Student Athletes and Workers’ Comp: The Counterpoint to “The Ultimate Mismatch”

I recently read with great interest – and perhaps greater disagreement – the article by Workers’ Compensation DEFENSE Attorney Anthony Natale, Esq. “Pennsylvania Workers’ Compensation Act and the Student Athlete: The Ultimate Mismatch”. [The Pennsylvania Lawyer Sept. – Oct. 2019, PABAR.ORG ]. As a necessary pre-qualification to this rebuke, I attended High School with Tony and we (inexplicably) remain friends. I allowed him to review this article prior to any public posting or submission for publication. We have had many battles against one another in the workers’ compensation arena, as well as on Upper Darby’s athletic fields (the latter of which I was admittedly NO match). I will hopefully be a more worthy advocate for the opposing view point on this field. As a Certified Workers Compensation Specialist* exclusively representing injured workers since 1994, and having spent the several 4 years of practice representing one of Pennsylvania’s largest workers’ compensation insurance carriers, I would suggest that I do possess a fair degree of experience on the topic – from both sides of the aisle – contrary to Mr. Natale’s characterization of “pundits with no knowledge of workers’ compensation law”.

Mr. Natale compares the effort to include student athletes as employees being an uncatchable Doug Flutie Hail Mary pass. However, there is a time in any given game for that pass to be attempted, and often results in a Dwight Clark reception known for all future generations as “The Catch”. For student athletes who have suffered a career ending injury – not simply a long-shot dream of the typical 3-4 year life span in professional sports, but ending their ability to work in numerous types of post college employment – we have passed the two minute warning, with no time outs. It may well be time for a Hail Mary.

Criticizing proponents of student athletes being classified as employees as individuals “without a lawyer’s grasp of case law” reveals the prior author’s short and long term memory lapse. Both the Federal Judiciary and the Courts of Pennsylvania have shown a remarkable ability to Modify, Vacate and even Reverse prior decisions and/or invalidate unconstitutional legislation. As recently as 2017 the Pennsylvania Supreme Court found unconstitutional a 20 year old provision of the Workers’ Compensation Act (Protz v. WCAB (Derry Area School District). Without the court’s willingness to recognize even their own past errors, Brown v. Board of Education (1954) may never have been decided, and Plessy v. Ferguson (1893) might still be “good law”. The “point” is that any existing case law on the issue may be ripe for reconsideration, given the evolution of college athletics into a major business enterprise on the backs of uncompensated and unprotected student athletes.

The next flawed premise of Mr. Natale’s conclusion is the statement that “athletic play is not considered work, plain and simple”. Were it truly that “plain and simple”, Professional Athletes would likewise be disqualified from workers’ compensation benefits. While Section 308.1 of the PA Workers’ Compensation Act does provide disparate treatment of Professional Athletes (currently being contested by this writer), they are nonetheless “employees” within the meaning of the law. Characterizing some athletic play is work, but other is not, rings of Separate but Equal (See Brown v. Board of Education, above).

Correctly citing the definition of employee provided in Section 104 of the Act (all natural persons who perform service for another for valuable consideration), the conclusion that “no scholarship means no valuable consideration” ignores the fact that not all consideration need be tangible property. A college athlete’s “consideration” may include the network of alumni contacts and future employment prospects unavailable to the non-athletic student, especially given today’s economic reality of post college unemployment statistics. The “Big Man on Campus” prestige may also open non-economic doors of opportunity during and after their college days. Obviously, each athletes “consideration” must be evaluated on a case-by-case basis, just as any other worker whose claim may be challenged based on the employment circumstances (such as independent contractors, drivers for hire, and owner/employees). Eliminating every student athlete because some may not meet the criteria avoids the issue, rather than addressing it.

Moreover, the legislature expressly excluded certain types of workers from being classified as employees (such as domestic servants et al.). The fundamental principles of Statutory Construction dictate that the General Assembly’s inclusion of specified matters implies the exclusion of non-specified, and vice versa. Admittedly, this concept may cut-both-ways, as collegiate athletes were neither specifically included nor excluded. The absence of specificity, and the difficulties facing the Court, required to craft a solution within the Humanitarian scheme of the Workers’ Compensation Act, is not a basis to simply disregard the issue all together. (Hannaberry HVAC v. WCAB (Snyder) 1983).

Likewise, the argument that the employment is causal in nature, and/or not part of the “regular course of business” of the employer (college) is defied by common sense, if not hard data. To merely be a walk-on athlete at the collegiate level requires a life-time commitment to strength, conditioning and enhancing one’s skills – far greater than any 9-to-5 job (most definitely more physically demanding than required of many lawyers). As far as the employer’s usual course of business, the income generated from athletic programs includes not only game day ticket sales, but merchandise, concession sales and alumni “contributions”. Comparing the income vs. expense (ie. no player salary or benefits) to the income vs. expense of actual education would surely reveal sports programs to be a significant contributing factor to virtually every university’s bottom line.

One final point of disagreement concerns the challenges that student athletes would face from insurance companies regarding their right to benefits (if and when found to even exist). The fact that insurance carriers would file petitions seeking to reduce or terminate benefits is no different than EVERY injured worker must face. Student athletes should at least have the chance to fight for those benefits, just like EVERY injured worker – rather than be provided nothing at all – often not even basic medical treatment. No one suggests that workers compensation for student athletes be a “guaranteed” benefit – but merely that student athletes have the same rights (and challenges) as any other injured worker. While no system is likely to be perfect, “no system at all” is worse.

Consider a young student athlete from a family with an average household income, and no private health insurance. They have no scholarship and must obtain student loans to attend college. They participate in a sports program fully operated and controlled by the college; who sells tickets, food and beverages during games, and hats and t-shirts in store and online. In the student’s final semester, after their entire college tuition has been paid, the student-athlete suffers a devasting injury that impacts no only their ability to “play” sports, but prevents them from working AT ALL. Having no health insurance, the student graduates with thousands of dollars of loan debt, plus unpaid medical bills. Their fully completed, highly “leveraged” degree is now useless, and they are unable to work anywhere (at least temporarily) to begin paying down all of their debt. Meanwhile, the college continues to sell tickets, beer and sweatshirts.

Though disputing virtually the entire premise of Mr. Natale’s conclusion, the “correct” conclusion remains elusive. A confluence of state laws (the Workers’ Compensation Act, with varying schemes of benefits in each state), federal law (the Constitution, tax implications, and case law), and the rules and regulations of the NCAA and each professional sports entity provide a dizzying array of potential hurdles and outcomes. Perhaps the biggest obstacle is the NCAA itself, and the prohibition of student athletes earning an income. If the injured athlete is unable to perform their sport, but can perform a “light duty” job, they may be required to choose between their health, their eligibility, and/or their future. In fact, even merely providing a “medical benefit” could be interpreted as voiding their sports eligibility.

In the midst of preparing this rebuttal, the State of California, echoed by several other state legislatures (including Pennsylvania) are actively contemplating Bills to enable student athletes to earn an income, citing the difference between allowing a student musician, artist or debate club student to have a job or otherwise earn income (such as from licensing their name). While not characterizing them as employees of the school – it is a crack in the NCAA’s strangle hold on student athletes.

And yet, the potentially bigger issue of providing necessary medical treatment remains unaddressed.

One thing Tony and I do agree – these student athletes need SOME form of protection. Ignoring the issue is not a solution. The antiquated rules of protecting the “amateur status” of athletes was abandoned by the US Olympic Committee long ago – and it is well past the two minute warning to bring such change to the business of college athletics.

[* Pennsylvania Super Lawyer 2007 to present; Certified Workers’ Compensation Specialist Pursuant to the Pennsylvania Supreme Court and PA Bar Association Rules and requirements regarding years of experience, Continuing Legal Education credits and written test scores].



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