By Christopher R. Deubert, Senior Writer
The current NHL-NHL Players Association (NHLPA) collective bargaining agreement (CBA) expires in September 2026, shortly before a new season would start. ESPN has recently reported on the NHLPA’s priorities entering those negotiations. The players’ share of league revenues is a constant source of discussion. But one issue raised by the NHLPA arises out of a 2021 dispute between the Buffalo Sabres and Jack Eichel concerning his medical treatment. The players’ proposed fix would bring the CBA into compliance with bioethical principles.
The Sabres-Eichel Dispute
The Sabres drafted Eichel with the second overall pick in the 2015 NHL Draft and he was immediately considered the face of the franchise for the foreseeable future. Indeed, Eichel had a fairly excellent first five seasons in the league, averaging 27.4 goals and 67.4 points per season.
Things changed when Eichel’s 2020-21 season ended early due to a neck and back injury. Thereafter, Eichel and the team disagreed about the appropriate course of treatment. According to ESPN, in October 2021, with Eichel missing the start of the new season, “[t]he Sabres prefer[red] Eichel to receive a fusion surgery, which would have [had] him back on the ice in six months.” However, Eichel’s doctors recommended “a disk replacement surgery, which would have him sidelined for six weeks and carries a much lower risk that the center would need future surgeries later in life.” Yet, the “disk replacement surgery ha[d] never been performed on an NHL player.” As a result of the dispute, the Sabres stripped Eichel of his captaincy and placed him on long-term injured reserve.
In such disputes, it is standard to first examine the relevant CBA. Article 34.4 of the NHL-NHLPA CBA governs second medical opinions. The Article provides a process through which a player can obtain a second medical opinion which might conflict with the club physician’s opinion. If the club physician and second opinion physician do not agree on a course of treatment, the two doctors may recommend that the player be evaluated by a third doctor. Despite these multiple layers of medical review, including the possibility that two doctors might disagree with the club doctor, the CBA declares that “the team physician shall determine the diagnosis and/or course of treatment (including the timing thereof) after consulting with the Second Medical Opinion Physician and the Third Physician Expert, if any, and giving due consideration to his/her/their recommendation(s).” In other words, the team doctor had the final say.
Bioethical Considerations
The club physician’s ultimate authority to determine the course of treatment raises serious bioethical concerns. Bioethics refers to the application of ethics – the philosophical discipline pertaining to notions of right and wrong – to the fields of medicine and healthcare. Bioethical analyses are generally conducted through the lens of specific principles, the most commonly-recognized being respect for autonomy, non-maleficence (the duty to avoid harm), beneficence (the duty to do good), and justice.
Of most relevance to Eichel’s situation was the concept of autonomy. As described by leading bioethicists Tom Beauchamp and James Childress, “[p]ersonal autonomy is, at a minimum, self-rule that is free from both controlling interference by others and from limitations, such as inadequate understanding, that prevent meaningful choice.” Autonomy is considered a “basic moral and political value” in western societies.
The Eichel situation – and the related-CBA provision – appear to run afoul of the principle of autonomy. Pursuant to Article 34.4 of the CBA, Eichel did not have the right to choose his own course of treatment, depriving him of both “self-rule” and “controlling interference” in one of the most important domains of life – the right to control what is done to one’s own body.
Unfortunately, the NHL’s approach is not unique. Both the NBA and MLS CBAs also provide the clubs with the right to determine a player’s course of treatment. The better approach – and the one that comports with bioethical principles – is that adopted by the NFL and MLB, which permits the player to make the final decision about his treatment.
Legal Considerations
The situation also raised legal concerns. An important step in the performance of any non-emergency medical procedure is obtaining the patient’s informed consent. Failure to do so generally constitutes medical malpractice. If the Sabres had prevailed in their preferred course of action, it is debatable whether Eichel could have provided informed consent. Even if he were to sign the medical provider paperwork indicating consent, given his long-standing and publicly known protestations against the Sabres’ preferred course of treatment, it is unclear whether Eichel’s consent would have been legally valid.
What Happens in Vegas… Happens Leaguewide?
Fortunately for both parties, the situation was resolved without having to adjudicate these challenging issues. In November 2021, the Sabres traded Eichel to the Vegas Golden Knights. He subsequently had his preferred back surgery and returned to stellar play. Indeed, since then, several other players have had the same surgery. And while players state that it has become much easier to obtain second medical opinions as compared to years past, they remain peeved that clubs retain final say over a player’s medical care. They therefore intend to negotiate a change in the next CBA to prevent any player from going through a situation like Eichel did.
Deubert is Senior Counsel at Constangy, Brooks, Smith & Prophete LLP
