Last month, 253 men got new jobs. The process was highly publicized, and employers announced new hires to an audience of millions on live television. It’s likely that no one in the Cowboys’ stadium, where the 2018 NFL Draft took place, was thinking about them that way, though. Instead, they called them rookies, draftees, team members.
But in the eyes of the law and regulatory systems, professional football players are, in fact, employees of the NFL. That means that the Occupational Safety and Health Administration (OSHA), which is responsible for overseeing and intervening in health risks to employees, could technically step in and issue rules and regulations to reduce the potential harm caused by the work they do—which, in this case, is play football.
“The NFL is many things,” says Glenn Cohen, a professor of health law and bioethics at Harvard Law School. “It’s also a workplace, and it ought to be regulated the way other workplaces are.”
Cohen is an author on a new research paper outlining the legal foundation and arguments for OSHA to step in and regulate the NFL. Published last month in the Arizona Law Review, the analysis explains that the agency has clear authority over the league. It’s unlikely that OSHA would issue any specific regulations, the authors say, but it could—and should—take part in labor discussions, and reframe the discussion of player safety from a public health perspective.
The research came out of the work done by Harvard’s Football Player Health Study, which was funded by the NFLPA to research common conditions in football players. While the work primarily focused on pure medical questions (arthritis, musculoskeletal injuries, concussions, CTE, and so on), a small bit of the project focused on ethical and legal questions in and around the NFL, like the role of the team doctor, or the league’s compliance with the Americans with Disabilities Act.
Professional sports have, historically, been treated as exceptions to a lot of workplace law. “People like sports, and have found ways to except them from normal scrutiny,” says Chris Deubert, an attorney specializing in sports law and one of the authors of the paper.
Leagues have successfully argued in court that sports are a different kind of work, and represent a unique type of workplace, so restrictions and regulations applied to other industries shouldn’t apply to them. In 1922, for example, Major League Baseball successfully carved out an exception to antitrust laws. Part of the efforts of the legal and ethical work in the Harvard Football study, Cohen says, is to de-exceptionalize the NFL. “People think of it as this special thing,” he says. “Our work is to see how NFL players are treated compared to the rest of us, as employees.”
OSHA has never created any policy around sports, or sports leagues. However, it has jurisdiction over the NFL through the General Duty Clause, which requires employers to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” Players in the league are clearly employees, Cohen says, even though they’re not often referred to that way.
OSHA, the NFL, and the NFLPA did not respond to requests for comment
For the agency to set health and safety standards for the NFL, OSHA would have to first show that the work posed a significant risk to the health of its employees. In this case, that would likely focus in on concussions, head injuries, and long term neurological damage like CTE: there were an average of 160 concussions per NFL season between 2009 and 2016, and former NFL players are three times more likely than the general population to die from a neurodegenerative disease.
Unlike in other legal cases, OSHA wouldn’t actually have to prove that harm was directly caused by a workplace—which lowers the bar, scientifically and medically. In the case of head trauma, then, OSHA would not have to prove outright that playing football causes concussions, CTE, or other long-term neurodegenerative conditions. It just has to show that being employed by the NFL puts you at a higher risk of that outcome than other types of workers, or the general population, something that appears to be borne out by research.
If it were able to meet that benchmark, the agency could set standards that would have to demonstrably reduce the risk or harm to players. However, in what Deubert says is the most difficult barrier, they would also have to show that the standards are technologically and economically feasible.
“Establishing a risk is very easy,” he says. “The hardest part is if there’s a feasible method of abating that risk. Technologically, all indications are that the NFL is doing as much as they can to put out the best equipment possible.” If that weren’t the case, OSHA would have some room to put pressure on the league, but it’d be difficult to show, he says.
For entertainment and sports businesses, “feasibility” also means that any safety standards OSHA sets can’t fundamentally change the nature of the game. Given the controversy over every NFL-directed rule change, and the constant debate about what football is and should be, it’d likely be a struggle to stay within that boundary.
Even if OSHA were able to thread that needle, it’s unlikely that they’d step in and do so — primarily because it’d be a politically unsavory move, Deubert and Cohen say. “OSHA is unlikely to act on its own without a nudge,” Cohen says. If the agency wanted to tackle head trauma (which also crops up in commercial logging and firefighters) outside of existing standards for helmets, it would probably create a broader regulation that would apply horizontally across industries, and not target the NFL directly. It could, for example, put limits on the “dose” of head trauma workers could be exposed to over the course of their time on the job.
There are still ways that OSHA might take a so-called “soft-law” approach to the NFL: The agency could issue guidance documents or conduct evaluations without formal regulations, and the league or the players association could also ask the agency to review its health and safety policies.
Historically, OSHA has only stepped in to investigate individual deaths, and even more rarely football-specific incidents, rather than stadium-related ones. From a 2006 Slate article:
The Minnesota branch of OSHA took notice a few years ago when Vikings tackle Korey Stringer died of heat stroke following practice. An investigation of the practice conditions concluded that the Vikings were not to blame: They had given their personnel proper training on heat stress, as well as ample water and a first-aid truck. OSHA also stepped in when a girder collapsed at the Georgia Dome and killed a food vendor in 1994, and when a worker at the St. Louis Rams’ stadium fell to his death in 2003.
While OSHA doesn’t have specific expertise in football, or in the nuances of brain injury, their public health approach would be a valuable addition to conversations around safety and injury risk in the league, argue the authors in their paper. The agency, they say, has an opportunity to drive positive change. Through their involvement in the Harvard study, the NFLPA was sent a copy of the analysis, and they’re aware of the issues in occupational health and safety law, Deubert says. In the long run, he’s hopeful that the legal and ethical research might actually inform the negotiations for the next NFL collective bargaining agreement.
“For a long time, the principal issues [in the CBA] were around labor and antitrust laws. I’m curious to see if in the future, there are more health and employment–focused attorneys involved,” he says. “I like to think that the work we were able to do will lead to new ways of thinking about these issues.”
Nicole Wetsman is a reporter with a focus on health and science based in New York. She tweets @NicoleWetsman.