Following news of the NFL concussion litigation settlement,1 the NFL — and other professional leagues/teams as well their insurers — just obtained a significant legislative victory in California with the passage of Assembly Bill No. 1309 (AB 1309), amending California Labor Code section 3600.5. Specifically, on October 8, 2013, California Governor Jerry Brown signed into law AB 1309, which will considerably limit workers’ compensation claims in California by professional athletes.

Particulars of AB 1309

Under AB 1309, California workers’ compensation filings, including those relating to serious brain injuries, will no longer be permitted from athletes who did not, over the course of their careers, play for at least two complete seasons for a California-based team or spend at least 20 percent of their duty days either in California or for a California-based team. And, those who spent seven or more seasons playing outside the state also will not be permitted to file workers' compensation claims, even if they meet the two-season California requirement. The new law applies only to major and minor league football, baseball, basketball, ice hockey, and soccer players. The law retroactively applies to claims filed by affected athletes from September 15, 2013, and invalidates such claims.

Events leading up to AB 1309

In recent years, thousands of out-of-state athletes have filed workers compensation claims in California, alleging head or brain-related injuries. Why California? California is one of the only states that allows workers to file claims based on “cumulative” trauma, a category of injury incurred over time that includes certain traumatic brain injuries and has been linked to contact sports. In addition, California’s statute of limitations is less restrictive than in other states, allowing some workers — including those with injuries suffered over an extended period — to file long after retirement. In other words, after the statute of limitations has run out in other states, there is still time to file and thus a remedy for players in California. As a result, players for out-of-state teams were eligible to file workers’ compensation suits in California — instead of their home states — even decades after their careers had ended as long as they happened to compete within California (e.g., in an away game against a California team).

To limit their liability for such injuries, the NFL and other professional sports leagues as well as workers’ compensation insurers, lobbied for almost 18 months for California state legislation that would bar such out-of-state athletes from filing workers’ compensation claims in California. As explained above, AB 1309 applies to athletes who played for teams outside of California or had limited experience playing on California teams and bars such athletes from making claims in California for cumulative trauma.

Implications of AB 1309 on the NFL, former NFL players, and potentially taxpayers

Workers' compensation is an employer-paid insurance system administered by states. It pays benefits to workers injured on the job, who in turn are precluded from suing their employers. However, in most major sports, insurance premiums are included in the salary cap, meaning the players in effect absorb the costs of their own coverage. Successful California workers' compensation claims are paid by either the employer or its insurer, not California taxpayers. In addition to cash, awards often include lifetime medical coverage for injuries, which can run into the hundreds of thousands of dollars for serious debilitating injuries.

This is a significant victory for the NFL (and other professional leagues/teams), which has been trying to reduce its financial exposure (and save money on insurance premiums) from cumulative injuries, like concussions and other brain injuries that former players allege are the result of recurring blows to the head. Further, AB 1309 allows the NFL (and its insurers) to evade responsibility for serious head and brain trauma claims by out-of-state and even California players who no longer meet the eligibility requirements to file in California. But because the NFL does not offer lifetime healthcare to its players, those who can no longer file workers' compensation claims despite having legitimate injuries as a result of AB 1309 may be forced to pay for their own medical costs or may now have to turn to Social Security Disability Insurance, Medicaid, and other forms of government aid, which would ultimately affect California taxpayers.