New Article Examines the Possibility of Applying Workplace Safety Rules to the NFL

Part of the Law and Ethics Initiative of the Football Players Health Study at Harvard University: Article authored by Adam M. Finkel, Chris Deubert, Orly Lobel, I. Glenn Cohen (Faculty Director), and Holly Fernandez Lynch (Former Executive Director

Could occupational health and safety laws be applied to better protect NFL players? A new analysis, published on April 17 in the Arizona Law Review, explores this very possibility.

The article, written by the Law and Ethics Initiative of the Football Players Health Study at Harvard University, examines whether the U.S. Occupational Safety and Health Administration (OSHA) should take an active role in improving health and safety in the NFL workplace.

The article concludes that while OSHA clearly has the authority to regulate the NFL, there is little to no precedent or guidance for OSHA to insert itself into the on-the-field aspects of professional sports. The small body of case law that bears on OSHA’s authority in entertainment and sports opens some doors for OSHA to issue standards for the NFL but also sets some limits on its ability to alter the nature of the game. Adding a public institution like OSHA as a party to existing labor-management discussions concerning health and safety may be the best natural evolution of the issue, the report says, mapping a pathway for OSHA to step up to this challenge.

The authors of the article are Adam M. Finkel from the University of Michigan School of Public Health (and a former senior OSHA official in the Clinton and G. W. Bush administrations), Christopher Deubert from the law firm of Berg & Androphy, Orly Lobelfrom the University of San Diego School of Law, I. Glenn Cohen from Harvard Law School, and Holly Fernandez Lynch from the Perelman School of Medicine at the University of Pennsylvania.

This analysis offers the first in-depth academic legal exploration of treating professional football more like a traditional workplace that is subject to government regulation or “soft law” mechanisms involving public-private cooperation, such as providing information and guidance.

Some of the key points the article makes:

  • OSHA clearly has the authority to regulate the on-field aspects of the NFL;
  • Existing rates of injuries and medical conditions—including potential neurological conditions—among current and former NFL players are likely high enough to give OSHA the authority to set standards (possibly including exposure limits) governing NFL player health;
  • A variety of changes to reduce injury and illness in NFL players would be consistent with OSHA’s authority to require only those improvements that are “economically feasible”;
  • A recent court decision involving SeaWorld Parks & Entertainment suggests that OSHA cannot penalize an entertainment or sports business for unsafe conditions if the only way to remove the hazards would involve “changing the essential nature” of the entertainment itself.

“Although there are a host of political and practical obstacles for OSHA regulating the NFL, there are a variety of sensible ways for OSHA to intervene or involve itself without necessarily regulating,” Finkel said. “These include working with the NFL and the Players Association to develop codes of practice that the parties would agree to abide by, or to share expertise, review existing practices and policies, and provide training and monitoring.”

This research was initiated as part of the Law and Ethics Initiative of the Football Players Health Study at Harvard University, which ended its funded period in May 2017. The research is independent and not directed by the NFL, National Football League Players Association, 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 a report authored by Deubert, Cohen, and Lynch, Protecting and Promoting the Health of NFL Players: Legal and Ethical Analysis and Recommendations.