As previously discussed, last week the AAF decided to suspend operations, raising questions about the future of the league. Lost in the shuffle of stories about the significant sums of money lost by investors was the uncertain future of the league’s players. Each player’s gamble on playing in the league may, in the short term, cost them the opportunity to play professionally.
After the initial shock of the AAF’s suspension of league operations, panic and uncertainty struck players in the league. The implications of the league’s financial situation sunk in as soon as players returned to their hotel rooms to find that bills for the rooms were left unpaid, medical coverage ceased mid-treatment, and travel arrangements were not made. Most players, from NFL veterans to undrafted NCAA players, were caught by surprise and forced to be creative to get home to their families.
Professional football careers aren’t built to last. The average career length in the NFL is approximately three years, and as players enter the draft cycle for any league (NFL, CFL, or an upstart league such as the XFL), all athletes are informed of the brevity of their venture as a professional athlete. Even colleges use academic and professional success as a recruiting tool because former professional athletes will likely need another career once they hang up their cleats—voluntarily or not. But this innate awareness of the brevity of a professional career does not remove the shock and chaos a player faces when a league suspends operations during the season. Rank and file roster members are not as financially stable as other veterans who have other streams of income. It is no different than when a large business closes its doors overnight, leaving the employees to figure out the next step on their own. As one anonymous AAF player stated, “all I can do is stay in the gym and stay ready, I’m not sure what happens next.” Much to former AAF players dismay, there is no guarantee what comes next will be any better than the status quo.
On its face, the AAF was unique due to the lack of a union. Without a collective bargaining agreement, the players were forced into three-year contracts worth 250,000 dollars. These contracts are essentially contracts of adhesion, take it or leave it deals, that exploit a lack of leverage by the party agreeing to the terms (for a real world example, think of your cellphone contract). But even the existence of a union would do little to add job security to players when faced league wide financial instability. The NLRA, a federal law governing the relations between unionized labor and management, including professional sports unions, cannot prevent management/owners from closing its business for any reason. Reflecting entrepreneurial freedom, the NLRA affords business owners wide discretion when they contemplate closing their operations (with limited exceptions not relevant here). This leaves players in any professional league, unionized or not, with little to no actual job security if the league collapses.
Notwithstanding the lack of job security, the perception of a viable developmental league is being used by former players in a lawsuit filed against the AAF and its principal investors Charlie Ebersol, Bill Polian, and Thomas Dundon in California. The suit filed by two former AAF players, one of which is former Buffalo Bill Colton Schmidt, alleges the investors knew and/or should have known the league was not financially viable from its inception. Further, it is alleged investors rushed to make the league fully operational in 2018 to further develop gambling technology, not to play competitive football. This motive, rather than financial stability and growth of the game, arguably represents breach of contract and fraud. This complaint has set the stage for a class action by players. This course of action is not without significant risk by players, even assuming for the sake of argument there is merit to this claim and there are assets available for recovery by the players, complex litigation can take years to resolve. In the meantime, protracted litigation bears the risk of informally placing a scarlet letter on players involved, a signal to other teams this player isn’t worth the risk of further legal issues.
Virtually all players were left scrambling to pick up the pieces of their professional football career, including horrifying stories of players stranded and left with assorted bills. Among these stories, the most egregious concerned players who lost health care coverage mid-treatment for injuries suffered during the course of AAF-sanctioned events. As previously noted, this was lawful. Further, a termination of ERISA welfare plans does not leave injured players without legal recourse to ensure they are compensated for their injuries. Players injured in an AAF game or practice likely have the option of filing a workers compensation claim to ensure their treatment is paid for, along with a portion of lost wages. Workers compensation claims are filed for injuries that occur in the workplace or during the course of job duties. Rules vary from state to state, but generally filing a worker’s compensation claim precludes any other civil suit (personal injury) to determine fault or liability unless the conduct by the employer was willful or intentional conduct resulting in an injury. This leaves players left with medical bills with the option to ensure medical coverage by filing a worker’s compensation claim in exchange for foregoing any civil claims involving their injuries, absent intentional conduct. At first glance this may seem like a no-brainer, as it does not preclude joining lawsuits that deal with breaches of contract or fraud, and allows medical payments to continue. But there is more than meets the eye with the AAF. The use of proprietary technology to speed up the game and allow more fan access may have created an unsafe playing environment, potentially making the AAF negligent in its operations and proximately causing and/or contributing to injuries suffered during the course of games. This novel theory of recovery is one of many that players would forego by filing for worker’s compensation. Other theories of recovery make this decision difficult to make in such a short period of time, potentially leading to missed opportunities.
The future was not always so bleak, as over 30 former AAF players were signed to NFL rosters. But that came to an abrupt halt as soon as AAF investors began contemplating bankruptcy, arguably making the remaining AAF player contracts assets. At this preliminary stage, the view of AAF player contracts will effectively preclude other leagues such as the NFL or the XFL from signing other former AAF players. This leaves a significant portion of the league’s players stuck in limbo. By gambling upon an upstart league with deep ties to the NFL, they have all but given up a chance to play in the 2019 season. Whether it be injuries or poor timing, nothing is truly guaranteed as a professional football player. The cautionary tale of the AAF should give all players and their representatives pause before weighing an opportunity in a league that has not yet been established.
By Tony DiPerna
Photo Credit: Logan Riely/AFF
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