Tuesday, June 25, 2013

AB 1309 - an update

The California Senate Labor and Industrial Relations committee will hear arguments and vote on AB 1309 tomorrow.  As a mentioned in a previous post, AB 1309 is a bill that would severely limit professional athletes' workman's comp claims in the state of California.  The bill only targets athletes in five sports - hockey, soccer, football, basketball and baseball.  The bill author's attempt to limit abuse by "out-of-state" athletes is clearly overbroad and would make it nearly impossible for athletes in these sports to file a claim.  No other out-of-state workers are being targeted (YET).

Here's what bothers me most... the leagues and teams will present their arguments; so will the NFLPA and other organizations.  But what about me?!?!?  It's been hard trying to be heard on this issue, but I felt like I needed to do everything in my power to share my perspective.

So last week, I sent out letters to every single one of the Senators.  I sent letters to their home offices and their offices in the Capitol Building.  My prayer is that someone listened... and that they will take more time to consider the ramifications of this bill than the state assembly did.

Here is the letter I sent (each one personalized):

Dear Senator,

            I write this letter with the hopes that you will consider my perspective when you take up AB 1309 in the coming weeks.  You see, I am not a $9 billion/year industry or a pro-sports franchise with enough political influence to afford me an opportunity to meet with you to discuss this bill.  I am simply the wife of a former NFL player who is tired of hearing my husband being characterized as “greedy” while the NFL seems to be going out of its way to minimize responsibility for the health and well-being of former players.  If AB 1309 passes as written, the consequences will be minimal for the state of California but astronomical for families like mine. 

My name is Dawn Neufeld.  I was born in Thousand Oaks, California and I still call the Golden State “home” – it always will be.  I met my husband Ryan, also a native Californian, as an undergrad at UCLA.  Both of our families still reside in California in the same homes we were raised. 

After college, I attended law school at UC Davis and was admitted to the California state bar in 2002.  Ryan went on to overcome tremendous odds and play football professionally.  We now live in Frisco, Texas with our two children William and Bryn.  We decided to move here in 2006 instead of moving back to California because of cost of living considerations and the autism resources available for our son (who was diagnosed on the spectrum when he was three.  Side note: our insurance coverage provided by the NFL excluded autism treatment and we were forced to pay for treatment out of pocket).  We recognized the brevity of a pro-football career and thought our money would go a bit further here in Texas, allowing us to live comfortably while making sure Will received the best services we could afford.  We desperately wanted to move back to California to be closer to our families, but frankly, we just couldn’t afford it.

Ryan’s NFL career was not an easy one.  Undrafted out of college, Ryan overcame the odds and played for 8 teams in about 10 years.  There were no guaranteed multimillion dollar contracts.  Ryan would’ve played for free (at times, he did) for a chance to play in the big leagues – anyone would.  And because Ryan wasn’t a big time player, his job was always on the line.  He had no choice but to play hurt or he would’ve been out of a job.  He sacrificed so he could provide for our family and because he loved the game, not because he was greedy.  Now, he’s paying the real price.  

At 37, Ryan is unable to work because of the injuries he sustained while playing professional football.  In addition to his numerous physical disabilities (there are too many to list), he’s been diagnosed with post-concussion syndrome and is experiencing increasing cognitive difficulties.  The constant pain he is in is devastating enough.  However, what scares him the most is that he’s exhibiting symptoms commonly associated with chronic traumatic encephalopathy (or CTE) like memory loss, anxiety and depression.  There is no doubt that the injuries and cumulative trauma he sustained while playing professional football will affect our family for the rest of his life, however long that may be.  We heard a statistic recently that the life expectancy of former NFL players is around 55.  Scary, I know.  There are some pretty awesome things about being a professional athlete, but I can assure you it’s not all glitz and glamour.  Ryan will be the first to admit that, at times, he regrets playing football and wonders if it was worth it.

I tell you all of this with the hope that you’ll contemplate our story when you consider AB 1309.  The proponents of the bill will have you believe that “greedy former athletes with minimal state contacts are abusing the workman’s comp system.”  I can assure you my husband is not greedy, that he has substantial state contacts, and that he has no intention of abusing the California system.  When we extinguished our savings while transitioning into an injury-plagued life after football, I couldn’t help but think about the time and money we’d donated to charities (some in California) while Ryan was playing.  Greedy is certainly the last word I’d use to describe my husband.

AB 1309 will effectively exclude professional athletes from filing workman's comp claims in California. If passed, it will retroactively wipe out pending claims as well, some that have been in the pipeline for 4-5 years including Ryan's.  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.  My hope is that you will take more time to analyze the bill and the devastating effect it will have on families like mine.

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 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, former Assemblywoman (and now state senator) 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 agent.  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 an athlete played on a California team but then went on to play for an out-of-state team, 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 careers on in-state teams.  However, if an athlete who lives out-of-state plays for a California team and plays his last game for that team before filing a claim, that athlete would not be precluded from filing a claim (even if he only played one game for that team).   That certainly doesn’t seem fair.

And because the bill singles out athletes from the five major sports – football, baseball, basketball, hockey and soccer – athletes from other sports would not be precluded from filing a claim.  Tiger Woods, for example, would still be able to file a claim.  And think about this scenario – what if a visiting team linebacker goes careening out-of-bounds during a game and makes contact with the visiting team’s trainer and both are injured?  The player would be precluded from filing a workman’s comp claim in California, but the trainer would not be.  Again, I’m not sure how this is fair.

Assemblyman Perea attempted to address some of 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 and does little to address these concerns.

FACTS:

·         The average NFL career is about 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 is 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.  He’s certainly nowhere near the 80% requirement.  And Ryan’s 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 and would certainly address those who abuse the system, it is easy to understand that when applied in the real world of pro-football most former athletes in the five sports will be banned from filing a claim, even those who live in the state and have legitimate claims.

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.  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.  Team trainers supply players with painkillers and anti-inflammatories to make sure they do.  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 out 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 even though they get back on the football field after sustaining the injuries.  They have to – it’s their job.  It is unreasonable to expect them to file workman’s comp claims while they are still attempting to earn a living.  These athletes tolerate pain because they are conditioned to.  It’s only when the ice baths and painkillers stop and they begin to have trouble standing or walking that they are able to fully understand and appreciate the toll football has taken on their bodies.

This became utterly apparent in my home over the last couple of years.  Ryan's last NFL season was in 2007.  He attempted to play in the now-defunct United Football League 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.  To say that players are abusing the system is a misnomer – the former athletes are utilizing the system like every other “out-of-state” worker who was injured while working in California.  Why are athletes being singled out?  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.  The right thing to do is to allow any pending cases to be adjudicated.

Additionally, consider that the mere act of filing a claim does not guarantee benefits for the former athlete.  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 upset - you'd want an opportunity to prove your case and be heard.

During the Assembly 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.  Vested players only have 5 years of insurance coverage after their last NFL season.  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.  MLS players don’t make millions of dollars and MLB farm league players make close to the equivalent of minimum wage in some situations.  The constant fallacy of the multimillion 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.  From my perspective, it isn’t hard to see who the greedy parties are.  It’s important to note here that just about every major labor union in the state of California opposes AB 1309.  

Here are some other important considerations:

·         The NFL is a $9 BILLION/year business.  That's "billion" with a "B!"  I can assure you the average "greedy" football player isn't making billions. 

·         California collected roughly $161 million dollars in taxes from professional athletes last year.  People may not realize 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 (and those who live in the state but play on out-of-state teams) but now Assemblyman Perea wants to pass a bill that would deny these players workman's comp benefits.  This is tragic.

I’ve also heard the proponents of the bill make some additional arguments.  Proponents will tell you that since the early 1980’s, 4,500 out-of-state athletes have received almost $747 million in workman’s compensation payments.  First, I’d question how proponents define “out-of-state players”.  Are they California residents like Junior Seau or Chad Brown who played for out-of-state teams?  What about the guys who live out-of-state but play for an in-state team?  I’d ask you to ask them to define an “out-of-state” player.  

Secondly, let me point out some math - $747 million divided by 4,500 comes out to about $166,000/player.  I can assure you the health care costs of former athletes will certainly exceed $166,000.  The $9 billion/year NFL isn’t willing to pay workman’s comp insurance premiums that would cover $166,000 for its former players?  It’s definitely worth thinking about.

Proponents will also tell you that players are taking settlements and not utilizing the health care available to them.  Please consider that taking advantage of the medical care available isn’t as easy as it sounds.  We have heard of players being denied needed surgeries on a regular basis because they are not “medically-necessary.”  We’ve been told that people who are not doctors usually make the decision whether or not to permit the treatment.  The difficulty of the process is definitely a deterrent and a good reason why some players opt for the settlement.  The players are the ones being blamed for taking settlements but the insurance companies are just as quick to offer settlements because they know health care for former players might certainly exceed hundreds of thousands of dollars and it is more cost-efficient to limit their liability.

Proponents will tell you that the workman’s comp system is backlogged with athletes’ claims.  The truth is former athletes’ claims make up less than 1% of the workman’s comp system case load.  Even so, a backlog in the system shouldn’t be a reason to wipe out or prohibit claims.

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 I implore you to do so in a manner that is fair and doesn't exclude practically anyone who played one of these five sports from filing a claim.    

I'm not asking you to have sympathy for former players - I understand that's hard.  They are "multi-millionaires" after all (sarcasm intended).  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).  

We put these guys on a pedestal.  We cheer the gladiator nature of the sport.  Until it was pulled from the market a couple of years ago, one of the NFL’s most popular DVDs chronicled the game’s biggest hits.  The NFL and other leagues and teams supporting this bill make millions, even billions, as these players put their bodies at risk during the course of their employment.  It is not unreasonable to expect them (and us) to do what we can to take care of these guys once they are no longer able to play the game.

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.  I ask you this – what if it was your son being denied access to healthcare and workman’s comp benefits?  What if it was your spouse who could no longer lift a child because his shoulders ached too much or who couldn’t teach her daughter how to dribble a basketball because of an ailing back?  You might think a little harder about passing this bill.  Please consider my family and please oppose AB 1309 unless it is amended to ensure fairness.  There has to be some middle ground to protect players while addressing the purported abuse by all professional athletes.

I know you are busy and I thank you for your consideration.
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Stay tuned...

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