Researchers at the University of Houston Law Center and Harvard Law School Address Legal Issues in Evaluating NFL Player Health and Performance

The University of Pennsylvania Law Review today published an article by researchers at the University of Houston Law Center and Harvard Law School analyzing the legality of various health and performance evaluations used by NFL clubs. These include the familiar—such as athletic drills—and those that are more advanced, such as genetic testing and wearable technologies that monitor a player’s speed, strength, sleep, heart rate, body temperature and other biometrics. The article is authored by Jessica L. Roberts from the University of Houston Law Center and researchers from the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School, I. Glenn Cohen, Christopher R. Deubert, and Holly Fernandez Lynch.

The authors explore whether two federal antidiscrimination employment laws—the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) apply to the health evaluations of professional football players, for example, those conducted at the NFL Combine and again after players join an NFL club. ADA and GINA offer broad legal protections to employees, and the article discusses whether these protections might apply to those employed as NFL players.

Given the reference to disability and genetic information in the Acts’ titles, it is a common mistake to think that ADA and GINA apply only to those who would self-identify as disabled and to genetic tests. In fact, they provide protection against certain types of health-related inquiries and medical exams for all employees, and even for those who are being considered for potential employment. “Players need not be disabled in a traditional sense or asked to provide their own genetic information in order to fall under the umbrella of statutory protection,” said Jessica L. Roberts, George Butler Research Professor at the University of Houston Law Center.

In the context of the NFL, the authors’ interpretation of these laws raises questions pertaining to the permissibility of the following:

• Medical examinations and requests for player family medical history at the NFL Combine (the annual event at which NFL clubs evaluate prospects for the NFL Draft)
• After a contract offer has been made, public disclosure by a club of medical examination results indicating disability
• Rescinding a contract offer based on a medical examination, even though the player can still play
• Required disclosure of player family medical history in the standard preseason physical

“Given the unique nature of professional sports, both in terms of the physicality of the business and the elite performance demanded of the employees, it is unclear whether all of the protections afforded by the ADA and GINA ought to apply to the NFL, regardless of whether they do at present,” explained Glenn Cohen, professor of law at Harvard Law School. Thus, the article raises a number of questions and recommendations for clarification and next steps.

Published alongside the article are Appendices that detail some of the companies offering biometric measuring technologies used to assess prospective and actual NFL players, as well as waivers of certain rights currently executed by players at the NFL Combine.

This research was conducted as part of the Law and Ethics Initiative of the Football Players Health Study at Harvard University. The research is independent and not directed by the National Football League, NFLPA, or any other stakeholder. The article’s content, findings and conclusions are solely the responsibility of the authors, and do not represent the official views of the NFLPA, the Football Players Health Study at Harvard University or Harvard University. These entities exercise no control over the findings or recommendations.

For more information on the Law and Ethics Initiative, please see the Frequently Asked Questions from our report, Protecting and Promoting the Health of NFL Players: Legal and Ethical Analysis.

Health Law and Policy Institute at the University of Houston Law Center
The Health Law and Policy Institute at the University of Houston Law Center directs curriculum, teaching, research, publications, and conference activities relating to health law and policy. HLPI has advanced the understanding of health law issues and provided guidance for significant policy decisions affecting health care for almost four decades.

Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School
The Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School is a research program devoted to interdisciplinary analysis and legal scholarship in these fields. The Center’s work involves public engagement, academic programs, sponsored research and independent scholarship.

Football Players Health Study at Harvard University
Launched in 2014, the Football Players Health Study at Harvard University is composed of select studies and research initiatives addressing the whole player over the course of his entire life. The study is funded by the National Football League Players Association (NFLPA), and utilizes shared resources across supporting institutions at Harvard University.

For more information: Gina Vild, Harvard Medical School, 617-584-5236