Head Trauma, OSHA, and Professional Sports

Despite the growing evidence of the dangers of sports-related head trauma, a major professional sports league continues to brazenly deny the extent of the risk posed to its players. Yesterday the Washington Post published an important op-ed by Ken Dryden titled, “The National Hockey League is skating around the brain-injury problem.” In his essay, Dryden blasts the NHL for questioning the scientific evidence of a connection between athlete head injuries and chronic traumatic encephalopathy (“CTE.”). The NHL’s minimization of brain injuries coincides with a timely new article in the Arizona Law Review that makes a persuasive case why even a modest intervention by the Occupational Safety and Health Administration could transform professional football and give rise to a safer workplace for players. The same logic would seem to apply to professional hockey. 

The Dryden Op-Ed

Although not well-known in the United States outside hockey circles, Ken Dryden is a legendary figure in Canada. A graduate of Cornell University, Dryden was a star goalie for the Montreal Canadiens, winning 6 Stanley Cups in the 1970s. Inducted into the Hockey Hall of Fame in 1983, he became a writer after his retirement. His book The Game is rightfully hailed as one of the best books ever written by a former professional athlete. In 2004 Dryden won election to the Canadian Parliament and served 3 terms in office. As his biography attests, no one in hockey has more credibility than Ken Dryden.

Dryden’s criticism of the NHL thus deserves to be taken especially seriously. His Washington Post op-ed was prompted by the recent release of deposition videos in an ongoing, high profile legal battle against the NHL. A federal court in Minnesota is currently hearing the consolidated lawsuits of over 120 former hockey players who allege that the NHL failed to warn them of—and protect them from—the dangers of concussions. 

A similar lawsuit by football players against the National Football League eventually forced NFL Commissioner Roger Goodell in 2016 to acknowledge a link between football-related head trauma and CTE.  Goodell’s belated admission came after the NFL had denied for years that there was a connection between football and CTE. In its effort to deny the link, the NFL used a strategy strikingly similar to that employed by the tobacco industry in the 1980s and 1990s.

The deposition tapes in the hockey lawsuit indicate that the NHL is sticking to the NFL’s pre-2016 strategy. Like the tobacco industry’s approach to lung cancer cases years ago, the NHL essentially claims that no conclusions can be drawn until there is metaphysical certainty about the connection between hockey-related head trauma and CTE. For example, during his deposition in the players’ lawsuit, NHL Commissioner Gary Bettman insisted that “[t]here’s no medical or scientific certainty that concussions lead to CTE.”

CTE and Athlete Head Injuries

Dryden described Bettman’s deposition as “infuriating,” and with good reason.

Bettman’s denial of a link between head trauma and CTE flies in the face of the medical consensus. For example, the Mayo Clinic describes CTE as “the term used to describe brain degeneration likely caused by repeated head traumas” and specifically notes that CTE is a “very rare condition” that is “found in the brains of people who played contact sports, such as football, as well as others.” The website for Boston University’s CTE Research Center includes documented cases of CTE found in hockey players, as well as football players and military veterans. Much research remains to be done, but the clear and present danger that CTE poses to hockey players is apparent for anyone in the league office willing to see it.  

The NHL’s self-serving refusal to acknowledge a link between hockey collisions and CTE reinforces the conclusion that the professional football and hockey leagues will never adequately police themselves. For example, although the NFL at least acknowledges the CTE link and has implemented some modest rules changes to reduce helmet-to-helmet hits, the fact remains that the 2017 NFL season saw player concussions reach the highest level in 6 years. For its part, the NHL won’t even even collect data or otherwise assist doctors and scientists in assessing the risk to the league’s players. Instead it has actively worked to undermine research into CTE. 

With billions of dollars on the line, both the NHL and NFL fear that adopting safety-minded reforms will alienate those fans who relish watching violent collisions on the ice and the gridiron. Accordingly, in response to their critics, the leagues have adopted different public relations strategies. The NFL pays lip service to safety, whereas the NHL denies there is even a safety problem to begin with. But both leagues end up in the same place: the owners continue to reap huge profits in television revenues and gate receipts, while in the meantime their employees risk (and all-too-often incur) lifelong brain injuries. 

Time for OSHA to Step In

So if voluntary regulation of player safety by the leagues themselves does not work, what alternatives exist to promote player safety? There is an excellent new article in the Arizona Law Review that argues the answer lies with the Occupational Safety and Health Administration. It is titled “The NFL as a Workplace: The Prospect of Applying Occupational Health and Safety Law to Protect NFL Workers” and it is co-authored by Adam Finkel, Christopher Deubert, Orly Lobel, I. Glenn Cohen, and Holly Fernandez Lynch. They make a compelling case that even a modest intervention by OSHA would offer a promising alternative for improving player safety. 

As the authors contend, the NFL clearly falls within OSHA’s jurisdiction of regulating workplace safety. For example, the current Collective Bargaining Agreement (“CBA”) between the NFL owners and players expressly recognizes both that the players are employees and that the governing law is the National Labor Relations Act. Moreover, Commissioner Roger Goodell has publicly described the NFL as a “workplace.”

Similarly, the current NHL CBA describes the player-owner relationship in terms of a labor relationship between management and employees, and the courts have consistently applied the Labor Management Relations Act, 28 U.S.C. §185,  to the NHL. In fact, last month the NHL successfully defeated a wrongful death lawsuit by the estate of a former NHL player on the grounds that it was preempted by the LMRA.  

So what value would OSHA bring to the issue of player safety? As the authors argue, “public health regulatory agencies like OSHA analyze and synthesize evidence about risks in different ways than clinicians or parties in litigation do.” OSHA has unique expertise in workplace safety that would be very valuable to the NFL (and the NHL). Even if OSHA did not directly regulate the NFL, the agency could “nudge” the league to adopt heightened safety standards. For example, as the authors explain, OSHA could conduct NFL workplace studies examining new methods to mitigate the risk of head trauma, and its findings could be used to “spur discussions of new ways to make the NFL a safer workplace without unduly affecting the sport or its operations.” 

Crucially, the authors conclude that OSHA should not wait to be asked for assistance by the NFL. To get the ball rolling, OSHA must take the initiative itself and get directly involved in the important (and very public) issue of workplace safety for professional athletes. As the authors emphasize, OSHA “should be more willing to step up to this challenge, and less conflicted about offering to participate in an issue where it has expertise complementary to that of the NFL and NFLPA [the Players Association], and thus a unique opportunity to help bring about constructive change.” 

Of course, when it comes to the NHL, matters are complicated by the fact that the league includes 7 Canadian teams (Montreal, Toronto, Ottawa, Winnipeg, Edmonton, Calgary, and Vancouver), which obviously are outside OSHA’s jurisdiction. But Canada has an OSHA of its own—the Canadian Centre for Occupational Health and Safety—and its core mission is “to promote the fundamental right of Canadians to a healthy and safe working environment.” Together, therefore, OSHA and CCOHS could work with the NHL to make the sport safer for the players, along lines similar to what the authors propose for OSHA and the NFL. Unfortunately, however, the NHL at present is not even willing to admit it has a problem. The case for unilateral intervention by OSHA is thus just as pressing in professional hockey as it is in professional football.  

In any case, the article is interesting, informative, and enlightening, even if you have no interest in professional sports. You can find it on SSRN here.

Comments

[Deep State Special Legal Counsel]

Shhhh. Don't write about this Agency. Our Dear Leader hasn't messed with it yet? You just signed it's death warrant...You just hexed it..NFL (Unamerican ingrates) plus business regulation = RIP OSHA.

[anon]

The evidence that head trauma - even unrelated to sports - can cause permanent problems for individuals is so overwhelming at this point that it should not even be up for discussion. Yet the denial continues

[Anthony Gaughan]

I agree 100%, anon. Thanks for your comment.