What Are the Potential Effects of the Northwestern NLRB Decision on New York Compensation Claims?

Prior entries to Goldberg Segalla’s Sports and Entertainment Law Insider blog have discussed in detail some of the legal and practical issues for college football programs made by the recent National Labor Relations Board (NLRB) decision regarding Northwestern University football players. (Recent blog entries have analyzed the ramifications on university athletic programs and student-athletes, as well as the responses of coaches and players.)

In addition to the civil liability issues discussed in those articles, particularized problems would arise in the workers’ compensation context in the event that student-athletes are found to be employees entitled to those benefits. A few of the issues that immediately stand out in New York claims would be:

  • Wages: A basic building block of any workers’ compensation claim, disputes would certainly arise as to what an injured student-athlete’s “average weekly wage” is. Wages are defined by the New York Workers’ Compensation Law as “the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident, including the reasonable value of board, rent, housing, lodging, or similar advantage received from the employer.” Under this definition, the logistical difficulties of calculating average weekly wage become apparent — what is includable in “wages,” including scholarship money, meal plans, boarding, and travel accommodations would certainly be up for dispute.
  • Part-Time vs. Full-Time Status: Also important to the calculation of average weekly wage and benefits would be the status of a student-athlete as part-time or full-time. In general, a New York employer is required to keep track of the number of days an employee works. Certainly, legal disputes could arise as to what constitutes a day worked, since this could include practices, game days, workouts (voluntary or involuntary), team meetings, and off-season practices or workouts. Whether each category of team activity would constitute a day worked could have a significant impact on the wage and benefit analysis of an injured student-athlete.
  • Minor’s Wage Expectancy: Likely the biggest issue that would arise in the context of a New York claim by a student-athlete would be the issue of a minor’s wage expectancy. Although maximum weekly benefits are set by law, a worker in New York who is under the age of 25 at the time of injury is generally entitled to an increase in benefits based on advancement and increased earnings potential in the same type of employment, unless there is substantial progress towards employment in another field, as would often be the case in student-athletes. Given the fact that only 1 percent of student-athletes will end up playing professional sports, the issue of whether a student would be entitled to a minor’s wage expectancy based on a professional athlete’s salary or based on that student’s anticipated wage in their academic major and intended job selection (if that could be possibly be divined while in college) would certainly give rise to bitter disputes.
  • “Attachment” to the Labor Market: In New York, injured workers who are not deemed totally disabled from any and all employment generally have the obligation to look for work within their physical capabilities for which they are suited in order to remain “attached” to the labor market. Carriers in these cases may have recourse to creative legal arguments. For instance, assume a star athlete at a Division 1 (D1) school sustains an injury which renders him no longer able to compete at the D1 level, but able to perform competitively at a nearby Division 3 (D3) school which would provide a similar scholarship package. A carrier may be able to argue that a student-athlete in this situation would not be entitled to benefits if they did not transfer to the D3 school.
  • Loss of Wage-Earning Capacity: Finally, litigation would certainly arise over loss of wage-earning capacity. In a New York claim in which a permanent disability arises over a spinal injury, the Workers’ Compensation Law Judge may take into account the claimant’s work history, level of physical disability, vocational skills, age, and education in determining whether a claimant has a 1 percent loss of wage-earning capacity or a 100 percent loss of wage-earning capacity. In cases where a student-athlete suffers a career-ending neck or back injury precluding them from playing sports, the injured student would likely be claiming a very high loss of wage-earning capacity based on an inability to play professional sports. In contrast, a carrier would certainly be able to argue that even if that student’s athletic career is over, their anticipated salary based on their academic studies would demonstrate little to no loss of wage-earning capacity.

In short, although the Northwestern University NLRB litigation will be one to watch for a variety of reasons, colleges and universities will want to keep to pay particular attention to the ramifications of this decision in the workers’ compensation context.

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