78 Pages Posted: 17 Apr 2018 Last revised: 7 Nov 2018

Date Written: April 17, 2018

Abstract

The athletes who participate in professional football call themselves (and the public calls them) football “players,” not football “workers,” reflecting the reality that as exhausting and high-pressure as their efforts are, they are ultimately playing a sport. Nevertheless, we should not forget that these athletes indeed are workers; they have trained extensively to perform their roles, they do intense physical labor as part of their jobs, they are salaried employees of National Football League (“NFL”) clubs, and they are represented by a labor union, the National Football League Players Association (“NFLPA”).

This Article is the first to explore in depth what might happen if our society treated professional football like a workplace, subject to government regulation, public–private cooperation or other “soft law” mechanisms, or required information disclosure to facilitate more informed understanding of the variety of safety and health risks these workers face to provide fans with entertainment. Specifically, it examines how recognizing the NFL as a workplace, governed by the U.S. Occupational Safety and Health Administration (“OSHA”) and the law surrounding occupational health and safety, can transform our understanding of the NFL and player safety. This topic has gained considerable and growing public attention, particularly regarding the recent and controversial concerns over the possible long-term risks of neurological damage in these workers.

The Article explains that OSHA clearly has the authority to regulate the NFL. Nevertheless, there is little to no precedent or guidance for OSHA to insert itself into the on-the-field aspects of professional sports. We discuss in detail the small body of case law that bears on OSHA’s authority in entertainment and sports, which opens some doors for OSHA to issue standards but also sets limits on its ability to alter the nature of the entertainment or sport. But more importantly, there are a host of political and practical reasons we discuss, which make it very unlikely that OSHA will attempt to regulate the NFL. Nevertheless, there are a wide variety of ways for OSHA to intervene or involve itself without regulating, as discussed at length in the Article. Adding a public institution like OSHA as a party to existing labor-management discussions concerning health and safety may be the best natural evolution of the issue.

Many in the public seem to believe that football must become safer to thrive and hope that it will. Regulations or “soft law” approaches have sometimes worked well even in complicated, uncertain, and fraught issues. OSHA understands evidence from a public health lens, and it is the institution empowered by Congress and the courts to help balance the competing goals of worker protection versus cost and liberty in an open setting. So we place the onus on OSHA in this Article: the agency should be more willing to step up to this challenge and less conflicted about offering to participate in an issue where it has expertise complementary to that which the NFL and NFLPA bring, as well as a unique opportunity to help bring about constructive change.