Employment & Labor Insider

EDITOR’S NOTE: A version of this article was initially published in Hackney Publications’ Sports Litigation Alert.

The passage of the Americans with Disabilities Act in 1990 was an historic moment, providing rights and protections in public spaces and the workplace. In contrast to those most specifically intended for protection under the ADA, professional athletes are regarded as possessing extraordinary physical abilities and being anything but disabled.

Nevertheless, the ADA applies to a broad swath of workplaces, which would include professional sports teams. Over the last decade or so, sports leagues and their counterpart unions have increasingly focused on player health issues. Some historic and more recent practices sit awkwardly alongside the ADA.

The most significant case so far involving the ADA and professional sports is PGA Tour, Inc. v. Martin.  In that 2001 case, the U.S. Supreme Court held 7-2 that the PGA Tour was required to permit golfer Casey Martin, who had a degenerative leg disorder, to use a golf cart. Because PGA Tour golfers are independent contractors, that case was brought under Title III of the ADA, which applies to places of public accommodation. The items below concern Title I of the ADA, which addresses discrimination in private sector employment.

The NFL and its pre-draft Combine

The National Football League Combine has become a major sports event. The Combine began in the early 1980s as a way for NFL clubs to evaluate and gather information about players eligible for the upcoming NFL draft in a single setting. Since 1987, for a few days each February, NFL club General Managers, coaches, scouts, doctors, athletic trainers, and more gather in Indianapolis to see players get weighed and measured (typically in their underwear), participate in a variety of athletic and football-specific drills, undergo a battery of medical exams, and participate in interviews. The Combine has become a major television spectacle and has been criticized for what many believe to be a dehumanizing evaluation process for players, the majority of whom are Black. 

The NFL has amended parts of this program in recent years in light of these issues, but its intersection with the ADA remains a concern. The ADA prohibits pre-employment medical exams or inquiries regarding whether an applicant is “an individual with a disability or as to the nature or severity of such disability.” Nevertheless, one of the principal purposes of the Combine is for clubs, via Indiana University Health, to conduct medical exams on players and to evaluate whether any prior injuries might affect their performance or ability to play in the NFL. Clubs obviously use the results of these medical evaluations in making their draft selections. The NFL Combine thus seems to run afoul of the ADA’s prohibition against pre-employment medical exams.

However, the NFL has some defenses. First, the entity that operates the Combine is National Football Scouting, Inc., a Delaware corporation not owned or controlled by the NFL. NFL clubs could argue that they are not conducting the exams and thus are not in violation of the ADA. Whether that defense would fly is open to question. The NFL and its clubs control the structure of the event, including the medical exams, and use the results of those exams. The NFL might also argue that the ADA does not define an “applicant”  and that the players are voluntarily participating in a pre-draft evaluation process and have not applied for specific positions with specific employer-clubs. But an “application process” is obviously not how employment in the NFL begins.

The NBA’s fitness-to-play determinations

Chris Bosh, a former player in the National Basketball Association and current member of the Hall of Fame, had his career come to an end as a result of blood clots in his legs and in one lung. Despite his rehabilitation efforts and desire to play, neither his then-current team, the Miami Heat, nor another team was willing to take a risk on what they perceived to be a potentially fatal diagnosis due to the rigors of NBA play.

Mr. Bosh’s situation was ongoing and uncertain as the NBA and National Basketball Players Association were negotiating a new collective bargaining agreement, eventually agreed to in January 2017. The contract contained new provisions meant to clarify the process for dealing with a situation such as that of Mr. Bosh. It is not clear whether the contract recently agreed upon this year by the NBA and the Players Association in 2023 amends the process established in 2017.

Article 22, Section 11 of the contract created “Fitness-to-Play” panels to decide “whether players with potentially life-threatening injuries, illnesses or other health conditions are medically able and medically fit to practice and play basketball in the NBA.” Seemingly in response to Mr. Bosh’s situation and past controversies concerning player heart conditions, the contract requires the creation of panels focusing on “(i) cardiac illnesses and conditions and (ii) blood clots and other blood conditions and disorders.” Additional Fitness-to-Play panels may be created if other life-threatening health issues arise.

The panels consist of one NBA-appointed doctor, one Players Association-appointed doctor, and a third doctor appointed by the other two doctors. The NBA, the Players Association, or a team may refer a player to a panel after there has been a medical determination that the player is medically unable or medically unfit to play basketball. The Fitness-to-Play panel then determines whether “(i) the player is medically able and medically fit to perform his duties as a professional basketball player; and [whether] (ii) performing such duties would not create a materially elevated risk of death for the player.”

The NBA process presents two ADA-related concerns. First, before having his case considered by the panel, a player must “sign a release and covenant not to sue,” even though parties cannot prospectively waive their rights under federal anti-discrimination laws like the ADA. Second, even if the panel medically clears the player, a team can continue to refuse to let him play. Could this violate the ADA’s prohibition on discrimination against employees with real or perceived disabilities (or records of disabilities), provided that the employees can perform the essential functions of their jobs with or without reasonable accommodation?

The NBA and its clubs may dispute whether the player can in fact perform the essential functions of the “job.” They may also argue that playing may create a direct threat – that is, a “significant risk,” to the health and safety of himself or others that cannot be eliminated by reasonable accommodation. As with the NFL draft Combine, it is not clear whether these arguments would prevail, especially with NBA players who had already been medically cleared by the panels.

Although the Players Association agreed to these provisions, unions generally cannot bargain away an employee’s federally protected rights.

The USL’s “disabled” player rules

In October 2021, the United Soccer League and the USL Players Association agreed to the league’s first-ever collective bargaining agreement. The contract was an important part of providing stability to the league and basic levels of income and benefits to its players. However, the agreement included some provisions which invite questions under the ADA.

First, Section 10(A) of the contract provides that “[e]ach Club may, at its own cost, arrange for a Club-designated physician to conduct a medical examination of each of its players or prospective Players . . . at such times as it reasonably deems advisable.” However, as discussed above with regard to the NFL draft Combine, the ADA prohibits pre-employment medical examinations and inquiries.  

Second, Section 10(C)(1)(b) permits a club to suspend a player if he is determined to be “disabled” by the club’s doctor. The contract does not define “disabled.” Although employers can change the terms and conditions of employment for disabled employees unable to perform the essential functions of the job (often disputed), the contract’s explicit contemplation of employment action against a “disabled” player is surprising.

Third, Section 10(C)(3) of the contract governs medical examinations requested by the club to evaluate a current player’s fitness. Of particular relevance, subsection (b) provides that “a Club shall have the right to determine in good faith that a Player has failed to pass the Medical Examination due to the risk of a future injury, illness, or other health condition notwithstanding that the Player is currently able to perform as a skilled soccer player in the League.” If the club determines that the player failed the medical examination, it can terminate the player and is required to pay him only two weeks’ salary. This provision could be contested by players who disagree with the club’s evaluation and believe they are still capable of performing the job.

An uncomfortable legislative fit

Congress certainly did not enact the ADA to protect current or prospective professional athletes, but the law does not exempt any industry from its protections. In Martin, the late Justice Antonin Scalia and Justice Clarence Thomas argued in dissent that courts should not intrude on sports leagues’ rule and eligibility determinations. Justice Brett Kavanaugh once made a similar dissenting argument about the application of the Occupational Safety and Health Act in a case involving SeaWorld while he was on the U.S. Court of Appeals for the District of Columbia Circuit. These arguments are compelling, particularly in the situations where the athletes are represented by a union in negotiating a collective bargaining agreement. 

To date, the leagues have generally avoided serious questions about the application of the ADA to their operations. With an increasing focus on player health and safety, that may change. If so, the leagues – and potentially Congress – may need to reconsider the law and its application.