Tag Archives: national football league

Are You Ready for Some Football?

For millions of Americans, the end of summer marks an important tradition: fantasy football drafts! Even with the National Football League seeing a slight downturn in television ratings for the first time in years last season (the possible causes of which are too complex to address here), fantasy football continues to grow in popularity. The Fantasy Sports Trade Association estimates that almost 60 million people in the U.S. and Canada will play fantasy sports in 2017 (with fantasy football being the most popular). Fantasy football continues to be a colossal enterprise that drives significant interest to the NFL, as well as a wide array of supporting industries looking to monetize our apparently unquenchable love of this game within a game.

One such secondary industry, which began developing several years back, is fantasy football insurance. Although some of the original companies may have fallen by the wayside, there are still a few companies selling these “insurance” policies, intended to provide coverage for a fantasy owner’s investment in the event a starting player gets hurt. Although some of the details have changed over the years, these policies continue to raise interesting questions under insurance law.

See also: How Literature and the NFL Shed Light on Innovation  

As a starting point, let’s recap how fantasy football works. A group of participants, or “owners,” form a league to compete against one another based on the statistical performance of NFL players in real, live games. Teams are typically made up of a quarterback, some combination of running backs, wide receivers and tight ends, a defense and a kicker (with backups for key positions). More advanced leagues may also incorporate defensive players and special teams. Before the NFL season starts, the owners hold a draft – or sometimes an auction – to divide the desirable players (expected to accumulate strong statistics over the season) and build their rosters. Each week during the NFL regular season, fantasy teams square off against each other, earning points based on their players’ performance in NFL games. Whichever squad scores more points that week wins, and the teams that accumulate the most wins have a short playoff during the last few weeks of the season to name an ultimate champion.

Fantasy football is popular for countless reasons, but, for many, it’s a form of competition among friends (or even strangers), and, as with any competition, there is an opportunity for wagering. Although many leagues are simply for fun, very often leagues have an upfront buy-in (ranging from a few dollars to thousands), with the champion taking home cash at the end of the season. Fantasy football certainly combines elements of both skill and luck in ways that many more traditional gambling ventures, like slot machines or craps, can’t claim, but, in many regards, fantasy football serves as a statistics-based gambling enterprise.

The insurance products available online are intended to protect an owner’s “investment” in the league; that is, the cash buy-in. Typically, an interested owner picks a player he wants covered from a list of eligible players on the insurance company’s website and determines how much “coverage” to buy. Prices vary depending on a few different factors (coverage options, a player’s history of injuries, etc.). For example, in updating the research for this article, I was able to buy a $50 policy on one of my star wide receivers for $6.40 using a coupon code found online. If my insured player misses 8 or more games due to injury, the policy will pay me $50 to make me whole for my league buy-in.

But what am I really insuring? All insurance policies require an insurable interest, which means that a policyholder must have a valid legal or financial interest in the thing he wants to insure. People buy insurance policies to cover lots of things: their body, home, car, business, life. We buy insurance for these things because we have an insurable interest in them – if something bad were to happen to them, it would harm us. In most states, to form a valid insurance contract, the insurable interest must exist both at the time the policy is purchased and at the time of the loss. If the policyholder has no insurable interest, the insurance policy is typically deemed void (although many courts still enforce the policy against an insurance company that accepts premiums knowing that no insurable interest exists). A mere “contingent” or “expectant” interest that isn’t based on a legal interest or right is typically not enough to be insurable. Without an insurable interest, the contract essentially becomes a wager that something bad will happen to the thing insured; there is only the upside of a payout if the insured matter is harmed, without any downside to a disinterested policyholder.

These fantasy football insurance policies challenge the insurable interest requirement by expanding what kind of interest can be insured. Is owning a player on a fantasy football team, and betting on that team, a sufficient legal interest to be insurable? Maybe, maybe not. Technically, betting on fantasy football is legal in most states, especially those that allow betting on games of skill. The betting also likely complies with federal law: The Unlawful Internet Gambling Enforcement Act of 2006 (UIGEA), which attacks funds transfers associated with internet gambling websites, specifically carves out fantasy sports from its reach. (In recent years, the rise in prominence of daily fantasy sites, such as Draft Kings and FanDuel, has brought the legality of betting on fantasy sports into question, but this article assumes that ordinary participation in a season-long fantasy league with a cash entry fee complies with the statute.) But even if legal, it is undeniable that a fantasy football owner’s sole monetary interest in his players is the league entry fee, which is a wager against the other owners in the league; to the winner go the spoils. The purpose of the insurable interest is to prevent using insurance policies as a form of gambling, so it would make little sense that a policyholder could have an insurable interest in a (possibly legal) wager. In this regard, fantasy football insurance is a wager on a wager, and probably lacks an insurable interest.

Another challenge for these insurance products is that the insurance companies have no way of confirming that the policyholder even has the insured player on his or her team. In years past, carriers selling these policies made actually no effort to determine if the policyholder actually had the covered player on a team. Now, at least one company is asking customers to click to confirm that the player is on the customer’s roster, but the insurance company has no way of knowing if the policyholder keeps that player on the roster throughout the season. Trades and other transaction are one of fantasy football’s most popular features, as owners enjoy managing their teams and shuffling their rosters. If I trade away my covered player in Week 2, and he has a season-ending injury in Week 3, the policy should be void, because I no longer hold an insurable interest in the player covered. The insurer also has no way of determining how much my insurable interest should be; policyholders are allowed to buy any level of coverage.

See also: 4 Goals for the NFL’s Medical Officer  

Because of the absence of a valid insurable interest, these policies do not likely qualify as “insurance” policies under most states’ laws. So what are they? The law would probably consider them to simply be a bet that a particular player will get seriously injured. And not only is it a bet, it’s a bet made over the internet, which raises even more problems. Such bets likely violate federal law. UIGEA allows owners to bet on fantasy football because the outcome reflects the knowledge and skill of the owners and is determined predominantly by the real-world statistics of the NFL players on each owner’s team, but a bet on whether a player will get injured certainly fails this test and is likely considered a violation of the statute.

But policyholders don’t need to panic quite yet. Consumers have no liability under the UIGEA – the law solely targets the financial institutions that process the transactions for unlawful internet gaming.

In the end, fantasy football insurance companies aim to provide well-intentioned products to owners, ensuring enjoyment of their leagues and mitigation of risks. Most “policyholders” simply have a fantasy football team that they’ve spent some money on and want to hedge their bets in case a star player gets hurt. But do not be surprised to see courts or regulators step in to provide clarity on the legality of these policies if these products ever make a significant jump in popularity.

Workers' Compensation No Longer the Exclusive Remedy: RICO on the Radar, Part 2

Understandably, Part 1 of this article series has been met with some controversy and skepticism. The article is not designed to scare employers, as might have been suggested. Its intention is to educate employers about the many issues facing them when an employee becomes injured, that transcend the State Workers’ Compensation System and a workable solution to overcoming the challenges. Employers can no longer afford to bury their heads and rely on the exclusive remedy position. Yes, it may be here to stay, but it is becoming a bit frayed around the edges.

Coincidently, when Part 1 of this article was published, The National Football League (NFL) announced that it had reached a 765 million dollar settlement with players and their families for the settlement and consolidation of approximately 4,500 concussion claims. The players alleged that the NFL hid or ignored the facts that concussions caused brain injuries. Under the settlement, the NFL will pay 675 million dollars to retired players who demonstrate medical evidence of brain injury. Payouts of up to 5 million dollars each could go to players found to have Alzheimer's or Parkinson's diseases or other concussion-related conditions, or to their families. The settlement came just prior to the start of football season and will put an end to the mounting litigation that threatened the multi-billion dollar league.

United States District Presiding Judge Anita B. Brody appointed Judge Phillips to oversee the negotiations. Judge Philips said, “This is a historic agreement, one that will make sure that former NFL players who need and deserve compensation will receive it, and that will promote safety for players at all levels of football.”

 “This agreement lets us help those who need it most and continue our work to make the game safer for current and future players. Commissioner Goodell and every owner gave the legal team the same direction: do the right thing for the game and for the men who played it,” said NFL Executive Vice President Jeffrey Pash. “We thought it was critical to get more help to players and families who deserve it, rather than spend many years and millions of dollars on litigation. This is an important step that builds on the significant changes we’ve made in recent years to make the game safer, and we will continue our work to better the long-term health and well-being of NFL players.”

Once final documentation is completed, the settlement will be filed with Judge Brody, who will then schedule a hearing to consider whether or not to grant preliminary approval to the agreement. The retired players will then have the ability to file objections to the settlement.

One may ask what this has to do with Part 1 of this article.  An important component of this settlement is baseline testing. According to the settlement, baseline medical exams will be provided, the cost of which will be capped at $75 million. This will be a key element in ascertaining the conditions of current and retired players, gauging  the progression of any injuries they may have and having documentation of the medical status. This key component is the subject of Part 1 of this article. Baseline testing is not simply a self-promotion for the EFA-STM, but is a major part of helping injured workers, no matter what their occupations may be.

These cases are just the beginning, and it appears that the exclusive remedy provision for workers' compensation will no longer serve to prevent costly civil litigation as evidenced by the NFL settlement. An employer, insurance carrier/TPA and physician can take several steps to protect themselves. First, evidence-based medicine should always prevail. Objective medical evidence can help protect against claims for fraudulent denials of work-related injuries. Also, employers should accept only claims that arise out of the course and scope of employment (AOECOE). If an employer can objectively document AOECOE issues, fraudulent claims and fraudulent denials can be avoided and most importantly, correct treatment can be prevail.

A good approach to determining AOECOE claims is baseline testing, as it can identify injuries that arise out of the course and scope of employment. When a work-related claim is not AOECOE, as proved by objective medical evidence, such as pre and post assessments, then not only is there no workers’ compensation claim, there is no OSHA recordable claim, and no mandatory reporting issue. Conversely, if there is an injury, the injured worker can get the best site specific treatment and prevent inappropriate treatment and unnecessary progression of the underlying conditions.

The NFL recognized the importance of baseline testing with its recent settlement, and it is only the beginning. MSD for NFL players is also a significant problem. Why not baseline all football players, or, for that matter, all professional athletes, to address any injuries that may occur while playing and return them to the field sooner? This would promote better health and performance and might extend their careers. Professional athletes tend to play through their injuries, potentially causing more harm. An objective baseline test can assist all parties by providing objective medical evidence of an injury and outlining appropriate care. This truly is a win-win situation.

A proven example of a baseline test for musculoskeletal disorders (MSD) cases is the EFA-STM program. EFA-STM program begins by providing baseline injury testing for existing employees and new hires. The data is interpreted only when and if there is a soft tissue claim.  After a claim, the injured worker is required to undergo the post-loss testing. The subsequent comparison objectively demonstrates whether or not an acute injury exists. If there is a change from the baseline, site specific treatment recommendations are made for the AOECOE condition, giving the doctors more information and helping to ensure the injured worker receives the best care possible.

The case of the NFL settlement may not be a RICO claim, but, certainly, it tries the boundaries of the exclusive remedy provision of workers compensation. Baseline tests like the EFA-STM are a proven way to providing better work-related care. It is time for change and to think outside of the box to provide the answers so that we can become proactive, not reactive.