By Christopher R. Deubert, Senior Writer
The passage of the Americans with Disabilities Act (ADA) in 1990 was a historic moment, providing rights and protections to disabled Americans in public spaces and the workplace. In contrast to those most specifically intended for protection under the ADA, professional athletes are regarded as possessing extraordinary physical abilities and being anything but disabled. Nevertheless, the ADA applies to a broad swath of workplaces which would include professional sports teams. Over the last decade or so, sports leagues and their counterpart unions have increasingly focused on player health issues. Consequently, some historic and more recent practices sit awkwardly alongside the ADA.
This article explores the intersection of the ADA and certain policies and practices of three leagues: (1) the NFL and its pre-Draft Combine; (2) the NBA and its “Fitness-to-Play” determinations; and (3) the United Soccer League’s (USL) recently agreed upon policies for the medical evaluation of prospective and current players.
At the outset, it is useful to frame and differentiate the most significant case ever involving the ADA and professional sports, PGA Tour, Inc. v. Martin, decided by the Supreme Court in 2001. In that case, the Supreme Court held, 7-2, that the PGA Tour was required to permit golfer Casey Martin, who had a degenerative leg disorder, to use a golf cart. Importantly, PGA Tour golfers are independent contractors and thus that case was brought pursuant to Title III of the ADA, which regulates nondiscrimination in places of public accommodation. The below items concern Title I of the ADA, which addresses discrimination in employment.
The NFL and its Combine
The NFL Combine has become a major sports event. The Combine began in the early 1980s as a way for NFL clubs to evaluate and gather information about players eligible for the upcoming NFL Draft in a single setting. Since 1987, for a few days each February, NFL club General Managers, coaches, scouts, doctors, athletic trainers and more gather in Indianapolis to see players get weighed and measured (typically in their underwear), participate in a variety of athletic and football-specific drills, undergo a battery of medical exams, and participate in interviews. The Combine has become a major television spectacle and faced criticism for what many believe to be a dehumanizing evaluation process for players, the majority of whom are Black.
The NFL has amended parts of this program in recent years in light of these issues but its intersection with the ADA remains a concern. The ADA forbids pre-employment medical exams or inquiries regarding whether an applicant is “an individual with a disability or as to the nature or severity of such disability.” 42 U.S.C § 12112(d)(2)(A). Nevertheless, one of the principal purposes of the Combine is for clubs, via Indiana University Health, to conduct medical exams on players and to evaluate whether any prior injuries might affect their performance or ability to play in the NFL. Clubs obviously use the results of these medical evaluations in making their Draft selections. The NFL Combine thus seems to run afoul of the ADA’s prohibition against pre-employment medical exams.
The NFL though has some defenses. First, the entity that operates the NFL Combine is National Football Scouting, Inc., a Delaware corporation not owned or controlled by the NFL. Consequently, NFL clubs could argue that they are not conducting the exams and thus are not in violation of the ADA. Nevertheless, the NFL and its clubs control the structure of the event, including the medical exams, and utilize the results of those exams. Thus, it is questionable whether the NFL could avoid ADA scrutiny by contracting out the pre-employment exams. Second, the ADA does not define an “applicant.” Consequently, the NFL and its clubs could argue that the players are voluntarily participating in a pre-Draft evaluation process and have not applied for a specific position with a particular employer-club, even though that is obviously not how employment in the NFL begins.
The NBA’s Fitness-to-Play Panels
Former NBA player Chris Bosh had his now Hall of Fame career come to an end as a result of blood clots in his legs and a lung. Despite Bosh’s rehabilitation efforts and desire to play, neither his current team, the Miami Heat, or another team were willing to take a risk on what was perceived to be a potentially fatal diagnosis due to the rigors of NBA play.
Bosh’s situation was ongoing and uncertain as the NBA and National Basketball Players Association (NBPA) were negotiating a new collective bargaining agreement (CBA), eventually agreed to in January 2017. That CBA contained new provisions meant to clarify the process for dealing with a situation such as Bosh’s. The following discussion analyzes those provisions but it is important to note that it is uncertain whether the CBA recently agreed upon by the parties in 2023 amends this process.
Article 22, Section 11 of the CBA created “Fitness-to-Play” panels to decide “whether players with potentially life-threatening injuries, illnesses or other health conditions are medically able and medically fit to practice and play basketball in the NBA.” Seemingly in response to Bosh’s situation and past controversies concerning player heart conditions, the CBA requires the creation of panels focusing on “(i) cardiac illnesses and conditions and (ii) blood clots and other blood conditions and disorders.” Additional Fitness-to-Play panels may be created if other life-threatening health issues arise.
The panels consist of one NBA appointed doctor, one NBPA appointed doctor, and a third doctor appointed by those first two members. Any of the NBPA, NBA, or a team may refer a player to a panel after there has been a medical determination that the player is medically unable or medically unfit to play basketball. The Fitness-to-Play panel then determines whether “(i) the player is medically able and medically fit to perform his duties as a professional basketball player; and (ii) performing such duties would not create a materially elevated risk of death for the player.”
The process presents two ADA-related concerns. First, before having his case considered by the panel, a player must “sign a release and covenant not to sue,” even though parties cannot prospectively waive their rights under federal antidiscrimination laws like the ADA. Second, even if the panel clears the player to play, a team can continue to refuse to let the player play. Such actions by a team may run afoul of the ADA’s prohibition on discrimination against employees with real or perceived disabilities (or records thereof), provided such employees can still perform the essential functions of their job with or without reasonable accommodation.
The NBA and its clubs would likely raise two arguments in defense. First, they may dispute whether the player can perform the essential functions of the job. Second, they could argue that the player’s desire to play poses a direct threat, i.e., a “significant risk,” to the health and safety of either himself or others that cannot be eliminated by reasonable accommodation. Nevertheless, those determinations would seem to be in conflict with the panel’s medical clearance of the player.
While the NBPA agreed to these provisions, unions generally cannot bargain away an employee’s federally protected antidiscrimination rights.
The USL’s “Disabled” Player Rules
In October 2021, the USL and the USL Players Association (USLPA) agreed to the league’s first-ever CBA. The agreement was an important part of providing stability to the league and basic levels of income and benefits to its players. However, the agreement included some provisions which invite questions under the ADA.
First, Section 10(A) of the CBA provides that “[e]ach Club may, at its own cost, arrange for a Club-designated physician to conduct a medical examination of each of its players or prospective Players… at such times as it reasonably deems advisable.” However, as discussed above with regard to the NFL Combine, the ADA prohibits pre-employment medical examinations.
Second, Section 10(C)(1)(b) permits a club to suspend a player if he is determined to be “disabled” by the club’s doctor. The CBA does not define “disabled.” While employers can change the terms and conditions of employment for disabled employees unable to perform the essential functions of the job (often disputed), the CBA’s explicit contemplation of employment action against a “disabled” employee is surprising.
Third, Section 10(C)(3) of the CBA governs medical examinations requested by the club to evaluate a current player’s fitness. Of particular relevance, subsection (b) provides that “a Club shall have the right to determine in good faith that a Player has failed to pass the Medical Examination due to the risk of a future injury, illness, or other health condition notwithstanding that the Player is currently able to perform as a skilled soccer player in the League.” If the club determines that the player failed the medical examination, it can terminate the player and is required to pay him just two weeks’ salary. This provision could be contested by players who disagree with the club’s evaluation and believe they are still capable of performing the job.
An Uncomfortable Legislative Fit
Congress certainly did not pass the ADA to protect current or prospective professional athletes. Nevertheless, the law does not exempt any industry from its protections. In Martin, Justices Scalia and Thomas argued in dissent that courts should not intrude on sports leagues’ rule and eligibility determinations. Current Justice Kavanaugh once made a similar dissenting argument about the application of the Occupational Safety & Health Act in a case involving SeaWorld while he was on the D.C. Circuit Court of Appeals. These arguments are compelling, particularly in the situations where the athletes are represented by a union in negotiating a collective bargaining agreement.
To date, the leagues have generally avoided serious questions about the application of the ADA to their operations. With an increasing focus on player health and safety, that may change. If so, the leagues – and potentially Congress – may need to reconsider the law and its application.
Deubert is Senior Counsel at Constangy, Brooks, Smith & Prophete LLP.
Further Reading
Jessica L. Roberts, I. Glenn Cohen, Christopher R. Deubert, & Holly Fernandez Lynch, Evaluating NFL Player Health and Performance: Legal and Ethical Issues, 165 U. Pa. L. Rev. 227 (2017)
Jessica L. Roberts & Brittanie Zinsmeyer, Fit to Play in the NBA? Reconciling the NBA Collective Bargaining Agreement with the Americans with Disabilities Act, 166 U. Pa. L. Rev. Online 149 (2017)
