Jacksonville Jaguars head coach Urban Meyer has sparked an NFLPA investigation by acknowledging on Tuesday that a player’s vaccination status was a factor he considered in whether to cut a player for the 53-man roster.
The team released a statement on Wednesday clarifying that availability is a key factor in roster decisions and vaccination status was not, by itself, determinative in whether a player made the roster.
Despite the union’s apparent concerns about Meyer’s comments, the idea that a coach would consider a player’s vaccination status is to be expected and permissible.
A player who is vaccinated is less likely to test positive and become symptomatic. According to recent comments by NFL chief medical officer Allen Sills, unvaccinated players have tested positive at a rate seven times higher than those who are vaccinated.
Coaches who reason that a vaccinated player is more likely to be available during the season would have the law on their side: Appendix H (“Notice of Termination”) of the NFL’s collective bargaining agreement instructs that a team can terminate a player’s contract if the team believes the player is less likely to contribute compared to another player. The coach might also logically figure that a vaccinated player is less likely to cause an outbreak—especially since a team with an outbreak can be held to have forfeited a game.
Further, the NFLPA and NFL agreed to COVID-19 testing and vaccination rules. Players, as union members, are bound by that agreement. Had the league unilaterally imposed rules, the players would potentially have gained opportunities to challenge those rules under antitrust law. Testing goes to working conditions, and teams, as competing businesses, can run afoul of antitrust law when they conspire in ways that adversely impact competition. But that’s not the case here: The rules were union bargained.
As courts have repeatedly expressed in litigation brought by players—be it over punishments for slightly underinflated footballs or far more serious matters concerning domestic violence—players’ rights to contest team and league actions are governed by collectively bargained terms. Those terms make it difficult for players to successfully sue, since the CBA preempts potential legal action by requiring that they instead be resolved through the league’s grievance process. The CBA also accords limited forms of due process to players. These are key distinctions from non-unionized workers, whose rights are governed by their individual relationship to their employer or, in the case of public employees, additional protections under federal and state constitutions.
To the extent a player believes his union has failed to adequately represent him, the player could file an unfair labor practices (ULP) charge with the National Labor Relations Board or sue both the NFL for violating the CBA and the NFLPA for breach of the duty of fair representation. Neither of those strategies would likely work. Courts and administrative agencies tend to review labor-management agreements with high deference. Those pursuits would likely also take months to play out. The regular season starts in eight days.
Unvaccinated players do not compose a class of persons protected by law, limiting their options. Though some states, including Texas and New Hampshire, have made it illegal for public institutions to require the vaccine, players’ vaccination status isn’t itself shielded by civil rights, age or sex discrimination laws. There is no NFL requirement that players and coaches (all of whom have probably received other vaccines during their lives) be vaccinated for COVID-19. And to the extent there are bona fide health or religious reasons for not getting the vaccine, NFL rules already acknowledge and guard those reasons.
Bottom line: Don’t expect the NFLPA investigation to turn up much.