Employment & Labor Insider

Who decides?

On Sunday, Miami Dolphins quarterback Tua Tagovailoa returned to play for the first time since sustaining a concussion during the Dolphins’ September 12 game against the Buffalo Bills. Mr. Tagovailoa received clearance to play from a neurological consultant designated by the Dolphins and approved by the National Football League and the NFL Players Association. Yet, Mr. Tagovailoa’s return from his third diagnosed concussion in two years raises difficult ethical, legal and economic considerations.

Bioethical considerations

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. Tagovailoa’s 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 converse of autonomy is paternalism, generally defined as “overriding another’s preferences in order to benefit them or to protect them from harm.” Parents, of course, engage in paternalistic behaviors on a regular basis vis-à-vis their children. The appropriateness of paternalistic conduct becomes much trickier when governments, employers, and doctors (among others) are involved.

In Mr. Tagovailoa’s case, some may argue that the Dolphins, the NFL, and related medical staff should have prevented him from returning to the field given his concussion history. Putting aside the legal considerations for now, to do so would undoubtedly be a highly paternalistic decision that infringes on Mr. Tagovailoa’s autonomy.

Whether there are sufficient grounds for doing so thus turns in part on whether Mr. Tagovailoa has the capacity to make an informed decision about whether to continue playing football without undue influence. The class action litigation from a decade ago concerning concussions in the NFL was premised in large part on the accusations that the NFL had intentionally or negligently concealed the risks of head injuries.

The NFL has since overhauled its efforts on player health issues, and there have been considerable advancements in understanding the health risks associated with playing football, including specifically in the NFL. (Disclosure: From 2014 through 17, I worked as part of the Football Players Health Study at Harvard University, which has produced considerable research on medical issues associated with NFL careers.) Although there is still much to learn about the science of the brain, there is no doubt that playing in the NFL presents the risk of serious head and brain injuries.

Moreover, there should not be at this time any reasonable doubt that Mr. Tagovailoa is aware of these risks. Both the NFL and the Players Association engage in extensive efforts to advise players of the risks of concussions, how to mitigate those risks, and the importance of reporting concussion symptoms. Every NFL locker room includes a poster with such information.

Indeed, Mr. Tagovailoa acknowledged but downplayed the risks during a press conference last week. Further, he described his decision not to wear the protective Guardian Cap as a “personal choice.”

Legal considerations

The General Duty Clause of the federal Occupational Safety and Health Act obligates employers to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” For an employee or the agency to establish a violation, there must also be a “feasible means to eliminate or materially reduce the hazard existed.”

That element makes the analysis of the NFL as a workplace difficult. Questions clearly exist about the degree to which the NFL can reduce the serious risks associated with the game without fundamentally changing the sport and its commercial appeal.  Indeed, when Supreme Court Justice Brett Kavanaugh was going through the confirmation process in 2018, news articles discussed his dissent in a case in which he argued that the Occupational Safety and Health Administration did not have the authority to prohibit SeaWorld trainers from entering the water with orcas because of SeaWorld’s nature as an entertainment business in which dangerous aquatic creatures played an integral part.

Regardless, for political and practical considerations, there is little to no chance that OSHA will involve itself in the NFL’s affairs, let alone Mr. Tagovailoa’s situation.

The Americans with Disabilities Act presents more interesting considerations. The ADA generally prohibits employers from discriminating against employees because of a disability, a history of disability, or a perceived disability, provided the employee is able to perform the essential functions of the job with or without reasonable accommodation.  

The Dolphins may regard Mr. Tagovailoa as having a disability. In other words, the club may believe his concussion history is a physical impairment that substantially limits (or limited) a major life activity. The club may want to prevent him from playing on that basis. However, the ADA prohibits the Dolphins from doing so if Mr. Tagovailoa can still perform the essential functions of playing quarterback, which it seems he can.

Yet, the ADA does permit employers to prevent potentially disabled employees from working if they pose a direct threat to the health and safety of themselves or others – provided that the risk can’t be eliminated or reduced to an acceptable level by reasonable accommodation. “A direct threat means a significant risk of substantial harm” to the employee or to others. Under this standard, the Dolphins would at least have an arguable case that preventing him from playing would not violate the ADA.

Finally, there are of course contract considerations. Either through workers’ compensation or benefits and protections provided for in the NFL-Players Association collective bargaining agreement, Mr. Tagovailoa would be paid through the remainder of his contract if he were unable to play due to injury. However, if he is medically cleared to play but then voluntarily retires, he might not be.

Behavioral economics considerations

Earlier we considered whether Mr. Tagovailoa has sufficient autonomy to decide whether to keep playing football. He is likely to have the information necessary to make that decision, but there is still the possibility that his decisionmaking is affected by cognitive bias.

Behavioral economics is the study of “how and why people behave the way they do in the real world.” It upsets the traditional economic model premised on the assumption that the actors in any given scenario act rationally – in other words, in their best interests. In fact, people often engage in conduct or make decisions that are not in their best interests.

Two behavioral economics concepts are important to understanding the behavior of NFL players. First, optimism bias refers to people’s tendency to overestimate the likelihood of experiencing positive events and underestimate the likelihood of experiencing negative events. Second, present bias (or hyperbolic discounting) refers to people’s tendency to value a smaller reward today over a larger reward in the future. (You might be familiar with the marshmallow experiment.)

In the NFL world, optimism bias might preclude a player from accepting the statistically supported risks of his career – for example, the rates of knee replacements or dementia in former players. Present bias would have them favor glory and high pay now over potentially debilitating health conditions later. As an extreme example, Hall of Famer Ronnie Lott famously had a finger partially amputated to minimize the number of games he missed. Multiple studies have found the existence of both biases in athletes, including in situations where no such bias was found in the general population (see here, here, here, and here).

Mr. Tagovailoa may very well be underestimating the risks of continuing to play football, or valuing football glory today over his health later. In classical economic thinking, such behavior might be considered irrational. Further, many would argue that he and other players need to be better educated about the risks and realities. In other words, that they should be “de-biased.”

This education makes sense, but one must also consider the downsides. Many NFL players achieve success at least in part by a belief that they are invincible, or nearly so. They play the game at high speeds with near-reckless abandon, causing and experiencing impacts similar to those received in car crashes. They might not do that if they had in the back of their minds the arthritis or dementia rates of former NFL players. Acknowledgement of these risks could potentially diminish their performance. The wavering or second-guessing could therefore contribute to the end of an otherwise successful and lucrative NFL career.

It is plain that players should be provided with the relevant health and safety data, but there is an argument to be made that NFL players might achieve greater on-field success by mentally foreclosing the risks of their jobs. For now at least, that seems to be Mr. Tagovailoa’s approach.