Occupational Safety & Health Reporter℠

Do NFL Safety Concerns Mean Regulators Should Get in the Game?

April 26, 2018, 11:30 AM

Concussions involving NFL players have been an increasing worry. Now a debate has resurfaced about whether federal safety regulators should be able to fine teams found guilty of inflicting serious blows to players’ heads.

The NFL players’ union welcomed the conclusions of a study it funded that found the Occupational Safety and Health Administration should step off the sidelines and regulate on-field activities, particularly those causing concussions. But a former OSHA administrator warned that federal interference in the game could politicize the agency and would be “foolish.”

Whether the agency exercises its authority could have effects on not just the NFL, but also Major League Baseball, the National Hockey League, and NASCAR, among other professional sports leagues. Each of the leagues polices itself on workplace safety and health rules.

Establishing Legal Authority

OSHA clearly has the legal authority to regulate the on-field aspects of the game, Adam Finkel, a former health standards director with the agency, said in a research paper for the Arizona Law Review April 17.

“I don’t imagine there would be an attempt to regulate football in all its forms,” Finkel told Bloomberg Environment. “But repeated head trauma, whenever it occurs in large enough numbers” is a cause for concern.

Beyond the knee and back injuries players face, a July 2017 investigation of 111 deceased NFL players’ brains revealed that all but one suffered from injuries associated with football-incurred head trauma.

And the high-profile death of Minnesota Vikings offensive lineman Korey Stringer from complications brought on by heat stroke in August 2001 prompted calls for improving work conditions for outdoor workers. A question that looms over these cases is whether football players should be considered employees for workplace safety purposes.

Finkel described his study, funded by the NFL Players Association, as the first academic legal analysis that applies occupational safety laws to the football field as a traditional workplace. However, numerous legal analyses have been written on the topic.

An NFL Players Association spokesman said occupational work standards and rules apply to the NFL like any other workplace.

“The NFL is an inherently dangerous occupation and the NFLPA welcomes additional oversight,” Brandon Parker, a communications manager for the Players Association, told Bloomberg Environment in an email.

Representatives from the NFL did not respond to multiple written requests for comment. OSHA also didn’t immediately respond to Bloomberg Environment’s requests for comment.

But the league has argued that its Neck and Spine Committee “has developed a comprehensive set of protocols to diagnose and manage concussions in players, along with a sideline tool to evaluate potentially injured players in real time,” according to the NFL website. The committee is made up of 12 doctors specializing in concussions, sports medicine, and neurology, according to the NFL website.

Applying Precedent

Finkel’s article argues that a 2010 SeaWorld case opens the door for OSHA’s regulation of the NFL.

After the February 2010 death of a trainer at SeaWorld who performed in front of a live audience with a killer whale, OSHA issued general duty clause violations against the Orlando water park. Ultimately OSHA won the case in April 2014 when an appeals court upheld the fines against the water park.

The general duty clause states that an employer “shall 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.”

Finkel surmises that if OSHA can apply its regulations to SeaWorld, the agency can do the same with the NFL—at least when it comes to head injuries.

In March 2014, the NFL confirmed that a link exists between football and the degenerative brain disease chronic traumatic encephalopathy (CTE) when Jeff Miller, the NFL’s executive vice president of health and safety initiatives, testified to a congressional panel.

But David Michaels, the former head of OSHA under President Barack Obama, says OSHA would be “foolish” to impose its regulatory authority on the NFL because it would be perceived as the government becoming too heavy-handed.

“Even if OSHA could issue regulations to reduce the risk of concussions, OSHA would be a target of widespread derision and there would be accusations of interference in areas where it is not necessary,” he said.

In 2017, the league saw an increase in players’ self-reported concussions. Data showed a 13.5 percent increase in diagnosed concussions from 243 reported concussions in 2016 to 281 in 2017 over the preseason and regular season, according to the NFL.

The regulation would affect so few workers that it would not be worth the inevitable public-relations backlash, Michaels said.

Finkel disagrees: “If OSHA ran away every time an industry said ‘leave us alone,’ it would accomplish nothing.”

After Stringer’s death, the Minnesota state OSHA office—not the federal branch—examined the causes and the Vikings’ potential liability in the events that led to his death and concluded the team took the proper safety steps under its guidelines.

Acknowledgment of a A Hazard

So far, the courts have been the primary venue for deliberation on concussions. A class action lawsuit against the NFL was finalized in February 2015—which gave roughly $1 billion to former and current players suffering from CTE for the next 65 years.

To date, the class has been awarded over $400 million, according to court documents.

While Finkel calls for OSHA intervention, Michaels says the player’s union has the ability to negotiate safer workplace conditions.

“They can negotiate better protections than OSHA would be able to obtain through issuing regulations,” Michaels said.

On April 16, the NFL and Players’ Association announced that the league will ban 10 helmet models from being worn by football players that players have been allowed to wear in previous seasons.

“There are things that can’t and shouldn’t be bargained away,” Finkel said. “Safety is one of them.”

To contact the reporter on this story: Fatima Hussein in Washington at fhussein@bloombergenvironment.com

To contact the editor responsible for this story: Rachael Daigle at rdaigle@bloombergenvironment.com

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