Things have been absolutely crazy this week between client matters, the Jewish new year, and speaking engagements. I do want to wish everyone celebrating a happy new year. As everyone knows, I have a very strong interest in the intersection of the ADA and sports. In the very first edition of my book, which was published in 2000, I had a chapter on the ADA and sports. All of the subsequent editions have had a chapter on that as well. Finally, it isn’t unusual for me to write on the issues of disability discrimination and sports here on my blog, whether it pertained to professional or amateur sports.
Today’s case isn’t actually a decision at all. Rather, it talks about the complaint and removal petition that was filed in the case of Miles v. The National Football League, which complaint can be found here. The complaint was originally filed in New Jersey State court alleging violation of the New Jersey Law Against Discrimination, the ADA, and negligence. The defense removed it to federal court on the grounds that New Jersey Law Against Discrimination iis in essence an ADA claim, and the ADA was also alleged. Also, they removed on the grounds that figuring out liability involves interpreting a collective bargaining agreement. Accordingly, the National Labor Relations Act in the opinion of the defense, preempts the suit. As usual, the blog entry is divided into categories and they are: key allegations of the complaint; and lots of questions/thoughts. I imagine the reader will want to read the whole thing.
Key Allegations from the Complaint
- Miles is a professional football player signed by the New York Jets.
- Referees are either employees or agents of the NFL.
- New York Jets is the plaintiff’s employer.
- Plaintiff suffers from a medical condition known as Alopecia Areata. A manifestation of that medical condition is photosensitivity or photophobia.
- Plaintiff does suffer from photosensitivity and/or photophobia caused by that medical condition.
- In order to reduce the effects of the photosensitivity or the photophobia, plaintiff uses a protective shield to be used in conjunction with his helmet and face guard. He has been using the protective shield on his helmet to protect his eyes his entire football career.
- The New York Jets permitted him to utilize the protective shield on his helmet while practicing or playing football.
- On August 19, 2017, just prior to a preseason game against the Detroit Lions, an official of the NFL, a line judge, commanded that plaintiff remove the shield or he would not be permitted to play in the game.
- The complaint alleges that the NFL empowered that referee to direct the plaintiff to remove the shield or bar him from playing.
- Plaintiff advised the referee and others of his medical condition and the need to wear the protective shield.
- The official nevertheless demanded he remove his shield in order to play.
- Plaintiff in order to comply with the official’s instruction removed his shield and played without it.
- As a result of the lack of protection from the bright sun, plaintiff did not see an opposing player approach and was unable to take defensive maneuvers when an opposing player made contact with him. The result was severe and significant injuries i.e. a broken orbital bone of the right eye in two places. He also had to undergo surgery and continues to suffer from ongoing severe pain. Also, his career is uncertain and possibly in jeopardy.
Lots of Questions/Thoughts
- We have discussed the NFL collective bargaining agreement before, here.
- Labor unions and collective bargaining agreements are subject to the ADA.
- When I was much younger, I refereed all the time. In particular, I did some softball umpiring. I also refereed junior high school and high school basketball. It was a lot of fun and great exercise. Also, you would be surprised how much of a time commitment it is. Not surprisingly, the NFL has moved towards hiring many of its officials, but I don’t think all, as full-time employees. All that said, I know firsthand that officials are often not employees but rather are independent contractors. With respect to the ADA, whether that official is an employee of the NFL or an independent contractor makes a huge difference in terms of the ADA’s applicable rules involved. Whether this line judge is an independent contractor or an employee of the NFL is a big question.
- It is interesting that the New York Jets are not named as one of the defendants. That probably has to do with how the NFL is configured. It is entirely possible that the NFL is the proper party because in essence all the teams are part of the NFL as a single entity. I do remember reading things over the years to that effect. Still interesting nevertheless.
- Assuming for the sake of argument, the ocular condition is what it is and results in photosensitivity and photophobia (hard to believe that such a condition would not be a disability under the ADA as amended), it would seem a reasonable accommodation to use a protective shield. I suppose the defendant might argue safety. However, as we have discussed previously, any such safety defense has to be based upon objective evidence and not on generalizations or stereotypes.
- It said the New York Jets permitted him to utilize the protective shield on his helmet while practicing or playing football. I don’t doubt that. However, I find it very curious as to why the New York Jets did not go to bat for the employee when he was asked by the official to remove the protective shield. For example, the New York Jets could have said no. The New York Jets also could have insisted on a call to the league office. One would think that the NFL itself would have had to approve the protective shield since it is equipment that theoretically could endanger others.
- It was a preseason game. Preseason games are basically meaningless. So, why didn’t the New York Jets or the plaintiff just say I won’t play because I won’t expose myself to a situation where I am a direct threat to myself?
- I am not a National Labor Relations Act attorney, and so, I can’t say whether the National Labor Relations Act would preempt the ADA suit. I did look at the statute itself, which was listed in the complaint, and I don’t see any specific preemption language such as what is seen in ERISA. That said, you don’t necessarily need any such language for preemption to occur, as we discussed here.
- While the case may pivot on upon the collective bargaining agreement, that doesn’t mean that the collective bargaining agreement itself may not be problematic with respect to the ADA.
- This case is going to be very interesting to follow. The ADA issues are rather novel and unique. In particular, was the official an employee or an independent contractor? Just what is the intersection between the ADA, the collective bargaining agreement, and the official.
- The official may have, and I am sure he does, a collective bargaining agreement with the NFL. What does that agreement say about accommodating NFL players with disabilities?
To quote my favorite character on Star Trek original, “fascinating.”
Update: on November 21, 2022 United States District Judge Julien Neals of the United States District Court of New Jersey dismisses the case for two reasons. First, the state claims were preempted by the Labor-Management Relations Act because deciding the claim necessarily meant analyzing the collective bargaining agreement between the NFL and the player. Second, the ADA claim was thrown out because the plaintiff failed to file with the EEOC within the 300 day period. The decision does not discuss why the EEOC claim was not filed within the 300 day timeframe.