For those who are Jewish, I hope you had a nice high holiday season and best wishes on the coming new year.

Sometimes when you start a blog entry, you get all the way through it and realize that what you thought you were going to say turns out to be all crazy. So, you have to start over. That is exactly what happened this week. I thought I was going to blog on Esparza v. University Medical Center Management Corporation. That case contains an interesting discussion about private causes of action, sovereign immunity, and deliberate indifference. I thought I disagreed with the private cause of action and sovereign immunity aspects of the decision, but upon further review, I have changed my mind. The case is still worth a read because it takes a very unusual view of what deliberate indifference is. Esparza says that deliberate indifference is nothing more than purposeful discrimination; a standard way more liberal than deliberate indifference in the 11th Circuit for example, which we discussed in this blog entry. The attorney who sent me this case is part of the firm representing the plaintiff. From what I understand, an appeal on the deliberate indifference claim is likely as the Fifth Circuit, as well as many other courts, are all over the place on it.

So, that left me with wondering what to blog on this week. As everyone knows, the ADA and sports have long been an interest of mine. Every edition of Understanding the ADA, starting with the first edition and continuing through the last edition, contains a chapter on the ADA and sports. In my Google alerts the other day, I came across the case of Erin Henderson v. New York Jets LLC (an article on it can be found here). I was not able to find the complaint itself online easily, and so I am going entirely from the article. Of course, one does not know how the facts will ultimately shape up, but for our purposes let’s assume the facts are what is said in the article. The blog entry is divided into facts and analysis sections. Hard to believe the reader won’t read the whole thing.

I

Facts Taken from the Article and the Actual Facts May Turn out to Be Quite a Bit Different

Henderson suffers from bipolar disorder. He began last season as the New York Jets starting inside linebacker. He played in five games, with four starts, before the Jets placed him on the NFL list October 22, effectively ending his season. Henderson did not find out why he was placed on the list until a grievance hearing in June when the Jets said they believed he was not fit to play football. In the two games before the New York Jets placed Henderson on the NFL list, he was tied for the team lead in tackles. He finished 2016 with 21 tackles in five games. In the off-season, the Jets declined his option, and Henderson has not signed with a team since. He originally began his career with the Minnesota Vikings, where he struggled with alcohol abuse. He served a four-game suspension in 2009 for violating the NFL’s banned substance policy, and was released by the Vikings in 2014 after two DUI arrests. He sat out the entire 2014 season, cleaned up his life, and signed with the Jets in 2015 where he played well as a backup. His agent said in the article that Henderson never failed a drug test nor got in trouble with alcohol during his time with the Jets. He did occasionally go to the bar at the team’s training camp hotel, but that was to pick up dinner and not to drink. Henderson struggled with team prescribed medication, Seroquel, which was used to treat his bipolar disorder. The drug made Henderson sleepy and occasionally late to meetings. His agent reports that defensive coaches and teammates regularly berated Henderson for being hung over and still drunk when he showed up. New York Jets personnel never checked Henderson for possible side effects of the medication. When the 2016 season ended, the Jets  cut off Henderson’s medication and did not refer him to another doctor.

II

Analysis

  1. This is not the first time that I have talked about the ADA and the NFL. For example, see this blog entry. My only surprise is that these kind of suits don’t happen more often.
  2. According to the article and the letter embedded within it, the case turns entirely under the New Jersey law against discrimination and does not contain any ADA claims. That makes sense because the New Jersey law from what I have read over the years in the case law, is quite progressive and often goes further than the ADA.
  3. It still is informative to talk about how this might play out under the ADA, again, assuming the facts are as alleged in the article, and so, see the rest of this blog entry.
  4. The ADA does apply to labor unions. It also applies to employers of 15 or more employees. The Jets most certainly have 15 or more employees, and, there is also a collective bargaining agreement as well.
  5. So, the question is whether Henderson could perform the essential functions of the job with or without reasonable accommodations. In terms of his on-field performance, it certainly seems he could.
  6. We previously talked about alcoholism and employment with respect to the ADA in this blog entry, involving the now offensive coordinator for the University of Georgia football team.
  7. Based upon the facts as contained in this article, it would seem that Henderson may have an argument that he was perceived as having a disability, alcoholism. He also quite logically can say that he had a record of a disability, alcoholism, as well. My favorite case for perceiving alcoholism as a disability is Miners v. Cargill Communications Inc., 113 F.3d 820 (8th 1997). In that case, the employer got in trouble for perceiving signs of alcoholism when such may not have been the case.
  8. As discussed in the comment to the Sarkisian blog entry, the current user exception in the ADA only applies to illegal drugs and not to alcohol.
  9. There doesn’t seem to have been an interactive process even though the team would seem to be on notice of a disability in need of accommodations.
  10. The article doesn’t say whether Henderson communicated with anyone regarding the effect of the drug used to treat his bipolar disorder.
  11. Remain to be seen what defenses the New York Jets may offer. Direct threat perhaps per this case? That defense is not easy to show as it requires an individual analysis and objective scientific evidence.
  12. Did I mention that these are facts from the perspective of the perspective of the plaintiff, not even from the complaint, and the defendant has yet to answer?

4 Responses to NFL and the ADA

Despite any disabilities Henderson may have, the bar for being otherwise qualified to be an NFL linebacker is quite high. There seems to be ample room for the defense to simply claim Henderson was no longer qualified to be a linebacker. His disabilities of Bipolar Disorder, and Alcoholism, had no apparent effect on his ability to play linebacker. He simply was no longer qualified, because his performance was not up to snuff. A reasonable person could not conclude that Mr. Henderson’s performance as a linebacker was diminished by his Bipolar and/or alcoholism. There are a great deal of athletes who are both bipolar and alcoholic and it does not affect their performance.

I’m sure the Jets are in a position to afford any expert witness they could possibly dream of. Often times in ADA cases, that are dependent upon expert testimony, the Plaintiff is left hamstrung because she simply cannot afford expert witness testimony, while the defense usually has more than ample resources to afford multiple partial experts to solidify their case. We do have the best justice money can buy.

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