National Football League Players Association v. National Football League Management Council

Filing 1

MOTION to Compel by National Football League Players Association. (srm)

'11CV2472 L

CAB

EXHIBIT A

SHYAM DAS, ARBITRATOR

In the Matter of Arbitration
Between

THE NATIONAL FOOTBALL LEAGUE
MANAGEMENT COUNCIL
On Behalf of The Miami Dolphins

and

THE NATIONAL FOOTBALL LEAGUE
PLAYERS ASSOCIATION
and Various Players

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ARBITRATOR'S OPINION
AND AWARD

Miami Dolphins Workers'
Compensation Claims
(Implementation Agreement/
(Choice of Law)

Case Heard:
April 12, 2011

Award Issued:
July 18, 2011

Appearances

For the NFL Management Council:
Brook F. Gardiner, Esq.
Daniel L. Nash, Esq.
Stacey R. Eisenstein, Esq.
Ruth B. Stevenson, Esq.

For the Various Players:
Adam J. Kaiser, Esq.
Jeffrey H. Newhouse, Esq.
Matthew A. Stark, Esq.

Exhibit A
Page 6

BACKGROUND

Miami Dolphins Workers'
Compensation Claims

This case involves consolidated grievances filed by
the Miami Dolphins and the National Football League Management
Council (NFLMC) against various former Dolphin players (Players)
who, between 2008 and 2011, filed claims for workers'
compensation benefits before the California Workers'
Compensation Appeals Board (WCAB).1

The grievances contend that

the filing of these claims in California violated the terms of
the 2006 NFL Collective Bargaining Agreement (CBA) and the
Implementation Agreement applicable to Miami Dolphin players
that was entered into by the NFLMC and the NFL Players
Association (NFLPA) on December 20, 1985.

The Dolphins further

claim that 30 of the Players also breached specific addenda to
their NFL Player Contracts that require them to file their
workers' compensation claims exclusively under Florida law.2

The 2006 CBA expired on March 3, 2011.

On or before

that date, the NFLPA decertified as a Union representing NFL
players.

A total of 107 of the 123 (or 124) Players against

whom grievances were filed by the Dolphins have consented to be
represented in this proceeding by the law firm of Dewey &
LeBoeuf LLP (see Exhibit A to post-hearing brief filed by Dewey
& LeBoeuf).

In accordance with a ruling I made at the outset of

the arbitration hearing on April 12, 2011 (see Transcript pp.
1

Any

2

reserved the right to assert
to timeliness and damages in a
the event the NFLMC and the
issues set forth above.

One Player, Kendal Newson, filed a claim in Pennsylvania.
reference to Players filing claims in California and under
California law includes Newson's claim in Pennsylvania.
By agreement, both parties have
any claims or defenses pertaining
separate, supplemental hearing in
Dolphins prevail on either of the

Exhibit A
Page 7

2

Miami Dolphins Workers'
Compensation Claims

6-7), the remaining Players also are bound by this Opinion and
Award.

Since at least 1977, if not earlier, the CBA has
included an "equivalent benefits" provision, which is set forth
in Article LIV, Section 1 of the expired 2006 CBA as follows:

Section 1. Benefits: In any state where
workers' compensation coverage is not
compulsory or where a Club is excluded from
a state's workers' compensation coverage, a
Club will either voluntarily obtain coverage
under the compensation laws of that state or
otherwise guarantee equivalent benefits to
its Players. In the event that a Player
qualifies for benefits under this section,
such benefits will be equivalent to those
benefits paid under the compensation law of
the state in which his Club is located.
At all relevant times, Florida workers' compensation
law has excluded professional athletes from mandatory coverage,
and the Dolphins have opted to provide equivalent benefits under
the provision quoted above.

In 1982, the parties adopted the

following provision set forth in Article LIV, Section 3 of the
CBA:

Section 3. Arbitration: In any state where
a Club (e.g., Miami Dolphins/Florida) has
legally elected not to be covered by the
workers' compensation laws of that state,
the equivalent benefit, if any, to which a
Player may be entitled under this Article
will be determined under the grievance
procedure of Article IX (Non-Injury
Grievance).

Exhibit A
Page 8

3

Miami Dolphins Workers'
Compensation Claims

On December 20, 1985 the parties entered into an
Implementation Agreement Regarding Local Processing of Miami
Dolphins Workers' Compensation Claims (Implementation
Agreement).

Timothy English, then Staff Counsel for the NFLPA,

was the primary drafter of the Implementation Agreement.

He

testified in the present arbitration that:

In the late '70s and early '80s players, and
even before that, players filed all sorts of
different types of claims for Workers'
Compensation. Some players filed lawsuits,
some players filed Workers' Comp claims
despite the fact that professional athletes
weren't covered. Some players wrote letters
to the Dolphins. Some players filed
grievances. It was all over the lot. And
so I'm not exactly sure how, but the
parties, after the '82 agreement, finally
decided that they would try to get a handle
on all these claims that were floating
around out there. And then I was asked to
see if I could put together an agreement. I
don't know if this Implementation Agreement
is sort of a hybrid arbitration agreement,
but the purpose of it was to provide a
simple and hopefully short method for
players to litigate their claims for
Workers' Comp.
The Implementation Agreement includes the following
provisions:

The NFL Players Association (NFLPA) and
the NFL Management Council (NFLMC) hereby
agree to the following Implementation
Agreement dealing with local processing of

Exhibit A
Page 9

4

Miami Dolphins Workers'
Compensation Claims

workers' compensation claims made to the
Miami Dolphins. It is the intention of the
parties that this procedure provide the
"equivalent benefits" referred to in Article
XXXIII of the 1977 Collective Bargaining
Agreement and Article XXXVI of the 1982
Collective Bargaining Agreement [Article LIV
of the 2006 CBA].
1. In order to insure the efficient and
expeditious processing of pending and future
claims of workers' compensation benefits by
its players, the Miami Dolphins will
appoint, as soon as practicable, a servicing
agent who is knowledgeable about, and
experienced in handling claims under, the
Florida Workers Compensation Law....
2. The workers' compensation rights and
benefits to which Miami Dolphin players are
entitled are the same as those set forth for
other employees in the Florida Workers'
Compensation Law, as amended, and as
interpreted in the Florida Courts except as
modified by this Agreement and the 1977 and
1982 CBAs. It is the intent of the parties
to avoid litigation of workers' compensation
claims by routinely resolving any issue or
disputes which may arise between the
servicing agent and the player through a
fair and reasonable application of the
Florida Workers' Compensation Law.
3. In the event a dispute arises which
cannot be amicably resolved between the
servicing agent and the player, the
procedures set forth below will be followed
to achieve a swift, final and binding
resolution of the dispute. The Dolphins
players as professional athletes do not have
access to state workers' compensation
officials or the state workers' compensation
agency. Although the 1982 CBA provides that

Exhibit A
Page 10

5

Miami Dolphins Workers'
Compensation Claims

the method of determining what benefits a
player will be entitled to shall be the noninjury grievance procedure of that document,
the parties agree that the establishment of
a local arbitration system is a more
desirable method of determining entitlement
to benefits. Accordingly, an independent
panel of arbitrators shall be established to
determine equivalent benefits. It is the
intent of the parties to equate this
arbitration procedure to the Florida
Workers' Compensation Law to the extent
possible except as modified by this
Agreement and the 1977 and 1982 CBAs.
*

*

*

11. The following areas of the Florida
Workers' Compensation Law will not apply:
a.

criminal penalties

b.

special disability fund

c. services provided by the Division of
Workers' Compensation or by the Deputy
Commissioners, except as set forth herein
Any disputes regarding the agreement of the
parties to exclude certain provisions of the
Florida Workers' Compensation Law from this
Agreement shall be resolved through
negotiation of the parties or by the
arbitration procedure set forth in Article
VII of the 1982 CBA [Article IX of the 2006
CBA].
*

*

*

13. In consideration for the provision
of the workers' compensation benefits
provided by the 1977 and 1982 Collective
Bargaining Agreements, the NFLPA on behalf

Exhibit A
Page 11

6

Miami Dolphins Workers'
Compensation Claims

of players or former players of the Dolphins
grants the Dolphins the same immunities from
suit by those players and their families
that other employers in Florida enjoy with
respect to such suits on account of coverage
under the Florida Workers' Compensation Law.
It is the position of the NFLMC that such
immunity has been conferred by virtue of the
provisions of the 1977 and 1982 Collective
Bargaining Agreements which granted the
players equivalent benefits.
Sylvia Krainin, a workers' compensation attorney for
the Dolphins, testified that since 1985 over 100 claims have
been filed under the Implementation Agreement, mostly by players
living outside Florida.
claim has been filed.

Since 2009, she stated, only one such
She noted that a number of the Players

who since have filed claims in California first filed claims
under the Implementation Agreement.

Modesto Diaz, a workers compensation attorney who
represents NFL players filing claims in California, testified
that records of his firm show that at least 14 former Dolphin
players filed for benefits in California between 1985 and the
summer of 2008 and settled their claims against the Dolphins,
often for significant sums of money.

During that period, he

stressed, the Dolphins never raised the Implementation Agreement
as a defense.3
3

Diaz stated that, both before and after the Implementation
Agreement was adopted in 1985, the Dolphins, like other out-ofstate employers, routinely raised "jurisdiction" as a defense
(expressly or under "all affirmative defenses"). He pointed
out, however, that the Dolphins made general -- not special -appearances, and in each of the cases settled the claim.

Exhibit A
Page 12

7

Miami Dolphins Workers'
Compensation Claims

In June 2008, Carol Wittenberg, then an arbitrator for
the Arena Football League and the AFL Players Association,
issued a decision in a case between the Tampa Bay Storm and the
AFLPA, involving players Ronney Daniels and Ignacio Brache, who
had filed workers' compensation claims against the Storm in
California.

The Storm asserted in its grievance that the AFL

Implementation Agreement -- which is similar to the NFL
Implementation Agreement -- banned its former players from
filing for workers' compensation benefits outside Florida.
Wittenberg sustained the grievance.

Subsequently, the Dolphins

began to assert the NFL Implementation Agreement as a defense to
claims brought in California by former Dolphins Players and
filed the grievances at issue in this arbitration.4

As previously indicated, the NFL Player Contracts of
30 of the Players covered by the present grievances include
addenda that state the following (or words to the same effect):

CHOICE OF LAW. Club and Player acknowledge
and agree that this Contract has been
negotiated and executed in the State of
Florida, and that should any dispute, claim,
or cause of action (collectively "Dispute")
arise concerning the rights or liabilities
arising from the relationship between Player
and Club, then such parties hereto agree
that the law governing such Dispute shall be
4

Meanwhile, in the Daniels/Brache AFL case Arbitrator Jack
Clarke granted a request for reconsideration of Wittenberg's
decision filed by the AFLPA and reversed her decision. (It is
unnecessary in this NFL case to detail how this all occurred
under the AFL collective bargaining agreement.)

Exhibit A
Page 13

8

Miami Dolphins Workers'
Compensation Claims

the law of the State of Florida.
Furthermore, Player and Club acknowledge and
agree that the exclusive jurisdiction for
resolving injury related claims shall be the
Division of Workers' Compensation of
Florida, and in the case of a Workers'
Compensation claim the Florida Workers'
Compensation Act shall govern.

MIAMI DOLPHINS' POSITION

The Dolphins insist that by filing workers'
compensation claims in California the Players have violated the
Implementation Agreement.

Read in their entirety, the CBA and

the Implementation Agreement unambiguously require Dolphins
players to bring all workers' compensation claims against the
Dolphins before the implementation panel.

In this regard, the

Dolphins point to the words "will be followed" and "shall be
established" in Paragraph 3 of the Implementation Agreement and
argue that they are mandatory in nature.

The Dolphins further argue that even if this
arbitrator finds the terms of the CBA and Implementation
Agreement to be ambiguous, the Implementation Agreement must be
interpreted and applied in a manner that gives effect to its
purpose.

The Implementation Agreement spells out that the

intention of the parties is to require the "local processing of
workers' compensation claims made to the Miami Dolphins."
Evidence presented at the hearing regarding drafting and
adoption of the Implementation Agreement provides additional

Exhibit A
Page 14

9

support for this conclusion.5
explicitly states:

Miami Dolphins Workers'
Compensation Claims

The Implementation Agreement also

"It is the intent of the parties to avoid

litigation of workers' compensation claims...."

The Dolphins

stress that the Implementation Agreement provides for no
exceptions to these agreed-upon procedural rules.

The Dolphins assert that the parties' past practice
further establishes that all workers' compensation claims must
be resolved before the implementation panel.

For almost 25

years, Dolphins players consistently filed claims for benefits
under the procedure set forth in the Implementation Agreement.
Between 1985 and 2007, more than 100 players filed such claims,
including players who lived outside of Florida as well as
players who sought compensation based on injuries sustained
across the country, including in California.

Compared to the

parties' consistent practice of filing all claims before the
implementation panel for over 25 years, the fact that the
Dolphins allowed a de minimis number of claims to go forward in
California -- in each of which the Dolphins asserted a lack of
jurisdiction and the claim later was settled -- does not

5

The Dolphins note that one of the outstanding claims against
the Dolphins when the Implementation Agreement was finalized was
a claim by Terry Robiskie filed with the Missouri Division of
Workers' Compensation. After the NFLPA notified Robiskie's
workers' compensation attorney -- who also represented other
Dolphins players -- that he could begin processing claims before
the implementation panel, Robiskie dismissed his Missouri claim
and instead submitted it to the panel. The Dolphins argue this
makes clear that the parties intended to require that all
workers' compensation claims be processed using the
Implementation Agreement procedures, not just those claims that
otherwise would have been filed under Florida law.

Exhibit A
Page 15

10

Miami Dolphins Workers'
Compensation Claims

undercut the evidence of the dominant and controlling practice
or show that the Dolphins acquiesced in the filing of these
claims in California.

The Dolphins also argue that in addition to being
bound by the mandatory arbitration provisions of the
Implementation Agreement, a number of the Players included in
these grievances further agreed in their NFL Player Contracts
that the "Florida Workers' Compensation Act shall govern" all
workers' compensation claims against the Dolphins.

The fact

that the provision in the NFL Player Contract mistakenly refers
to "the Division of Workers' Compensation of Florida," rather
than the implementation panel, does not render the entire clause
unenforceable.

This clause unambiguously constitutes a choice

of law provision and must be enforced in accordance with its
plain meaning.

The Dolphins also insist that the "law of the shop"
further compels a finding that the Players have violated the
clear terms of the Implementation Agreement and the choice of
law provisions in their NFL Player Contracts.

It cites two

recent NFL arbitration decisions which make clear that where the
parties agree to provisions dictating the forum and the law to
be applied to their workers' compensation claims those
provisions must be enforced regardless of any state law
considerations to the contrary.

See:

Tennessee Titans v.

Matthews (Sharpe 2010) and Chicago Bears v. Michael Haynes et
al. (Townley 2011).

.

Exhibit A
Page 16

11

Miami Dolphins Workers'
Compensation Claims

The Dolphins do not dispute that Florida law allows
employees to seek benefits in other states; nor do they dispute
that the players would be free to raise this argument before the
implementation panel.

This does not, however, alter the fact

that by filing their California claims the Players have breached
the mandatory terms of the Implementation Agreement and their
Player Contracts.

The Dolphins argue that NFL arbitration precedent
requires the arbitrator to interpret the parties' agreement, not
state workers' compensation laws.

In addition to Matthews and

Haynes, the Dolphins cite decisions by this arbitrator in NFLPA
v. Dallas Cowboys and Houston Texans (2005) and NFLPA v. Buffalo
Bills, New York Jets and Carolina Panthers (2007).

Furthermore,

the Dolphins maintain that California law does not preclude
enforcement of the parties' agreement.

A forum selection clause

dictating where employees can litigate workers' compensation
claims is not a waiver of rights, but simply constitutes a
selection of a particular jurisdiction in which they may recover
benefits.

Even if the Implementation Agreement's mandatory

arbitration provisions did constitute a "waiver", it would not
be a bar to enforcement.

Indeed, in denying the Union's effort

to vacate the Matthews arbitration award, a Federal District
Court made clear that "California law does not provide an
explicit well-defined, and dominant public policy barring all
contractual waivers of California workers' compensation."
See:

NFLPA v. NFLMC, 2011 U.S. Dist. LEXIS 865 at *14 (S.D.

Cal. 2011).

Exhibit A
Page 17

12

Miami Dolphins Workers'
Compensation Claims

The Dolphins request that the arbitrator order the
Players to dismiss their California claims and declare that the
exclusive method for Dolphins players to recover workers'
compensation benefits against the Dolphins is through the
procedures established in the CBA and Implementation Agreement.

VARIOUS PLAYERS' POSITION

The Players argue there is nothing in the expired CBA
or Implementation Agreement that purports to limit any player's
right to file for benefits in any state forum.

On the contrary,

the right to file for benefits in other states is expressly
preserved.

The Players point out that Article LIV, Sections

1-3, of the CBA provide for "equivalent benefits."

These are

contractual rights, created by, and subject to, the parties'
contracts.

These provisions do not say, or imply, that if a

player qualifies for equivalent benefits, he must apply for
them, or that they are exclusive.

There is no mention of any

benefits under state statutes.

The Players also insist that the Implementation
Agreement does not purport to limit the ability of players to
seek benefits in other states.

Only when a player files a claim

for equivalent benefits and the designated servicing agent
denies the claim is there a dispute that is subject to mandatory
arbitration under the Implementation Agreement.

Not only does

the Implementation Agreement contain no language even remotely
hinting at any waiver or forfeiture of the right of players to
pursue claims under other states' statutes, but that right

Exhibit A
Page 18

13

Miami Dolphins Workers'
Compensation Claims

actually is confirmed in the Implementation Agreement.

Under

Florida law, players have the express statutory right to seek
benefits in other states with the Dolphins receiving a statutory
credit for payments made under Florida law.6

Because the CBA and

Implementation Agreement expressly grant all players with all
rights under Florida law except for those rights specifically
enumerated in Section 11 of the Implementation Agreement, the
right to file claims for benefits in other states actually is
one of the equivalent benefits conferred upon the players by
contract.

The Players contend that to the extent the addendum to
the NFL Player Contracts of some of the Players purports to
limit the rights of those Players to file for benefits in other
states, it is inconsistent with the right to equivalent benefits
afforded to them under the CBA and Implementation Agreement and,
hence, is void under Article XIV, Section 3 of the CBA.

The

Players stress that the language in the addendum makes no sense
at all.

How can there be "exclusive jurisdiction" in Florida's

workers' compensation tribunals when, under Florida law, the

6

The Players have cited the following provision in the Florida
Workers' Compensation statute: "If an accident happens while
the employee is employed elsewhere than in this state, which
would entitle the employee or his or her dependents to
compensation if it had happened in this state, the employee or
his or her dependents are entitled to compensation if the
contract of employment was made in this state, or the employment
was principally localized in this state. However, if an
employee receives compensation or damages under the laws of any
other state, the total compensation for the injury may not be
greater than is provided in this chapter." Fla. Stat.
§440.09(1)(d).

Exhibit A
Page 19

14

Miami Dolphins Workers'
Compensation Claims

Dolphins cannot be sued in Florida's workers' compensation
tribunals?

Moreover, the Implementation Agreement purports to

require arbitration of claims for benefits under Florida law.
The Players stress that the Dolphins have not explained how the
Club could foist upon the Players a choice of forum provision
that requires the Players to forego arbitration of Florida
claims (as contemplated under the Implementation Agreement) and
to file claims in a tribunal having no subject matter
jurisdiction over the claim.

The Players assert that the

statutory rights under Florida law to file claims for benefits
in other states -- which rights do not exist because the
Dolphins are exempt under Florida law -- were recast as
bargained-for contract rights in the CBA and Implementation
Agreement.

In addition, the Players assert that it is hard to

understand how the choice of forum provision in the addendum,
which clearly is void because the Players cannot file claims in
Florida state tribunals, can be separated from the choice of law
provision which is tethered to the choice of forum provision.
It is clear, the Players assert, that the choice of law
provision is meant to apply when claims are brought in Florida
tribunals (where they cannot be brought) and not independently.

The Players argue that this grievance should still be
denied even if the Implementation Agreement and/or NFL Player
Contract provisions were to be interpreted as requiring the
filing of claims only under the Implementation Agreement because
any award in favor of the Dolphins would violate clear legal
precedent.

California and Pennsylvania statutes, and decisions

of the United States, California and Pennsylvania Supreme

Exhibit A
Page 20

15

Miami Dolphins Workers'
Compensation Claims

Courts, as well as other legal rulings, demonstrate that neither
the Union nor the individual Players could legally waive the
right to seek workers' compensation benefits under California's
and Pennsylvania's state statues.
and unenforceable.

Any attempt to do so is void

It is axiomatic that a union and employer

may not contract to take away from employees state law benefits
that improve their health, safety or welfare.

See:

Met. Life

Ins. Co. v. Massachusetts, 471 U.S. 724 (1985); Livadas v.
Bradshaw, 512 U.S. 107 (1994); Lingle v. Norge Div. of Magic
Chef, Inc., 486 U.S. 399 (1988); Hawaiian Airlines Inc. v.
Norris, 512 U.S. 246 (1994) and Alaska Packers Ass'n v.
Industrial Accident Comm'n, 294 U.S. 532 (1935).

Under the Full

Faith and Credit clause of the United States Constitution, as
interpreted in U.S. Supreme Court decisions starting with Alaska
Packers, any state with a legitimate interest in a workers'
compensation claim, such as when an injury occurs within its
borders, may apply its own laws even if they are contrary to the
laws of another state.

The Players contend that this arbitrator is not bound
by the NFL arbitration decisions in Matthews or Haynes.

In both

those cases, the arbitrator ruled that choice of law or choice
of forum clauses similar to those at issue here barred players
from seeking benefits in California.

But in this case, no

matter how one interprets or applies such clauses, they are
without effect for reasons previously stated.

In addition, the

Players maintain that those awards are wrongly decided.

They

require the parties to violate state law because they force the
Players to give up rights that California and Pennsylvania, like

Exhibit A
Page 21

16

Miami Dolphins Workers'
Compensation Claims

virtually every other state, statutorily prohibit them from
giving up.

The Players also insist that the Federal District

Court decision confirming the Matthews award was wrongly
decided, and point out that decision currently is on appeal
before the Ninth Circuit Court of Appeals.

The Players argue that when an arbitrator confronts a
conflict between external law, such as the California and
Pennsylvania statutes here, and a contract that he is being
asked to enforce or interpret, the arbitrator must decide
whether the contract language should be enforced as written or
whether that language is superseded by external law.

That is,

an arbitrator must decide if he will issue an award that is void
and unenforceable or if he will issue an award that applies
external law.

The Players argue that this arbitrator should

consider and apply external law to reach the conclusion that
neither employees nor their unions can waive their right to seek
workers' compensation benefits under California and Pennsylvania
law.

If the arbitrator, however, determines that he does not

have jurisdiction to apply external law, the Players request
that he expressly state so.

FINDINGS

CBA/Implementation Agreement

Article LIV, Section 1 requires that a Club that is
not covered by the workers' compensation laws of the state in
which it is located "otherwise guarantee equivalent benefits to

Exhibit A
Page 22

17

its Players."

Miami Dolphins Workers'
Compensation Claims

Section 1 defines such benefits as "equivalent to

those benefits paid under the compensation law of the state in
which his Club is located."

Section 3, which was adopted in the

1982 CBA, provides that the "equivalent benefit, if any, to
which a Player may be entitled under this Article" will be
determined under the non-injury grievance procedure of Article
IX.

There is nothing in Article LIV, or any other cited

provision of the CBA, which addresses, let alone purports to
restrict, a player's filing a statutory claim for workers'
compensation under the law of any state.7

The 1985 Implementation Agreement states in its
introductory paragraph:

It is the intention of the parties that this
procedure provide the "equivalent benefits"
referred to in Article XXXIII of the 1977
Collective Bargaining Agreement and Article
XXXVI of the 1982 Collective Bargaining
Agreement [Article LIV of the 2006 CBA].
Paragraph 3 of the Implementation Agreement provides a mandatory
arbitration procedure for resolving disputes between players and
the servicing agent appointed by the Dolphins to handle claims
for equivalent benefits through application of the Florida
Workers' Compensation Law, as if it applied to those players.
Any such dispute as to equivalent benefits must be processed

7

That more than one state might have an interest in and provide
coverage to a particular injured employee long has been
recognized. See: Alaska Packers (U.S. Supreme Court 1935).

Exhibit A
Page 23

18

Miami Dolphins Workers'
Compensation Claims

before the implementation panel "established to determine
equivalent benefits."

The Implementation Agreement says nothing about a
Dolphins player's right to file a workers' compensation claim in
some other state under its law.

The Implementation Panel is

empowered only to apply Florida Workers' Compensation Law, not
the law of some other state.8

The Implementation Agreement does

not include language that reasonably, let alone clearly and
unmistakably, expresses or implies that Dolphins players are
contractually barred from bringing a workers' compensation claim
in another state under its law.

The Dolphins, nonetheless, contend that the
Implementation Agreement must be interpreted and applied to give
effect to its purpose.

The Dolphins claim that the purpose is

to require the "local processing of workers' compensation claims
made to the Miami Dolphins," as set forth in the introductory
paragraph.

But what that paragraph states is that the

8

The parties agree that Florida law permits an employee to seek
benefits under the laws of other states, subject to a credit,
and the Dolphins assert that the Players would be free to raise
this argument before the implementation panel. But I do not
find anything in the Implementation Agreement that suggests that
in applying Florida law that panel would or could grant benefits
under some other state's law, any more than a Florida workers'
compensation tribunal applying Florida law would or could do so.
But even if it could, the evidence does not show that the Union
clearly and unmistakably agreed to waive a Dolphins player's
right to present such a claim in a California judicial forum.
See: Wright v. Universal Maritime Service Corp., 525 U.S. 70
(1998) and 14 Penn Plaza, LLC v. Pyett, 129 5.Ct. 1456 (2009).

Exhibit A
Page 24

19

Miami Dolphins Workers'
Compensation Claims

Implementation Agreement is an agreement "dealing with local
processing" of claims, and that it establishes a procedure
intended to provide the "equivalent benefits" referred to in
Article LIV of the CBA.

Prior to the Implementation Agreement

there was no uniform or efficient procedure to accomplish that
result.

The parties expressed their intent in Paragraph 2 "to

avoid litigation of workers' compensation claims by routinely
resolving any issue or disputes which may arise between the
servicing agent and the player through a fair and reasonable
application of the Florida Workers' Compensation Law."
(Emphasis added.)

The servicing agent's role is to facilitate

the provision of the equivalent benefits guaranteed in Article
LIV of the CBA.

As the parties stated in Paragraph 3:

Although the 1982 CBA provides that the
method of determining what benefits a player
will be entitled to shall be the non-injury
grievance procedure of that document, the
parties agree that the establishment of a
local arbitration system is a more desirable
method of determining entitlement to
benefits. Accordingly, an independent panel
of arbitrators shall be established to
determine equivalent benefits.
The evidence does not indicate that the purpose of the
Implementation Agreement went beyond providing a local
arbitration system for determining and granting equivalent
benefits.

The parties may have presumed that this system would

be utilized by most injured Dolphins players, but that does not
show that they intended to bar players from filing statutory
claims elsewhere.

Exhibit A
Page 25

20

Miami Dolphins Workers'
Compensation Claims

That a high, or even very high, percentage of the
claims filed between 1985 and 2008 by former Dolphins players
was filed under the Implementation Agreement also does not
establish a consistent practice from which it should be
concluded that the parties to the Implementation Agreement
mutually considered it to be the exclusive procedure for filing
any and all workers' compensation claims.

At least 14 claims

were filed by Dolphins players in California during that period,
and, yet, prior to the 2008 AFL decision by Arbitrator
Wittenberg, the Dolphins never cited the Implementation
Agreement in defending against any of those claims.

Moreover,

while the Dolphins typically raised all possible defenses,
including jurisdiction, in their answers, they proceeded to
settle all of those 14 claims.9

"Choice of Law" Provision in NFL Player Contract

The NFL Player Contracts of 30 of the Players covered
by the present grievances include a provision that states in
relevant part:

Furthermore, Player and Club acknowledge and
agree that the exclusive jurisdiction for
resolving injury related claims shall be the
Division of Workers' Compensation of
Florida, and in the case of a Workers'
9

The record further indicates that out-of-state employers
routinely raise jurisdiction as a defense to claims filed in
California, and that the Dolphins did not make special
appearances to contest jurisdiction.

Exhibit A
Page 26

21

Miami Dolphins Workers'
Compensation Claims

Compensation claim the Florida Workers'
Compensation Act shall govern.
This provision not only conflicts with Article LIV of
the CBA and the Implementation Agreement, but, on its face, it
makes no sense and is unenforceable.

The Florida Workers'

Compensation Act does not apply to Miami Dolphins players, and
the Division of Workers' Compensation of Florida has no
jurisdiction over claims by such players.

This distinguishes

this provision from those at issue in Matthews and Haynes.10

The choice of forum and choice of law set forth in
this sentence constitute an integral provision.

But even if the

choice of law were to be considered on its own, it is undisputed
that the Florida's Workers' Compensation Act allows employees
covered thereunder to seek benefits in other states.

Certainly,

there is no sound basis on which to conclude, nonetheless, that
the Act somehow prohibits persons excluded from coverage
thereunder from seeking benefits under the laws of other states.
Nor can this contractual choice of law provision reasonably be
read as an agreement that if a Player seeks benefits in a forum
outside Florida he is agreeing that Florida's statute -- which
does not cover him -- is to be applied.

It is noteworthy that this choice of forum and choice
of law provision was first included in a Dolphins NFL Player
Contract some years after the adoption of the Implementation
10

For that reason it is unnecessary to address the Players'
other arguments as to why those two NFL arbitration cases should
not be followed in this case.

Exhibit A
Page 27

22

Agreement in 1985.

Miami Dolphins Workers'
Compensation Claims

If the Dolphins and the Players who entered

into these addenda had mutually intended that all injury-related
claims were to be processed only under the provisions and
procedures of the Implementation Agreement, they could have so
stated.

They did not.11

I conclude the choice of law provisions in the NFL
Player Contracts of 30 of the Players are not, as a matter of
contract, effective to preclude or prohibit those Players from
filing workers' compensation claims in California and seeking
benefits under otherwise applicable California law.

AWARD

The grievances are denied as set forth in the above
Findings.

11

Whether such a provision in an NFL Player Contract otherwise
would be valid and enforceable need not be, and is not,
addressed here.

Exhibit A
Page 28

EXHIBIT B

Article IX, Non-Injury Grievance

ARTICLE IX
NON-INJURY GRIEVANCE
Section 1. Definition: Any dispute (hereinafter referred to as a “grievance”)
arising after the execution of this Agreement and involving the interpretation of, application of, or compliance with, any provision of this Agreement,
the NFL Player Contract, or any applicable provision of the NFL Constitution and Bylaws pertaining to terms and conditions of employment of NFL
players, will be resolved exclusively in accordance with the procedure set
forth in this Article, except wherever another method of dispute resolution
is set forth elsewhere in this Agreement, and except wherever the Settlement Agreement provides that the Special Master, Impartial Arbitrator, the
Federal District Court or the Accountants shall resolve a dispute.
Section 2. Initiation: A grievance may be initiated by a player, a Club, the
Management Council, or the NFLPA. A grievance must be initiated within
forty-five (45) days from the date of the occurrence or non-occurrence upon which the grievance is based, or within forty-five (45) days from the date
on which the facts of the matter became known or reasonably should have
been known to the party initiating the grievance, whichever is later. A player need not be under contract to a Club at the time a grievance relating to
him arises or at the time such grievance is initiated or processed.
Section 3. Filing: Subject to the provisions of Section 2 above, a player or
the NFLPA may initiate a grievance by filing a written notice by certified
mail or fax with the Management Council and furnishing a copy of such notice to the Club(s) involved; a Club or the Management Council may initiate a grievance by filing written notice by certified mail or fax with the
NFLPA and furnishing a copy of such notice to the player(s) involved. The
notice will set forth the specifics of the alleged action or inaction giving rise
to the grievance. If a grievance is filed by a player without the involvement
of the NFLPA, the Management Council will promptly send copies of the
grievance and the answer to the NFLPA. The party to whom a non-injury
grievance has been presented will answer in writing by certified mail or fax
within seven (7) days of receipt of the grievance. The answer will set forth
admissions or denials as to the facts alleged in the grievance. If the answer
denies the grievance, the specific grounds for denial will be set forth. The
answering party will provide a copy of the answer to the player(s) or Club(s)
involved and the NFLPA or the Management Council as may be applicable.
Section 4. Ordinary and Expedited Appeal: If a grievance is not resolved
after it has been filed and answered, either the player(s) or Club(s) involved,
or the NFLPA, or the Management Council may appeal such grievance by
filing a written notice of appeal with the Notice Arbitrator and mailing
copies thereof to the party or parties against whom such appeal is taken,

Exhibit B
Page 29

23

Article IX, Non-Injury Grievance

and either the NFLPA or the Management Council as may be appropriate.
If the grievance involves a suspension of a player by a Club, the player or
NFLPA will have the option to appeal it immediately upon filing to the Notice Arbitrator and a hearing will be held by an arbitrator designated by the
Notice Arbitrator within seven (7) days of the filing of the grievance. In addition, the NFLPA and the Management Council will each have the right of
immediate appeal and hearing within seven (7) days with respect to four
(4) grievances of their respective choice each calendar year. The arbitrator(s)
designated to hear such grievances will issue their decision(s) within five
(5) days of the completion of the hearing. Prehearing briefs may be filed by
either party and, if filed, will be exchanged prior to hearing.
Section 5. Discovery: No later than ten (10) days prior to the hearing, each
party will submit to the other copies of all documents, reports and records
relevant to the dispute. Failure to submit such documents, reports and
records no later than ten (10) days prior to the hearing will preclude the
non-complying party from submitting such documents, reports and
records into evidence at the hearing, but the other party will have the opportunity to examine such documents, reports and records at the hearing
and to introduce those it desires into evidence, except that relevant documents submitted to the opposing party less than ten (10) days before the
hearing will be admissible provided that the proffering party and the custodian(s) of the documents made a good faith effort to obtain (or discover
the existence of) said documents or that the document’s relevance was not
discovered until the hearing date. In the case of an expedited grievance pursuant to Section 4, such documentary evidence shall be exchanged on or
before two (2) days prior to the hearing unless the arbitrator indicates
otherwise.
Section 6. Arbitration Panel: There will be a panel of four (4) arbitrators,
whose appointment must be accepted in writing by the NFLPA and the
Management Council. The parties will designate the Notice Arbitrator within ten (10) days of the execution of this Agreement. In the event of a vacancy in the position of Notice Arbitrator, the senior arbitrator in terms of
affiliation with this Agreement will succeed to the position of Notice Arbitrator, and the resultant vacancy on the panel will be filled according to the
procedures of this Section. Either party to this Agreement may discharge a
member of the arbitration panel by serving written notice upon the arbitrator and the other party to this Agreement between December 1 and 10
of each year, but at no time shall such discharges result in no arbitrators remaining on the panel. If either party discharges an arbitrator, the other party shall have two (2) business days to discharge any other arbitrator. If the
parties are unable to agree on a new arbitrator within thirty (30) days of any
vacancy, the Notice Arbitrator shall submit a list of ten (10) qualified and
experienced arbitrators to the NFLPA and the Management Council. With24

Exhibit B
Page 30

Article IX, Non-Injury Grievance

in fourteen (14) days of the receipt of the list, the NFLPA and the Management Council shall select one arbitrator from the list by alternately striking
names until only one remains, with a coin flip determining the first strike.
The next vacancy occurring will be filled in similar fashion, with the party
who initially struck first then striking second. The parties will alternate
striking first for future vacancies occurring thereafter during the term of this
Agreement. If either party fails to cooperate in the striking process, the other party may select one of the nominees on the list and the other party will
be bound by such selection.
Section 7. Hearing: Each arbitrator will designate a minimum of twelve
(12) hearing dates per year, exclusive of the period July 15 through September 10 for non-expedited cases, for use by the parties to this Agreement.
Upon being appointed, each arbitrator will, after consultation with the Notice Arbitrator, provide to the NFLPA and the Management Council specified hearing dates for such ensuing period, which process will be repeated
on an annual basis thereafter. The parties will notify each arbitrator thirty
(30) days in advance of which dates the following month are going to be
used by the parties. The designated arbitrator will set the hearing on his
next reserved date in the Club city unless the parties agree otherwise. If a
grievance is set for hearing and the hearing date is then postponed by a party within thirty (30) days of the hearing date, the postponement fee of the
arbitrator will be borne by the postponing party unless the arbitrator determines that the postponement was for good cause. Should good cause be
found, the parties will share any postponement costs equally. If the arbitrator in question cannot reschedule the hearing within thirty (30) days of the
postponed date, the case may be reassigned by the Notice Arbitrator to another panel member who has a hearing date available within the thirty (30)
day period. At the hearing, the parties to the grievance and the NFLPA and
Management Council will have the right to present, by testimony or otherwise, and subject to Section 5, any evidence relevant to the grievance. All
hearings will be transcribed.
If a witness is unable to attend the hearing, the party offering the testimony shall inform the other party of the identity and unavailability of the
witness to attend the hearing. At the hearing or within fourteen (14) days
thereafter, the party offering the testimony of the unavailable witness must
offer the other party two possible dates within the next forty-five (45) days
to take the witness’ testimony. The other party shall have the opportunity
to choose the date. The record should be closed sixty (60) days after the
hearing date unless mutually extended notwithstanding any party’s failure
to present post-hearing testimony within the above-mentioned time period. If a witness is unavailable to come to the hearing, the witness’ testimony may be taken by telephone conference call if the parties agree. In cases
where the amount claimed is less than $25,000, the parties may agree to
hold the hearing by telephone conference call. If either party requests post-

Exhibit B
Page 31

25

Article IX, Non-Injury Grievance

hearing briefs, the parties shall prepare and simultaneously submit briefs
except in grievances involving non-suspension Club discipline where less
than $25,000 is at issue, in which cases briefs will not be submitted. Briefs
must be submitted to the arbitrator postmarked no later than sixty (60)
days after receipt of the last transcript.
Section 8. Arbitrator’s Decision and Award: The arbitrator will issue a
written decision within thirty (30) days of the submission of briefs, but in
no event shall he consider briefs filed by either party more than sixty (60)
days after receipt of the last transcript, unless the parties agree otherwise.
The decision of the arbitrator will constitute full, final and complete disposition of the grievance, and will be binding upon the player(s) and Club(s)
involved and the parties to this Agreement; provided, however, that the arbitrator will not have the jurisdiction or authority: (a) to add to, subtract
from, or alter in any way the provisions of this Agreement or any other applicable document; or (b) to grant any remedy other than a money award,
an order of reinstatement, suspension without pay, a stay of suspension
pending decision, a cease and desist order, a credit or benefit award under
the Bert Bell/Pete Rozelle NFL Player Retirement Plan, or an order of compliance, with a specific term of this Agreement or any other applicable document, or an advisory opinion pursuant to Article XIII (Committees), Section 1(c). In the event the arbitrator finds liability on the part of the Club,
he shall award interest beginning one year from the date of the last regular
season game of the season of the grievance. The interest shall be calculated
at the one-year Treasury Note rate published in The Wall Street Journal as of
February 1 (or the next date published) of each year, and such rate shall apply to any interest awarded during each such subsequent twelve (12)
month period.
Section 9. Time Limits: Each of the time limits set forth in this Article may
be extended by mutual written agreement of the parties involved. If any
grievance is not processed or resolved in accordance with the prescribed
time limits within any step, unless an extension of time has been mutually
agreed upon in writing, either the player, the NFLPA, the Club or the Management Council, as the case may be, after notifying the other party of its
intent in writing, may proceed to the next step.
Section 10. Representation: In any hearing provided for in this Article, a
player may be accompanied by counsel of his choice and/or a representative of the NFLPA. In any such hearing, a Club representative may be accompanied by counsel of his choice and/or a representative of the Management Council.
Section 11. Costs: All costs of arbitration, including the fees and expenses
of the arbitrator and the transcript costs, will be borne equally between the
26

Exhibit B
Page 32

Article IX, Non-Injury Grievance

parties. Notwithstanding the above, if the hearing occurs in the Club city
and if the arbitrator finds liability on the part of the Club, the arbitrator shall
award the player reasonable expenses incurred in traveling to and from his
residence to the Club city and one night’s lodging.
Section 12. Payment: If an award is made by the arbitrator, payment will be
made within thirty (30) days of the receipt of the award to the player or
jointly to the player and the NFLPA provided the player has given written
authorization for such joint payment. The time limit for payment may be
extended by mutual consent of the parties or by a finding of good cause for
the extension by the arbitrator. Where payment is unduly delayed beyond
thirty (30) days, interest will be assessed against the Club from the date of
the decision. Interest shall be calculated at double the one-year Treasury
Note rate published in The Wall Street Journal as of February 1 (or next date
published) of each year, and such rate shall apply to the interest awarded
during each subsequent twelve (12) month period in lieu of continuation
of any pre-award interest. The arbitrator shall retain jurisdiction of the case
for the purpose of awarding post-hearing interest pursuant to this Section.
Section 13. Grievance Settlement Committee: A grievance settlement
committee consisting of the Executive Director of the NFLPA and the Executive Vice President for Labor Relations of the NFL shall have the authority to resolve any grievance filed under this Article. This committee
shall meet periodically to discuss and consider pending grievances. No evidence will be taken at such meetings, except parties involved in the grievance may be contacted to obtain information about their dispute. If the
committee resolves any grievance by mutual agreement of the two members, such resolution will be made in writing and will constitute full, final
and complete disposition of the grievance and will be binding upon the
player(s) and the Club(s) involved and the parties to this Agreement. Consideration of any grievance by this committee shall not in any way delay its
processing through the non-injury grievance procedure described in this
Article, and no grievance may be resolved pursuant to this Section once an
arbitration hearing has been convened pursuant to Section 7 hereof.

Exhibit B
Page 33

27

EXHIBIT C

Article LIV, Workers’ Compensation

ARTICLE LIV
WORKERS’ COMPENSATION
Section 1. Benefits: In any state where workers’ compensation coverage is
not compulsory or where a Club is excluded from a state’s workers’ compensation coverage, a Club will either voluntarily obtain coverage under the
compensation laws of that state or otherwise guarantee equivalent benefits
to its Players. In the event that a Player qualifies for benefits under this section, such benefits will be equivalent to those benefits paid under the compensation law of the state in which his Club is located.
Section 2. Rejection of Coverage: Nothing in this Article is to be interpreted as preventing a Club that has the legal right to do so from rejecting
coverage under the workers’ compensation law of its state. However, if a
Club elects to reject coverage under the compensation law of its state, it
must nevertheless guarantee benefits to its Players in the manner provided
in Section 1 above. Moreover, any Club may be excluded from those laws
if it elects to do so, but any such Club will be obligated to guarantee benefits to its Players in the same manner provided in Section 1 above.
Section 3. Arbitration: In any state where a Club (e.g., Miami Dolphins/
Florida) has legally elected not to be covered by the workers’ compensation
laws of that state, the equivalent benefit, if any, to which a Player may be
entitled under this Article will be determined under the grievance procedure of Article IX (Non-Injury Grievance).
Section 4. Workers’ Compensation Offset Provisions: The parties agree
that the following provisions shall exclusively govern any and all rights
Clubs have with respect to workers’ compensation credits or offsets during
the remaining Capped Years of this Agreement.
(i)
“Dollar-for-Dollar” Credits or Offsets. No Club shall be entitled to claim or receive any dollar-for-dollar credit or offset for salary, benefits, or other compensation paid or payable to a Player against any award or
settlement of workers’ compensation benefits, either pursuant to Paragraph
10 of the NFL Player Contract or any provision of state law.
(ii)
“Time” Credits or Offsets. All Clubs are instead entitled only to
a “time” credit or offset under Paragraph 10 of the NFL Player Contract or
state law, as set forth more specifically in Subsections (A)-(F) below. This
“time” credit or offset shall in all cases be expressed or granted as a reduction in the number of weeks of a Player’s workers’ compensation award or
settlement that is attributable to the same period of weeks in which the
Player is deemed entitled to salary payments or CBA benefits as described
in this Section. The credit or offset shall be at the weekly rate specified under the state workers’ compensation law in question. Because the period
from the beginning of the regular season to the end of the League Year (25

Exhibit C
Page 34

227

Article LIV, Workers’ Compensation

weeks) is approximately 1.5 times longer than the seventeen (17) week period over which Players receive salary and/or Injury Protection payments,
the parties agree that, in calculating the “time” credit or offset as set forth
more particularly herein, the Club is entitled to a reduction of 1.5 weeks of
a Player’s workers’ compensation award or settlement for each week during
the regular season for which a Player is awarded or executes a settlement
agreement for workers’ compensation benefits and for the same period of
weeks is paid his full Paragraph 5 salary or Injury Protection payments.
(A)
In the case of salary payments pursuant to Paragraph 5 or 9 of
the NFL Player Contract, the Club shall be entitled to a reduction of 1.5
weeks of a Player’s workers’ compensation award or settlement for each
week during the regular season in which the Player is physically unable to
perform his services under his contract due to an injury he suffers while
performing services during that contract year, to a maximum of 25 weeks,
provided that the Player receives his full salary as set forth in Paragraph 5 of
his contract for the period in question. For example, if a Player receives
three (3) weeks of Paragraph 5 salary subsequent to an injury that rendered
him unable to perform for three (3) games (regardless of whether the payments were made on a weekly or bi-weekly basis), the Club will be entitled
to a reduction of 4.5 (= 3 x 1.5) weeks of the Player’s workers’ compensation award or settlement. As another example, if a Player receives seventeen (17) weeks of Paragraph 5 salary subsequent to an injury that rendered
him unable to perform all 16 games of the regular season (regardless of
whether the payments were made on a weekly or bi-weekly basis), the Club
will be entitled to a reduction of 25 (= 17 x 1.5) weeks of the Player’s
workers’ compensation award or settlement.
(B)
In the case of Injury Protection payments, a Club shall be entitled to a reduction of 1.5 weeks of a Player’s workers’ compensation award
or settlement for each week from the beginning of regular season to the end
of the League Year that the Player receives full Injury Protection payments,
to a maximum of 25 weeks. For example, if a Player receives the Injury Protection payments for 17 weeks (regardless of whether the payments were
made on a weekly or bi-weekly basis), the Club will be entitled to a reduction of 25 weeks of the Player’s workers’ compensation award or settlement. As another example, if a Player receives Injury Protection payments
for three (3) weeks but then signs a contract for that season with another
Club such that benefits payments cease, the Club will be entitled to a reduction of 4.5 weeks of the workers’ compensation award or settlement. In
the event that a Club pays a Player full Injury Protection payments prior to
the first regular season game of the League Year, the Club will be entitled to
a reduction of 1.5 weeks of the Player’s workers’ compensation award or
settlement for each week during the regular season to the end of the League
Year for which the Player’s Injury Protection payments are made.
(C) Nothing in this Section 4 shall be interpreted to preclude a Club
from receiving the “time” credit or offset set forth in this Section for both
228

Exhibit C
Page 35

Article LIV, Workers’ Compensation

salary payments and Injury Protection payments when both payments are
made.
(D) In the event that an Injury Grievance, Injury Protection, injury
guarantee, or other arbitrable claim where workers’ compensation offsets or
credits is at issue and within the jurisdiction of the arbitrator, is settled between the Player and the Club, or in the event that a Club and Player execute an injury-related settlement agreement, the Club shall be entitled to a
reduction of 1.5 weeks of a Player’s workers’ compensation award or settlement for each week that the Player is deemed entitled to receive his full
Paragraph 5 salary or Injury Protection payments pursuant to the settlement, to a maximum of 25 weeks. The Club and Player shall be required to
specify in the written settlement agreement the number of weeks for which
the Player is receiving his full Paragraph 5 salary or Injury Protection payments under the settlement so that the appropriate number of weeks of the
Player’s workers’ compensation award or settlement can be reduced. For
example, if a Player and a Club settle an Injury Grievance, Injury Protection
or injury guarantee claim for a specified period of three (3) weeks, the Club
will be entitled to a reduction of 4.5 (= 3 x 1.5) weeks of the Player’s workers’ compensation award or settlement.
(E)
In the event that an Arbitrator awards Paragraph 5 salary or Injury Protection payments in an Injury Grievance, Injury Protection, injury
guarantee, or other arbitrable claim where workers’ compensation offsets or
credits is at issue and within the jurisdiction of the arbitrator, for the same
period of weeks for which a Player has already been awarded workers’ compensation benefits or received a workers compensation settlement, the
Club shall be entitled to a reduction of 1.5 weeks of the Player’s workers’
compensation award or settlement for each week the Player is deemed entitled to receive his full Paragraph 5 salary or Injury Protection payments
pursuant to the Arbitrator’s award. For example, if an Arbitrator awards a
Player three (3) weeks of Paragraph 5 salary pursuant to an Injury Grievance award and the Player has already been awarded workers’ compensation benefits or received a workers’ compensation settlement for that same
period, the Arbitrator shall reduce the award by an amount equal to
4.5 (= 3 x 1.5) weeks of workers’ compensation benefits.
(F)
Clubs are not entitled to any credit or offset under this Article
against any workers’ compensation benefits attributable to the period of
time after the last League Year for which the Player is entitled to receive
salary payments (or, in cases where the Player receives Injury Protection
payments, after such period) from the Club, even if the Player’s entitlement
to such payments is not determined until after the League Year in question.
No payment of any of the following may be used by a Club as a basis for
claiming any workers’ compensation credit or offset under this Article:
(1) Signing bonus;

Exhibit C
Page 36

229

Article LIV, Workers’ Compensation

(2) Option bonus;
(3) Roster bonus;
(4) Incentive bonus;
(5) Performance-based pay earned prior to the date of injury (unless, for any period of time in which a Club
would otherwise be entitled to a credit or offset pursuant to this Section, the Player’s weekly salary would
be less than the amount of weekly workers’ compensation benefits payable under state law, in which case the
performance-based pay could be added by the Club to
the Player’s Paragraph 5 salary for those weeks in which
the Club would be entitled to a credit or offset under
this Section);
(6) Deferred compensation (except where the deferred
compensation is salary attributable to the weeks for
which the Player has been awarded or has executed a
settlement agreement for workers’ compensation benefits as described in this Section in which case the Club
is permitted a credit or offset in the same manner as if
the salary was not deferred and instead was paid during
the League Year in which the Player was physically unable to perform his services under his NFL Player Contract due to an injury he suffered while performing services during that contract year);
(7) Severance pay; or
(8) Any other form of compensation other than Pa r agraph 5 salary under the NFL Player Contract or Injury
Protection payments under the CBA.
(G) Total and Permanent, Line of Duty and Degenerative Disability Benefits paid pursuant to the Bert Bell/Pete Rozelle NFL Player Retirement
Plans and/or related documents are not subject to any credit or offset for
workers’ compensation benefits, whether or not those benefits are payable
during the same period in which the disability payments are payable. Clubs
are not entitled to any credit or offset under this Article for any workers’
compensation benefits payable to any Player against any payments made to
any Player under the Bert Bell/Pete Rozelle NFL Player Retirement Plans
and/or related documents; provided, however, that the receipt of such disability payments by the Player shall not affect the Club’s right to claim or
230

Exhibit C
Page 37

Article LIV, Workers’ Compensation

receive any offsets or credits set forth elsewhere in this Article.
(iii) Pending cases. The parties agree to settle those Players’ workers’
compensation claims and related cases that were pending or in any stage of
appeal as of March 8, 2006, and thereafter in which a Player or former Player has claimed entitlement to workers’ compensation benefits on account
of an injury or injuries suffered while performing services under a NFL Player Contract and in which a Club is claiming any entitlement to a credit or
offset greater than the credit or offset provided herein; all such settlements
shall limit credits or offsets as set forth in this Article, regardless of any
awards or decisions already entered in any particular case. Clubs specifically reserve the right to maintain any defenses they may have in such pending cases that are unrelated to the offset issue.
(iv) Remedies. If, after March 8, 2006, despite the terms of this Article and the Clubs’ obligation to comply with Subsection (iii) and all other provisions of this Article, a state court or other competent authority nevertheless renders a decision or other determination with an outcome inconsistent with the terms of this Section 4, then the Player shall have a right
to immediate payment from the Club for the amount of any difference between such outcome and the outcome specified in Subsections (i)-(ii)
above. A Player may initiate a claim under this Section by filing a written
notice by certified mail or fax with the Management Council and furnishing a copy to the Club involved. The claim shall set forth the name of the
matter and jurisdiction in which the improper award was made, the
amount of payment requested and the basis for the calculation. The claim
must be initiated within 45 days of either the date of execution of this
Agreement or the date of any adverse order (whichever is later); provided,
however, that in the event the Player files an appeal of any adverse order, the
time for the Player to notify the Club will begin to run from the date the appeal is decided.
(v)
Time-Offset Fund. The NFL shall establish a fund which shall
bear the cost of additional benefits or associated insurance and related costs
(exclusive of professional fees, administrative overhead, penalties or similar
costs) incurred by any Club as a direct result of the adoption of this Section
4. The parties shall use their best efforts to ensure that all parties involved
including the Clubs and their insurance carriers will implement this Subsection (v) in such a manner as to minimize the costs and expenses associated with this fund.
(vi) Disputes. Any dispute concerning the operation of Section 4
and/or any payments to a Player under Subsection (iv) will be determined
under the grievance procedure of Article IX (Non-Injury Grievance).
Section 5. Preservation of Rights: Beginning as of the Final League Year,
the NFLPA and the Clubs preserve their prior positions (i.e., prior to March
8, 2006) with regard to the applicability and legality of workers’ compensation offset provisions under state law, and nothing in this Article shall be-

Exhibit C
Page 38

231

Article LIV, Workers’ Compensation

ginning in the Final League Year prevent any Player from claiming that an
offset provision is not legally binding upon him or prevent any Club from
asserting that an offset provision (including, but not limited to, a state
statute providing a Club with a dollar-for-dollar credit) is legally binding
upon a Player.

232

Exhibit C
Page 39

EXHIBIT D

Exhibit D
Page 40

Exhibit D
Page 41

Exhibit D
Page 42

Exhibit D
Page 43

Exhibit D
Page 44

'11CV2472 L

CAB