Employment & Labor Insider

On July 24, the Las Vegas Raiders reportedly released defensive tackle Christian Wilkins, a six-year veteran with whom the Raiders signed a four-year, $110 million contract before the 2024 season, $82.75 million of which was guaranteed. The Raiders were reportedly unhappy with the progress of Mr. Wilkins’ recovery from a foot injury that he suffered last season, and the club also disagreed with Mr. Wilkins about whether additional surgery was needed. (The club wanted him to have the additional surgery, but Mr. Wilkins did not want it.) 

The Raiders’ position – and the related voiding of Mr. Wilkins’ contract – may run afoul of player protections in the collective bargaining agreement between the National Football League and the National Football League Players Association. As a result, the Players Association has filed a grievance on behalf of Mr. Wilkins.

Bioethical considerations

The situation raises serious bioethical concerns. Bioethics refers to the application of ethics – the philosophical discipline pertaining to notions of right and wrong – to the fields of medicine and health care. Bioethical analyses are generally conducted through the lens of specific principles, the most commonly-recognized being respect for autonomy, non-maleficence (the duty to avoid harm), beneficence (the duty to do good), and justice.

Of most relevance to Mr. Wilkins’ situation is the concept of autonomy. As described by leading bioethicists Tom Beauchamp and James Childress, “[p]ersonal autonomy is, at a minimum, self-rule that is free from both controlling interference by others and from limitations, such as inadequate understanding, that prevent meaningful choice.” Autonomy is considered a “basic moral and political value” in western societies.

The Raiders’ apparent insistence that Mr. Wilkins have another surgery may violate the principle of autonomy. The Raiders’ actions could be viewed as self-serving, or at a minimum paternalistic (a question that has arisen with Miami Dolphins quarterback Tua Tagovailoa).

Who decides?

The Raiders’ position also raises legal issues, as evidenced by the Players Association’s grievance.  Specifically, Section 6 of Article 39 of the contract protects a player’s right to receive a second medical opinion from a doctor of his choice and at the team’s expense after having been first examined by the team’s doctor. That provision also says that a “player shall have the right to follow the reasonable medical advice given to him by his second opinion physician with respect to diagnosis of injury, surgical and treatment decisions, and rehabilitation and treatment protocol, but only after consulting with the Club physician and giving due consideration to his recommendations.” 

This provision is generally understood to provide players with the ultimate right to choose their own course of treatment, consistent with the principle of autonomy. Additionally, if surgery is required, players are permitted to choose an appropriately qualified surgeon.

The right of NFL players to control their medical treatment is not an approach shared by all sports leagues. Major League Baseball allows players to make the final decision about their treatment, but the union contracts with the National Basketball Association, the National Hockey League, and Major League Soccer give that right to the clubs. (See here for a report I co-wrote in 2017 comparing the health-related policies and practices of the different leagues.)

Indeed, this right was a major issue for NHL players in their recent negotiations with the league after a dispute arose between Jack Eichel and the Buffalo Sabres concerning treatment for a neck and back injury. Whether such a right is now provided for in contract recently agreed upon has not been publicly revealed.

The value of a guarantee

The NFL Players Association is likely to take the position that the Raiders’ release of Mr. Wilkins violated his contract, including specifically the $35.2 million remaining in guaranteed compensation. Portions of NFL player contracts can be “guaranteed” in a variety of ways. Under the standard NFL player contract, a player’s contract can be terminated if

• “at any time, in the sole judgment of Club, Player’s skill or performance has been unsatisfactory as compared with that of other players competing for positions on Club’s roster…, [or]
• “during the period any salary cap is legally in effect…, in Club’s opinion, Player is anticipated to make less of a contribution to Club’s ability to compete on the playing field than another player or players whom Club intends to sign or attempts to sign, or another player or players who is or are already on Club’s roster, and for whom Club needs room.”

Player contracts frequently provide that the players will continue to receive some portion of their pay despite these two termination rights, known as “skill” and “cap” guarantees.

Additionally, player contracts also frequently guarantee that a player will continue to receive his pay despite having suffered an injury. Although the player’s contract and the collective bargaining agreement generally require a player to be paid a salary even when physically unable to provide services because of an on-field injury, the duration of the injury and the required payment are frequently a subject of dispute and resolved through a process known as an Injury Grievance. An injury guarantee avoids this uncertainty and offers the player broader protection against release as a result of an injury.

ESPN’s report indicates that the Raiders’ reason for the release was that Mr. Wilkins had failed “to maintain his physical condition to play.” Mr. Wilkins and the Players Association undoubtedly believe that the real reason for his release stems from his on-field injury and that failing to continue paying him will violate injury guarantees in his contract.

The dispute will now be resolved before a neutral arbitrator. In the meantime, Mr. Wilkins is free to sign with another club. And in the event Mr. Wilkins signs with another club and prevails in his grievance, the Raiders are likely to claim that the pay he received from the other club should offset any amounts owed by the Raiders.