Don’t Strike Out! Coverage Needed for Traveling Professional Athletes

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Consider the following scenario: an applicant filed a claim against the Arizona Diamondbacks for a date of injury of April 1, 2000 through June 1, 2010. The claim was filed August of 2018. He traveled to the state of California to play the Dodgers on six occasions throughout his entire professional baseball career. We first consider how we can combat these types of claims in the state of California.

As of October 8, 2013, AB 1309 was approved by the governor of California. Labor Code section 3600.5 synonymous with AB 1309 applies to professional athletes in football, basketball, baseball, ice hockey, and soccer for claims filed after September 15, 2013. The injuries may be either specific or cumulative in nature. This section applies to employees who were hired outside of California who come to California to participate in team-related activity on a temporary basis AND the employer must also furnish workers’ compensation insurance coverage under the workers’ compensation insurance or similar laws of a state other than California.

The goal to combating these claims is to identify claims in which an applicant is only temporarily traveling to the state of California with a team. A professional athlete will be considered temporarily within the state while competing or practicing on behalf of the employer if, during the 365 consecutive days immediately preceding the professional athlete’s last day of work for the employer within the state, the professional athlete performs less than 20% of his or her duty days in California during that 365-day period in California under Labor Code section 3600.5(c).

In order for the professional athlete and their employer to be exempt from this Labor Code section, the applicant must show that over the course of the athlete’s entire professional career: (1) the applicant participated in MORE than 20% of his or her duty days while working for a California-based teams; OR (2) over the course of the applicant’s career he or she worked less than seven seasons for any team(s) that are not based in California under Labor Code section 3600.5(d).

There are key discrepancies with terms that appear to be seemingly straightforward, including the term “duty day.” It is defined as any day in which professional services are provided by a professional athlete under both the direction and control of the employer in accordance with the athlete’s contract (key word being control). Thus, duty days does NOT include off season training as it is not at the direction or control of the team.

We also consider the term “professional athlete” and which athletes’ claims that can be potentially barred by this section of the Labor Code. It is defined as an athlete who is employed in the sport of baseball, basketball, soccer, ice hockey, or football whether at the major or minor level. Further the term “season” begins the first date of any preseason activity until the last game of the season of each contract year. Additionally, a California-based team is a team that plays a majority of home games in the state of California (i.e. Dodgers, Lakers, Kings, etc.)

WCAB must first determine whether personal and/or subject matter jurisdiction can be exercised over any employer within the last year of the applicant’s career as a professional athlete. We consider whether the WCAB lacks jurisdiction over the team in last year of the applicant’s professional career under Labor Code section 3600.5(c) or any other law, so that the claim would instead be subject to Labor Code section 3600.5(d).

For example if we have a claim in which the applicant was only temporarily within the state of California with the Diamondbacks when he or she played only a few games in California against the Dodgers during his last year of professional baseball, we may argue that he did not perform over 20% of his duty days in California during the last 365 games of his career or did not play two or more seasons for a California-based team. We then argue the WCAB is precluded from exercising jurisdiction.

In the alternative, should there exist a reason for the WCAB to exercise jurisdiction over the Diamondbacks, we may also argue the applicant did not perform over 20% of his duty days over his entire professional career in California or for a California-based team and that he did not play two or more seasons for a California-based team under Labor Code section 3600.5(d)(1)(a). Additionally, we may argue that the applicant can be barred under Labor Code section 3600.5(d)(1)(b) as he played well over 7 seasons outside California.

Though this Labor Code section is challenging for many attorneys, judges, and personnel to understand, it has been a useful section to assist with challenging the overflow of professional sports claims in the state of California for those athletes that have relatively little connection with our state.

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