In recent years, there has been a growing amount of attention to different types of technologies (wearable and otherwise) that can measure various health- and performance-related metrics for athletes (see here, here, here, here, and here). While no categorization is perfect, these technologies generally fall into eight categories: (1) player tracking, (2) heart rate, (3) sleep, (4) readiness, (5) body temperature, (6) force, (7) hydration, and (8) head impact sensors. Teams may use these technologies for evaluating and improving player performance, as well as for preventing or minimizing injury.
These new technologies are exciting, but they also raise concerns about how the data they generate might be used unfavorably towards players. For example, a team might discover that a player is no longer creating the same amount of force as he used to, which could threaten the player’s status with the team.
It was these types of concerns that led our team – Jessica L. Roberts, I. Glenn Cohen, Holly Fernandez Lynch, and me – to conduct an analysis of potential legal concerns related to these technologies, as well as other health and performance evaluations of NFL players, in our recent article, Evaluating NFL Player Health and Performance: Legal and Ethical Issues (165 U. Penn. L. Rev. 227, Jan. 2017).* Specifically, we focused on the application of two federal employment antidiscrimination statutes: the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) to the NFL workplace.
Ultimately, what we found is that, at present, these new technologies likely do not run afoul of these statutes. However, we discovered that some longstanding evaluations of players, both at the NFL Scouting Combine and once drafted and playing for a team, seem to violate the law. Specifically, (1) medical examinations conducted at the Combine potentially violate the ADA’s prohibitions on pre-employment medical exams; (2) post-offer medical examinations that are made public potentially violate the ADA’s confidentiality provisions; (3) post-offer medical examinations that reveal a disability and result in discrimination—e.g., the rescission of a contract offer—potentially violate the ADA provided the player can still perform the essential job functions; (4) Combine medical examinations that include a request for a player’s family medical history potentially violate GINA; and (5) the preseason physical’s requirement that a player disclose his family medical history potentially violates GINA.
We believe all employers—including the NFL and its teams—should comply fully with the current law. To that end, our recommendations center around four “C”s: compliance, clarity, circumvention, and changes to existing statutory schemes as applied to the NFL (and perhaps other professional sports).
To continue this important discussion, we have invited experts in health law, bioethics, disability law, and sports law to offer their own perspectives on these and related issues. As part of this symposium, we will post commentary from:
- Sharona Hoffman, Case Western Reserve University School of Law
- Kristin Madison, Northeastern University School of Law
- Michael McCann, University of New Hampshire School of Law
The experts’ posts can be found here.
*This research was conducted as part of the Law and Ethics Initiative of the Football Players Health Study at Harvard University. The research is independent and not directed by the National Football League, NFLPA, or any other stakeholder. The article’s content, findings and conclusions are solely the responsibility of the authors, and do not represent the official views of the NFLPA, the Football Players Health Study at Harvard University or Harvard University. These entities exercise no control over the findings or recommendations.
For more information on the Law and Ethics Initiative, please see the Frequently Asked Questions from our report, Protecting and Promoting the Health of NFL Players: Legal and Ethical Analysis.