The Harvard Law School Report on Player Health Promotion and Protection

By: Federico DaFranca

– Attorney At Law

Copyright – September 2018 – All Rights Reserved

 

 The Harvard Law School Report on Player Health Promotion and Protection

 

i.- Independence and Disclosure of Conflicts

 

When evaluating Football Player health in the NFL, a great foundational resource is the Harvard Law Report pertaining its Ethical evaluation and recommendation for the subject matter.[1] Extensive medical research has been conducted as a result of the 2011 Collective Bargaining Agreement between the National Football League Players Association (NFLPA) and the National Football League (NFL). Resulting therefrom, the research and report were oriented towards generating independence of control. Specifically, the report intends to reflect “the relative primacy of players’ health” (…) “clarifying the roles of medical staff and healthcare providers, team owners, pre-professional schools and institutions, equipment manufacturers and suppliers, the media and players themselves in protecting and advancing player health and welfare.[2]

 

Pertaining the report its also important to stand out Section (D)(2) that discusses a Description of Legal and Ethical Obligations as well as communications between the NFLPA and the NFL. The report concludes that “it was essential to allow for substantive Review” by stakeholders from both NFLPA and NFL. A review from stakeholders provides an opportunity for the institutions to provide additional information, comment on is planned going forward and raise further suggestions pertaining the results of the report. Concerning the final review its also important to stand out the role of the Law and Ethics Advisory Panel and the feedback completed by Professor Gabriel Feldman who was the formal reviewer of the Report. Though the full scope of the report is beyond the extent of this work, it’s important to summarise what is relevant as follows:

 

The Report pursuits to establish who is responsible for the health of NFL players and what can be done to promote player health. The report is of significance to the field because it is a first attempt to evaluate and illustrate the “universe of stakeholders that may influence NFL player health…” The report further stipulates “the structural and organizational factors that shape the environment in which players live and work.[3]

 

The report formally recognizes that there is a trickle-down effect of what happens at the professional level of football, so that amateur players end up assuming health risks as a result of trying to professionally achieve NFL status.

 

Furthermore, four primary functions are empirically established for the investigation:

  1. Identification of the stakeholders who influence the health of NFL players
  2. Description of the existing legal and ethical responsibilities of stakeholders
  3. Evaluation of sufficiency pertaining these existing obligations
  4. Recommendation of changes grounded in the evaluation

The Report concludes by issuing ten recommendations that should be implemented to further a positive impact on player health:

 

  1. The present conflicts of interest between players and medical staff must be mitigated
  2. The NFL and NFLPA should reduce player health as a subject of adversarial collective bargaining
  3. Adoption, improvement and enforcement of Codes of Ethics should be enforced
  4. NFL and NFLPA efforts to support scientific and reliable health risks and benefits should be established
  5. The NFL should: (a) continue to improve a robust collection of aggregate injury data; (b) continue to have the injury data analysed by qualified professionals; (c) Make the data publicly available for re-evaluation
  6. The NFLPA should consider investing greater resources in investigating and enforcing player health issues
  7. Support of players in Clubs and Club medical staff should be advised by a second opinion (Article 39 of the 2011 CBA)
  8. A short-term injured reserve list should be created for players diagnosed with a concussion
  9. Contract Advisor due diligence should be increased to facilitate the familiarization of players with their rights and duties under the Collective Bargaining Agreement
  10. Policies must be instituted so that players have a compulsory or at least available physical examination after soon after each season

 

  1. A General Summary of the Report

 

The report establishes three guiding concepts pertaining player Promotion and Protection: Health, Guiding Ethical Principles, Stakeholders. When it comes to health there is a full range of non-medical inputs that can influence health. Therefore, the concept of health when it comes to NFL players must extend beyond standard clinical measurements. A holistic conceptualisation of health in sports must encompass social determinants. The World Health organisation defines social determinants as “the conditions in which people are born, grow, live, work and age as affected by the distribution of money, power and resources at global, national and local levels.” It can be inferred therefore, that maximizing player health without improving social determinants is insufficient.[4]

 

The Guiding Ethical Principles established as an evaluation of stakeholder responsibility are:

  1. Respect: The NFL is a business that relies on individuals exposed to health risk. No stakeholder can treat a player for the promotion of its own goals
  2. Health Primacy: Avoidance of serious threats to player health are of paramount importance in stakeholder transactions
  3. Empowered Autonomy: Players should be perceived as competent adults empowered to evaluate the health risks they are willing to undergo
  4. Transparency: All parties should be transparent about their own goals, interests and potential conflicts pertaining player health
  5. Conflicts of Interest: All stakeholders must prepare measures of caution to minimize conflicts of interest
  6. Collaboration and Engagement: Protecting and promoting the health of professional football players depends on multiple parties acting together as a team instead of adversaries competing for resources
  7. Justice: Stakeholders have an obligation to ensure that players are not bearing an inappropriate share of risks and burdens compared to the benefits sown by other stakeholders[5]

 

Based on the qualitative and quantitative data gathered by the research the report concludes twenty categories of stakeholders relevant to NFL player health: Players, club doctors, athletic trainers, second opinion doctors, neutral doctors, personal doctors, the NFL, the NFLPA, the NFL clubs, coaches, club employees, equipment managers, agents, financial advisors, family members, officials, equipment manufacturers, the media, the fans and NFL business partners.[6]

 

The specific categories of stakeholders are discussed as per the recommendations of the report next.

 

  • Players: Being the focus of the report “protecting and promoting player health,” it is important to understand who they are and what they are doing concerning their own health. The common tendency of players to decide against a constrained set of background conditions, pressures and influences impacts their capacity to “optimally protect their own health.” Therefore, players must be treated as partners in advancing their own health by offering them a variety of support systems.

Significant concerns exist about the actions of players pertaining their own health. The study stands out how historically, there has been considerable evidence reflecting that NFL players have a tendency to underreport their medical conditions to avoid missing playing time or jeopardize their position within a club. As a result thereof, the Authors recommend 1:1A: With assistance from contract advisors, the NFL, the NFPLPA, and others, players should familiarize themselves with their rights and obligations under the NFL-NFLPA Collective Bargaining Agreement (CBA)…”

 

In addition to the above-stipulated, the Summary advises as additional recommendations: Careful consideration of present and future health sacrifices among players, advantaging of opportunities for the preparation of life after football, learning from more experienced players about health, supporting and encouraging health between players, returning to play after injury when fit, discussing health-related documents with their agents properly, establishing an awareness of health ramifications for the withholding of medical information and performing a regular review of medical records.[7]

 

In conclusion, it can be inferred from the above-cited that the protection and promotion of player health is an ongoing process, that it is a complex process that raises a series of concerns in multiple ways and that player behaviour tends mostly against the procurement of such-said protections. Therefore, a consistent application of the above-stated recommendations are necessary in practice to achieve the expected objective. Furthermore, an educational integrative process is applicable for the formation of health-conscious players and a raised outcome of player health.

 

  • Club Doctors: Pertaining this item its important to stand out the 2011 CBA between the NFL and the NFLPA. Specifically, the Agreement requires that each club retain a board-certified orthopaedic surgeon and a board-certified physician specialised in internal medicine, family medicine or emergency medicine. The Summary further states that, additionally “clubs are required to retain consultants in the neurological, cardiovascular, nutritional and neuropsychological fields.” All NFL clubs are members of the National Football League Physicians Society.

 

Club doctors are relevant to player health because they are important stakeholders to

protect and promote athlete well-being. Nevertheless, as the section summary stands out, club doctors also have an obligation to the club. Thus, a conflict of interests may be created when physicians evaluate certain issues about player health. One of the main topics the authors are concerned about in the research is returning to active status after injury. From the data gathered, there is a general tendency to return to game status faster than the natural recovery curve. The latter is mostly the result of fear about contract reprisals.

 

Consequently, its important to stand out that, given the various roles of the doctor club physicians “face an inherent conflict of interest.It is not a moral judgment about them as competent professionals or devoted individuals, but rather a simple fact of the current organizational structure…” (of NFL medical staff)

 

As a result, as is inferred “law and ethics require two separate care teams” in order to recover trust. The report concludes from the stakeholder research surveys and the data evaluated that: “existing codes and legal requirements are insufficient to satisfy the goal of ensuring that players receive the best healthcare possible.

As a result thereto, Recommendation 2:1-A is proposed: “we propose to resolve the problem of dual loyalty by largely removing the club doctors ties with the club and refashioning the role into one of singular loyalty to player-patients.[8]

 

As is portrayed accordingly, the purpose of the recommendation is to “separate the roles of serving the player and serving the club.” Successfully achieved the former, the Player’s Medical Staff can be selected and reviewed by a committee of medical experts jointly selected by the NFL and NFLPA. In turn, player health information is channelled through player medical records and regular written reports from the Player’s Medical Staff. The studies from the research stand out that Recommendation 2:1-A can substantially lessen major concerns about current club doctor arrangements and mitigate “dual loyalty” problems and “structural conflict of interest.

 

Other recommendations that should be adopted in the future pertaining this subject matter as part of the Collective Bargaining Agreement are: Adoption of an NFLPS code of ethics, NFLPS membership requirements for every doctor retained by a club, amendment of the Concussion Protocol, reconsideration of waivers by the NFL / NFLPA for the disclosure of player medical information, reinforcement of doctor abidement of CBA obligations to advise information disclosure to patients, clarification of the club doctor role in writing, duty of claims consideration about medical care provided by the NFL – NFLPA and club doctors.

 

  • NFL and NFLPA

 

The NFL and NFLPA constitute essential stakeholders towards the protection and promotion of player health. As a result thereof, there has been significant progress concerning player health. Therefore, it can be inferred from the information reviewed that both offer outstanding benefits and programs to aid current and former players. The main issue, therefore, is to improve access to programs and benefits. It can be inferred that the programs and benefits are adequate but their availability is not.

 

In this sense, implementing changes to further promote and protect player health should be included in the next Collective Bargaining Agreement. Placing into practice the recommendations presented as a result of the research cited herein is, according to the author, the most appropriate mechanism for providing improved access to benefits and programs.

 

As a result thereof, Recommendation 7:1-A reads: The NFL and NFLPA shoud not make player health a subject of adversarial collective bargaining.” By adversarial, meaning that the NFL should not delay player health issues in order to advance other collective bargaining goals.

 

In this sense, Recommendation 7:1B is also mentioned as follows: “The NFL and NFLPA should continue to undertake and support efforts to scientifically and reliably establish the health risks and benefits of playing professional football.” [9]

 

The above-cited outlines the most important stakeholders in the game. For a full-review of secondary stakeholders and recommendations the full report may be reviewed. A summary of the conclusions of the report is presented next: The “…report explains the pressing need for research into the overall health of NFL players; the need to address player health from all angles, both clinical and structural; and, the challenges presented in conducting such research.”

 

“Recommendations are only useful to the extent they are implemented.” “…final reccomendations: The NFL, NFLPA and other stakeholders should actively engage with and publicly respond to this Report; the stakeholders identified in this Report, media, academics, and others should actively advocate, encourage and monitor the promotion of player health…” “… stakeholders (e.g. club doctors, athletic trainers, coaches, contract advisors and financial advisors) should adopt, improve and enforce Codes of Ethics.”

 

It can thus be inferred that:

  • Research is useful to the extent that it is legally applied
  • The present NFL research is useful to the extent that it is adopted by the new Collective Bargaining Agreement
  • The promotion of player health is an ongoing process between the institution and its stakeholders in the search of player health

 

[1] Dubert R.C./Cohen G.I./Fernandez L.H. “Protecting and Promoting the Health of NFL Players: Legal and Ethical Recommendations.” Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics. Harvard Law School. November 2016

[2] Ibid. (Pp. 9-11)

[3] Ibid. (Pp. 12-15)

[4] Ibidem

[5] Ibid.

[6] Ibid.

[7] Ibid. Pp. 15

[8] Ibid. Pp. 16

[9] Ibid. Pp. 17

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