Persons with disabilities and the National Football League have been in the news of late. In particular, the Chicago Bears acquired a person with a mental disability and then there was the person in the draft that scored very poorly on the Wunderlic test. I thought it would be interesting to go through the collective bargaining agreement that the National Football League has with the union to see what Americans with Disabilities Act issues might be there. For years, I have written on how the Americans With Disabilities Act applies to sports. I enjoy the area because instinctively it seems counterintuitive that a person with a disability could be playing professional sports. The United States Supreme Court, in PGA Tour v. Martin, has held that the Americans with Disabilities Act does apply to professional sports.

When I reviewed the collective bargaining agreement, I was pleasantly surprised. I thought there would be more significant ADA issues than turned out to be. I did find a few sections of the agreement that are worth noting with respect to the Americans with Disabilities Act. First, section 6 of article 39 of the collective bargaining agreement says that each player will undergo the standardized minimum preseason physical exam and test. That physical exam is quite comprehensive. When it comes to post employment physical exams, an employer has the right to insist on that if it is job-related and consistent with business necessity. The case law is still evolving as to what job-related and consistent with business necessity means. However, whether a National Football League player can do the essential elements of the job, play their position, certainly depends upon their physical condition. Also, National Football League teams only get a limited number of player slots. Therefore, an argument can be made that such an exam would also be consistent with business necessity.

Second, article 40 of the collective bargaining agreement says that each player can examine his medical and trainer’s records in the possession of the club. Presumably, per the requirements of the Americans with Disabilities Act, the club is keeping that information in separate confidential files and not as part of the personnel record.

Third, article 49 of the collective bargaining agreement contains the nondiscrimination clause. Interestingly enough, disability discrimination is not included. The argument might be made how can a player with a disability possibly play in the National Football League? However, certainly, there are disabilities that would allow a player to play in the National Football League. For example, mental disabilities or learning disabilities just to name two. Also, the Americans with Disabilities Act contains protections for the team should the player have disabilities for. For example, the player still have to be able to perform the essential functions of the job, his position, with or without reasonable accommodations. Slso, the player cannot be a direct threat to himself or others.

In short, with respect to the collective bargaining agreement, from what I can see, there are some interesting issues with respect to the Americans with Disabilities Act, but those issues do not present insurmountable problems with respect to the game.

12 Responses to NFL CBA and the ADA

http://nyti.ms/Vz8MUn

NYTimes: N.F.L. Tries New Method for Testing Mental Agility

A psychological assessment, given in addition to the long-used Wonderlic test, resembles exams given to firefighters because they, like football players, must make quick decisions under stress.

The above is an article that appears in today’s New York Times. There are definitely ADA implications looming here; I would have to see the specific test to be sure.

As you know, ADA prohibits pre-employment physical examinations unless accompanied by a (conditional) offer of employment, and the Act applies to professional sports. Whether or not the new “mental agility” test is a medical exam, the NFL Combine is replete with detailed medical record reviews, injury evaluations, Cybex tests, etc. etc. that appear to fall squarely within the prohibited pre-employment disability inquiries and medical examinations. So how does the NFL, or member teams’ owned entity (and apparent agent) National Football Scouting, Inc., get away with what other employers could not possibly do?

You make excellent points. The NFL teams are employers, and I might add that the ADA clearly applies to labor unions as well. The short answer to your question is I have no idea how to answer your question. The only thing I can think of is that, despite what I have written about for years concerning how sports and the ADA interact with each other, it is somewhat counterintuitive for an athlete that would play at the NFL level to integrate into his mindset that he has a disability and has rights. That said, there is no reason why it couldn’t be done (i.e. an athlete seeking employment in the NFL suing for ADA violations for all the reasons you mentioned and then some).

Welcome to the blog!

The ADA also protects employes who are wrongfully regarded as disabled so players with conditions that are not defined as disabling by the Act are protected. See the case of the Patriots starting DL let go today due to his diagnosis of Type 2 Diabetes. Seems to me he has a case.

Adam,

Quite right, especially after the amendment to the Americans with Disabilities Act. In my opinion, it is only a matter of time before we see suits. While the ADA does have a fundamental alteration defense. That defense only applies to reasonable accommodations and not to violations of the ADA in other respects. Therefore, while it very well could be the case that complying with the ADA vis-à-vis the NFL draft combine would fundamentally alter things, that would not be a defense for the possible ADA violations that could be alleged here.

The issues in this kind of case are going to be: what are the essential functions of his position; can he do them with or without reasonable accommodation; and is he a direct threat. Little doubt that he would have a disability.

I am a huge fan of sports, and ever since my first edition back in 2000, I have always had a chapter on the ADA and sports. As you may have heard by now, the Chicago regional office of the NLRB has now said the that athletes at Northwestern University on scholarship to play football are employees (see http://www.nlrb.gov/news-outreach/news-story/nlrb-director-region-13-issues-decision-northwestern-university-athletes?utm_source=Mintz+Levin+-+Employment+Matters+Blog&utm_campaign=40a41ce8ec-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_852f7390e4-40a41ce8ec-70170989 ” title=”NLRB Northwestern football decision” rel=”nofollow”>). For those interested in the life of an athlete at a big-time program, it is very informative reading. Considering how all-consuming being a student athlete is at a big-time program, it isn’t really surprising to me that the NLRB found that the student athlete on scholarship to play football at Northwestern is an employee. That said, this decision has tremendous ramifications. For example, if a person is an employee, then what about workers compensation? If the person is an employee, what about the employee’s right to profit from his or her likeness? On the ADA side, it has huge implications. If scholarship athletes are employees, then that means title I of the ADA applies to that relationship, which means that the college or University is going have to worry about pre-employment medical inquiries (that alone would have a huge impact on the mechanics of the recruiting process), post employment medical inquiries (which also would have a huge impact on the mechanics of dealing with injured athletes), reasonable accommodations, etc. It also could quite conceivably mean that with respect to a student’s academics, they are going to have to worry about a different title, either title II-if a public entity,-or title III if a private entity. The rules aren’t exactly the same across the titles. Thus, with respect to football, the student-athletes will be subject to title I of the ADA, but with respect to that student-athletes succeeding in the college or university, the student athlete could very well be subject to title II or title III of the ADA (and maybe even title I?). Northwestern has said they will appeal. Since this decision could have such a fundamental impact on big-time sports, two things wouldn’t surprise me: 1) it goes all the way to the US Supreme Court; and/or 2) Congress enacts legislation to preserve big-time sports as they currently operate. Stay tuned.

http://bleacherreport.com/articles/2701835-unable-to-walk-at-16-unc-lineman-naz-jones-is-about-to-get-drafted-into-the-nfl?utm_source=cnn.com&utm_medium=referral&utm_campaign=editorial

The above is a clear violation of the ADA if I ever saw one. To my mind, it is not a question of whether a violation of the ADA is occurring with respect to the combine, but whether what happens when someone finally calls the NFL on it. My guess is that the particular individual calling the NFL on it will win, but then you will see legislation, especially now, putting in an exception for professional sports leagues.

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