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
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
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
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
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.
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
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
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,”
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
“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.
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,”
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.”