Medical Records and the NFL Combine

This post is part of our Blog Symposium “Applying the Americans with Disabilities Act and Genetic Information Nondiscrimination Act to the NFL Workplace.” Background on the symposium and links to other blog posts are here

By Jessica L. Roberts

In our recent law review article, published by the University of Pennsylvania Law Review, my co-authors and I explore exactly what kinds of player health data the NFL and its Clubs can lawfully obtain from NFL hopefuls, as well as from current players.  While the Clubs and the NFL have strong interests in accessing all kinds of information about players, current federal employment laws—mainly the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act—limit the collection of employee health data.  Significantly, these statutes not only restrict how an employer can use its employees’ health data.  They also restrict the ability of the employer to even ask.  Among the major takeaways of our paper was that, via National Football Scouting, the NFL and its Clubs may be violating these laws with the interviews and medical examinations that take place during the National Scouting Combine.  Our article focused primarily on evaluative technologies: things like physicals, athletic drills, wearables, ingestibles, and genetic tests.  But what about when the source of the player health data is not a technique or technology but rather simply a medical record?  In this blog post, I take a closer look at how the ADA and GINA apply to requests for medical records.

Medical Waivers at the Combine

As explored in-depth in a recent installment of this blog symposium, prospective players are particularly vulnerable because they are not yet members of the NFL Players Association (NFLPA), and thus cannot reap the benefits of the collective bargaining agreements it negotiates.  The inferior bargaining position of aspiring players is particularly apparent considering the medical waivers they sign to even participate in the Combine.  One waiver authorizes a mind-bogglingly long list of parties—including health care providers, physicians, mental health professionals, hospitals, schools, student health services, and former trainers and teams, even at the amateur level—to release and to discuss the players’ medical records with an equally long list of potential recipients—including National Football Scouting, the NFL and all its Clubs, their representatives, agents, medical staff, team physicians, and trainers, in addition to third-party physicians.  The player consents to share: Continue reading

No Seat at the Table: The Legal Status of Players at the NFL Scouting Combine

This post is part of our Blog Symposium “Applying the Americans with Disabilities Act and Genetic Information Nondiscrimination Act to the NFL Workplace.” Background on the symposium and links to other blog posts are here

By Michael McCann

In Evaluating NFL Player Health and Performance: Legal and Ethical Issues 165 U. Pa. L. Rev. 227 (2017), the authors (Jessica L. Roberts, I. Glenn Cohen, Christopher R. Deubert and Holly Fernandez Lynch) compellingly explain why the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act supply legal protections to football players at the NFL Scouting Combine (“Combine”). In this blog post, I stress the need for such protections in light of the unusual—and vulnerable—legal status of players at the Combine.

The Combine and its relationship to the NFL Draft

Held in late February and early March, the Combine is the annual scouting spectacle for NFL teams. Over seven days, NFL teams evaluate college football players who are eligible for the NFL Draft. The NFL Draft, of course, is the exclusive method of entry for players into the NFL: only players who are either drafted or who are exposed to NFL Draft and not selected are eligible to play in the NFL.

Held each April, the NFL Draft is ostensibly designed to promote parity in the NFL. For teams that fail to make the playoffs, draft order is based on inverse order of teams’ records. This means that the very worst team obtains the first overall pick and thus the chance to draft the best available player. Continue reading

The Americans with Disabilities Act and Discrimination Based on Predictive Health Data

This post is part of our Blog Symposium “Applying the Americans with Disabilities Act and Genetic Information Nondiscrimination Act to the NFL Workplace.” Background on the symposium and links to other blog posts are here

By Sharona Hoffman

The excellent article, “Evaluating NFL Player Health and Performance:  Legal and Ethical Issues,” argues that some of the existing assessments of NFL players appear to violate the Americans with Disabilities Act (ADA).  The authors call for revisions to the ADA to clarify the statute’s applicability to professional football and the scope of permitted medical examinations under the ADA.

I would like to take the argument a step further and urge that the ADA be extended to cover employer conduct that is now outside the statutory scope but is highly relevant to athletes’ employment prospects.  Specifically, the ADA should cover discrimination based on predictions of future physical and mental impairments. Continue reading

New Blog Symposium! Applying the Americans with Disabilities Act and Genetic Information Nondiscrimination Act to the NFL Workplace

By Christopher R. Deubert

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. Continue reading