By Irwin A. Kishner, Esq.
There is an old saying in professional sports: you play when you’re hurt and sit out only when you’re injured.
What happens, though, when athletes are truly injured, and they and their teams disagree on the proper course of medical treatment? With pitcher Curt Schilling of the Red Sox on the disabled list and possibly at odds with his team on how best to treat his ailing shoulder, this issue – which arises from time to time – is worth discussing.
As with most legal issues, this comes down to an analysis of the rights and responsibilities of all parties.
Schilling, who is on the 60-day disabled list and is expected to miss half the season, is on record as preferring surgery. The Red Sox have made it clear that they prefer a more conservative approach of rest and rehabilitation.
The franchise has a right to protect its asset and its investment. In baseball – unlike football – players’ contracts are generally guaranteed; injured players still draw their salary as if they were performing. Franchises also invest in their top players by marketing them. Sponsors and ticket-buying fans decide how involved they will be with their local franchises in part by weighing how successful and entertaining they will be. The Red Sox with Schilling in action are a more valuable property than the same ballclub without Schilling pitching every fifth game. Baseball player contracts routinely include clauses that require the athlete to maintain good health and wellbeing. What they don’t specify, however, is how to get to that point once an injury occurs.
Schilling, on the other hand, owns his body, his public persona and the right to protect both.
In the final analysis, as a legal matter, it’s a pretty clear call: As a matter of public policy, the athletes have the final say and get to decide what’s best for their bodies and their careers. And, absent a specific, narrowly drawn contractual clause to the contrary, their employers cannot dismiss them for choosing a course that is contrary to management’s wishes.
Because I represent professional sports franchises on a multitude of issues, I tend to think from a management perspective. I would urge teams to try to negotiate contract language that allows them to terminate a player’s employment if he chooses a course of treatment conflicting with the franchise’s wishes, when those wishes are based on sound medical advice from respected sources. This becomes a market issue: a weak-hitting, third-string shortstop who is struggling to stay on the major league roster may acquiesce, but an in-demand star, whose presence translates to wins in the standings and fans in the seats, probably will not. And even when the market issues favor management, I would urge them to draw such clauses so specifically and narrowly that courts would tend to uphold them. Language might include the medical or physical conditions that are covered under the clause, for instance, and the sources of medical advice upon which the team would rely.
How teams and players handle treatment of injuries is not just a purely legal issue. Professional sports, the relationships between athletes and their franchises, and all the related issues and angles are more complicated than a relatively easy analysis of public policy and contract law. This is big business, with lots of money and reputations on the line. The issues and solutions are more complex.
Schilling eventually went along with the club’s treatment plan and is undergoing rehabilitation. As a matter of logic, surgery remains an option. Had he undergone surgery earlier, there was no way to go back in time and “un-do” the operation. By taking the more conservative approach, Schilling still has the option to escalate. Both he and the Red Sox, meanwhile, have kept a relatively low profile since some initial public discourse in February. Whatever discussions have ensued have been private, which gives both sides some room to maneuver with less public scrutiny.
At 41, Schilling surely senses that his playing days are waning. That may explain his initial leanings toward surgery. Those may also be his current leanings, though by staying silent and attending rehab sessions, he keeps those thoughts to himself. He may view surgery as simply the most medically logical option, but he also may view it as a higher risk, higher reward treatment than rest and rehabilitation. He may feel that surgery is worth the risk, because if he misses too much time, at his age, he may end his career sooner than he would prefer.
Public relations and posturing are a large part of professional sports. Schilling has been in the major leagues for 20 years, and by that time, most top athletes – unless they have invested poorly or have spent wildly – have more money than they could spend over a lifetime. Their reputations and legacies, however, remain of great importance. Most players, especially those with Schilling’s obvious desire and will to win, have healthy egos and want to preserve their standing in the eyes of their fans. In 2004, Schilling pitched in the post-season with an ankle tendon that was so badly injured that he bled through several socks. So Schilling’s desire to compete and win isn’t at issue. Some players, however, are less resolute and are inclined – or at least perceived to be inclined – to skip games with minor maladies. Players trying to enlarge or preserve their reputations – in concert with a clever agent and public relations representative – may take a public posture of wanting to endure the most aggressive course of treatment to get back on the field as soon as possible.
All these machinations speak to the complex, big-money landscape of professional sports. The bottom line, though, is that as a general matter of law, a player’s body is his own, and if he and his employer are at loggerheads over how best to treat an injury, the player will have the final say.
Irwin A. Kishner is chair of the corporate practice group at New York City-based law firm Herrick, Feinstein LLP, with a specialty in sports law. He represents a number of professional sports franchises in their corporate, finance, transactional, acquisition and general business affairs. He has acted as lead counsel on several high-profile acquisitions of franchises; cable television and radio contracts; stadium- and arena-financings, advertising and sponsorship contracts; and development and naming rights agreements for stadiums and arenas.