“The purpose of a union is to advocate for its members.”
-U.S. District Judge Matthew Brann in Scicchitano v. County of Northumberland
The NFL’s COVID-19 rules for 2021 have sparked player objections that could become grounds for legal challenges. It’s also raising a question among some players: Is the players’ union advocating for members’ interests—health and otherwise—or too readily going along with NFL owners’ wishes?
Last Friday, the NFL distributed its “2021 Covid-Related Operating Principles” to teams. Those “principles” sent two unmistakable messages: (1) Teams must ensure their players and staff are vaccinated for the infectious disease; and (2) players who refuse the vaccine could financially hurt their teammates and players on rival teams.
The memo indicates that if a game is canceled on account of an outbreak and not rescheduled during the 18-week schedule, the team deemed responsible for the cancellation will be assigned a loss. The memo also expresses that players on both teams in a cancellation/not-rescheduled scenario would not be paid.
The NFLPA signaled it accepts these provisions. The players’ association sent an email to union members reminding them that “the same basic rules [which the NFL and NFLPA negotiated] applied last year.”
However, the memo acknowledged there is a “difference this year” reflecting “the NFL’s decision to impose additional penalties on clubs which are responsible for the outbreak and the availability of proven vaccines.” The league, furthermore, has expressed an unwillingness to add an extra week to the season for make-up games. It’s not clear if the NFLPA gained any benefits in exchange for these changes or how an unvaccinated player thought to be responsible for a paycheck-forfeiting outbreak would be treated by teammates. Teams have already begun to visually segregate unvaccinated players by making them wear yellow wristbands, while vaccinated players wear red.
Separately, the league and NFLPA have agreed that unvaccinated players can be fined $14,650 for attending an indoor nightclub or otherwise violating gathering and travel protocols. Players can also be fined up to $50,000 for refusing to cooperate or knowingly providing misleading information during a contact-tracing interview.
NFL efforts to ensure that COVID-19 not disrupt the 2021 season are understandable. The league, which played the entire 256-game 2020 season, and franchise owners would lose opportunities to make money if games were canceled.
Less obviously, the league has legal obligations to ensure a safe workplace. NFL teams could be sued by employees for negligence, premises liability and misrepresentation should they permit dangerous conditions. Players who sue would face the potential legal hurdle of claims being preempted by the CBA. However, such claims aren’t unprecedented. Former Tampa Bay Buc Lawrence Tynes, represented by attorney Brad Sohn, negotiated a settlement with his team after a methicillin-resistant Staph infection ended his NFL career in 2013.
NFL teams must also be aware of potential oversight by government agencies. While the Occupational Safety and Health Administration (OSHA) hasn’t historically regulated the NFL, some have urged that to happen.
The NFL also enjoys vast legal authority over its franchises, with the contractual blessing of the owners. In its memo, the league noted that “every club is obligated under the [NFL] Constitution” to make sure the team is “ready to play at the scheduled time and place. A failure to do so is deemed conduct detrimental.”
To that point, the constitution repeatedly states the commissioner has complete authority to determine conduct detrimental, and his decision is “final, conclusive and unappealable.” As a result, NFL teams are obligated to ensure their own employees follow league rules. Minnesota Vikings assistant coach Rick Dennison and New England Patriots assistant coach Cole Popovich leaving their jobs, reportedly over a vaccine mandate, illustrates this point.
League authority is different, and more constrained, in regard to players, who are members of a union. To that end, the NFLPA’s acceptance of the 2021 season COVID-19 rules is legally crucial. When a league unilaterally imposes rules that impact players’ wages, hours and other work conditions—such as health policies—players can challenge those rules under federal antitrust and other areas of law. But when those same rules are accepted by the players’ association, courts will generally leave them alone.
But “generally” isn’t “always.” Leagues and players’ associations can’t, for instance, collectively bargain around protections found in the Americans with Disabilities Act (ADA). This was apparent in 2006, when former Dallas Mavericks big man Roy Tarpley successfully argued that, even though the applicable CBA banned him from the NBA on account of failed drug and alcohol tests, the ADA protects alcoholics and drug addicts from discrimination (provided they aren’t currently abusing).
In that same vein, it’s uncertain how the NFL and its teams might compel players to reveal if they’ve been vaccinated. As a condition of employment, players sign a standard authorization form (Appendix S), which authorizes the release of medical records, including those for disease. This release could be seen as obligating the player to acknowledge if a vaccination had occurred, though the CBA also permits players to revoke this authorization by written request.
Teams are well within their rights to ask players about vaccinations. But if a team tried to compel a healthcare provider to reveal a player’s vaccination status without the player’s consent, the healthcare provider could run afoul of the Health Insurance Portability and Accountability Act.
If a player refuses to reveal his vaccination status and is later punished for his reticence, the player could argue his privacy rights were violated. The U.S. Supreme Court, in Detroit Edison Co. v. NLRB, held that a bargained right to information can’t betray a union member’s legitimate interest in confidentiality.
Of the players who have publicly denounced the new COVID-19 rules, New England Patriots safety Matthew Judon’s comments are the most telling. Judon—who reportedly has been vaccinated, like more than 75% of NFL players—tweeted: “The NFLPA F—— sucks.” He later clarified that his objection isn’t in regard to the vaccine mandate but rather the fact that “every player,” including those who are vaccinated and those on teams not responsible for a cancellation, could lose game checks in 2021.
This line of objection could re-surface throughout the season. Although “breakthrough” infections of vaccinated persons are described as very rare and typically mild, current and future variants pose risks for both the vaccinated and unvaccinated. Should the league need to cancel games and should it continue to be unwilling to add a 19th week, it could lead to many players—including vaccinated ones—losing game checks and uncertainty over whether vaccinated or unvaccinated employees are responsible.
A player isn’t without legal recourse. He could borrow from the playbook of Philadelphia Eagles offensive tackle Lane Johnson and file an unfair labor practices (ULP) charge with the National Labor Relations Board. The player could argue the NFLPA failed to reasonably represent him when it allowed the NFL to deny pay on account of behavior by other players or staff.
A player could also sue the NFLPA for breach of the duty of fair representation and sue the NFL for violating the CBA. He could insist the NFLPA arbitrarily forfeited the rights of players through COVID-19 rules and unfairly represented them. While the NFLPA seems to downplay the new penalty scheme, a player could argue the scheme contains very important changes from the 2020 season.
Neither a ULP charge nor a lawsuit would likely prevail. The NLRB and federal courts typically review union-management decision-making with high deference. The NFLPA and league could also raise persuasive arguments about player and staff members’ health. Still, if enough players lose money in 2021, don’t be surprised to see a legal controversy surface.