By Chris Deubert , Principal at Law Office of Christopher R. Deubert, Esq.
The first day of a new job always come with required paperwork from the human resources department. Different workplaces might have some different policies or forms specific to their industry. This Article examines how two waivers NFL clubs require players to sign create confusion and concerns about NFL player mental health treatment.
As a condition of their employment, NFL clubs require players to sign two waivers, both of which are collectively bargained with the NFLPA and attached to the collective bargaining agreement.[1] These waivers permit the player’s medical information to be disclosed to and used by a wide variety of parties, including but not limited to the NFL, any NFL club, and any club’s medical staff and personnel, such as coaches and the general manager.[2] Players sign these waivers without much (if any) hesitation out of fear that behaving otherwise could cost them their job.[3] The first of two waiver authorizes the club, the NFL, and other parties to use and disclose the player’s “entire health or medical record” expressly including “all records and
As an initial matter, questions might be raised as to whether the players are providing meaningful and voluntary informed consent in their execution. Players are being compelled to waive certain legal rights concerning their health without meaningful options. There is no doubt that players execute the waivers because they fear that if they do not, they will lose their job. Nevertheless, the fact that the NFLPA has consented to these waivers lends credence to their enforceability.
These waivers clearly raise serious confidentiality issues. Successful mental health treatment requires confidentiality between the provider and the patient.[6] Unfortunately, players historically have had serious concerns that discussing mental health issues with club medical staff or personnel has not been kept confidential.[7] As a result, many players avoid seeking out mental health treatment.[8]
The NFL-NFLPA CBA has dealt with this issue in confusing ways. Article 39, Section 1(e) of the 2020 CBA, entitled “Medical Providers and Allegiance,” discusses the duty of the Club’s medical personnel.[9] This section is substantially similar to Article 39, Section 1(c) of the 2011 CBA, which was titled “Doctor-Patient Relationship.” However, there is one meaningful difference between the two sections. When discussing the duty of club medical personnel, the 2011 CBA declared that “[t]his duty shall include traditional physician/patient confidentiality requirements.”[10] Oddly, in reviewing a draft of a report I co-authored, Protecting and Promoting the Health of NFL Players: Legal and Ethical Analysis and Recommendations, the NFL denied that the CBA provision “requires the traditional patient-physician confidentiality requirements of a private system” despite its explicit language.[11] Perhaps it is then not surprising that this line is noticeably absent from the 2020 CBA.
The 2020 CBA does, however, contain numerous provisions which theoretically require confidential treatment of player medical records.
First, the Team Clinician must “[e]nsure that all mental health treatment and records created or obtained during the course of providing services to a club’s players (including any voluntary mental health evaluations) (collectively ‘Mental Health Records’) remain confidential and are maintained, used and disclosed in compliance with applicable laws.”[12] Further, the 2020 CBA declares that “all Mental Health Records, with the exception of diagnosis and prescription drug information related to the mental health services provided by the Team Clinician, shall be maintained by the individual Team Clinician in a record separate from the NFL EMR [electronic medical record], which shall be afforded all protections that the clinician’s other patient records enjoy.”[13]
Second, any Mental Health Records that the Team Clinician creates when providing mental health services shall be considered protected health information (“PHI”) and subject to Health Insurance Portability and Accountability Act (“HIPAA”).[14] The Team Clinician may only disclose such PHI as permitted by HIPAA.[15] The 2020 CBA further declares that “[f]or the avoidance of doubt, the Team Clinician may NOT share any details regarding treatment provided to a player with any member of the club, other than with the Head Team Primary Care Sports Medicine Physician when medically necessary to provide treatment to the Player.”[16] This express declaration nonetheless conflicts with the waivers players sign which waive their rights to confidentiality under HIPAA.
Third, each year, the Team Clinician must sign an annual certification and submit it to the NFL Chief Medical Officer and the NFLPA Medical Director that (i) details any and all “Breaches” as defined under HIPAA in the prior year; (ii) confirms that he/she meets all state requirements to provide mental health services, including any licenses and certifications; (iii) confirms that his/her licenses has never been denied, suspended, revoked, terminated or voluntarily relinquished under threat of disciplinary action or restricted in any way; and (iv) assures that he/she has complied with all laws regarding the corporate practice of medicine, health care fraud and abuse laws, and laws regarding the privacy and security of patient information including but not limited to the ADA, HIPAA, and any applicable state laws.[17]
Fourth, the Team Clinician must be allotted space conducive to privacy and confidentiality in the club’s facility for direct service provision and consultation to players and the space and resources necessary to maintain the confidentiality of any and all electronic and paper Mental Health Records in a manner that complies with applicable laws, including but not limited to HIPAA and the ADA.[18]
Fifth, and perhaps most importantly, the 2020 CBA sets forth a comprehensive process to address any breaches of confidentiality, including providing for the potential termination of a Team Clinician.[19]
Nevertheless, these extensive protections of player mental health records are still clearly inconsistent with the expansive waivers that players sign. The breadth of the waivers undermines the promise of confidentiality. As a result, players may be reluctant to seek needed mental health treatment. Ideally, the provisions of the CBA will control in practice and in policy over the waivers – meaning player mental health records will be kept confidential.
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For more on NFL players and mental health, see Sarah McGraw, Christopher R. Deubert, Holly Fernandez Lynch, Lauren Taylor, Alixandra Nozzolillo, and I. Glenn Cohen, Life on an Emotional Rollercoaster: NFL Players and Their Family Members’ Perspectives on Player Mental Health, 12(3) J. Clinical Sport Psych. 404 (2018). Email me at cdeubert@deubertlaw.com for a copy of the article.
[1] The waivers are Appendix S to the 2020 CBA, which can be found here: https://nflpaweb.blob.core.windows.net/media/Default/NFLPA/CBA2020/NFL-NFLPA_CBA_March_5_2020.pdf.
[2] Christopher R. Deubert, I. Glenn Cohen, & Holly Fernandez Lynch, Protecting and Promoting the Health of NFL Players: Legal and Ethical Analysis and Recommendations (Nov. 2016) at 102, available at https://footballplayershealth.harvard.edu/law-and-ethics-protecting-and-promoting/ and at 7 Harv. J. Sports & Ent. L. 1 (“Protecting and Promoting”).
[3] Id.
[4] Id. at 138.
[5] Id.
[6] Protecting Your Privacy: Understanding Confidentiality, Am. Psychol. Ass’n (Oct. 19, 2019), https://www.apa.org/topics/ethics-confidentiality [https://perma.cc/BM3J-X2MP].
[7] Sarah McGraw, Christopher R. Deubert, Holly Fernandez Lynch, Lauren Taylor, Alixandra Nozzolillo, and I. Glenn Cohen, Life on an Emotional Rollercoaster: NFL Players and Their Family Members’ Perspectives on Player Mental Health, 12(3) J. Clinical Sport Psych. 404, 416, 418-19, 420-21 (2018).
[8] Id.
[9] 2020 CBA Art. 39, § 1(d).
[10] 2011 CBA, Art. 39, § 1(c).
[11] See Protecting and Promoting at 99.
[12] 2020 CBA, § 19(b)(iii)(A).
[13] 2020 CBA, Art. 39, § 19(f).
[14] 2020 CBA, Art. 39, § 19(c).
[15] Id.
[16] 2020 CBA, Art. 39, § 19(c)(i) (emphasis in original).
[17] 2020 CBA, Art. 39, § 19(a)(i)-(v).
[18] 2020 CBA, Art. 39, § 19(e).
[19] 2020 CBA, Art. 39, § 19(c)(ii).
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