By Christopher Deubert, Senior Writer
The NFL recently announced that it would let players wear Guardian Caps, an over the helmet padding, during regular season games. The NFL’s decision invites questions about the application of the Occupational Safety and Health Act (OSH Act) to the NFL workplace.
Legal background
The OSH Act is a 1970 federal law meant to help protect the safety of American workers. The law is enforced by the Occupational Safety and Health Administration (OSHA), an agency of the U.S. Department of Labor.
OSHA regulates workplaces in two ways.
First, the OSH Act requires employers to provide their “employees employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm.” This requirement is known as the General Duty Clause.
Second, OSHA is empowered to set “occupational safety and health standards” that are “reasonably necessary or appropriate to provide safe or healthful employment and places of employment.” OSHA standards typically address industry-specific hazards (vertical standards) or exposure to hazardous substances or conditions across a variety of industries (horizontal standards).
While OSHA theoretically has the authority to set safety and health standards for the NFL workplace, it is unlikely for a variety of political and practical reasons.[1] Many would likely consider it inappropriate for OSHA to regulate an industry in which at least some part of its commercial appeal is the risks associated with playing. Indeed, when Supreme Court Justice Brett Kavanaugh was going through the confirmation process in 2018, news articles discussed his dissent in a case in which he argued that OSHA did not have the authority to prohibit SeaWorld trainers from entering the water with orcas because of SeaWorld’s nature as an entertainment business.
Additionally, given that NFL players are represented by a powerful union that has collectively bargained extensive health and safety provisions into the collective bargaining agreement with the league,[2] government intervention seems unnecessary.
The introduction of Guardian Caps
NFL players voluntarily started wearing during the 2022 preseason. The number of preseason practice concussions decreased to 25 that year from 30 in each of 2019, 2020, and 2021.
In 2023, players at most positions were required to wear them for preseason, regular and postseason contact practices. There were only 35 concussions suffered during practices that year, the least since 2016 (when reporting and diagnosis may not have been as good).
Jeff Miller, the NFL’s Executive Vice President of Communications, Public Affairs and Policy described the data as “showing significant concussion reductions among players who wear Guardian Caps.” Hence the decision to permit players to wear them during regular season games.
The NFL’s lessons learned
In the 2000s and 2010s, the NFL was perceived as having been too slow to recognize, acknowledge and respond to the risk of concussions. The result was a class action settlement and a variety of changes to the way the NFL evaluated and treated concussions and approached other player health issues.
The NFL’s utilization of Guardian Caps is consistent with that changed approach. Moreover, it is consistent with the NFL’s obligations under the General Duty Clause of the OSH Act.
To establish a violation of the General Duty Clause, OSHA must establish that: (1) an activity or condition in the employer’s workplace presented a hazard to an employee; (2) either the employer or the industry recognized the condition or activity as a hazard; (3) the hazard was likely to cause, or actually caused, death or serious physical harm; and (4) a feasible means to eliminate or materially reduce the hazard existed.
As it concerns the NFL and concussions, the first three elements are easily established. At this point it is well-established and recognized by the NFL that playing in the NFL can cause serious physical harm, including specifically concussions. The question has often been whether there was a feasible means to eliminate or materially reduce those risks without fundamentally changing the nature of the sport.
According to the NFL’s own press release, the Guardian Cap does exactly that. According to its website, Guardian Caps were created in 2010, though it is unclear when the product was sufficiently advanced for use by NFL clubs. Either way, they have been in use for several years now and had the NFL not expanded their usage, one could have reasonably questioned whether it was meeting its OSH Act obligations. Indeed, should the product and data continue to trend positively, it is possible that one day Guardian Caps will be mandatory for use in games.
[1] See Adam M. Finkel, Christopher R. Deubert, Orly Lobel, I. Glenn Cohen, and Holly Fernandez Lynch, The NFL as a Workplace: The Prospect of Applying Occupational Health and Safety Laws to Protect NFL Workers, 60 ARIZ. L. REV. 291 (2018).
[2] See Christopher R. Deubert and Aaron Caputo, Improving the Game: The Football Players Health Study at Harvard University and the 2020 NFL-NFLPA Collective Bargaining Agreement, 12 HARVARD J. SPORTS & ENT. L. 73 (2021).
