Tag Archives: nfl

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.

Marijuana and Workers’ Comp

I read an interesting story recently on the front page of Yahoo.com titled “ESPN’s NFL player poll about marijuana had some surprising results.” I then read the source article on ESPN.com, “Survey: Two-thirds of NFL players say legal pot equals fewer painkillers.” The title is fairly self-explanatory.

First, just to ensure we’re on the same page: This is a workers’ compensation issue. The NFL is an employer. The players are employees. The gridiron is a workplace. Pain and injury are realities for the vast majority if not all players/employees at some point in their careers.

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

The survey was of 226 players, 11% of the total number of players on active rosters and practice squads. So I would consider it a statistically significant sample, and, depending on how the 226 were selected, likely reflective of the full population.

Following are the highlights as tweeted out by @ESPNNFL:

  • Nearly three-quarters of NFL players surveyed (71%) say marijuana should be legal in all states.
  • About one-in-five (22%) say they’ve known a teammate to use marijuana before a game.
  • Two-thirds (67%) say the NFL’s testing system for recreational drugs is not hard to beat.
  • When asked which was better for recovery and pain control — marijuana or painkillers — 41% say marijuana, compared with 32% for painkillers.
  • More than half (61%) say that, if marijuana were an allowed substance, fewer players would take painkillers.

Do these results scare you? Probably depends on the personal opinion you held before you read them. Do these results surprise you? They shouldn’t. According to the Associated Press-NORC Center for Public Affairs Research survey of 1,042 adults in February 2016:

  • 61% said marijuana should be legal, and of those …
  • 33% with no restrictions
  • 43% with restrictions on purchase amounts
  • 24% only with medical prescription

Add to those figures the five states (Arizona’s Proposition 205, California’s Proposition 64, Maine’s Question 1, Massachusetts’ Question 4, Nevada’s Question 2) that voted last Tuesday whether to legalize recreational marijuana. (Legalization was approved in California, Massachusetts, Nevada and Maine — though by such a close vote in Maine that a recount is being requested. The pro-legalization side appears to have lost in Arizona, but the vote is still being counted.) Add to that four other states (Arkansas, Florida, Montana, North Dakota) that will vote on medical marijuana legalization. (Legalization was approved in all four states.) All of that means the landscape looks very different than it did a week ago.

So if you are a private or public employer, an insurance company, a work comp stakeholder, a clinician, a politician or state regulator … How different do you think your specific constituency is from the numbers listed above? My educated guess is that both surveys are fairly representative of the U.S. (the only other country that I’ve been following is Canada, which appears to be along the same trajectory in public opinion). Which means the numbers above are likely to guide coming public policy.

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

So what does this all mean for the workplace? Of paramount importance is to have a jurisdiction-specific (because all states are different) drug policy (pre-employment, post-accident, return-to-work) that explicitly addresses marijuana (because presence does note equal impairment, a characteristic unique to marijuana among intoxicants).

And … keep your seatbelts handy.

Your Device Is Private? Ask Tom Brady

However you feel about Tom Brady, the Patriots and football air pressure, today is a learning moment about cell phones and evidence. If you think the NFL had no business demanding the quarterback’s personal cell phone—and, by extension, that your company has no business demanding to see your cell phone—you’re probably wrong. In fact, your company may very well find itself legally obligated to take data from your private cell phone.

New Norm

Welcome to the wacky world of BYOD—bring your own device. The intermingling of personal and work data on devices has created a legal mess for corporations that won’t be cleared up soon. BYOD is a really big deal—nearly three-quarters of all companies now allow workers to connect with private devices, or plan to soon. For now, you should presume that if you use a personal computer or cell phone to access company files or email, that gadget may very well be subject to discovery requirements.

Security & Privacy Weekly News Roundup: Stay informed of key patterns and trends

First, let’s get this out of the way: Anyone who thinks Tom Brady’s alleged destruction of his personal cell phone represents obstruction of justice is falling for the NFL’s misdirection play. That news was obviously leaked on purpose to make folks think Brady is a bad guy. But even he couldn’t be dumb enough to think destruction of a handset was tantamount to destruction of text message evidence. That’s not how things work in the connected world. The messages might persist on the recipients’ phones and on the carriers’ servers, easily accessible with a court order. The leak was just designed to distract people. (And I’m a Giants fan with a fan’s dislike of the Patriots).

But back to the main point: I’ve heard folks say that the NFL had no right to ask Brady to turn over his personal cell phone. “Right” is a vague term here, because we are still really talking about an employment dispute, and I don’t know all the terms of NFL players’ employment contracts. But here’s what you need to know:

Technology and the Law

There’s a pretty well-established set of court rulings that hold that employers facing a civil or criminal case must produce data on employees’ personal computers and gadgets if the employer has good reason to believe there might be relevant work data on them.

Practically speaking, that can mean taking a phone or a computer away from a worker and making an image of it to preserve any evidence that might exist. That doesn’t give the employer carte blanche to examine everything on the phone, but it does create pretty wide latitude to examine anything that might be relevant to a case. For example: In a workplace discrimination case, lawyers might examine (and surrender) text messages, photos, websites visited and so on.

It’s not a right, it’s a duty. In fact, when I first examined this issue for NBCNews, Michael R. Overly, a technology law expert in Los Angeles, told me he knew of a case where a company actually was sanctioned by a court for failing to search devices during discovery.

Work Gets Personal

“People’s lives revolve around their phone, and they are going to become more and more of a target in litigation,” Overly said then. “Employees really do need to understand that.”

There is really only one way to avoid this perilous state of affairs—use two cell phones, and never mix business with personal. Even that is a challenge, as the temptation to check work email with a personal phone is great, particularly when cell phone batteries die so frequently.

The moral of the story: The definition of “personal” is shrinking all the time, even if you don’t believe Tom Brady shrank those footballs.

For further reading: here’s a nice summary of case law.

4 Goals for the NFL’s Medical Officer

On the cusp of the 2015 Super Bowl, NFL Commissioner Roger Goodell surprised fans with an unusual focus for his annual state of the league press conference: player safety. He announced that the league would hire a chief medical officer to oversee the league’s health policies. This is good news. But first and foremost, Goodell must firmly plant the goalposts for this new hire. What does the new top doc need to accomplish to win? Here are four goals to start:

Goal One: Make Concussions Rare

In 2014, there were 202 concussions among players in practice, preseason and regular-season games. With approximately 1,600 players, my back-of-the-envelope math calculates one concussion for every eight players — in one year alone.

The new chief medical officer will have some momentum to build on to address this issue. In recent years, the league has implemented tough restrictions about when and under what conditions players can return to the field after an injury. The league has also improved equipment and changed the rulebook to penalize hits to defenseless players. The number of concussions is down by 25% from 2013, and defenseless hits are down by 68%. The new medical officer needs to accelerate that progress.

Goal Two: Research and Enforce Best Practices

To make a major impact on players’ health and safety, the new medical officer will need to rigorously examine the protocols in place to protect players. No one can argue with the notion that, at its core, football is a contact sport; injury is inevitable. However, some injuries are entirely preventable, yet they can easily topple the career of a valuable player. In my world, we’d call this kind of injury a “Never Event” — it should never happen.

The new medical officer needs to consider how the team functions as a whole, get solid research on best practices and create enforceable guidelines for prevention. To protect past, current and future players, he or she will have to shake up the entire enterprise and institute a culture in which making the play is balanced with protecting the player.

Goal Three: Demand Safety off the Field, Too

One in eight is a frightening statistic for concussions, but, surprisingly, players may be safer on the field than in a hospital. Players — and league employees and their families — depend on the healthcare system just like the rest of us. True, players often receive treatment at elite centers of care, at the hands of celebrated physicians. But our research finds that even places with big reputations can be equally unsafe. One in six admissions to a hospital results in an adverse event, and as many as 500 people die every day from preventable errors, accidents and injuries in hospitals. Even the most highly regarded institutions struggle to keep patient safety a top priority.

But some providers are much safer than others, and the new NFL medical officer has a role to play in helping players and employees pick the winners. He or she can demand data on safety of hospitals and physician practices and use that data in decision-making. The NFL can structure health benefits packages to favor safest providers, encourage performance-based payment models and give employees transparent and candid information on quality and safety to encourage them to select the safest care. Many other employers and unions are successfully deploying these strategies, and they have good tools to help.

Goal Four: Be a Champion

Championship  isn’t exactly a standard element on boilerplate job descriptions, but it’s critical to this one. The NFL knows how to spot champions, and it should expect no less from this new hire.

The new chief medical officer needs to inspire a good number of people: teams, to change the way they function; youth, increasingly wary about the game; retired players, whose health issues cast a shadow over the whole sport; and the millions of fans who love American football.

Being a champion is the most important goal, because the NFL has the opportunity to go beyond defending its safety record and start playing offense. As a top-tier brand, the NFL could be a national leader, ensuring that safety comes first in America, on and off the field. By taking the right steps to protect players and the league, the new medical officer can inspire all the fans, not only to embrace the game, but to champion a healthier America.

This article was originally posted on Forbes.com.

How the NFL May Fix Workers’ Comp

I have a whiz bang idea for solving that pesky investigation issue that surrounds every workers’ compensation claim.

This idea will clearly get me that Nobel or Pulitzer Prize. Either one. I’m not fussy.

It came to me while I was reading an article about the NFL boosting its statistics tracking and accuracy with the use of RFID tags in the players’ shoulder pads. It seems these amazing little chips will allow NFL statisticians to know “real-time position data for each player,” as well as “precise info on acceleration, speed, routes and distance.” This is part of the NFL’s “Next Gen Stats” initiative for fans.

For those who are unaware, RFID (radio frequency identification) technology is the hot new thing. Essentially, an RFID tag contains a passive ID chip that can be activated by receivers as it passes near them. The tag requires no battery power and is highly reliable. Stores like Walmart now use them extensively to track and monitor inventory changes. Even my Florida SunPass tag uses one. The small sticker on my windshield allows me to zip through tolls and access parking at Tampa International Airport without talking to anyone or even rolling down my window. Of course, the tag also allows the state to bill me for that activity and serves to notify the NSA that I am on the move again. But the NSA probably already knew that. The complete loss of privacy is a small price to pay for not having to chat up a friendly toll taker.

I am so glad the NFL has gone with RFID. It is a much more reliable technology than those old scanner barcodes. That was a disaster — having to get the player to run into the end zone six times before the scanner could capture the touchdown — but I digress. . . .

While the article on the NFL and RFID was prattling on about all the useless stats fans could now have access to, I was thinking in an entirely different direction. I recognized that the NFL has inadvertently invented the personal “black box” for workplace accidents. Think about it. This is a technology that could be employed in offices and factories all over the country.

Employers could easily monitor “real-time position data for each employee,” as well as “precise info on acceleration, speed, routes and distance” as employees move throughout the day. An RFID-enabled wearable could tell accident investigators if an employee was running when he slipped and fell down the stairs, as well as how many rotations he took as he progressed to the bottom.  The tag could determine that an employee was idle in the break room at the time she claimed to be straining her back on the loading dock.  And biometric sensors added to the RFID wearable could actually cross reference stress levels and physiological indicators to the time and location of the accident, giving a clearer view of events than ever before possible.

It is just like data used from airplane black boxes to reconstruct what actually happened to cause an accident. I am telling you, this technology could be a tremendous boon for risk managers and accident investigators everywhere. But why should they have all the fun?

Safety professionals could leverage the same technology to prevent accidents in the first place. Restaurant servers would no longer have to yell “corner” or “door” when traversing areas with visual limitations. Their RFID-enabled monitors would send real time location updates of other employees in the vicinity to heads-up displays located within employees’ Google Glass. The system would issue potential collision warnings similar to those in today’s aviation industry.  I’m telling you, Big Brother really may have all the answers after all.

Unless, of course, all the employees were watching internet porn on their Google Glass heads-up displays, and no work would get done anywhere. On the plus side, biometric sensors should pick up signs of unauthorized porn viewing, so it may be controllable after all.

The remaining challenge will be the design and implementation of the RFID biometric wearable devices. Will they be embedded in the work clothes or uniforms, in bracelets, necklaces or other accessories or simply implanted in our skulls? For the record, I do not recommend the skull implant method. My wife tells me my skull is so thick, the signal could never get out. Also, multiple sensors may need to be deployed on every employee, such as in shoes and on the head. This would be helpful for a truly accurate rotation count on those extended fall injuries.

In the end, we may all be wired to the hilt, with no more need to verbally communicate in the workplace. But we will have our personal black boxes. We’ll all end up as fat people in our little floaty chairs. But if we over-sensored tubbos have a collision, our wearable technology will give investigators a much clearer idea of what went tragically wrong.

Even though the idea is somewhat creepy, and I am largely joking, I think we may actually have something here: black box wearables. Coming soon to a workplace near you.