From a legal vantage point, the players participating in the NFL Scouting Combine in Indianapolis this week are in limbo: They’re neither college players nor NFL players.
So, what are they?
They’re members of what attorney Paul Secunda, a partner at Walcheske & Luzi in Wisconsin, calls an “in-between” class of workers in the United States.
Unlike employees, whom federal and state laws protect from unlawful workplace questions, unsafe working conditions, and from discrimination and harassment, many American workers lack the “employee” designation and are largely on their own.
“If you are essentially an independent contractor or not considered a worker at all, like these combine players,” says Secunda, who has represented players in federal litigation against the NFL and NFLPA, “you have no workplace or employment protections at all. “
That has been a source of controversy during the combine, which features players performing physical and mental tasks for teams.
Four years ago, representatives from NFL teams asked LSU running back Derrius Guice such bigoted questions as, “Do you like men?” and “I heard your mom sells herself—how do you feel about that?” In preceding years, Ohio State cornerback Eli Apple was asked if he “liked men,” Colorado tight end Nick Kasa heard a similar question about “liking girls,” and OSU wide receiver Dez Bryant needed to address whether his mom was a prostitute. In addition to outrageously offensive questions, players, until recently, were administered the Wonderlic Test, which evaluates cognitive skills but has led to ridicule of players (teams can still ask players to take it). Critics also contend the test is biased against certain groups.
The combine receives scant mention in the 456-page CBA—the document that governs the legal relationship between the league and players and that addresses, in painstaking detail, major topics as well as less central ones, such as practice squad Super Bowl rings and the use of certified mail and fax machines to satisfy filing obligations. The CBA contains 69 articles, many of which have multiple sections and numerous subsections, and 29 addendums. None mentions protections for combine players.
The combine is at issue in Section 8(a) of Article 47, which concerns “union security.” The subsection explains that the “the NFL will use best efforts to ensure that the NFLPA will be permitted to present one-hour orientations for all of the college players attending the session” and that the NFLPA will “have the right” to “provide information requested by players during their free time at the Combine.” Nothing in that subsection suggests that combine players enjoy a set of rights.
The NFL and NFLPA have worked to better protect players at the combine. Teams now face potential loss of draft picks for inappropriate questions. Still, there is no advocacy group for players at the combine, which is broadcast on the NFL Network and generates revenue.
Even if the NFLPA “is considered the representative for combine players,” Secunda asks, “what type of bargaining power do such combine players have in the larger scheme of the NFL business? And what about combine players who are hurt or disabled at the combine? Is the NFL or NFLPA likely to take care of them?”
As explained in a 2019 article by attorney Christopher Deubert in the Penn State Law Review, combine players sign “broad waivers that permit their medical information to be shared with the NFL, NFL clubs and related parties.” These players, Deubert writes, “are under intense pressure to impress NFL clubs,” and view the combine as the “biggest job interview of their lives.” This pressure raises questions as to whether the players are providing “meaningful informed consent” when waiving away potential rights.
Secunda stresses that what may seem like an unusual employment arrangement for combine players, some of whom won’t ever become NFL players, this “in-between situation” exists in “other industries where workers are not employees, and [who are] instead, precarious workers who are there one day and gone the next.”
“These workers also have a hard time having anyone looking out for them,” Secunda maintains. “So this is not just an NFL problem, but a larger American workplace problem, that requires a reconsideration of how we classify work and workers in this country.”
Secunda encountered these problems when he represented retired NFL players Don Majkowski and Aveion Cason against the league and players’ association over treatment of retired players in collective bargaining in a case was dismissed last year.
While the NFLPA bargains on behalf of three categories of football players connected to the NFL—prospective, active and former—its voting membership is limited to active players. That arrangement is consistent with U.S. labor law but has sparked tension in litigation brought by prospective and retired players.
In Clarett v. NFL, former Ohio State running back Maurice Clarett challenged the league’s eligibility rule, which requires that players be three years out of high school. Clarett had played one year of college football during which he rushed for more than 1,200 yards. He was a projected first round pick in the 2004 NFL Draft, provided he was eligible. As a disclosure, I was an attorney on the legal team representing Clarett and have advocated against age eligibility rules in pro sports.
Clarett won before the Southern District of New York but lost on appeal to the U.S. Court of Appeals for the Second Circuit. Judge Sonia Sotomayor, now a Supreme Court justice, was unwilling to disturb an understanding about eligibility to which the union had acquiesced. This was true even though the CBA at the time lacked an actual rule barring Clarett, a player who, because he was denied entry, had no voice on rulemaking.
Although Clarett wanted to join the NFL, and thus gain membership in the NFLPA, the NFLPA filed an amicus brief siding with the NFL. The brief maintained that an eligibility rule primarily affects those in the bargaining unit, meaning, Clarett lead counsel Alan Milstein explains, “players who would lose their jobs to a young recruit.”
A players’ union “cannot have it both ways,” Milstein, chairman of Sherman Silverstein’s litigation department in New Jersey and Philadelphia, insists nearly 20 years later.
“Either you are in the union, or you are not,” he said. “There is no middle ground.”
Cason v. NFL and NFLPA presented a parallel set of issues for retired and disabled players. Through Secunda, Majkowski and Cason insisted that the NFL and NFLPA illegally conspired to violate lifetime disability benefit rights guaranteed by the Employee Retirement Income Security Act and the Labor Management Relations Act. The case illuminated how retired players, with no vote on bargaining, may be vulnerable to concessions made in bargaining.
All those NFL hopefuls running around at the combine are, too.