFL.
    There was a time, not so long ago, I came to California for business on a fairly regular basis. My office was in Fort Worth and I spent the majority of my time there, but I used to joke with my staff that if I ever did file a claim it would be in California.
    I am glad you don't like the Federal idea. I can't think of any single occurrence which would be worse for workers' comp. The idea that various states take different approaches to WC is cause for optimism. It gives me hope that somewhere someone will come up with a better idea.
    I look forward to your next trip to Texas, hope to see you then.