Professional Athletes And The Exception To Workers’ Compensation

By: Robert Laur, Associate, Sarasota

Known for being predominately Claimant protective, Florida Legislators took a step in an unexpected direction in 2011 when they excluded certain dangerous professions from Workers’ Compensation coverage. In 2011, Section 440.02(17)(c)(3) was signed into law, which excludes professional athletes and race car drivers from coverage.

Just three years later, in California, we saw why this exclusion is so important. In 2014, California passed a law banning professional athletes from filing workers’ compensation claims within the state. The immediate reaction from players was the filing of over 1,000 injury claims from athletes hoping to get treatment before the law went into effect in September, 2015. The cost of these claims is in the hundreds of millions of dollars. Athletes including Dan Marino, Jim Palmer, and Hakeem Olajuwon were among the more notable players that filed claims. For leagues like the National Football League, National Basketball Association, Major League Baseball and National Hockey League (among others), this meant shifting from Workers’ Compensation policies to a variety of other options.

However, this poses an issue for smaller or newer organizations that do not have the same history or equity as larger leagues. These teams have to look for creative ways to find coverage. 

A recent example is the Orlando Apollos. This is an Alliance of American Football team based out of Orlando. Due to the professional athlete exclusion from Workers’ Compensation in Florida, the team has moved 51% of its practice time to a high school in Kingland, GA. Under Georgia Workers’ Compensation law, professional athletes are covered, as long as they spend over half of their practice time on Georgia soil.

Why should you care? Florida is home to three National Football League teams, two Major League Baseball teams, two National Basketball Association teams, two National Hockey Teams, and two Major League Soccer teams. We are also home to 15 teams for spring training, the Professional Golfers Association of America (PGA), NASCAR, several Raceways and Speedways, Grand Prix races, and countless other professional sporting events.

Florida’s biggest industry is tourism, and along with that we have a significant number of performers. Companies like Disney, Sea World, Universal, Busch Gardens, and the various ballets/circuses employee thousands of performers. In many instances, these performers are highly trained gymnasts and athletes who may fall under the professional athlete exception to workers’ compensation coverage, and instead are covered by another type of insurance policy. Insuring athletes and performers can open up carriers and employers to substantial exposure and the incidence of injuries are high. An important note  is that under Section 440.04, Employers/Carriers can elect to cover legally exempt players/performers under their Workers’ Compensation policies.

Before accepting compensability on a claim when you are unsure if a Claimant would fall under the purview of section 440.02(17)(c)(3), speak with your attorney at Eraclides Gelman to investigate the claim and see if this section applies.