Employment & Labor Insider

The Occupational Safety and Health Administration, a division of the U.S. Department of Labor, is tasked with enforcing the Occupational Safety and Health Act, a 1970 law meant to improve the health and safety of American workers and their workplaces. The law’s application to the inherently dangerous occupation of professional sports has been unclear. However, OSHA has taken legal action in the entertainment world, including an effort that ended SeaWorld shows in which trainers went into the water with orcas, over the dissent of now Supreme Court Justice Brett Kavanaugh. 

Relying on then-Judge Kavanaugh’s dissent, OSHA has issued a proposed rule in which it now says it has no authority over “known hazards that are inherent and inseparable from the core nature of a professional activity or performance.”

Free Willy’s trainers

Among other regulatory dictates, the OSH Act requires employers to provide their “employees employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm.” This requirement is known as the General Duty Clause.

To establish a violation of the General Duty Clause, OSHA must establish that (1) an activity or condition in the employer’s workplace presented a hazard to an employee; (2) either the employer or the industry recognized the condition or activity as a hazard; (3) the hazard was likely to cause, or actually caused, death or serious physical harm; and (4) a feasible means to eliminate or materially reduce the hazard existed.

In 2010, after the orca Tilikum caused the death of a SeaWorld trainer, OSHA cited SeaWorld for violations of the General Duty Clause. After an evidentiary hearing, an administrative law judge found in OSHA’s favor. 

That decision was upheld in 2014 by a split decision of the U.S. Court of Appeals for the District of Columbia Circuit. The majority held that eliminating “waterwork” (trainers swimming with the whales) was a practical method of abating the known risks to the trainers without materially affecting SeaWorld’s business.

The case included a notable dissent from then-Judge Kavanaugh. In Judge Kavanaugh’s view,

In the sports and entertainment fields, the activity itself frequently carries some risk that cannot be eliminated without fundamentally altering the nature of the activity as defined within the industry. Tackling is part of football, speeding is part of stock car racing, playing with dangerous animals is part of zoo and animal shows, and punching is part of boxing, as those industries define themselves.

Consequently, Judge Kavanaugh argued, OSHA was without the authority to “completely forbid an industry from offering its product” and stated further that “in sports events and entertainment shows, there is no distinction between the product being offered and its production: the product is the production.”

OSHA on the sidelines

OSHA has jurisdiction over almost all private sector employees in the United States, which would include players in the major American professional sports leagues. However, despite the obvious and extensive injury risks associated with playing professional sports, OSHA has never taken any action in that arena.

In fact, in the few instances in which OSHA has received inquiries concerning its regulatory authority over National Football League players, it has declined to engage. In response to letters from an insurance company and fans, OSHA has implausibly stated that NFL players are independent contractors and not employees, and therefore not within its jurisdiction.  Additionally, in a 2008 letter, OSHA stated that it had “no specific standards that address protection for professional athletes participating in athletic competitions,” and that “[i]n most cases . . . OSHA does not take enforcement action with regard to professional athletes.”

Indeed, even amid and after the concussion crises and litigation concerning the NFL in the 2010s, OSHA did not seek to get involved. In a 2018 law review article, my co-authors and I examined at length OSHA’s authority over the NFL workplace and the political and practical reasons for its non-involvement. It is difficult to assess how OSHA could regulate the NFL workplace – that is, which activities (for example, tackles or hits) it could ban or restrict, without fundamentally changing the nature of the game.

Ultimately, given that NFL players are represented by a powerful union that has collectively bargained for extensive health and safety provisions in its labor contract with the league, OSHA’s involvement was always highly questionable (though the use of Guardian Caps in the NFL is generally consistent with the General Duty Clause).

Will OSHA quit the game?

Earlier this month, OSHA filed a proposed rule through which it seeks to interpret the General Duty Clause as excluding from its jurisdiction “known hazards that are inherent and inseparable from the core nature of a professional activity or performance.” More specifically, OSHA says it cannot “prohibit, restrict, or penalize inherently risky activities that are intrinsic to professional, athletic, or entertainment occupations.”

In crafting the proposed rule, OSHA quoted extensively from Justice Kavanaugh’s dissent in the SeaWorld case, though it did not analyze how its proposed rule would apply in practice. OSHA also claims that its regulation of the sports and entertainment industries invokes the major questions doctrine, through which, according to OSHA, regulatory agencies are not to act on questions of “vast economic and political significance without a clear congressional mandate.” In OSHA’s view, there is no indication that the General Duty Clause was intended by Congress to “prohibit the core design of performances or sports.”

OSHA concluded that its new rule would affect individuals classified as professional athletes, actors, dancers, musicians and singers, and other entertainers and performers. In total, there are an estimated 115,620 people employed in these roles. 

Confusingly, OSHA estimates that the rule will affect only 1 percent of these employees, or about 1,100 people. This estimate is hard to square with the fact that in any given year, there are about 2,000 players in the NFL, 1,000 players in Major League Baseball, 750 players in the National Hockey League, and 500 players in the National Basketball League.

OSHA further estimates that 514 employers would be affected by the rule but did not explicitly reference or discuss any such employers. OSHA then estimated, without any explanation, that the rule would save each employer an average of $1,000 annually, resulting in a total estimated cost savings of $514,000. Although professional sports have not faced OSHA action, entertainment productions – such as the Ringling Brothers circus and the Broadway production of Spider-Man – occasionally have, so OSHA’s estimated cost savings seem to have at least some basis.

Commentators at the bat

The public has until August 30 to submit comments on the proposed rule before OSHA can issue a final, binding rule, and issuance of a final rule may take considerable additional time even after the comments are received. OSHA has specifically asked the public to weigh in on how many employees and employers would be affected by the rule and its potential benefits and costs. The NFL Players Association and MLB Players Association declined to comment about whether they intend to submit comments. Given that OSHA has not previously involved itself in professional sports, it is more likely that the bulk of comments would come from employees and their unions in the entertainment industry.