By Canadian Press

CFLPA, NLLPA fighting to give their memberships access to workers’ compensation

Mar 20, 2023 | 1:13 PM

It’s five years and counting for the CFL Players’ Association and executive director Brian Ramsay.

The CFLPA has been fighting to have its members covered by workers’ compensation since 2018. That’s when the Supreme Court of Canada decided against hearing former player Arland Bruce III’s concussion lawsuit against the CFL and former commissioner Mark Cohon.

The decision came after two B.C. courts — the Supreme Court of British Columbia and British Columbia Court of Appeal — dismissed the suit, saying the Supreme Court previously ruled unionized employees must use labour arbitration and not the courts to resolve disputes arising from their collective agreement. 

Bruce’s lawyers argued the CFL’s collective agreement was unusual because athletes individually negotiated their pay and it had no long-term disability insurance plan, but players were also excluded from occupational health and safety regulations and ineligible for workers’ compensation.

The CFLPA has since been joined in the cause by unions from several other pro sports leagues.

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The CFLPA has identified B.C., Manitoba and Ontario as provinces where it can press the issue. But it has spoken to officials in every Canadian province, having conducted over 24 in-person meetings since 2018.

“B.C. and Manitoba are the two provinces that can make this change with a regulatory move, ” said Ramsay. “The government in B.C. has been publicly supportive on this issue with former Premier John Horgan stating athletes will be covered in the province.”

In 2018, B.C. began a review of the policy that exempted professional sports from the province’s workers’ compensation act. Both the CFLPA and CFL made written submissions the following year and met with government officials.

However, the global pandemic hit in 2020 and brought most everything to a standstill. Then in October 2022, Horgan resigned as B.C. Premier and was replaced by David Eby.

The CFLPA contends that last fall B.C. was prepared to move forward with the process to cover athletes in the province, with the CFL the only group to dissent. It added the league made the initial argument athletes shouldn’t have access to workers’ compensation because they have the courts, then argued during Bruce’s case the judicial system shouldn’t be used and the process had to go through the collective agreement.

“They want it both ways as they blocked the courts and yet continue to try and block athletes in Canada,” said Ramsay.

The ability for employees to use the courts as a remedy, though, was eliminated by the Bruce ruling. The CFLPA maintains the CFL continues to issue roadblocks at every turn.

“There isn’t an employer in this country that’s allowed to avoid the responsibility of workplace injuries without recourse except for sports franchises,” said Ramsay. “As it currently sits, teams enjoy subsidies from taxpayers of each province, routinely placing costing on to government systems that are already overburdened and overworked.”

When contacted, the CFL declined to comment.

Pro athletes are exempt from workers’ compensation coverage across Canada and it’s up to each province to determine if it will extend them coverage. If it does, coverage would only apply for games played within that province.

So the CFLPA would have to reach agreements with all provinces to secure coverage for its entire membership. It could be forced to go back to the drawing board with a newly elected provincial government that felt it had more important issues to address than workers’ compensation.

Medical coverage has long been a hot-button topic in the CFL. The issue made headlines in 2015 when Jonathan Hefney, then a Montreal Alouettes defensive back, suffered a career-ending neck injury during a regular-season game in Ottawa.

Under the CFL’s collective agreement at the time, Hefney was entitled to medical benefits for one year. Following his injury, Hefney returned to his hometown of Rock Hill, S.C., and had an operation with Montreal covering the US$88,000 cost.

But Hefney needed additional surgeries to help restore nearly full function in his right arm. A second happened in June 2018, long after his CFL coverage expired.

A disability insurance payment took care of the procedure and associated recovery costs. However, Hefney still maintained his arm ailment prevented him from working and his applications for state disability benefits were denied.

In 2019, Henfey was sentenced to three-to-nine nine years in jail after pleading guilty to cocaine trafficking. He was released on probation in December 2021.

Since 2019, the CFL and CFLPA have made progress on medical benefits. The current seven-year collective agreement, ratified in 2022, extended coverage for retired players to five years from three.

Unfortunately for Hefney, the improvements aren’t retroactive.

Ramsay said while the CFLPA has been actively seeking workers’ compensation for its members, it has been an uphill fight.

“As we see other opportunities to play the sport continue to flourish with new and growing leagues down south, it’s no coincidence that players are making the choice to play in leagues where coverage for workplace injuries exist,” Ramsay said. “As laws in the U.S. cover athletes, this must weigh into the decisions of players on whether to come north of the border to ply their trade.”

B.C. is seen as the best province to press the issue because WorkSafeBC, its workplace safety agency, sets its own policies. Most other provinces can only change their workers’ compensation by legislation, requiring parliamentary debate and government to pass it into law.

Having B.C. change its policy could assist unions to lobby politicians in other provinces, and perhaps create a domino effect across Canada.

WorkSafeBC’s Assessment Policy Workplan was last updated in October. It has a preliminary analysis of creating a compensation plan for pro athletes as its fifth and final action item.

“The current review is in the preliminary stages,” said spokeswoman Yesenia Dhott. “Before any changes, a full-scale review and extensive stakeholder consultation would be conducted. We don’t have a timeline on when this will go into the consultation phase.”

The CFLPA isn’t alone in pushing for change.

The NHL Players’ Association, National Lacrosse League Player Association, Professional Hockey Players’ Association (union for the American Hockey League and ECHL) and Professional Footballers Association of Canada (which represents Canadian Premier League soccer players) are also lobbying policymakers. A coalition of all pro sports in Canada is supporting these changes across the country.

In the NLL, which has five Canadian-based teams and another 10 in the U.S., the average salary is US$25,00 with most players using lacrosse as supplementary income.

Reid Reinholdt, the NLLPA’s executive director, estimated about 75 per cent of his association’s membership work two jobs, with the remaining 25 per cent either holding office positions with the team they play for or participating in the U.S.-based Premier Lacrosse League in the summer to make ends meet.

Reinholdt, a lawyer who formerly played for the NLL’s Toronto Rock, noted in the U.S., the workers’ compensation boards for most states consider a person’s “whole” income. So if an American player is injured playing lacrosse and can’t work as a firefighter, the athlete will be compensated for the lost income from both jobs.

But a Canadian injured while playing for a Canadian NLL team won’t be compensated for either job. He’ll earn injury reserve pay and team and provincial health insurance will pay for his medical expenses, but beyond that there’s no additional income.

“If they got hurt with 10 games left, they’ll get 67 per cent of their pay for the remainder of their games. But if you get hurt with one game left in the season, you’ll just get 67 per cent of your pay for one more game,” said Reinholdt. “Then you’re hurt the entire next year or the rest of your career and you’re out of luck.

“There’s no compensation or consideration of your lost wages moving forward.”

On the surface, it would seem to be an issue impacting a niche group, with less than 2,000 professional athletes in Canada. But Reinholdt argues it affects taxpayers in provinces with professional sports teams.

“Our medical system essentially subsidizes our employers by paying for medical treatment of work-related injuries,” said Reinholdt, who noted the NLL’s latest collective agreement stipulates owners can’t interfere with the union’s efforts to get workers’ compensation. 

“So everyone in British Columbia or everyone in every province where we have teams and we’re getting medical care, all those individual people are paying for the medical costs of our injuries in the professional sports industry rather than the employer.”

This report by The Canadian Press was first published March 20, 2023.

Dan Ralph and John Chidley-Hill, The Canadian Press