Protecting and Promoting the Health of NFL Players: Legal and Ethical Analysis and Recommendations

Harvard Law School, November 2016

493 Pages Posted: 19 Nov 2016 Last revised: 22 Nov 2016

Chris Deubert

Harvard University - Football Players Health Study

I. Glenn Cohen

Harvard Law School

Holly Fernandez Lynch

Petrie-Flom Center, Harvard Law School

Date Written: November 17, 2016

Abstract

This comprehensive report, published as part of the Football Players Health Study at Harvard University, more than two years in the making and 493 pages long, is an unprecedented step towards improving player health, concluding with several important recommendations. To date, there has been no analysis of the universe of stakeholders that may influence the health of NFL players, nor any systematic analysis of their existing or appropriate legal and/or ethical obligations. While clinical health care interventions are essential, player health also depends on understanding the wider context in which players work.

The report examines 20 diverse stakeholders: NFL players, the NFL, the NFLPA, NFL club medical staff, second opinion, neutral and personal doctors, NFL clubs and personnel, NFL coaches, contract advisors, financial advisors, equipment managers and manufacturers, players’ family members, officials, the media, NFL business partners, and fans.

In total, the report makes 76 recommendations.

Highlights of the key proposals are summarized below:

• Conflicts of interest: The current arrangement under which a team’s medical staff, including doctors and athletic trainers, have responsibility both to the players and to the club presents an inherent structural conflict of interest. A division of responsibilities between two distinct groups of medical professionals is needed to minimize such conflict and ensure that players receive medical care that is as unbiased and uninfluenced by competing interests as possible. Care and treatment should be provided by one set of medical professionals, called the “Players’ Medical Staff,” appointed by a joint committee with representation from both the NFL and NFLPA. The evaluation of players for business purposes should be conducted by a separate set of medical personnel, known as the “Club Evaluation Doctors.”

• Player health and adversarial collective bargaining: The NFL and NFLPA should refrain from making improvements to player health policies a “bargaining chip” in labor negotiations, to the extent that this is not already the case. Players should never be asked to trade their healthcare for other benefits in the collective bargaining process.

• Ethical guidelines: Various stakeholders — including club doctors, athletic trainers, coaches, contract advisors, and financial advisors — should adopt, improve and enforce Codes of Ethics specific to the environment of the NFL.

• Ongoing research into the health effects of the game: The NFL and NFLPA should continue to initiate and support efforts to scientifically and reliably identify the health risks and benefits of playing professional football.

• Access to data: The NFL and, to the extent possible the NFLPA, should make aggregate, de-identified injury data publicly available for independent reanalysis. They should also continue to improve their robust collection of data and offer it to qualified professionals for analysis.

• Meaningful penalties: The collective bargaining agreement (CBA)should be amended to impose meaningful fines for any club or person found to have violated Sections 1 through 6 of Article 39 of the 2011 CBA (players’ rights to medical care and treatment).

• Investing in players’ health and care: The NFLPA should consider investing greater resources to investigate and enforce player health issues and enforce player rights, including Article 39 of the CBA.

Published alongside the report are a list of the Top 10 Recommendations in the report (also included in the Executive Summary at the beginning of the report), and A Patient Bill of Rights for NFL Players — including current and proposed rights under the CBA, NFL policy, law and/or codes of ethics (which can be found on the Football Players Health Study at Harvard University website).

Keywords: NFL, NFLPA, Player Health, CBA, Club Doctors, Team Doctors, Sports Medicine, Conflicts of Interest, Concussion, CTE, Coaches, Agents, Financial Advisors

Suggested Citation

Deubert, Chris and Cohen, I. Glenn and Lynch, Holly Fernandez, Protecting and Promoting the Health of NFL Players: Legal and Ethical Analysis and Recommendations (November 17, 2016). Harvard Law School, November 2016. Available at SSRN: https://ssrn.com/abstract=2872163

Chris Deubert (Contact Author)

Harvard University - Football Players Health Study ( email )

23 Everett St.
3rd Floor
Cambridge, MA 02138
United States

I. Glenn Cohen

Harvard Law School ( email )

1525 Massachusetts Avenue
Griswold Hall 503
Cambridge, 02138
United States

Holly Fernandez Lynch

Petrie-Flom Center, Harvard Law School ( email )

23 Everett Street
Cambridge, MA 02155
United States
6173845475 (Phone)

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