Chicago sports teams have rolled the dice and are hoping for a big win if Illinois lawmakers decide they won’t have to pay workers’ compensation wage loss benefits to professional athletes beyond age 35.
In an all-or-nothing gamble, the Illinois Senate has put together a grand compromise of bills meant to end the gridlock between political parties and prevent an impending government shutdown on Feb. 28.
Within the compromise is Senate Bill 12. The legislation includes 19 tweaks to the Workers’ Compensation Act, including an amendment regarding the way professional sports teams pay permanent partial disability claims.
Currently, Illinois workers injured on the job can file a wage loss differential claim, entitling them to 2/3 of their wage loss – the difference between their pre-injury salary and their post-injury salary – payable until the age of 67, or five years after the claim is made, whichever is later.
S.B. 12 proposes the ceiling be capped at age 35 for athletes. All five top-tier Chicago professional teams – the Chicago Bears, Cubs, White Sox, Bulls and Blackhawks - signed a letter to State Sen. Christine Radogno (R-Lemont), who sponsored the bill, stating their support for the legislation.
The teams argue the average athlete doesn’t play professionally until 67; rather, most are retired at half that age.
The letter noted NFL players on average play just 3.5 years, while those competing in the other major U.S. sports play around 5-6 year.
“Although the law accurately assumes that most employees will retire around the age of sixty-seven (67), professional athletes are an exception, as most retire in their twenties or thirties,” the teams wrote.
Since many professional athletes make millions each year, it makes sense for Chicago’s ball clubs to back such legislation, said Gene Keefe, an attorney with the defense firm Keefe, Campbell, Biery and Associates in Chicago.
Keefe raised the example of former Chicago Cubs pitcher Kerry Wood, who ended an injury-riddled career with a one-year, $3 million contract. Even if Wood found work today for $500,000 a year, that would be a significant decrease from his baseball salary, Keefe said. And he would be entitled to the same wage loss differential awards as any other Illinois employee.
“He’s not a poor laborer who can’t feed his family, he’s a very wealthy man,” Keefe said. “To have the Cubs have to pay him the rest of his life is warping the workers’ compensation system.”
There is a cap on wage loss awards, limiting employees to the average weekly wage in Illinois, which currently is $1,076.38, Keefe said. But anyone earning $1 million a year would be able to claim the maximum yearly award of $55,971.76.
In the NFL, teams have an active roster of 53 players, but many more are shuttled in and out throughout the season. While the average player has a playing career of 3 to 5 years, NFL teams can flow hundreds of players in and out of the ranks. And in Illinois, each could be entitled to $55,971.76 in workers’ comp benefits each year, perhaps for more than 30 years, Keefe said.
“The point the teams are making is that this liability is inescapable,” Keefe said. “Nobody who is a professional athlete goes on to make the same money or more [after retirement].
“That’s why they’re saying, you’ve got to change this.”
Illinois tops the area in payouts
Steve Murdock, a partner at Chicago’s Inman and Fitzgibbons Ltd., which specializes in workers’ compensation defense throughout the Midwest, noted that Illinois has a very high permanent partial disability rate and is known as one of the more expensive states for big wage loss claims.
“[Teams] are going to pay those wage differential benefits for 30-plus years,” he said. “Other states don’t have that. It’s not nearly that long. It doesn’t go up to age of retirement.”
In their letter to Radogno, the Chicago franchises noted Florida, Texas and Missouri have different workers’ compensation laws for professional athletes, and Michigan limits highly paid athletes from collecting wage differential benefits at all.
“And out of the 13 states that have some form of wage differential component, 3 of those states place caps on the number of weeks that wage differential benefits can be collected from any type of employee,” the teams wrote. “This includes Ohio (approx.200 weeks), New York (approx.525 weeks), Nebraska (approx.30 weeks). In addition, Arizona caps the rate of wage differential benefits, and as stated above Michigan expressly places limits on professional athletes.”
Wage loss differential claims filed in Illinois aren’t restricted to Illinois athletes either. The Chicago teams also wrote in their letter to Radagno that “the laws in Illinois are so generous that athletes in other states are forum shopping and filing workers comp claims in Illinois despite the fact that their only connection to the state is the location of the game.”
That’s true – and legal, said Murdock.
“Typically, in Illinois you have jurisdiction of a workers’ compensation claim if the accident happens here, if the person resides here or if the employer [is stationed**] here,” he said. “If a San Francisco [athlete’s] injury happens here, jurisdiction is proper here in Illinois, even if he has no [other] contact with Illinois. Most states allow jurisdiction like that … it’s not unusual for a person to have dual jurisdiction.”
While forum shopping by other athletes doesn’t directly affect Chicago team owners – ultimately, it’s the athlete’s specific employer who foots the bill – it does affect professional athletes who play even one game in Chicago and can file a claim taking advantage of Illinois’ high benefits.
Patty Shuch, spokeswoman for Radogno, wouldn’t say who brought the idea to the table, stating in an email: “This is one component of significant workers [sic] compensation reform legislation under discussion as part of a comprehensive framework to move Illinois forward. It’s a work in progress.”
That has led some to believe that the amendment is a “throw in,” particularly because each of the bills in the “grand compromise” must be accepted or none will go into effect.
Matt Millen, executive director for the National Sports Law Institute and a professor of law at Marquette University Law School, said he’s not familiar with what is driving the timing of this legislation.
“A number of years ago, athletes were trying to find a way to seek workers comp benefits in California, because California had a particularly liberal statue,” he said. But California laws changed, and that’s no longer the case.
Millen said he didn’t have any empirical data that shows most professional athletes file their workers’ comp cases in a specific state, nor has he seen a significant increase in the number of cases filed in recent years.
“I think the Bears, Blackhawks [and others], just said, ‘Hey, there’s stuff happening, let’s throw our hat in the pile and see what happens,’” Keefe said.
A distraction to real reform?
Many workers’ compensation lawyers and lobbyists, including Keefe and Murdock, were stunned to see the professional athlete’s workers’ comp benefits amendment appear in the draft of the bill that came through the Senate.
The entire Senate Bill 12 is a “side show in a giant circus,” Keefe said, noting workers’ compensation reform isn’t the state’s biggest issue. Efforts could have been utilized elsewhere to create something better than the patchwork budget that’s being pushed through, he said.
The Illinois Chamber of Commerce – of which the Chicago Bears and other sports teams are not members – also had no idea it was coming, said Jay Dee Shattuck, a lobbyist with Shattuck and Assoc. Consulting Inc. and executive director of the Illinois Chamber's Employment Law Council.
The Illinois Chamber hasn’t promoted the amendment – but it hasn’t rejected it either, Shattuck said.
“In the big scheme of things, it would be very, very helpful to those employers of professional athletes,” Shattuck said. “But when it comes to the vast majority of businesses and employers in the state, it has no effect.”
There are issues in the bill that would be helpful, Shattuck said – such as cuts to the medical fee schedule, changes to the benefit structure and more – but those key issues are back in discussion.
“We’re trying to overturn and resolve some of what we would call ‘bad case law’ and bring back some sanity to workers’ comp law,” Shattuck said.
The professional athlete amendment is a bit of a bother, but it wouldn’t stop the chamber from trying to see other parts of the bill through.
“We don’t object to what’s being attempted here, [but] we don’t consider that reform for the business community,” Shattuck said.
From an athlete’s perspective, the significant loss of workers comp income would come on the heels of the move by Illinois lawmakers to boost state income taxes.
And opponents have argued most professional athletes play for minor league teams, earning significantly less than the top-tier athletes.
“The Illinois labor [unions] are pushing back at this saying the perception is that every professional athlete gets $20 million, and most don’t,” Keefe said.
Player unions also are sure to point out that, if the amendment passes, it could spell the beginning of a multi-tiered system where any number of careers could be singled out and capped with different age ceilings, Murdock said.
For instance, he noted, statistical arguments could likely be made for age caps in other physically demanding fields, which pay far less than professional sports.
A multi-tiered system would be much more realistic, and it wouldn’t be much more complicated than the current system, Murdock said, though he did note it could invite discrimination claims against a particular class of employee.
“My first kneejerk reaction is, I don’t know if you can pick out one group and do this,” Murdock said. “[But] I get why, and if I were representing the Chicago Bears, I would say, we have to do it this way because football players don’t play past 35.”