Is It Finally Time for OSHA to Start Holding The NFL Accountable for Player Health & Safety Issues?
In the spring of 1977 my family and I packed up and moved from Albuquerque, New Mexico to begin a new life in a middle class, suburban neighborhood just southeast of Denver, Colorado. Soon after arriving we learned that the Denver Broncos headquarters wasn’t far away, and that a few Bronco players actually lived in our new neighborhood. This was way back before free agency and multi-million dollar contracts, when NFL players often played many years for the same team and settled into their local communities in modest middle class neighborhoods, just like ours.
I remember that a linebacker named Bob Swenson (#51) lived up the street, a backup quarterback named Craig Penrose just across the street, and 3 houses up the street lived an offensive lineman named Paul Howard (#60). They were all friendly and normal with nothing out of the ordinary, other than that Swenson had a maroon corvette parked out front of his house which my friends and I thought was pretty cool.
That season the Broncos started hot and went 5-1 through the pre-season. The team hadn’t had any success in years, so it grabbed the city’s attention as hopes & expectations began to rise. They followed that up with 6 straight wins to start the regular season and pretty soon the city, and our neighborhood, was buzzing with excitement and anticipation. Although the offensive was decent, it soon became clear that the defense was dominant and largely responsible for the team’s success (sounds a lot like to today’s Bronco’s team, doesn’t it?). Pretty soon they’d been dubbed the “Orange Crush” and the entire country took note. That lineup included stars Tom Jackson (of later ESPN fame), Randy Gradishar, & Lyle Alzado. As the team kept racking up wins (eventually going 12-2 in the regular season), the “celebrity” of the team and players went through the roof. As you can imagine, the neighborhood was thrilled that several of those players actually lived amongst us.
Those were heady times, especially for a 9 year old kid from New Mexico, and so began my lifelong obsession and “fandom” with the Denver Broncos.
The Broncos ended up rolling through the playoffs that year making it all the way to the championship, to face the Dallas Cowboys in New Orleans in Super Bowl XII. Our family decided to host the neighborhood Super Bowl party, which only added to my excitement for the game. Mom rolled out the snacks, chips and dip and dad stocked the fridge full of beer. As the house began to fill with neighbors, talk of the great season and hopes for a Super Bowl championship filled the rooms. Anticipation for kickoff time mounted as guests began to gather near the TV….
Anyone who remembers that game knows that it was over almost as quickly as it started. The Cowboys scored quickly and often, completely dominated the game, while the hometown Broncos completely buckled under the pressure. It was ugly, probably one of the worst Super Bowls ever. The game was literally over by the 2nd quarter, and everyone in the house knew it. It was incredibly disappointing and the mood quickly soured as people began talking of “next year” and eventually stopped bothering to watch the game all together. It was that bad, and I’ll never forget it.
That night gave rise to yet another lifelong passion; my hatred (ya, I said it!) of the Dallas Cowboys. As much as I’ve always hated the Cowboys, I have to admit almost 30 years later that it’s kind of nice to see Jerry and the boys gaining steam again, especially behind two rookies, Prescott and Elliot, leading the way. They’ve looked really impressive so far, although something tells me that their success is largely due to the fantastic play of their offensive line,… which brings me back to my old neighbor, the Bronco’s offensive lineman Paul Howard, and the point of this blog post.
Paul Howard and his family lived just 3 houses up the street from us in our cul de sac. Mr. Howard and his wife had young daughters, and were always super nice to my sister and I. He always had this big, friendly smile on his face. I can picture it like it was yesterday. The best way to described him was as a big, gentle giant. I never really knew him, but I definitely liked him.
Fast forward12 years or so later, long after Mr. Howard and his family had moved away from the neighborhood, I was sitting at home on summer break from college one day watching the local news. They ran a story about Mr. Howard and how badly his body had been injured during his playing days and the debilitating effects that multiple back & knee surgeries had taken on him and his family. The footage showed him laying in a hospital bed, and if I remember correctly in a wheel chair, talking about the pain, and the toll his career had taken on his post-football life and health. He still had that same friendly smile, but the scene and the footage told a much darker story. I was shocked. Sure, I’d heard about football injuries and so forth before, but this was the first time that I truly understood how badly NFL players can suffer as a result of their playing careers. Until that moment, I had no idea how bad it could be, it was a genuine “oh shit” moment for me. I don’t recall ever seeing another story since then that so vividly showed what the game can do to a player’s body and life. Had it been about any other player, it wouldn’t and couldn’t have had the same effect on me.
All these years later I can’t help but reflect back on that day and this undeniable truth: Paul Howard, and many other professional NFL players just like him, have suffered significant, enduring and debilitating injuries and health problems as a result of their work. If any other industry, like manufacturing or construction, created these kinds of consistent and serious health issues, there’s no doubt that OSHA would step in to address the situation and hold them accountable, yet this has never happened with the NFL. Sure, I get that football is a brutal sport and that these injuries are an inherent and unavoidable “part of the game,” but this shouldn’t necessarily let the NFL off the hook, and the remainder of this article is going to discuss why.
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Let’s begin by sorting out a key technical issue that will apply to the arguments below.
While OSHA has long standing health and safety standards (i.e.: “Laws”) that apply to General Industry, Construction, Maritime and Agriculture, it has nothing that specifically addresses professional sports. However OSHA does have a “catch-all” called the General Duty clause which applies to ALL US employers. According to OSHA’s General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act (OSHA) of 1970, employers are required to provide their employees with a place of employment that “is free from recognizable hazards that are causing or likely to cause death or serious harm to employees.”
So even though OSHA doesn’t have health and safety laws for sports, it could potentially issue fines and penalties to the NFL under the General Duty Clause.
The problem is that there’s no precedent for OSHA fining any professional sports teams under this law, however that slope got a lot more slippery in 2010 when they fined Seaworld in San Diego after a trainer was killed by a captive killer whale. This was the first time OSHA ever went after a major entertainment player, which when you think about it, isn’t too far removed from the sports industry and the NFL.
Now on with the story…
I’ve been addicted to sports talk radio since the early 90’s, and have always been a fan of ESPN and other sports TV shows so listen and watch consistently. In recent years I’ve heard more and more about the NFL and their supposed commitment to “player safety,” while at the same time routinely hearing about the league pursuing strategies that run totally counter to this claim.
Let’s review a couple of key recent developments, and see how OSHA could potentially intervene to hold the league accountable to protect player health and safety.
NFL Finally Admits Connection Between CTE and Football
What really got my attention and started me thinking about writing this article happened on March 16th of this year when Jeff Miller, the NFL’s Senior Vice President for Health and Safety, finally admitted to the connection between football and CTE. The NFL claims to support “player safety,” yet for years adamantly refused to admit that the game could cause this horrible disease.
This admission was a game-changer, because the NFL now acknowledges that their workplace actually causes a preventable disease. This acknowledgement requires that the NFL take proactive steps to prevent and manage the workplace hazards that lead to CTE. This also potentially exposes the NFL to regulatory oversight & enforcement actions from OSHA.
What is CTE?
(From Boston University CTE Unit) Chronic Traumatic Encephalopathy is a progressive degenerative disease of the brain found in athletes (and others) with a history of repetitive brain trauma, including symptomatic concussions as well as asymptomatic subconcussive hits to the head. CTEhas been known to affect boxers since the 1920s.
Anyone who follows the NFL has probably heard about the horrible effects of CTE, including severe depression and early onset dementia, and how it probably lead to the suicide of former NFL great Junior Seau, and premature deaths of several others including former Pittsburg Steeler & Hall of Famer, Mike Webster. If you’re interested, do a search on CTE to learn just how frightening and debilitating this disease can be.
In 2013, the NFL ended up settling with around 4500 former players (or their estates), who sued the league over this issue. Despite this settlement, and its apparent admission of responsibility, it took another 3 years before the league finally got around to publicly admitting that there was a connection!
How could OSHA potentially intervene?
OSHA laws require that employers identify workplace hazards, and then either eliminate or “control” those hazards. Now that the NFL has acknowledged that football causes CTE, they would be wise to follow this guidance, or face potential regulatory actions.
Regulating the NFL poses a tricky proposition for OSHA, because the actual workplace hazard, which leads to concussions and CTE, is player contact and collisions. Given the nature of football, it’s impossible to eliminate this hazard because player contact is so fundamental to the game, however the NFL should be obligated to take steps to “control” the hazard whenever possible. In “OSHA-speak” potential “controls” would include administrative things like training and procedures, and personal protective equipment (i.e.: football helmets).
Again, the root cause of CTE as it pertains to football, is repeated and/or severe concussions which occur when players collide during play. As a result, the NFL should take steps to: 1) control the types of player contact which can lead to concussions, and 2) control how players are managed and treated when it’s suspected that a concussion has occurred, or when a concussion has been confirmed.
To be fair, the NFL has taken the following steps in recent years.
- In 2010 the NFL instituted a ban on helmet to helmet hits to reduce the chances of not only concussions, but spinal cord and other serious injuries and even death. A 15 yard penalty is issued when this occurs (Maybe the penalty should be more severe)? NFL referees are charged with enforcing this rule. They normally get it right, but not always. The league apparently has a procedure for disciplining referees for poor performance, but enforcement is difficult due to the speed of the game, the fact that referees have no incentive for not calling valid penalties etc.. I supposed that OSHA could initiate league investigations and fines in cases where referees fail to call penalties for helmet to helmet contact, but that would be difficult for the same reasons that the league struggles with referee accountability (speed of game, intent, etc..).
- In 2009, The NFL developed a procedure called the “NFL Game Day Concussion Protocol” where in the event that a player suffers a potential concussion, that player must be immediately removed from the field and assessed on the sideline to determine if a concussion may have occurred. If it’s determined that a concussion has occurred, or it’s strongly suspected, then the player mustn’t return to the game, and must later undergo further evaluation and treatment before eventually being allowed to play again (this process could take weeks or even months depending on the severity of the injury).
The problems arise when team’s fail to follow the protocol and allow players back into games while still concussed, which has happened recently (see Cam Newton and Tyrod Taylor this season for examples). The NFL implemented a policy this year for disciplinary action for teams who fail to follow the protocol, however it doesn’t appear to be working due to lack of consistent enforcement by the league.
One could easily argue that this amounts to “the fox guarding the henhouse.” Never forget that the head of the NFL, Roger Goodell, was hired by the owners of the 32 NFL football teams, so it’s presumed that they could fire him too. In other words, how can an “employee” effectively hold his “employers” accountable?
So the larger question remains, how is this issue ever going to be resolved when nobody’s being held accountable when these serious breaches occur? OSHA could potentially address the problem by holding teams and the league accountable by instituting fines and penalties under the General Duty Clause, when such instances occur.
If so, the actual team could get fined for failing to follow the protocol (since it’s their responsibility to run the protocol) and the league could be fined for failing to ensure that the procedure is followed correctly. League officials are always present at games and are supposed to provide oversight of the protocol.
It’s important to note that when OSHA fined Seaworld (see above), they issued a Willful violation, and could easily do the same in these instances. A willful violation is defined as a violation in which the employer either knowingly failed to comply with a legal requirement (purposeful disregard) or acted with plain indifference to employee safety. Remember that the NFL acknowledged earlier this year the connection between football and CTE, and thus exposed themselves to potential Willful liabilities if and when the league fails to make efforts to prevent CTE. With OSHA’s recent fine increases, Willful violations now carry a maximum of $124,709 for each instance. Although the fine amount wouldn’t mean much to the NFL, being officially cited by the US government for willfully ignoring player safety just might. It would be a major embarrassment for the offending team and league, as the national media would surely make a show and headline of each and every instance. Also remember that when OSHA issues Repeat Citations of Willful violations, fines could potentially spiral into the $millions for the league. This combination of public shaming and huge fines would certainly make the league think twice before allowing this to happen. In the end, the goal of protecting player (ie: worker) health and safety would be achieved, which is OSHA’s mandate.
OSHA c0uld potentially make use of another enforcement tool called the National Emphasis Program which targets enforcement and scrutiny efforts towards specific severe hazards or high hazard industries. OSHA currently has NEPs targeting several hazards including amputations, silica exposure, noise exposure, combustible dust, lead, isocyanates, etc. and separate NEPS targeting the following high hazard industries: primary metals, shipbreaking, refineries and nursing homes. One could certainly argue that the impacts of concussions and CTE are no less devastating than the impacts of these other hazards, and therefore the NFL shouldn’t be exempted from the same level of scrutiny facing these other industries. As a result, OSHA could potentially use this program to create a new NEP targeting the NFL for concussions and/or CTE, mandate that the NFL more effectively prevent and manage concussions and CTE cases, and issue fines and penalties when the NFL fails to do so.
NFL’s Pursuit of Increased Revenue & Growth At The Potential Expense of Player Health & Safety
One could argue that the 2 strategies/issues below might indicate that the league is placing growth and profitability ahead of player health and safety.
NFL’s Attempts to Extend Regular Season Schedule:
Common sense, and data, clearly shows that that the more often an employee is exposed to a workplace hazard, the more likely that a related injury or health issue will occur. Football players get hurt while playing football games, and practicing, because the game itself is a hazard. Ankles and knees get twisted, backs get strained, and probably worst of all, brains suffer concussions and traumatic injuries when players collide which can lead to CTE.
Despite all of this, the NFL is apparently considering extending the regular season from 16 to 17 games, by adding one international game to each team’s schedule. They would cut the pre-season to 3 games, but the net effect would be more health and safety exposure for players since regular season games are more intense, and international travel would negatively impact player recovery time.
Why is the league doing this? The pursuit of increased growth and revenues, that’s why. The NFLPA (players association) is apparently pushing back in an effort to protect their members, but the league apparently persists. In reality, both the NFL and NFLPA stand to make more money, which only complicates the issue, and further places player health and safety at risk.
Thursday Night Games:
In addition to trying to extend the season, the NFL added Thursday night games to its schedule in 2006, which has created its own health and safety concerns. Due the violent nature of the game, players need time to recover before having to play again. Since teams play on Sundays, players are only given 3-4 days of recovery time before they have to play again on the week they have to play a Thursday night game. Lack of recovery time exposes players to additional health and safety risks, because their bodies, and minds, aren’t necessarily ready to face additional physical punishment. This also manifests itself with lousy game quality. Fans & pundits routinely complain about the poor quality of Thursday night games, and it’s because the players’ lack of recovery time directly impacts their ability to perform. If you follow the NFL, you know that this is a hot topic these days. The NFL won’t relent, because again, Thursday night games generate more revenue for the league.
How Could OSHA Potentially Intervene?
There’s a well established understanding of the inherent conflict between the competing objectives of production/profits vs. safety, and that health and safety often suffers when companies put a premium on the former. When OSHA can establish that this is occurring, they routinely reference this as their rational for issuing fines and penalties to offending company. For example, an OSHA Area Director stated “Management must put the safety of people first and ahead of its need to maintain production schedules” when it issued fines to a Georgia manufacturing plant in 2008. A quick review of other OSHA fine examples will show many more similar comments.
OSHA also routinely relies on data and trends (ie: Injury & Illness Rates: TRIR & DART) to establish links between workplace hazards and resulting health & safety risks. If the NFLPA could produce historical data proving, for example, that player injury rates increased when the regular season jumped from 14 to 16 games in 1978, or after the NFL instituted Thursday night games, then OSHA could take note and threaten to issue fines and penalties if the NFL:
- Continues with Thursday night games, resulting in higher than expected injury, concussion and CTE rates (as compared to data prior to 2006).
- Institutes a 17 game regular season schedule, which results in increased injury, concussion and CTE rates.
Doing so would send a powerful message, create a major deterrent to the league, and again, succeed in protecting player health and safety.
Summary
In summary, there’s no doubt that the NFL has major health and safety problems, yet continues to pursue strategies that might only make those problems worse, and all in the apparent pursuit of increased growth and profits for the league.
Who is going to hold the league accountable to improve the situation and protect the players from additional and preventable harm? The problem is made worse by the complicated ties between the league’s 3 main entities: The National Football League (NFL and Roger Goodell), the 32 Teams, and the NFLPA. In other words, history shows that their overlapping interests render true accountability totally impossible. Fans certainly won’t, they just want to see their games on Sunday. Sponsors and advertisers won’t either because they benefit from the huge exposure that the league affords them, and TV and radio networks certainly won’t because of the $millions (or billions?) generated from advertising, NFL shows, and other broadcast related revenues.
The NFL is one of the most powerful enterprises in the world, with a purported $8 Billion in annual revenues which provides a seemingly endless well of resources and influence. At the end of the day, the only viable and sustainable solution to this issue is OSHA intervention. The Occupational Safety & Health Administration is a division within the US Department of Labor, which as you know if part of the US Federal Government, and the US Government is the only relevant entity in the world that’s even bigger and badder than the NFL. Not only is the US Government big enough to take on the NFL, it very likely has an obligation to do so in this instance.
According to OSHA’s mandate, “employers are responsible for providing a safe and healthful workplace.” Since NFL teams are employers, and NFL players are their employees, OSHA’s mandate should apply to the NFL. In addition, OSHA enforcement efforts impact virtually all high hazard industries in the US. Manufacturing, construction, maritime and agricultural businesses get fined every single day by OSHA for failing to properly manage workplace hazards, so why should the NFL be any different? Why should they be given a pass despite the overwhelming evidence of these huge problems exist? It’s time for OSHA to step in and hold the NFL accountable, or more needless and preventable player suffering will surely occur.
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Russell Carr is a serial entrepreneur and serious Denver Bronco fan. Three of his businesses operated in extremely hazardous environments, which put his employees and businesses at significant risk. These experiences inspired him to start Berg Compliance Solutions, LLC which specializes in helping small companies manage environmental, health and safety compliance issues. He can be reached at rcarr@bes-corp.com or at 512-457-0374.
