The conversation rages on regarding whether college athletes are or are not employees, and whether they should be eligible for workers' compensation in either event. There are multiple perspectives, and a great deal has been said and written. The recent Olympic Games made me consider some points that may or may not be salient.
Some history may be relevant. One driver of workers' compensation adoption in the U.S. was a perception that the "common law defenses" were defeating tort claims filed by workers. The cacophony of "common law" defenses will usually include references to Contributory Negligence and Assumption of the Risk.
When most think of "common law," they are ascribing some veneration as if we are discussing an ancient construct, a long tradition, or an inherent part of our past. My students are often surprised to learn that Assumption of the Risk was introduced in the U.S. long after our parting of ways with King George and company, in 1859 (see Moore, below). Contributory Negligence is not that much older in the U.S. (1824)(see Moran, below), and not really that much older period; see Butterfield v. Foster,103 E.R. 926 (1809)
When the American workers' compensation movement began in the early 20th century, Contributory Negligence had been the law for about 75 years, and Assumption of the Risk for just over 40 years. These were (1) not venerated ancient historical references and (2) not inherited from England. These were certainly related to English law, copied here, but were adopted here well after independence.
Cornell's Legal Information Institute explains that Assumption of the Risk has largely been subsumed into Comparative or Contributory Negligence schemes. It persists, however, in "the thrilling world of sports," according to the Cardozo Arts & Entertainment Law Journal. That notes that participants "acknowledge and accept the inherent risks associated with" competitive sports.
The Olympics have made me think of Assumption of the Risk with headlines like Chinese snowboarder Liu Jiayu stretchered off after fall, and Lindsey Vonn airlifted to hospital after serious crash during Olympic downhill. There are likely many other examples of injury that do not make the news coverage. These are serious athletes and they are banging into things, places, and each other. Thus, in the tort world, an athlete might have challenges.
What of the workers' compensation world?
In Florida, we have a definition of accident:
“Accident” means only an unexpected or unusual event or result that happens suddenly."
When two people run at each other and collide, is the result (pain or breakage) unexpected or unusual? Is the result different if they throw themselves off a mountain and strive to achieve Mach I on a set of boards or blades? The Florida definition might be more amenable to a training event, a fall, or similar ancilary to the actual football game or boxing event, etc.
There are always challenges when an accident occurs out of state, see section 440.09(1)(d). Other potential challenges could include failure to wear a safety device or follow a safety rule, section 440.09(5); use of alcohol or drugs, section 440.09(7); or intent to injure self "or another," section 440.09(3); or if the injury included horseplay or other significant deviation from employment.
The most basic hurdle, however, would be the exclusion from the Florida "employment" definition of "professional athletes. That definition provides examples ("such as"), which is not inclusive of all intercollegiate sports (e.g., golf, field hockey, volleyball). Nonetheless, the language of "such as" might be interpreted to not limit the definition of "professional athlete." Section 440.02(20)(c)(3). If college students are paid to perform in sports, are they not definitionally "professionals?"
What if they are not paid to perform at college, but the great nation of China hires them to perform for them in the Olympics, or if they are paid for winning a medal? Do they remain "amateurs" in the spirit of the games, or is their status professional? What if they are paid athletes as college students, and are injured in a training exercise (like amateur appearance in the Olympics)?
If they are relieved of the "professional" description, there remain reciprocity issues under section 440.094 (2011) that was adopted specifically because of concerns with athletes suffering injuries while out of state. It is likely that Italy counts, but even Los Angeles would be significant for most.
In the end, there would need to be a great deal of thought invested in any expansion of workers' compensation to cover athletes in such settings. Is there precedent? Yes, many professional athletes have specifically opted into workers' compensation and alternative statutory programs.
There are templates available and precedents to follow. The issue will be whether the need is compelling, and the current atmosphere seems ambivalent at best.
Moran, Kenneth and Sylvester, Christopher U. (1954) "Negligence - Contributory Negligence - The Doctrine of Comparative Negligence," North Dakota Law Review: Vol. 30: No. 2, Article 3, https://commons.und.edu/cgi/viewcontent.cgi?article=3300&context=ndlr
Dale L. Moore, Please Watch Your Language!: The Chronic Problem of Assumption of Risk, 61 Cath. U. L. Rev. 175 (2012), https://scholarship.law.edu/cgi/viewcontent.cgi?article=1005&context=lawreview
