Virginia Court Affirms Professional Football Tryout’s AWW of $783.63

Potential $435K Annual Compensation Under Standard Contract Deemed Too Contingent

The Court of Appeals of Virginia recently affirmed a determination by the state’s Workers’ Compensation Commission that fixed a professional football player’s average weekly wage at $783.63, despite the terms of the NFL’s standard contract, under which the player might have been paid as much as $435,000 for the team’s 17-week schedule [Jones v. Pro-Football, Inc., 2019 Va. App. LEXIS 31 (Feb. 12, 2019)]. The AWW determination was important, since it meant the former player received only $522.42 per week, for a period of 20 weeks, for his 10 percent permanent partial disability to the right arm (shoulder separation).

Background

On May 6, 2015, the Washington Redskins hired Jones, a wide receiver, as an undrafted free agent. Pursuant to the collective bargaining agreement (“CBA”) between the NFL and the NFL Players’ Association, Jones signed a standard player contract with employer. The contract’s terms provided that he would earn an annual salary of $435,000—$318,000 if he suffered an injury and was placed on “injured reserve.” Jones also received a signing bonus of $2,500.

The contract was much more contingent that one might surmise, however, since the team had the right to terminate Jones at any time and avoid further contractual obligations. Generally speaking, if Jones made the teams’s final roster, which depended upon his performance during the pre-season period, Jones would receive 1/17th of $435,000 for each week of the NFL’s seventeen-week regular season where he remained on the roster. Alternatively, if Jones were injured and placed on injured reserve, he would receive 1/17th of $318,000 for each week of the regular season.

On August 23, 2015, Jones suffered an injury to his right shoulder during football practice. On August 30, 2015, an MRI of Jones’s right shoulder revealed a labral tear. That same day, the Redskins terminated Jones’s employment.

Average Weekly Wage

In July 2017, Jones files a workers’ compensation claim, alleging a work-related injury by accident to his right shoulder. Subsequently, a deputy commissioner awarded Jones TTD benefits in the amount of $522.42 per week, based upon a pre-injury average weekly wage of $783.63, for the period August 11, 2016 through August 25, 2016. The deputy commissioner also awarded Jones permanent partial disability benefits in the amount of $522.42 per week, based upon a ten percent permanent partial disability of the right arm, for a period of twenty weeks beginning on November 7, 2017. Finally, the deputy commissioner awarded medical benefits for Jones’s right shoulder for as long as necessary.

Jones argued that his AWW should be $6,115.38—dividing his contractual $318,000 injured reserve salary by 52 weeks. In contrast, the Redskins argued that Jones’s AWW should be calculated by dividing $8,214.30—an amount including $5,714.30 in pre-season payments to Jones as well as his $2,500 signing bonus—by the number of weeks that Jones worked for the football team.

The deputy commission adopted neither position. Pursuant to Va. Code § 65.2-101(1)(b), the deputy commissioner noted that the exceptional circumstances of Jones’s employment permitted a departure from the typical average weekly wage formula found in Va. Code § 65.2-101(1)(a). As a result, the focus was upon Jones’s actual pre-injury earnings. Utilizing this focus, the AWW was calculated by adding Jones’s six checks received prior to his injury, signing bonus, and preseason payments—$12,310.90—by the number of weeks that Jones worked for team—May 6 to August 23, 2015. The equation resulted in an average weekly wage of $783.63.

Appeals Court’s Decision – Earnings as a Player Were Hypothetical

The appellate court stressed that had Jones made the final team roster, his salary would have been either $435,000 or $318,000. Yet Jones suffered an injury before making the final team roster. The team also never placed Jones on injured reserve. Thus, Jones’s earnings as a football player for employer were “entirely hypothetical.”

The court added that given the discretion provided by § 65.2-101 and the exceptional circumstances of Jones’s employment, it could not say that the record did not support the Commission’s calculation of Jones’s average weekly wage. He earned $12,310.90 in the weeks preceding his injury. The court stressed that adding additional, unearned payments to that amount based upon the sheer conjecture that certain subjective performance measures would be met would require the Commission to speculate and not serve the purposes of the Act, which is to approximate the economic loss suffered by an employee.

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