Football Players as Workers: Should OSHA Regulate the NFL?

Football players

New Research from Adam Finkel

What would happen if we started thinking of National Football League players as workers, who might be in harm's way as they huddle, tackle, fumble and crash to the amazement of millions of viewers in the United States?

And how should science and policy interpret a recent finding that out of 111 deceased former NFL players tested, 110 of them had a brain pathology known as chronic traumatic encephalopathy, which can have severe implications for a person's behavioral and mental health?

Those are some of the questions that Adam M. Finkel, clinical professor of Environmental Health Sciences at University of Michigan's School of Public Health, has been ruminating on for the last three years.

He addressed these issues in two recent publications: "The NFL as a Workplace: The Prospect of Applying Occupational Health and Safety Law to Protect NFL Workers," published by the Arizona Law Review, and "A Quantitative Risk Assessment for Chronic Traumatic Encephalopathy in Football: How Public Health Science Evaluates Evidence," published in the April issue of Human and Ecological Risk Assessment.

Finkel was Regional Administrator for the U.S. Occupational Safety and Health Administration (OSHA) in Denver, Colorado, from 2000 to 2003. Previously, he was the Director of Health Standards Programs at OSHA headquarters, where he was responsible for promulgating and evaluating risk-based regulations to protect the nation's workers from chemical, radiological, and biological hazards.

Q: How did you become interested in this issue and why publish two different papers on the same topic?

Finkel: I was approached by the Harvard Football Players Health Study (a project sponsored by the NFL and the NFL Players Association) about three years ago. They asked if I would write up a memo for them that they could use in their work as to what the legal and jurisdiction policy issues were about OSHA. They "had me at hello." I'm a football fan, for decades before the Philadelphia Eagles became champions. I have great regard for my former agency but I'm disappointed at how little they've managed to accomplish especially in the 15 years since many of my colleagues and I left.

I enlisted Orly Lobel, a superb scholar and labor lawyer at the University of San Diego, and we wrote them a memo of maybe 40-60 pages and they liked it. They said let's turn it into something more complete and definitive about all of these legal issues. So we all collaborated on the main law review article, but I could not get everyone in the larger Study team to agree on what I thought was the heart of the scientific part of the article—which is that although of course we still need to do research to know more of the details, OSHA would consider the existing body of evidence connecting chronic traumatic encephalopathy (CTE) to the kind of repeated head trauma common in football to be more than sufficient to consider it a "significant risk" of this occupation. I ended up writing a second article (with neuropathologist Kevin Bieniek of the Mayo Clinic) that explained in detail how the various lines of evidence linking CTE to football, and linking the CTE brain lesions to a variety of grave health effects, already surpasses the evidence base OSHA has used in the past to support stringent regulation of a hazard. I also offered several risk calculations showing that even if the 110/111 series of case reports was so biased by self-selection of players for autopsy that no more cases of CTE will ever be found in NFL players from this time period, the lowest the overall risk could possibly be is about 6 to 13 chances per 1000; OSHA has always considered risks at or below 1 chance per thousand to be "significant," and Congress has instructed EPA in several laws to regard risks of 1 chance in one million to be significant.

Q: After this lengthy legal and public health analysis, what were your main conclusions?

Finkel: I believe OSHA has authority and responsibility to go after occupational diseases like this one and that they really should be encouraged to stop ignoring this issue and to do their job which is to either issue a regulation covering repeated head trauma in football and other occupations, or to conduct inspections of these workplaces using their authority under the "General Duty Clause" of the OSHA law, or to propose some kind of public-private partnership with the League and the Players Association. The reality is they're not doing much of anything right now. And I don't have a lot of hope that there will be progress under the Trump administration.

No matter what governance tool OSHA might propose, there will be lots of concern about possibly changing the way football is played. Indeed, while a recent court decision (involving the "SeaWorld" entertainment park) upheld the notion that OSHA can strictly regulate an entertainment outlet just like any manufacturing industry, the one judge in dissent was current Supreme Court nominee Brett Kavanaugh. So for that and other reasons, I think the most promising avenue would be for the government and the industry and the union to take the lead in suggesting ways to preserve most of what makes the game enjoyable, but create a safer set of rules and a safer set of monitoring and medical surveillance and policies to protect the most vulnerable people who may need extra time off of the job to recover from their injuries and so forth.

Q: So do you see these just being a paper that will provide maybe some background for for the future?

Finkel: It certainly is possible that our paper will encourage the players either individually or through their union to approach OSHA, like any worker or any union would do, and exercise their right under the law to seek OSHA's assistance at their workplace .

I assume that the union has always known that that right exists, but I think putting it all in one place and saying here are the reasons why the right to call OSHA exists and how it's been used in the past, might be helpful.

And I think that if the league and the Players Association and Congress were thinking clearly about this they would see that involving OSHA is not a bad thing, is not a sign of weakness. It could actually be helpful to the game.

I think the public is seeing what's happening in front of their eyes-- that the National Football League is very powerful and they've gotten all kinds of special deals from Congress in the past-- that there's nobody really representing the public interest in this. I think it would do the league some good if there were a long-term discussion started with government that would probably not lead to regulation but might lead to some kind of "enforceable partnership" where everybody agrees that this is the path forward and the government's role is to make sure that we live up to our voluntary commitment to do better.

That could happen even in the Trump administration. OSHA has done serious regulation in the past when they found groups of workers with a common ailment, sometimes as few as five or 10 workers in a plant with a chemical that was causing cancer or sterility. Here we already have 110 people who have died with this brain disease. It seems to be clearly related in part to their paid salaried work at the NFL and nobody else is empowered to do anything about it. It's got to be the Labor Department and OSHA.

Q: You make the point that NFL players are workers and even when they work for a short time they can be permanently affected by their jobs.

Finkel: We make the point that entertainers are workers, just providing enjoyment rather than making a product. OSHA has done a little bit in the area, in Broadway shows, movie sets. So clearly again they have the power to take an interest in that.

To call them workers as they are, means that they deserve public protection for their work. And just because you're doing it for pay doesn't mean necessarily that you understand exactly what the risks are and that you're being compensated for the risk-taking. Obviously these are highly paid people in part because they know their careers are short. But just because they are clearly highly compensated does not mean they are because they understand necessarily how dangerous this work is.