Microsoft Word - CLA for JSEL 4.19.17.docx

May 2017, Special Issue

Comparing Health-Related Policies and Practices in Sports:

The NFL and Other Professional Leagues

Christopher R. Deubert, I. Glenn Cohen, and Holly Fernandez Lynch

This is a special version of Comparing Health-Related Policies and Practices in Sports: The NFL and

Other Professional Leagues (“the Report”). The Report, part of the Football Players Health Study at

Harvard University, was self-published in May 2017 and can be found on this website:

footballplayershealth.harvard.edu or through Amazon.com. This version is being published through the

Harvard Journal of Sports and Entertainment Law (“JSEL”) to ensure the Report is accessible to

attorneys, law students, the legal community and other academic audiences.

There are ways in which this version is different from the initially published Report and a typical JSEL

article. While several JSEL students were involved in cite checking the majority of the Report, JSEL did

not cite check the entire Report. This possible deficiency was compensated by the Report’s extensive

review and fact checking process, as described in the Introduction. Additionally, the actual Report was

professionally designed, including color graphics and other design elements which could not be included

here. The endnotes were formatted in such a way as to aid the design process and thus do not necessarily

match the style outlined in The Bluebook: A Uniform System of Citation (20th ed. 2015).

TABLE CONTENTS

ENSURING INDEPENDENCE AND DISCLOSURE OF CONFLICTS ................................... 11

EXECUTIVE SUMMARY .......................................................................................................... 13

PREFACE: The Football Players Health Study at Harvard University ........................................ 25

INTRODUCTION ........................................................................................................................ 28

A. The Leagues ..................................................................................................................... 28

B. The Unions ....................................................................................................................... 29

C. Collective Bargaining Agreements ................................................................................ 30

D. Audience........................................................................................................................... 31

E. Goals and Process ........................................................................................................... 32

1. Identify ....................................................................................................................... 32

2. Describe ..................................................................................................................... 32

3. Evaluate ..................................................................................................................... 34

4. Recommend ............................................................................................................... 34

F. Scope................................................................................................................................. 35

CHAPTER 1: CLUB MEDICAL PERSONNEL ......................................................................... 36

A. Club Medical Personnel in the NFL .............................................................................. 39

1. Types of Medical Personnel ..................................................................................... 39

2. Medical Personnel’s Obligations ............................................................................. 40

3. Players’ Obligations ................................................................................................. 42

4. Relationship between Medical Personnel and Clubs ............................................ 42

5. Sponsorship Arrangements ..................................................................................... 43

B. Club Medical Personnel in MLB ................................................................................... 46

1. Types of Medical Personnel ..................................................................................... 46

2. Medical Personnel’s Obligations ............................................................................. 48

3. Players’ Obligations ................................................................................................. 49

4. Relationship between Medical Personnel and Clubs ............................................ 50

5. Sponsorship Arrangements ..................................................................................... 51

C. Club Medical Personnel in the NBA ............................................................................. 51

1. Types of Medical Personnel ..................................................................................... 51

2. Medical Personnel’s Obligations ............................................................................. 53

3. Players’ Obligations ................................................................................................. 54

4. Relationship between Medical Personnel and Clubs ............................................ 56

5. Sponsorship Arrangements ..................................................................................... 57

D. Club Medical Personnel in the NHL ............................................................................. 57

1. Types of Medical Personnel ..................................................................................... 57

2. Medical Personnel’s Obligations ............................................................................. 59

3. Players’ Obligations ................................................................................................. 60

4. Relationship between Medical Personnel and Clubs ............................................ 61

5. Sponsorship Arrangements ..................................................................................... 61

E. Club Medical Personnel in the CFL .............................................................................. 62

1. Types of Medical Personnel ..................................................................................... 62

2. Medical Personnel’s Obligations ............................................................................. 62

3. Players’ Obligations ................................................................................................. 63

4. Relationship between Medical Personnel and Clubs ............................................ 63

5. Sponsorship Arrangements ..................................................................................... 63

F. Club Medical Personnel in MLS ................................................................................... 64

1. Types of Medical Personnel ..................................................................................... 64

2. Medical Personnel’s Obligations ............................................................................. 65

3. Players’ Obligations ................................................................................................. 66

4. Relationship with Clubs ........................................................................................... 67

5. Sponsorship Arrangements ..................................................................................... 68

G. Analysis ............................................................................................................................ 68

H. Recommendations ........................................................................................................... 71

CHAPTER 2: INJURY RATES AND POLICIES ....................................................................... 72

A. Injuries in the NFL ......................................................................................................... 75

1. Injury Tracking System ........................................................................................... 75

2. Injury Statistics ......................................................................................................... 76

3. Injury-Related Lists ................................................................................................. 79

4. Injury Reporting Policies ......................................................................................... 80

B. Injuries in MLB .............................................................................................................. 81

1. Injury Tracking System ........................................................................................... 81

2. Injury Statistics ......................................................................................................... 81

3. Injury-Related Lists ................................................................................................. 83

4. Injury Reporting Policies ......................................................................................... 83

C. Injuries in the NBA ......................................................................................................... 84

1. Injury Tracking System ........................................................................................... 84

2. Injury Statistics ......................................................................................................... 84

3. Injury-Related Lists ................................................................................................. 86

4. Injury Reporting Policies ......................................................................................... 86

D. Injuries in the NHL ......................................................................................................... 86

1. Injury Tracking System ........................................................................................... 86

2. Injury Statistics ......................................................................................................... 86

3. Injury-Related Lists ................................................................................................. 88

4. Injury Reporting Policies ......................................................................................... 89

E. Injuries in the CFL ......................................................................................................... 89

1. Injury Tracking System ........................................................................................... 89

2. Injury Statistics ......................................................................................................... 89

3. Injury-Related Lists ................................................................................................. 90

4. Injury Reporting Policies ......................................................................................... 90

F. Injuries in MLS ............................................................................................................... 90

1. Injury Tracking System ........................................................................................... 90

2. Injury Statistics ......................................................................................................... 90

3. Injury-Related Lists ................................................................................................. 92

4. Injury Reporting Policies ......................................................................................... 92

G. Analysis ............................................................................................................................ 92

H. Recommendations ........................................................................................................... 97

CHAPTER 3: HEALTH-RELATED BENEFITS ...................................................................... 100

A. NFL Health-Related Benefits ....................................................................................... 103

1. Retirement Benefits ................................................................................................ 104

2. Insurance Benefits .................................................................................................. 107

3. Disability Benefits ................................................................................................... 108

4. Workers’ Compensation Benefits ......................................................................... 110

5. Education-Related Benefits ................................................................................... 110

6. Joint Health-Specific Committees ......................................................................... 110

B. MLB Health-Related Benefits ...................................................................................... 111

1. Retirement Benefits ................................................................................................ 111

2. Insurance Benefits .................................................................................................. 113

3. Disability Benefits ................................................................................................... 113

4. Workers’ Compensation Benefits ......................................................................... 114

5. Education-Related Benefits ................................................................................... 114

6. Joint Health-Specific Committees ......................................................................... 114

C. NBA Health-Related Benefits ...................................................................................... 114

1. Retirement Benefits ................................................................................................ 114

2. Insurance Benefits .................................................................................................. 115

3. Disability Benefits ................................................................................................... 116

4. Workers’ Compensation Benefits ......................................................................... 116

5. Education-Related Benefits ................................................................................... 117

6. Joint Health-Specific Committees ......................................................................... 117

D. NHL Health-Related Benefits ...................................................................................... 118

1. Retirement Benefits ................................................................................................ 118

2. Insurance Benefits .................................................................................................. 119

3. Disability Benefits ................................................................................................... 119

4. Workers’ Compensation Benefits ......................................................................... 120

5. Education-Related Benefits ................................................................................... 120

6. Joint Health-Specific Committees ......................................................................... 120

E. CFL Health-Related Benefits ........................................................................................... 120

1. Retirement Benefits ................................................................................................ 120

2. Insurance Benefits .................................................................................................. 120

3. Disability Benefits ................................................................................................... 121

4. Workers’ Compensation Benefits ......................................................................... 121

5. Education-Related Benefits ................................................................................... 121

6. Joint Health-Specific Committees ......................................................................... 121

F. MLS Health-Related Benefits ...................................................................................... 121

1. Retirement Benefits ................................................................................................ 121

2. Insurance Benefits .................................................................................................. 121

3. Disability Benefits ................................................................................................... 122

4. Workers’ Compensation Benefits ......................................................................... 122

5. Education-Related Benefits ................................................................................... 122

6. Joint Health-Specific Committees ......................................................................... 122

G. Analysis .......................................................................................................................... 122

H. Recommendation ........................................................................................................... 126

CHAPTER 4: DRUG AND PERFORMANCE-ENHANCING SUBSTANCE POLICIES ...... 127

A. The NFL’s Drug Policies .............................................................................................. 129

1. Substances Prohibited ............................................................................................ 130

2. Types of Tests and Prohibited Conduct ............................................................... 130

3. Number of Tests ...................................................................................................... 131

4. Administration ........................................................................................................ 132

5. Therapeutic Use ...................................................................................................... 132

6. Treatment ................................................................................................................ 133

7. Discipline ................................................................................................................. 134

8. Confidentiality ........................................................................................................ 135

B. MLB’s Drug Policies ..................................................................................................... 136

1. Substances Prohibited ............................................................................................ 136

2. Types of Tests and Prohibited Conduct ............................................................... 136

3. Number of Tests ...................................................................................................... 136

4. Administration ........................................................................................................ 137

5. Therapeutic Use ...................................................................................................... 137

6. Treatment ................................................................................................................ 137

7. Discipline ................................................................................................................. 138

8. Confidentiality ........................................................................................................ 139

C. The NBA’s Drug Policies .............................................................................................. 139

1. Substances Prohibited ............................................................................................ 139

2. Types of Tests and Prohibited Conduct ............................................................... 139

3. Number of Tests ...................................................................................................... 140

4. Administration ........................................................................................................ 140

5. Therapeutic Use ...................................................................................................... 140

6. Treatment ................................................................................................................ 140

7. Discipline ................................................................................................................. 141

8. Confidentiality ........................................................................................................ 142

D. The NHL’s Drug Policies .............................................................................................. 143

1. Substances Prohibited ............................................................................................ 143

2. Types of Tests and Prohibited Conduct ............................................................... 143

3. Number of Tests ...................................................................................................... 144

4. Administration ........................................................................................................ 144

5. Therapeutic Use ...................................................................................................... 145

6. Treatment ................................................................................................................ 145

7. Discipline ................................................................................................................. 145

8. Confidentiality ........................................................................................................ 146

E. The CFL’s Drug Policies .............................................................................................. 147

1. Substances Prohibited ............................................................................................ 147

2. Types of Tests and Prohibited Conduct ............................................................... 147

3. Number of Tests ...................................................................................................... 147

4. Administration ........................................................................................................ 148

5. Therapeutic Use ...................................................................................................... 148

6. Treatment ................................................................................................................ 148

7. Discipline ................................................................................................................. 148

8. Confidentiality ........................................................................................................ 149

F. MLS’ Drug Policies ....................................................................................................... 149

1. Substances Prohibited ............................................................................................ 149

2. Types of Tests and Prohibited Conduct ............................................................... 149

3. Number of Tests ...................................................................................................... 150

4. Administration ........................................................................................................ 150

5. Therapeutic Use ...................................................................................................... 150

6. Treatment ................................................................................................................ 150

7. Discipline ................................................................................................................. 151

8. Confidentiality ........................................................................................................ 151

G. Analysis .......................................................................................................................... 151

H. Recommendation ........................................................................................................... 154

CHAPTER 5: COMPENSATION .............................................................................................. 155

A. Compensation in the NFL ............................................................................................ 157

1. The NFL’s Salary Cap ........................................................................................... 157

2. Rookie Compensation ............................................................................................ 158

3. Veteran Compensation ........................................................................................... 159

4. Minimum, Maximum, and Average (Mean) Salaries .......................................... 160

5. Guaranteed Compensation .................................................................................... 161

B. Compensation in MLB ................................................................................................. 163

1. MLB’s Tax Threshold ............................................................................................ 163

2. Rookie Compensation ............................................................................................ 164

3. Veteran Compensation ........................................................................................... 164

4. Minimum, Maximum, and Average (Mean) Salaries .......................................... 165

5. Guaranteed Compensation .................................................................................... 166

C. Compensation in the NBA ............................................................................................ 166

1. The NBA’s Salary Cap ........................................................................................... 166

2. Rookie Compensation ............................................................................................ 167

3. Veteran Compensation ........................................................................................... 168

4. Minimum, Maximum, and Average (Mean) Salaries .......................................... 169

5. Guaranteed Compensation .................................................................................... 171

D. Compensation in the NHL ........................................................................................... 172

1. The NHL’s Salary Cap ........................................................................................... 172

2. Rookie Compensation ............................................................................................ 173

3. Veteran Compensation ........................................................................................... 173

4. Minimum, Maximum, and Average (Mean) Salaries .......................................... 174

5. Guaranteed Compensation .................................................................................... 175

E. Compensation in the CFL ............................................................................................ 175

1. The CFL’s Salary Cap ........................................................................................... 175

2. Rookie Compensation ............................................................................................ 176

3. Veteran Compensation ........................................................................................... 176

4. Minimum, Maximum, and Average (Mean) Salaries .......................................... 176

5. Guaranteed Compensation .................................................................................... 177

F. Compensation in MLS .................................................................................................. 178

1. MLS’ Salary Cap .................................................................................................... 179

2. Rookie Compensation ............................................................................................ 179

3. Veteran Compensation ........................................................................................... 179

4. Minimum, Maximum, and Average (Mean) Salaries .......................................... 179

5. Guaranteed Compensation .................................................................................... 179

G. Analysis .......................................................................................................................... 180

H. Recommendation ........................................................................................................... 181

CHAPTER 6: ELIGIBILITY RULES ........................................................................................ 182

A. Player Eligibility Rules in the NFL ............................................................................. 186

B. Player Eligibility Rules in MLB .................................................................................. 189

C. Player Eligibility Rules in the NBA ............................................................................. 192

D. Player Eligibility Rules in the NHL ............................................................................. 194

E. Player Eligibility Rules in the CFL ............................................................................. 196

F. Player Eligibility Rules in MLS ................................................................................... 197

G. Analysis .......................................................................................................................... 198

H. Recommendations ......................................................................................................... 199

CONCLUSION ........................................................................................................................... 200

APPENDIX A – COMPILATION OF RECOMMENDATIONS ............................................. 202

I. Club Medical Personnel ............................................................................................... 202

II. Injury Rates and Policies.............................................................................................. 203

III. Health-Related Benefits ............................................................................................. 205

IV. Drug and Performance-Enhancing Drug Policies ................................................... 206

V. Compensation ................................................................................................................ 207

VI. Eligibility Rules .......................................................................................................... 209

APPENDIX B – COMPILATION OF SUMMARY TABLES .................................................. 210

APPENDIX C – GLOSSARY OF TERMS AND RELEVANT PERSONS AND

INSTITUTIONS ......................................................................................................................... 214

About the Authors

Christopher R. Deubert is the Senior Law and Ethics Associate for the Law and Ethics Initiative of the

Football Players Health Study at Harvard University. Previously, Deubert practiced commercial litigation,

sports law, securities litigation, and labor/employment litigation at Peter R. Ginsberg Law, LLC f/k/a

Ginsberg & Burgos, PLLC in New York City. His sports practice focused primarily on representing

National Football League (NFL) players in League matters, including appeals for Commissioner

Discipline, under the NFL’s Policy and Program on Substances of Abuse and under the NFL’s Policy on

Anabolic Steroids and Related Substances (now known as the Policy on Performance-Enhancing

Substances), and related litigation. Deubert also previously worked for Sportstars, Inc., one of the largest

NFL-player representation firms, performing contract, statistical, and legal analysis, and he performed

similar work during an internship with the New York Jets. Deubert graduated with a joint

JD/MBA degree from Fordham University School of Law and Graduate School of Business in 2010, and

a BS in Sport Management from the University of Massachusetts in 2006.

I. Glenn Cohen is a professor at Harvard Law School; Faculty Director of the Petrie-Flom Center for

Health Law Policy, Biotechnology, and Bioethics; and, Co-Lead of the Law and Ethics Initiative of the

Football Players Health Study. His award-winning work at the intersection of law, medicine, and ethics—

in particular, medical tourism and assisted reproduction—has been published in leading journals, such as

the Harvard Law Review, Stanford Law Review, New England Journal of Medicine, Journal of the

American Medical Association, American Journal of Bioethics, and American Journal of Public Health.

He was previously a fellow at the Radcliffe Institute for Advanced Study and a faculty scholar in

bioethics with the Greenwall Foundation. He is the author, editor, and/or co-editor of several books from

Oxford, Columbia, John Hopkins, and MIT University Presses. Prior to joining the Harvard faculty,

Cohen served as a clerk to Chief Judge Michael Boudin, United States Court of Appeals for the First

Circuit, and as an appellate lawyer in the Civil Division of the Department of Justice. He graduated from

the University of Toronto with a BA (with distinction) in Bioethics (Philosophy) and Psychology and

earned his JD from Harvard Law School.

Holly Fernandez Lynch is Executive Director of the Petrie-Flom Center for Health Law Policy,

Biotechnology, and Bioethics; Faculty at the Harvard Medical School Center for Bioethics; and, Co-Lead

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of the Law and Ethics Initiative of the Football Players Health Study. Her scholarly work focuses on the

regulation and ethics of human subjects research and issues at the heart of the doctor-patient relationship.

Her book, Conflicts of Conscience in Health Care: An Institutional Compromise, was published by MIT

Press in 2008; she is also co-editor with I. Glenn Cohen of Human Subjects Research Regulation:

Perspectives on the Future (MIT Press 2014), FDA in the 21st Century: The Challenges of Regulating

Drugs and New Technologies (Columbia University Press 2015), and Nudging Health: Health Law and

Behavioral Economics (Johns Hopkins University Press 2016). Lynch practiced pharmaceuticals law at

Hogan & Hartson, LLP (now Hogan Lovells), in Washington, DC, and worked as a bioethicist in the

Human Subjects Protection Branch at the National Institutes of Health’s Division of AIDS. She also

served as senior policy and research analyst for President Obama’s Commission for the Study of

Bioethical Issues. Lynch is currently a member of the Secretary’s Advisory Committee on Human

Research Protections at the US Department of Health and Human Services. She graduated Order of the

Coif from the University of Pennsylvania Law School, where she was a Levy Scholar in Law and

Bioethics. She earned her master’s degree in bioethics from the University of Pennsylvania’s School of

Medicine, and her BA with a concentration in bioethics, also from the University of Pennsylvania.

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Acknowledgements

First, the authors would like to thank the staff and research assistants who assisted in the creation of this

Report: Daniel Ain; Tom Blackmon; Jay Cohen; Louis Fisher; Nicholas Hidalgo; Scott Sherman; Jamie

Smith-George; and, Samuel Stuckey. These individuals assisted with a variety of administrative and

research tasks. Relatedly, the authors would like to thank Professor Peter Carfagna for helping to

coordinate research assistance by his students. Particular thanks are due to Justin Leahey, Project

Coordinator for the Law & Ethics Initiative of the Football Players Health Study, who provided important

administrative and research assistance throughout the creation of the Report.

Second, the authors would like to thank the members of the Law & Ethics Advisory Panel for their

comments and guidance during the creation of this Report: Nita Farahany; Joseph Fins; Ashley Foxworth;

Walter Jones; Isaiah Kacyvenski; Bernard Lo; Chris Ogbonnaya; and, Dick Vermeil.

Third, the authors would like to thank the expert reviewers of this Report who provided valuable

comments during the editing process: Marc Edelman, Zicklin School of Business, Baruch College, City

University of New York; and, Michael McCann, University of New Hampshire School of Law.

Fourth, the authors would like to thank the professors and academic professionals who reviewed and

provided comments for parts of this Report: Neil Longley; Stephanie Morain; and, Karen Roos.

Relatedly, the authors would like to thank The Hastings Center, who initially proposed the idea of this

Report.

Fifth, the authors would like to thank the professionals who helped finalize this Report: Lori Shridhare

from the Football Players Health Study at Harvard University; Cristine Hutchison-Jones, who provided

proofreading and editing services; and, Fassino/Design, Inc., which designed and formatted the Report.

Finally, the authors would like to thank the leagues and players unions that agreed to provide relevant

information and/or review this Report prior to its publication. In the Introduction, we provide more detail

as to those leagues and unions that provided relevant information and/or reviewed this Report prior to its

publication. The cooperation of the leagues and players unions was essential to the accuracy, fairness, and

comprehensiveness of this Report.

ENSURING INDEPENDENCE AND DISCLOSURE OF CONFLICTS

The 2011 Collective Bargaining Agreement between the National Football League Players Association

(“NFLPA”) and the National Football League (“NFL”) set aside funds for medical research. The NFLPA

directed a portion of those funds to create the Football Players Health Study at Harvard University, of

which this Report is a part. Our analysis has been independent of any controlling interest by the NFLPA,

the NFL, or any other party; this independence was contractually protected in Harvard’s funding

agreement with the NFLPA. Per that contract, the NFLPA was only entitled to prior review of this Report

to ensure that no confidential information was disclosed.

Additional information about how this Report

came to be is provided in the Preface.

The present Report is part of the Law and Ethics Initiative of the Football Players Health Study at

Harvard University. Additional background information about the Football Players Health Study is

provided in the Preface. We provide more specific information about the Law and Ethics Initiative here.

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The Statement of Work agreed to between the NFLPA and Harvard included as one of the Law and Ethics

Initiative’s projects to “Conduct Comparative Sports League Analysis.” More specifically, Harvard

described the work to be done as follows:

We will analyze governance and stakeholder obligations in other

professional sports leagues in order to identify best practices and situate

the ethics framework developed for professional football. This project

will examine, for example, how medical practices in other leagues may

result in the encouragement and tolerance of behavior that is risky to

health. The project will examine influences among health behaviors of

players and team policies regarding player health.

This project description was intended to be preliminary. The actual scope of this Report developed over

time, as expected, as the result of considerable research, internal discussion, and conversations with

experts. Beyond agreeing to the Statement of Work, the NFLPA did not direct the scope or content of this

Report.

As is typical with sponsored research, we provided periodic updates to the sponsor in several formats:

Pursuant to the terms of Harvard-NFLPA agreement, the NFLPA does receive an annual report on the

progress of the Football Players Health Study as well as one Quad Chart progress report each year.

Additionally, on two occasions (August 22, 2014, and January 23, 2015), we presented a summary of the

expected scope and content of the Report to the Football Players Health Study Executive Committee,

comprised of both Harvard and NFLPA personnel. Those meetings did not alter our approach in

constructing this Report, the conclusions reached, or the recommendations made. Moreover, none of the

comments made during those meetings altered the content of the Report.

In the Introduction, Section E(2): Describe, we discuss our research process for this Report. Additional

information about our communications with the NFLPA and NFL is also relevant here. During the course

of our research, we had multiple telephone and email communications with both NFLPA and NFL

representatives to gain factual information. These communications were not about the progress, scope, or

structure of our Report.

We also concluded that it was essential to provide the applicable stakeholders the opportunity to

substantively review the Report. These stakeholders are the leagues discussed in this Report: the National

Football League (“NFL”); Major League Baseball (“MLB”); the National Basketball Association

(“NBA”); the National Hockey League (“NHL”); the Canadian Football League (“CFL”); and, Major

League Soccer (“MLS”). This was necessary to try to fully account for the realities at hand, avoid factual

errors, and fairly consider all sides. Accordingly, we provided each league the opportunity to review the

Report before publication. Additional information about the leagues’ and their corresponding labor

unions’ cooperation with and review of this Report or failure to do so is included in the Introduction,

Section 6(C): Limitations.

The leagues had the opportunity to identify any errors, provide additional information, comment on what

action we expected from them going forward, and raise further suggestions or objections. Sometimes

these comments led to valuable changes in the Report. We found other comments unpersuasive and they

did not result in any changes. It is critical to recognize that no external party, including the NFLPA and

NFL, had the ability to direct or alter our analysis or conclusions.

In addition, we subjected the draft Report to peer review by outside experts. We engaged two independent

experts in sports law to review the Report for accuracy, fairness, comprehensibility, and its ability to

positively impact the health of NFL players. These experts were Marc Edelman, Zicklin School of

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Business, Baruch College, City University of New York, and, Michael McCann, University of New

Hampshire School of Law.

Finally, the content of this Report is solely the responsibility of the authors and does not represent the

official views of the NFLPA or Harvard University.

Disclosures:

• The Law and Ethics Initiative’s allocated budget is a total of $1,257,045 over three years, which

funds not only the present Report, but also several other projects.

• Deubert’s salary is fully supported by the Football Players Health Study at Harvard University.

From August 2010 to May 2014, Deubert was an associate at the law firm of Peter R. Ginsberg

Law, LLC f/k/a Ginsberg & Burgos, PLLC. During the course of his practice at that firm, Deubert

was involved in several legal matters in which the NFL was an opposing party. Of relevance to

this Report, Deubert represented players disciplined pursuant to the NFL’s Policy and Program on

Substances of Abuse and the Policy on Anabolic Steroids and Related Substances (now known as

the Policy on Performance-Enhancing Substances). Also, since 2007, Deubert has provided

research assistance to the Sports Lawyers Association, whose Board of Directors includes many

individuals with interests related to this work.

Lastly, in March 2017, as this Report’s content was finalized except for incorporating some

changes related to new collective bargaining agreements in MLB and the NBA, and with the Law

& Ethics Initiative of the Football Players Health Study ending in May 2017 as the funding period

came to a close, Deubert communicated with organizations with interests relevant to this work

about potential job opportunities, including law firms that represent sports leagues, unions, and

players. Following finalization of the Report, Deubert also communicated with some of the

sports unions themselves about potential job opportunities. All changes to the Report, including

those that occurred during or after March 2017, were reviewed and approved by Cohen and

Lynch.

• 20% of Cohen’s salary is supported by the Football Players Health Study at Harvard University.

Cohen has no other conflicting interests to report.

• 30% of Lynch’s salary is supported by the Football Players Health Study at Harvard University.

Lynch has no other conflicting interests to report.

EXECUTIVE SUMMARY

INTRODUCTION

What can the NFL and NFLPA learn from the policies and practices of other elite professional sports

leagues about protecting and promoting player health? This is the fundamental question motivating this

Report, authored by members of the Law & Ethics Initiative of the Football Players Health Study at

Harvard University.

This Report, Comparing Health-Related Policies and Practices in Sports: The NFL and Other

Professional Leagues, seeks to answer that question. The leagues share considerable similarities—at their

core, they are organizations that coordinate elite-level athletic competitions for mass audiences. In this

respect, the leagues are competitors within the professional sports industry, with each of them competing

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for fans’ dollars and attention. The policies by which the leagues operate, and their practices, are thus

often very similar. However, as in any industry, there are also differences between the leagues. This

Report seeks to identify and understand those different policies and practices that have the possibility to

affect player health such that the leagues may be able to learn from one another.

While leagues and their games are different in many important respects, making it impractical and unfair

to opine as a definitive matter on which of the leagues’ policies and practices in their totality best protect

player health, the Report generally concludes that the NFL’s policies concerning player health appear

superior to the other leagues. Nevertheless, through the nine recommendations contained in this Report,

we hope to elucidate several ways in which the NFL can learn from other leagues and further improve

player health.

This Report has four functions. First, to identify the various policies that do or could influence the health

of players in the various leagues. Second, to describe the policies and their relation to protecting and

promoting player health. Third, to evaluate the capacity of these policies to protect and promote player

health, in particular, by comparing policies on similar issues. And fourth, to recommend changes to

policies that affect NFL players grounded in our evaluation of certain approaches taken by other leagues

that appear to be more favorable. Where possible, we perform the same analysis concerning the leagues’

practices related to player health.

In this Executive Summary, we provide only summaries of the key issues discussed in the Report, while

the Report covers more issues and provides more complexity, nuance, and all relevant citations. Appendix

A of the Report is a compilation of the Report’s recommendations with explanatory text and Appendix B

is a compilation of tables summarizing and comparing the leagues’ policies and practices.

In the remainder of this summary Introduction, we identify the leagues and player unions relevant to our

analysis and summarize the areas of potential improvement we found when comparing the policies and

practices of the NFL to the other leagues. Then, we provide a summary of each of the issues analyzed in

the Report: (1) Club Medical Personnel; (2) Injury Rates and Policies; (3) Health-Related Benefits; (4)

Drug and Performance-Enhancing Substance Policies; (5) Compensation; and, (6) Eligibility Rules.

A. The Leagues

This Report analyzes the policies and practices of the following professional sports leagues:

• The National Football League (“NFL”): The world’s premier professional football league,

consisting of 32 member clubs. The NFL’s 2017 revenues are expected to reach $14 billion.

• Major League Baseball (“MLB”): The world’s premier professional baseball organization,

consisting of 30 member clubs. MLB’s 2016 revenues were an estimated $10 billion.

• National Basketball Association (“NBA”): The world’s premier professional basketball league,

consisting of 30 member clubs. The NBA’s 2016–17 revenues are projected to be approximately

$8 billion.

• National Hockey League (“NHL”): The world’s premier professional hockey league, consisting

of 30 member clubs. The NHL’s 2015–16 revenues were an estimated $4.1 billion.

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• Canadian Football League (“CFL”): A professional football league consisting of 9 member

clubs, all of which are located in Canada. The CFL’s revenues are an estimated $200 million

annually.

• Major League Soccer (“MLS”): A professional soccer league consisting of 20 clubs. As is

explained in further detail in the Report, MLS is uniquely organized—rather than having each

club owned and controlled by a different person or entity (like in the other sports leagues), all of

the clubs in the MLS are owned and controlled by Major League Soccer, LLC. MLS’ 2016

revenues were an estimated $600 million.

We chose these leagues because of their similarity to the NFL, both structurally and legally. The NFL,

MLB, NBA, and NHL are particularly similar. Each of these leagues has been operating for nearly a

century (or more in the case of MLB) and is an entrenched part of the American sports and cultural

landscape. Their revenue streams also dwarf those of any other professional sports leagues, including the

CFL and MLS. For these reasons, the NFL, MLB, NBA, and NHL are commonly referred to collectively

as the “Big Four” sports leagues. We nevertheless acknowledge that other sports and sports leagues can

provide lessons for the NFL and the other sports leagues concerning player health. The CFL was

included in our analysis because it is the only other long-standing and continuous professional football

league. Finally, the MLS was included because it is a major North American professional sports league.

B. The Unions

Each of the leagues discussed in this Report has an important counterpart. The leagues are the constructs

of the individual clubs (or operator-investors in MLS) and thus are principally interested in protecting and

advancing the rights of the clubs. To protect and advance their rights and interests, the players in each of

the leagues have formed a players association, a labor union empowered with certain rights and

responsibilities under federal labor laws. The players associations are:

• National Football League Players Association (“NFLPA”)

• Major League Baseball Players Association (“MLBPA”)

• National Basketball Players Association (“NBPA”)

• National Hockey League Players Association (“NHLPA”)

• Canadian Football League Players Association (“CFLPA”)

• Major League Soccer Players Union (“MLSPU”)

C. Areas for Improvement

As stated earlier, the NFL’s player health provisions are generally the most protective of player health

among the relevant comparators. Nevertheless, we also identified many areas in which the policies and

practices of the NFL concerning player health could potentially be improved by comparison to the other

leagues:

1. The CFL CBA, unlike the NFL CBA, requires that pre-season physicals “to determine the status

of any pre-existing condition” be performed by a neutral physician.

2. The standard of care articulated in the NHL and MLS CBAs, unlike the NFL CBA, seemingly

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requires club doctors to subjugate their duties to the club to their duties to the player at all times.

3. MLB, unlike the NFL, has a concussion-specific short-term injury list.

4. The MLB, NHL, and CFL injury reporting policies, unlike the NFL, do not require the disclosure

of the location on the body of a player’s injury.

5. MLB, the NBA, and the NHL, unlike the NFL, generally offer health insurance to players for life.

6. Among the Big Four leagues, the retirement plan payments offered by the NFL are the lowest.

7. MLB and NHL players, unlike in those in the NFL, are vested in their pension plans on the first

day they play in the league.

8. The NBA and CFL, unlike the NFL, offer treatment to players who have violated their

performance-enhancing substance policies.

9. The amount of player compensation that is guaranteed in the NFL is substantially lower than in

the other Big Four leagues.

10. The NFL has the most prohibitive eligibility rule of the leagues (except the CFL).

In the full Report, for each of these possible improvements we discuss whether the NFL’s policies might

be justifiably different than the other leagues’.

Chapter 1: Club Medical Personnel

This Chapter discusses the role of club medical staff, including both doctors and athletic trainers, in each

of the sports leagues as set forth in the leagues’ various controlling policies, most principally, their CBAs.

In particular, we focus on: (1) the types of medical personnel required, if any; (2) the medical personnel’s

obligations; (3) the obligations of the players concerning club medical personnel; (4) the relationship

between the medical personnel and the clubs; and, (5) the existence of sponsorship arrangements between

medical personnel and the clubs, if any.

Our focus here is on the structural issues that are generally governed by the CBA or other policies rather

than how each individual club hires and supervises its medical personnel and how individual medical

personnel interact with individual players, matters that are not the subject of extensive reporting or

publicly available research. By understanding what is required or permitted pursuant to the CBA or other

policies we can understand the scope of possible practices, including those that might be concerning as

they relate to player health.

Our analysis suggests that the NFL’s policies concerning club medical personnel are overall, by

comparison to the other leagues, the most protective of player health in almost all cases by providing

players with superior control and information about their healthcare. Nevertheless, there are four areas in

which the NFL might appear deficient as compared to one or more of the other leagues. Two of these

apparent deficiencies (access to medical records and prescription medication monitoring) are not a

problem in practice. We believe that a third deficiency – the inherent conflict of interest in the structure

of club medical staffs and related standard of care provisions – are not adequately addressed by any of the

leagues. This issue and our proposed recommendation is discussed at length in our report Protecting and

Promoting the Health of NFL Players: Legal and Ethical Analysis and Recommendations. Thus, here, we

focus on the lone issue resulting in a recommendation for the NFL.

While the CFL Standard Player Contract requires players to submit to a pre-season physical by the club’s

doctors, the CFL CBA also requires that pre-season physicals “to determine the status of any pre-existing

condition” be performed by a neutral physician. The stated purpose of this requirement is to help

determine “in the future” whether there was “an aggravation of… [a] pre-existing condition.” In contrast,

NFL club doctors perform all pre-season physicals and would be the ones to opine about a player’s prior

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injury history. We believe the CFL’s approach is preferred, and thus recommend that the NFL consider

adopting such an approach:

• Recommendation 1-A: Pre-season physicals for the purpose of evaluating a player’s prior

injuries should be performed by neutral doctors.

Chapter 2: Injury Rates and Policies

An important measurement of player health is the incidence and type of injuries players may sustain in

the course of their work. Additionally, given the importance of player injuries, the manner in which

player injuries are handled administratively and reported can indicate a league’s approach to player health

issues more generally. In this Chapter, we examine the leagues’: (1) injury tracking systems; (2) injury

rates; (3) injury-related lists; and, (4) policies concerning public reporting of injuries. In summarizing our

analysis, it is important to note that there are important limitations in analyzing and comparing the

leagues’ injury data, described at length in the full Report, including but not limited to the underreporting

of injuries (concussions in particular), and differences between the leagues, including scheduling,

electronic medical record systems, and injury definitions.

Statistic

NFL

MLB

NBA

NHL

CFL

UEFA

Mean Injuries Per

Game

5.90

0.45

0.16

0.59

N/A

0.53

Concussions Per

Game

0.625

0.007

0.067

0.704

0.010

Rate of Concussion

Per Player-Game

0.00679

0.00026

0.00035

0.00180

0.00800

0.00072

This Table provides some of the key injury statistics in comparing the leagues, though we provide many

more statistics and caveats in the Report itself. The NFL’s injury rates are much higher than those of the

other leagues. The mean number of injuries suffered per game in the NFL is approximately 3.4 times

higher than the combined rates of MLB, the NBA, NHL, and UEFA combined. Similarly, the NFL’s

concussion per game rate is approximately 6.9 times higher than the combined rates of those same

leagues. We excluded the CFL from this comparison because it is also a football league, but we note that

the CFL’s concussion per game rate is actually higher than the NFL’s.

At the same time, the NFL’s rate of concussions per player-season is 0.073, lower than the NHL’s of

0.108. Thus, if one compared one NFL player and one NHL player, the NHL player would be more likely

to suffer a concussion in his next regular season than the NFL player during his next season. However,

this difference is due to the fact that the NHL plays substantially more regular season games than the NFL

(82 versus 16). When comparing concussion statistics on a per game basis, an NFL player is

approximately 3.8 times more likely to suffer a concussion in a regular season game as compared to an

NHL player (0.00679/0.00180).

One other caveat is worth emphasizing. Due to data availability these statistics and those in the Report are

limited to the leagues’ regular season games, which underestimates injury rates. As we emphasize in the

full Report, there are a significant number of injuries and concussions sustained during NFL practices and

during the pre-season (90 concussions in 2015 practices and pre-season games).

Injury Tracking Systems

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Each of the Big Four leagues and the MLS has an injury tracking system of some kind. Discussions with

experts on this issue indicated that the injury tracking systems are generally comparable; each of them is a

sophisticated and modern system that should enable accurate reporting and provide interesting and useful

data. The differences may come in how the leagues use the data that is available to them.

The NFL and NBA employ Quintiles, a health information technology firm, to perform sophisticated data

analysis concerning player injuries. While other leagues have occasionally made injury data available for

analysis, our research has not revealed whether the other leagues perform an ongoing annual analysis like

Quintiles does for the NFL and NBA.

Injury-Related Lists

The NFL, NBA, and NHL all permit their clubs to declare players inactive one game at a time, which is

generally advantageous to players. We use the NFL as an example. In the NFL, clubs have a 53-man

Active/Inactive List, only 46 of whom can be active for the game each week. The remaining seven

players are placed on the Inactive List for the game, i.e., benched, either for injury or skill purposes, but

are available to play in the next week’s game. This arrangement permits players the opportunity to remain

on the roster but to rest and treat an injury without immediately rushing back to play. At the same time,

because clubs are constantly struggling with having the best players available as well as likely having

multiple injured players, players will still likely feel pressure to return as soon as possible so that the club

can deactivate other injured players and avoid seeking a replacement.

The Active/Inactive List is also interrelated with the Injured Reserve list, designated for players with

longer-term injuries. Generally, once a player is on Injured Reserve, he is no longer eligible to play that

season. However, by placing the player on Injured Reserve, the club can replace the player on the 53-man

Active/Inactive List. Thus, there are important implications in determining whether the player’s injury is

short-term and the club only has to declare him inactive for a game or two, or whether the player’s injury

is more severe and requires the player to be placed on Injured Reserve (which also allows the club to

obtain a replacement player to join the 53-man roster).

The interplay between the short-term Inactive List and the longer term Injured Reserve list is particularly

important concerning concussions. As discussed in the full Report, concussions present uncertain

recovery times, are challenging to diagnose and treat, and present particularly acute long-term concerns.

MLB is the only sport with a concussion-specific injured list. Because of these concussion-specific

concerns, we recommend that the NFL also adopt a concussion-specific injured list.

Injury Reporting Policies

There are three variations in the leagues’ injury reporting policies.

First, the NFL, NBA, NHL, and MLS require clubs to disclose publicly players’ injury statuses.

Second, the NFL, NBA, and MLS require clubs to disclose publicly the nature of player injuries. While

the NHL requires clubs to disclose whether a player will miss a game or not return to a game due to

injury, the NFL and NBA (in practice) require that the club identify the player’s body part that is injured.

Below, we make a recommendation concerning this issue.

Third, in MLB, the NBA, the NHL, and MLS, the CBAs specifically describe what type of information

the clubs are permitted to disclose publicly. The NFL CBA is silent on this issue. Instead, NFL clubs

seemingly rely on players’ to execute waivers providing the clubs with permission to disclose publicly

player health information.

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In the full Report, we discuss in detail three concerns related to the NFL’s Injury Reporting Policy: (1) a

general concern about an individual’s medical information being made publicly available; (2) the

possibility that players will target other players’ injuries that have been publicly disclosed; and, (3) the

Injury Reporting Policy’s role in preventing gamblers from receiving inside information about player

health issues. Ultimately, we believe that it is debatable whether the NFL’s gambling-related concerns

are sufficiently substantial today to justify overriding a player’s right to have his health information

treated confidentially. We lack the relevant expertise, insight, and information, however, to recommend

that the NFL no longer obligate clubs to report information on the status of players. Instead, we

recommend the NFL consider the issue more closely, in addition to other injury-related issues:

• Recommendation 2-A: The NFL, and to the extent possible, the NFLPA, should: (a)

continue to improve its robust collection of aggregate injury data; (b) continue to have the

injury data analyzed by qualified professionals; and, (c) make the data publicly available

for re-analysis.

• Recommendation 2-B: Players diagnosed with a concussion should be placed on a short-

term injured reserve list whereby the player does not count against the Active/Inactive 53

man roster until he is cleared to play by the NFL’s Protocols Regarding Diagnosis and

Management of Concussions.

• Recommendation 2-C: The NFL should consider removing the requirement that clubs

disclose the location on the body of a player’s injury from the Injury Reporting Policy.

Chapter 3: Health-Related Benefits

In this Chapter, we summarize the various health-related benefits available to the players in each of the

leagues. Specifically, for each league, we examine: (1) retirement benefits; (2) insurance benefits; (3)

disability benefits; (4) workers’ compensation benefits; (5) education-related benefits; and, (6) the

existence of health-specific committees jointly run by the league and players association. Each of these

domains is relevant to protecting players should they experience negative health effects during and after

their playing years, and also to promoting their ability to maintain their health and well-being over the

longer term. Given that a decision to play or continue to play professional sports, like many other

decisions, is a matter of weighing risks and benefits, those decisions must be made against a backdrop of

available benefits. It is for this reason that we spend considerable space describing and evaluating the

available benefits in each league.

According to the NFLPA, NFL players have “the very best benefits package in professional sports.” This

claim seems substantially true. First, the NFL offers every benefit that is provided by any of the other

leagues. Second, the NFL offers several benefits that are not provided by any of the other leagues,

including severance pay, long term care insurance, the Former Player Life Improvement Plan, and

neurocognitive disability benefits for former players. Third, there are several benefits that only the NFL

and a limited number of the other leagues provide: (a) only the NFL, MLB, NBA, and NHL provide

health insurance (beyond COBRA) for former players; (b) only the NFL, MLB, and NBA provide players

with mental health and substance abuse treatment; (c) only the NFL and NBA offer a health

reimbursement account; (d) only the NFL and MLB offer disability benefits to former players; (e) only

the NFL and NBA offer education-related benefits for all players; and, (f) only the NFL, NBA, NHL, and

MLS guarantee workers’ compensation benefits to all of their players.

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While overall the NFL thus appears to be the best league for benefits, there are, however, three areas in

which the NFL might appear deficient as compared to one or more of the other leagues.

First, the NFL’s health insurance options for former players appear to be less favorable than those offered

by MLB, the NBA and the NHL. Currently, for players who have vested under the Retirement Plan

(which requires at least three years of Credited Service for players after 1992), the NFL provides the same

health insurance as available to current players for five additional years or the former player can also

obtain health insurance via COBRA. However, COBRA is designed to be a temporary solution and is

generally regarded as expensive relative to other health insurance plans. In contrast, MLB’s Benefit Plan

provides former players the option to continue (or obtain) the same health insurance benefits as current

players for life. While former MLB players have to pay more for their health insurance than current MLB

players, presumably the plans offered are cheaper than COBRA coverage or players would select that

option. Similarly, the NBA’s Retiree Medical Plan is available to former players for life (at varying rates)

and the NHL allows former players who played at least 160 games to continue with the NHL’s insurance

plan for life.

The NFL does offer a variety of health benefits that might partially fill the gap for former players,

including health reimbursement accounts, long term care insurance, benefits for uninsured former players,

and disability benefits. Nevertheless, players often have to go through a difficult process to obtain some

of these benefits after they have already had to pay for the care, or care is delayed until they can obtain

the benefits. We suggest that there may be advantages to allowing former players to continue to obtain

some form of the health insurance that they were able to receive while playing.

Second, as shown in the full Report (Tables 3-J and 3-K) the monthly payments to former NFL players

under the Retirement Plan are seemingly the smallest in the Big Four leagues. Nevertheless, when all of

the benefits available to former players are packaged together, it is likely that the NFL’s benefits are the

most valuable due to the number of benefits that are available. Consequently, lower Retirement Plan

payments might simply reflect the NFLPA’s preferred allocation of total benefits, i.e., a shifting of the

value of benefits away from the Retirement Plan and to other benefits instead. As with health insurance

benefits, the NFL’s Retirement Plan payments require players to undertake relatively little administrative

work to receive benefits and they are a more secure and stable income source and benefit than some of the

other benefits made available by the NFL. Nevertheless, some might believe it is a better use of player

benefit money to fund benefits and programs for former players who are disabled or impaired in some

way as opposed to providing larger Retirement Plan payments to all eligible former players. All of the

benefits available to NFL players must be viewed collectively. For these reasons, we recommend the NFL

and NFLPA consider whether the current allocation of player benefits is the preferred, most just, and most

effective allocation.

Third, MLB and NHL players are vested in their pension plans on the first day they play in those leagues.

By comparison, the NFL requires players to accrue three years of experience (or more depending on when

they played), before they are eligible for retirement benefits (as well as many other benefits). The mean

career of NFL and MLB players are both around five years long. Yet, the NFL’s Retirement Plan likely

excludes and has excluded thousands of former players who did not earn three Credited Seasons. It is

unclear why the NFL requires three years of service (the NBA does as well). The minimum service time

clearly reduces costs for the Retirement Plan, but might also reflect a policy decision as to when an NFL

player has sufficiently contributed to the NFL to deserve pay under the Retirement Plan. Below, we make

a recommendation concerning the vesting requirement for the NFL’s Retirement Plan:

• Recommendation 3-A: The NFL and NFLPA should consider whether change is necessary

concerning player benefit plans.

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o The NFL and NFLPA should consider providing former players with health insurance options

that meet the needs of the former player population for life.

o The NFL and NFLPA should consider increasing the amounts available to former players

under the Retirement Plan.

o The NFL and NFLPA should consider reducing the vesting requirement for the Retirement

Plan.

Chapter 4: Drug and Performance-Enhancing Substance Policies

This Chapter summarizes the policies of each of the leagues concerning performance-enhancing

substances (“PES”) and drugs of abuse. As explained below, the leagues differ at times in their

categorizations and treatments of different drugs and substances. Where appropriate, we will separate our

analysis of the leagues’ policies by PES and drugs of abuse (collectively “drug policies.”) The leagues’

definitions are discussed at length in the full Report.

With the possible exception of how marijuana is regulated, the Big Four’s drug policies do not vary

substantially. Leagues and unions balance multiple factors in creating drug policies, including but not

limited to deterrence, treatment, privacy, and integrity of the game, and rely on difficult value judgments.

The three features of the policies we view as most important to player health and those which we analyze

are: (1) the availability of Therapeutic Use Exemptions (“TUEs”); (2) the availability of treatment; and,

(3) the opportunity to receive treatment without being subject to initial discipline. With these issues in

mind, we turn to our analysis of how the NFL compares to the other leagues.

Concerning TUEs, the NFL, MLB and the NBA all offer TUEs for both their PES and drugs of abuse

policies. In contrast, the CFL offers TUEs for its PES policy but does not have a drugs of abuse policy.

We also found no evidence that the NHL offers a TUE for its Substance Abuse Program or that the MLS

offers any TUEs. Thus, the NFL’s use of TUEs is at least as good as the other leagues.

All of the leagues, including the NFL, have robust treatment programs for drugs of abuse. However, the

NBA, CFL, and potentially MLS are the only leagues that offer treatment for a player who has violated a

PES Policy. On this issue, the NFL might appear deficient compared to the NBA and CFL. However,

there are other relevant considerations concerning the treatment programs offered to players, discussed

next.

The NFL, NBA, NHL, MLS and maybe MLB provide a safe-harbor for players who voluntarily refer

themselves for treatment for drugs of abuse. These provisions importantly allow players to seek help they

might recognize they need without the fear of immediate adverse employment action.

In contrast, no Big Four league offers a safe-harbor for players who have used PES. It is possible that

these leagues view PES users as players intentionally looking to cheat the game and their competitors,

whereas those using drugs of abuse are in need of medical care. However, there is robust scientific

evidence supporting the need to provide treatment to PES users, as well. PES usage has shown to be

addictive, and has been associated with the use of drugs of abuse (opioids in particular), body dysmorphic

disorder, depression, antisocial traits, mood and personality disorders, other psychological disorders, and

cognitive deficits in impulsivity, risk-taking, and decision-making. As a result, PES users may experience

withdrawal symptoms, and may be at an increased risk of suicide. Consequently, many experts

recommend and provide treatment and counseling for PES users. We adopt that recommendation for

purposes of this Report:

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• Recommendation 4-A: The NFL should consider amending the PES Policy to provide

treatment to any NFL player found to have violated the PES Policy.

Chapter 5: Compensation

This Chapter examines the form and nature of player compensation in the leagues. In reviewing this

Chapter, it is important to understand that the structures, operations and finances of the “Big Four” are

considerably different from those of the CFL and MLS due to, among other things, their long histories

and the amount of their revenues (billions versus millions).

Compensation is an important component of player health. First, the different compensation structures

and systems in the leagues can influence players’ decisions about their physical and mental health, for

example when to play through injury and when to retire. In their efforts to maximize their earnings (and

sometimes, eligibility for various benefits), some players might sacrifice their short- and/or long-term

physical and mental health. The compensation structures dictate when or if a player faces such a trade-off.

Compensation may also be related to health in a second way. Without adequate savings and benefits

during and after NFL play, players may find themselves insufficiently prepared to meet their physical and

mental health needs, especially in the event of crisis. In addition, as we discussed in greater detail in

Chapter 3, crises in physical and mental health are closely tied to bankruptcy, home foreclosure, and other

serious financial setbacks. NFL players suffer these outcomes as well, despite their relatively high (but

short-lived) compensation.

We are most concerned with how compensation and compensation structures affect player behavior and

decision-making concerning their health, i.e., what are the consequences of the current compensation

regimes on players’ short- and long-term health. Unfortunately, these are questions that we cannot fully

answer at the present.

To effectively and rigorously compare how the different leagues’ compensation structures affect player

health decisions would require the ability to control for a range of variables, including but not limited to

free agency rules, salary and contract limitations, salary cap structure, the level of guaranteed

compensation, career length, career earnings, and injury outcomes. This is a challenging analysis that

requires more data than is currently available and thus we cannot fairly assess which leagues’ overall

compensation structures among the Big Four are best for players.

Some have suggested that NFL player health could be improved through guaranteeing more of their

compensation, which would potentially mitigate pressure to play through injuries in order to protect a

player’s status on the club. On this and related issues, many would argue that MLB’s system is the most

player-friendly, because compensation is almost entirely guaranteed, there is no hard Salary Cap, there is

no maximum salary, and, there is no maximum contract length. It is thus not surprising that, as of

February 2017, the 23 largest contracts among these sports leagues are all for MLB players. However,

MLB players are not guaranteed a share of the revenue like in other leagues and must wait six years

before becoming an Unrestricted Free Agent, the longest wait of the Big Four; thus, it is not clear that

their compensation arrangement is preferable.

The NFL and NFLPA are frequently criticized—by players, the media and academics, among others—for

what is perceived as the lack of guaranteed contracts as compared to the other leagues. However, the issue

is complicated, as discussed in detail in the Report, including the effect of guaranteed compensation on

opportunities for less proven players, and the possibility of reduced compensation and roster sizes. As a

preliminary matter, when discussing the compensation paid to players, one must also consider the other

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benefits the players receive. As is discussed in Chapter 3 of this Report, the NFL provides a benefits

package superior to those offered in all of the other leagues. We nonetheless make the following

recommendation:

• Recommendation 5-A: The NFL and NFLPA should research the consequences and

feasibility of guaranteeing more of players’ compensation as a way to protect player health.

Chapter 6: Eligibility Rules

Each of the leagues has rules governing when individuals become eligible to play in their leagues. While

we fully acknowledge the unique nature and needs of the leagues and their athletes, we believe the

leagues can learn from the other leagues’ policies.

Leagues’ eligibility rules affect player health in two somewhat opposite directions: (1) by potentially

forcing some players who might be ready to begin a career playing for the leagues to instead continue

playing in amateur or lesser professional leagues with less (or no) compensation and at the risk of being

injured; and, (2) by protecting other players from entering the leagues before they might be physically,

intellectually, or emotionally ready. As discussed in the full Report and recommendation, the NCAA’s

Bylaws are an important factor in considering the eligibility rules and their effects on player health.

The leagues’ eligibility policies vary. MLS has the most liberal eligibility policy, with no minimum age

requirement, while, by requiring several years of college, the NFL and CFL are the most restrictive.

All of the eligibility rules seemingly are at least partially concerned with when a player is “ready” to enter

a professional league. Readiness is an important concept, but difficult to define. In our view, a player is

ready when he is able to enter the league safely, in terms of protecting his health, and maximize his

success across various domains, including physically, mentally, and emotionally. Each of the leagues,

often through negotiations with the unions, has made a judgment as to when they think the typical player

is ready, or at least ready enough. In so doing, the leagues have helped protect clubs from drafting and

investing in players who are not ready, and also potentially helped to protect players who need more time

to prepare for a successful and healthy career. However, without more empirical analysis, we cannot say

for certain when players—individually or collectively—are ready and thus whether the eligibility rule is

fair or successful. No such data currently exists and would be challenging to gather.

The comparison of the leagues’ policies highlights two clear issues with the NFL’s eligibility rule, but,

generally, neither is of the NFL’s making.

First, the NFL’s requirement that players effectively play at least three years of college football might

ensure that only sufficiently physically mature players enter professional football, but it also requires

players to risk their physical health longer without getting paid—and in a sport with higher injuries rates

than that of the other leagues, as discussed in Chapter 2: Injury Rates and Policies. While the NCAA’s

Exceptional Student-Athlete Disability Insurance program tries to alleviate some of these issues, players

have legitimate concerns that they will suffer a career-altering or ending injury before they are able to

reach the professional level and earn any money from their athletic skills. This is at least in part a result of

the NCAA’s prohibition on student-athletes being compensated. Whether the NCAA’s rules are fair is

beyond the scope of this Report, but it is clear that the rules create a problem for players who have the

potential to reach the NFL but who are required—or might prefer—to continue playing college football.

Second, in light of the fact that players are not paid for playing in college, it is understandable that many

want to enter the NFL as soon as possible. Specifically, players will want to enter the NFL after their

24!

junior year of college, the first time they are permitted under the NFL’s eligibility rule. However, whether

the player is ready to leave college for the NFL is a difficult question to answer and may not be resolved

until many years later—if ever. If the player is undrafted, NCAA rules effectively prohibit the player from

returning to college football, and the player’s football future is in serious doubt. Once again, although this

problem intersects with the NFL’s eligibility rule, it is the primary result of the NCAA’s rules, not the

NFL’s.

It is challenging to assess the reasonableness of the NFL’s current eligibility rule. The rule seemingly

prevents players from joining the NFL before they are ready, which both protects those players from

injury in the NFL and protects the clubs from investing in players who are not yet ready to play at a

professional level. While there are likely to occasionally be players who are ready to join the NFL before

the end of their junior season, there are going to be outliers to any rule and, without data suggesting

otherwise, we cannot say the NFL’s eligibility rule is unreasonable or not sufficiently considerate of

player health. For this reason our main recommendation is for the NFL to continue to gather data to

permit a better evidence-based evaluation of its current policy, as well to consider the interplay of its rules

with the NCAA’s:

• Recommendation 6-A: The NFL should consider performing or funding research analyzing

when a player might be “ready” for the NFL.

• Recommendation 6-B: The NFL should reconsider the interplay of its eligibility rules with

the NCAA’s rules as they concern player health and take appropriate action if necessary.

Conclusion

This Report begins by explaining the pressing need for research into the overall health of NFL players;

the need to address player health from all angles, both clinical and structural; and the challenges presented

in conducting such research and analysis. The issues and parties involved are numerous, complex, and

interconnected. To address these issues—and ultimately, to protect and improve the health of NFL

players—requires a diligent and comprehensive approach to create well-informed and meaningful

recommendations for change.

We believe part of that comprehensive approach is for the NFL and NFLPA to learn from other

professional sports leagues when possible. In many respects, the leagues and their games are very

different and thus it can be challenging to draw comparisons. Nevertheless, the leagues face a series of

common issues, such as labor negotiations, stadiums and arenas, fan interest, multimedia platforms, and

many others. But perhaps the most important issue is player health. In recent years, each of the leagues

has had to make a fresh and comprehensive examination of its player health policies and practices. We

anticipate the leagues will continue to engage in this examination for many years to come.

As demonstrated by our Report’s analysis and recommendations, the leagues have the opportunity to

learn a great deal from one another in light of their shared interest in player health. Additionally, our

Recommendations are only as useful as their implementation. For these reasons, we make the following

final Recommendations.

• Final Recommendation 1: The leagues and unions should continue to coordinate on player

health issues and to consider each other’s policies and practices.

• Final Recommendation 2: The media, academics, the leagues, and the unions should

continue to police the advancement of player health.

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***

NFL football has a storied history and holds an important place in this country. The men who play it

deserve to be protected and have their health needs met and it is our fervent hope that they will be met.

We hope this Report furthers that cause.

Summary Table of Recommendations

1. Pre-season physicals for the purpose of evaluating a player’s prior injuries should be performed

by neutral doctors. (Recommendation 1-A).

2. The NFL, and to the extent possible, the NFLPA, should: (a) continue to improve its robust

collection of aggregate injury data; (b) continue to have the injury data analyzed by qualified

professionals; and, (c) make the data publicly available for re-analysis. (Recommendation 2-A).

3. Players diagnosed with a concussion should be placed on a short-term injured reserve list

whereby the player does not count against the Active/Inactive 53 man roster until he is cleared to

play by the NFL’s Protocols Regarding Diagnosis and Management of Concussions.

(Recommendation 2-B).

4. The NFL should consider removing the requirement that clubs disclose the location on the body

of a player’s injury from the Injury Reporting Policy. (Recommendation 2-C).

5. The NFL and NFLPA should consider whether change is necessary concerning player benefit

plans. (Recommendation 3-A).

6. The NFL should consider amending the Performance-Enhancing Substance Policy (“PES

Policy”) to provide treatment to any NFL player found to have violated the PES Policy.

(Recommendation 4-A).

7. The NFL and NFLPA should research the consequences and feasibility of guaranteeing more of

players’ compensation as a way to protect player health. (Recommendation 5-A).

8. The NFL should consider performing or funding research analyzing when a player might be

“ready” for the NFL. (Recommendation 6-A).

9. The NFL should reconsider the interplay of its eligibility rules with the NCAA’s rules as they

concern player health and take appropriate action if necessary. (Recommendation 6-B).

PREFACE: The Football Players Health Study at Harvard University

In response to ongoing concerns about NFL player health, the 2011 Collective Bargaining Agreement

(“CBA”) between the NFL and the National Football League Players Association (“NFLPA”) added a

number of new health, safety, and welfare provisions. One of these provisions sets aside $11 million per

year through 2021 to be dedicated to medical research.

Thus, in the summer of 2012, the NFLPA issued

a request for proposals to conduct original research and scientific exploration to be supported by these

funds, focusing on “new and innovative ways to protect, treat, and improve the health of NFL players.”

The NFLPA’s request for proposals specified a number of areas of particular interest, including sports

medicine, repetitive brain trauma, wellness, aging, and cardiovascular disease. At the top of the list,

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however, was not a particular medical problem, but instead “Medical Ethics (e.g., examination of health

care contexts to obtain a better understanding of internal morality of these practices, accountability, new

interventions that avoid harms currently incurred, appropriate informed consent in the context of

professional athletics, and consideration of medical care in the labor-management context of professional

football.).”

To meet the challenge of protecting and improving player health, it is necessary to move beyond clinical

issues to simultaneously address structural and organizational issues as well. This is true for healthcare

more generally, where it is essential to invest not only in scientific research and development to create

new clinical interventions, but also to invest in systems to efficiently administer those interventions to

patients in need, as well as public health approaches that can help minimize the need for intervention in

the first place. Likewise, to make headway in protecting and improving the health of NFL players, we

must go beyond a single-minded focus on their clinical care and instead implement a more comprehensive

strategy capable of addressing the myriad of stakeholders and contextual factors (past, present, League-

wide, and individual) that play a role in their health. These include not only players’ physical issues and

risk factors, but also their relationships with clinicians, professional motivations, financial pressures, and

family responsibilities, as well as the centrality of their health to their careers, the competitive nature of

the business, constraints on alternative opportunities for many players, and the like. The relevant

stakeholders are similarly varied and extensive.

Thus, when submitting its proposal to the NFLPA, our Harvard team included a variety of critical clinical

projects alongside an equally robust set of law and ethics proposals. We agreed from the outset that a

focus on diagnosing and treating player health issues—while essential—would be insufficient on its own

to comprehensively resolve those issues. Instead, our approach has been to also address precisely those

structural and organizational factors that are so important to player health but would be neglected by a

purely clinical approach.

The NFLPA ultimately agreed, selecting Harvard to receive the funding after a multi-round competitive

process involving several universities. In February 2014, Harvard Medical School entered into an

agreement with the NFLPA to create the “Football Players Health Study at Harvard University.” Drawing

on expertise from across Harvard University, the Football Players Health Study is dedicated to

understanding the causes of conditions NFL players face, with the goal of improving their health and

wellbeing.

The “Law and Ethics Initiative,” led by the Petrie-Flom Center for Health Law Policy, Biotechnology,

and Bioethics at Harvard Law School, encompasses a variety of distinct projects with the primary goal of

understanding the legal and ethical issues that may promote or impede player health, and developing

recommendations to promote player health through structural change.

The existence of the Law and Ethics component differentiates the Football Players Health Study from

other studies concerning NFL player health. While there have been many important studies concerning

the medical components of player health, we are not aware of any that have conducted a comprehensive

analysis of the relevant legal and ethical environment.

Additionally, in the Section: Ensuring Independence and Disclosure of Conflicts, we discuss the ways in

which the Law and Ethics Initiative interacted with, but was independent of, both the NFLPA and NFL in

creating this Report.

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In the Introduction that follows, we will describe the scope of this Report, its goals, process, and

limitations. First, however, it is essential to explain the guiding principles of the Football Players Health

Study as a whole.

Most importantly, the Football Players Health Study is interested in health issues beyond concussions and

neurological trauma. Although we recognize that concussions and their possible long-term sequelae are

on the minds of many, and are among the most critical health issues facing players today, we

simultaneously recognize that player health is larger than concussions alone. Players also have concerns

about cardiac health, arthritis and other joint damage, pain management, and a wide variety of other

issues. Moreover, their primary concerns are likely to change over time from their playing days to

retirement to old age. Thus, we have adopted the following mantra for our work: “The Whole Player, The

Whole Life.” Rather than a myopic approach, we are taking a wide and long view in order to make

players as healthy as they possibly can be over every conceivable dimension of their entire lives.

We approached this project as scholars and social scientists whose goal is to improve NFL player health.

We are independent academic researchers first and foremost, regardless of the source of our funding. We

have no “client” in this endeavor, other than players themselves, and we have no agenda other than to

improve the lives of former, current, and future players. Indeed, the Football Players Health Study is

funded pursuant to money set aside under the 2011 CBA for research designed to help players. Because of

the way the clubs and players split revenues from NFL games and other operations, the funds used for the

Football Players Health Study can reduce the amount of money available to current players in the form of

salary.

Thus, the players have chosen to pay for the Football Players Health Study. In addition, although

our contractual relationship is with the NFLPA, that very same contract protects our academic integrity

without exception; no external party has any control whatsoever over our conclusions.

One of our primary concerns is that too little is known about player health. Specifically, too little is

known from a rigorous scientific perspective about the risks and benefits of playing professional football

because available data are insufficient in a variety of respects. For example, “[w]e do not know what

factors exacerbate or mitigate an individual’s risk, including genetics, nutrition, lifestyle, as well as length

of time and position played, and injuries sustained during playing years.”

Professional football players

are an elite and unique group of men who must be studied directly and often in large numbers before we

can really understand how football has affected them. Only then can we fully address any health problems

they may have. We come to this work with no pre-existing agenda—we have neither any interest in

ending professional football nor any interest in looking the other way if confronted with compelling data

of its downsides. Again, we are interested only in helping players lead the healthiest and most productive

lives they possibly can. We are committed to going where the science takes us.

Finally, we are forward-looking. Our role is not to evaluate fault or assign blame for player health

problems, and the Football Players Health Study is uninvolved in any litigation related to these issues.

Instead, we are working with a single-minded focus to develop a clear path for addressing and

remediating existing player health problems, and for preventing such problems from continuing or

occurring in the future—from both clinical and organizational perspectives. Although this process does

include assignment of shared responsibility for protecting and promoting players’ health to a wide variety

of parties, the past is relevant only to the extent that it demonstrates ways to successfully improve going

forward.

These are the guiding principles motivating every aspect of the Football Players Health Study at Harvard

University.

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INTRODUCTION

This Report seeks to improve the health of NFL players (former, current, and future) by comparing

policies, and, where information is available, practices, in the NFL to other elite professional sports

leagues. The leagues share considerable similarities—at their core, they are organizations that coordinate

elite-level athletic competitions for mass audiences. In this respect, the leagues are competitors within the

professional sports industry, with each of them competing for fans’ dollars and attention. The practices

and policies by which the leagues operate are thus often very similar. However, there are also differences

between the leagues. This Report seeks to identify and understand those different policies and practices

that have the possibility to affect player health. Organizations operating within the same industry often

can learn better practices and policies from one another. While leagues and their games are different in

many important respects, making it impractical and unfair to opine as a definitive matter on which of the

leagues’ policies and practices in their totality best protect player health the Report generally concludes

that the NFL’s policies concerning player health appear superior to the other leagues. Nevertheless,

through the nine recommendations contained in this Report, we hope to elucidate several ways in which

the NFL can learn from other leagues and further protect player health.

With the purpose of this Report in mind, the remainder of this Introduction provides additional

background information on the subject matter of the Report and then further introduces the Report by

describing its audience, articulating the process we used to develop our ultimate recommendations, and

clarifying important points about scope.

A. The Leagues

This Report analyzes the policies and practices of the following professional sports leagues:

• The National Football League (“NFL”): The world’s premier professional football league,

consisting of 32 member clubs. The NFL began play in 1920, has its headquarters in New York

City, and is led by Commissioner Roger Goodell. The NFL’s 2017 revenues are estimated to

reach $14 billion.

• Major League Baseball (“MLB”): The world’s premier professional baseball organization,

consisting of 30 member clubs. MLB began play in 1903,

has its headquarters in New York

City, and is led by Commissioner Rob Manfred. MLB’s 2016 revenues were an estimated $10

billion.

• National Basketball Association (“NBA”): The world’s premier professional basketball league,

consisting of 30 member clubs. The NBA began play in 1946, has its headquarters in New York

City, and is led by Commissioner Adam Silver. The NBA’s 2016–17 revenues are projected to be

approximately $8 billion.

• National Hockey League (“NHL”): The world’s premier professional hockey league, consisting

of 30 member clubs. The NHL began play in 1917, has its headquarters in New York City, and is

led by Commissioner Gary Bettman. The NHL’s 2015–16 revenues were an estimated $4.1

billion.

• Canadian Football League (“CFL”): A professional football league consisting of 9 member

clubs, all of which are located in Canada. The CFL began play in 1958, has its headquarters in

Toronto, and is currently looking for a new Commissioner. The CFL’s revenues are an estimated

$200 million annually.

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Although both are professional football leagues, the NFL and CFL playing rules vary in several

important ways. Some of the key distinctions include: (1) in the NFL, a team has four downs to

advance the ball ten yards, while in the CFL a team only has three downs; (2) an NFL field is 120

yards long (including two ten-yard end zones) and 160 feet wide, while an CFL field is 130 yards

long (including two twenty-yard end zones) and 65 yards wide; (3) in the NFL, goalposts are at

the back of the end zone while in the CFL they are on the goal line; and, (4) in the NFL, players

in the backfield are not allowed to be moving forward when the ball is snapped, while in the CFL,

all offensive backfield players (except the quarterback) can be moving forward at the snap.

The NFL’s skill level is considered by most outside observers as superior to the CFL. Many CFL

players aspire to make the NFL while many players who were unable to make it in the NFL turn

to the CFL.

• Major League Soccer (“MLS”): A professional soccer league consisting of 20 clubs. As is

explained in further detail in Chapter 5, Section F: Compensation in MLS, MLS is uniquely

organized—rather than having each club owned and controlled by a different person or entity

(like in the other sports leagues), all of the clubs in MLS are owned and controlled by Major

League Soccer, LLC, a Delaware limited liability company.

The reasoning for this structure is

discussed in Chapter 5. MLS began play in 1996, has its headquarters in New York City, and is

led by Commissioner Don Garber. MLS’ 2016 revenues were an estimated $600 million.

Soccer, as a global game, has dozens of professional leagues around the world. Although MLS

has made strides and is an internationally respected league, it is not the world’s premier soccer

league. The European leagues, such as the English Premier League, Bundesliga in Germany, and

La Liga in Spain are generally considered the best in the world. Nevertheless, we chose to focus

our review on MLS for a few reasons: (1) the European leagues are organized and regulated in

materially different ways than MLS and American sports leagues; (2) the European leagues

generally are not governed by CBAs or a labor-management dynamic like in MLS and North

American sports leagues; and, (3) European laws on a variety of relevant issues are materially

different from American (and Canadian) laws. For these reasons, MLS was the best soccer league

from which to draw useful comparisons to the NFL.

We chose these leagues because of their similarity to the NFL, both structurally and legally. The NFL,

MLB, NBA, and NHL are particularly similar. Each of these leagues has been operating for nearly a

century (or more in the case of MLB) and is an entrenched part of the American sports and cultural

landscape. They share similar structures and operational practices, at least in part because they have

shared many executives, lawyers, stadiums, and fans over the years. Their revenue streams also dwarf

those of any other professional sports leagues, including the CFL and MLS. For these reasons, the NFL,

MLB, NBA, and NHL are commonly referred to collectively as the “Big Four” sports leagues.

Where

appropriate, we also adopt this moniker.

We nevertheless acknowledge that other sports and sports leagues can provide lessons for the NFL and

the other sports leagues concerning player health.

Sports of all kinds present health risks and rewards to

their athletes and thus how those sports manage those risks and rewards is relevant. We have not

undertaken this analysis here, focusing instead on the sports and leagues most similar to the NFL.

B. The Unions

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Each of the leagues discussed in this Report has an important counterpart. The leagues are the constructs

of the individual clubs (or operator-investors in MLS) and thus are principally interested in protecting and

advancing the rights of the clubs. To protect and advance their rights and interests, the players in each of

the leagues have formed a players association, a labor union empowered with certain rights and

responsibilities under federal labor laws.

The players associations are:

• National Football League Players Association (“NFLPA”): The NFLPA was formed in 1956,

has its headquarters in Washington, DC, and is led by Executive Director DeMaurice Smith.

• Major League Baseball Players Association (“MLBPA”): The MLBPA was formed in 1953,

has its headquarters in New York City, and is led by Executive Director Tony Clark, a 15-year

MLB veteran.

• National Basketball Players Association (“NBPA”): The NBPA was formed in 1954,

has its

headquarters in New York City, and is led by Executive Director Michelle Roberts.

• National Hockey League Players Association (“NHLPA”): The NHLPA was formed in 1957,

has its headquarters in Toronto, and is led by Executive Director Don Fehr, who served as

Executive Director of the MLBPA from 1985–2009.

• Canadian Football League Players Association (“CFLPA”): The CFLPA was formed in

1965,

has its headquarters in Stoney Creek, Ontario, and is led by President Scott Flory, a 15-

year CFL veteran.

• Major League Soccer Players Union (“MLSPU”): The MLSPU was formed in 2003,

has its

headquarters in Bethesda, Maryland, and is led by Executive Director Bob Foose.

The principal right and purpose of the unions is to negotiate with the leagues concerning many of the

policies examined in this Report, as is discussed in the next Section.

C. Collective Bargaining Agreements

Nearly all of the policies and practices that we discuss in this Report are contained in and governed by

collective bargaining agreements (“CBA”) agreed to by the league and its respective players association.

In this Section, we provide a brief explanation of CBAs to provide context for and assist in the

comprehension of the Report.

Pursuant to the National Labor Relations Act (“NLRA”), the unions are “the exclusive representative[] of

all the employees in [the bargaining] unit

for the purposes of collective bargaining in respect to rates of

pay, wages, hours of employment, or other conditions of employment.”

Also pursuant to the NLRA,

each league’s clubs, acting collectively as the league, are obligated to bargain collectively with the unions

concerning the “wages, hours, and other terms and conditions of employment” for the players.

We acknowledge that many commentators believe that MLBPA has historically been the strongest union,

and that the NFLPA has been regarded as having been less effective by comparison.

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However,

complexity and nuance belie any easy comparisons. For context, the NFLPA’s union membership is

roughly the same size of all of the other major unions combined and NFL players generally have shorter

careers than other athletes, creating challenges for building and maintaining solidarity among the players.

Ultimately, the CBAs speak for themselves as the result of the negotiations between the leagues and the

unions. Rather than speculate on the leagues’ and unions’ approaches to player health, we can objectively

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analyze the collectively bargained provisions and policies. Nevertheless, the ability to effectuate change,

including the areas in need of change highlighted in this Report, is a function of each union’s strength.

Since the 1960s, the Big Four leagues and their respective players associations have each negotiated

approximately ten to 15 CBAs.

The CBAs are hundreds of pages long and govern nearly every aspect

of the sports. Collective bargaining is inherently a give-and-take dynamic where the negotiating power

and leverage of each side plays an important role in the outcome. Both league and union leadership and

the dynamics between the leagues and unions have changed over time, resulting in varied CBA

negotiations and results. Nevertheless, generally speaking, most important changes in leagues’ policies

and practices are the result of the CBA process. Consequently, CBAs are of paramount importance to

understanding how the leagues function and making recommendations for improvement.

The CBA represents the key covenant between players and club owners, on all matters pertaining to

player health (alongside many other important issues that matter to these parties). The most

straightforward way to implement many of the changes we recommend to protect and promote player

health would be to include them in the next CBA. That said, whenever change is possible outside of the

CBA negotiating process, it should not wait. Moreover, although the CBA will often be the most

appropriate mechanism for implementing our recommendations, we do not want to be understood as

suggesting that player health should be treated like just another issue for collective bargaining subject to

usual labor-management dynamics. As an ethical matter, players should not be expected to make

concessions in other domains in order to achieve gains in the health domain. To the contrary: player

health should be a joint priority, and should not be up for negotiation.

Finally, it is important to clarify our writing process concerning the MLB-MLBPA CBA. MLB reviewed

a draft of this Report in the fall of 2016 and provided comments in September 2016. We made edits based

on those comments and asked MLB for additional information in October 2016. On November 30, 2016,

MLB and the MLBPA agreed to the terms of a new CBA.

On December 2, the league and union issued

a joint press release providing the terms of the new CBA,

and on December 14, the MLB owners and

the MLBPA Executive Board (consisting of player representatives) ratified the new CBA.

Nevertheless,

as of the date that our Report went to press on March 18, 2017, the full length CBA had not yet been

publicly released. Thus, while we were able to update the Report based on the information contained in

the joint press release, additional details, nuance or context may be contained in the full length CBA when

it is publicly released. On February 27, 2017, we provided MLB with the sections of this Report relevant

to MLB, including those which were edited based on the press release about the new CBA. In March

2017, MLB provided additional comments on the revised sections of the Report before it went to press.

D. Audience

This Report has several key audiences. There are those that we see as the major change agents: current

players; club owners; the NFL; the NFLPA; club medical staff; and, various player advisors (e.g., contract

advisors, financial advisors, and family members). If change is to occur, these are the key individuals and

entities that will need to effectuate it. But we live in an era where discussions about protecting and

promoting player health extend far beyond these change agents. Fans, the media, the NFL’s business

partners, and others all have a stake in—and more importantly, some power to shape—how the policies

and practices of NFL football will evolve to best protect and promote player health. Finally, while our

focus is on promoting the health of NFL players, much of what we have learned and discuss here is likely

useful to the other leagues as well.

Writing for such divergent audiences is a significant challenge. Ultimately, we decided to err in favor of

providing a more comprehensive analysis, with all the complexity and length that entails.

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E. Goals and Process

This Report has four functions. First, to identify the various policies that do or could influence the health

of players in the various leagues. Second, to describe the policies and their relation to protecting and

promoting player health. Third, to evaluate the capacity of these policies to protect and promote player

health, in particular, by comparing policies on similar issues. And fourth, to recommend changes to

policies that affect NFL players grounded in our evaluation of certain approaches taken by other leagues

that appear to be more favorable.

It is worth describing those functions in greater depth.

1. Identify

To arrive at the policy domains analyzed herein, we considered for potential analysis any policy or

practice that can, does, or should affect player health. Our prior Report, Protecting and Promoting the

Health of NFL Players: Legal and Ethical Analysis and Recommendations, offers a comprehensive

analysis of stakeholders and issues affecting NFL player health. That Report mapped a wide variety of

issues, and this Report more closely examines how the NFL and other leagues have handled some of

them. This Report includes six Chapters analyzing different policies concerning player health: (1) Club

Medical Personnel; (2) Injury Rates and Policies; (3) Health-Related Benefits; (4) Drug and Performance-

Enhancing Substance Policies; (5) Compensation; and, (6) Eligibility Rules.

One important limitation to the domains we include in this Report deserves explicit discussion. This

Report focuses primarily on written policies and rules. We have intentionally avoided analysis about

unwritten practices within the leagues, which is a practical limitation to our work. The policies we have

analyzed are generally codified in the CBAs and other documents and can easily be reviewed. To

accurately understand unwritten practices would require gathering substantial data from individuals

working in the leagues. For example, understanding the relationship among clubs, club medical

personnel, and players—and the ways in which these relationships might vary among the leagues—is

interesting and important. However, without collecting data from representative portions of both players

and club medical personnel in all of the leagues, we cannot fairly compare club medical personnel

practices across the leagues. Gathering such data is beyond the scope of the current project. Therefore, we

focus on the written policies that govern club medical personnel.

We similarly researched the role and practices of clubs, coaches, agents, and financial advisors

concerning player health across the different leagues. However, again, reliable data about the practices of

these groups across each of the leagues—as opposed to their policies—generally does not exist and is

challenging to gather. Such information would clearly be useful, and thus we encourage others to conduct

such research if sufficient funding and access to the relevant populations can be obtained. However, for

practical purposes, this Report focuses primarily on the relevant policies in each of the leagues. By

understanding these policies, we can understand the range of relationships and actions expressly permitted

and analyze whether existing policies could allow for or give rise to potentially problematic situations

could arise.

2. Describe

As discussed above, our analysis of the leagues’ policies stemmed largely from reviewing the CBAs and

other publicly available policies and documents, such as court filings, medical studies, law review

articles, and news articles. To supplement our review, in some cases we requested that the leagues and/or

unions provide us with information and documents that were not otherwise available. The leagues and

unions provided varying degrees of cooperation:

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• The NFL provided documents and information relevant to our prior report, Protecting and

Promoting the Health of NFL Players: Legal and Ethical Analysis and Recommendations, as well

as this Report. However, the NFL declined our invitation to review this Report.

• The NFLPA provided documents and information relevant to our prior report, Protecting and

Promoting the Health of NFL Players: Legal and Ethical Analysis and Recommendations, as well

as this Report. The NFLPA was also provided with a draft of this Report to review but did not

provide comments.

• MLB provided documents and information that we requested, reviewed the Report, and provided

comments.

• The MLBPA declined our invitation to review the Report.

• The NBA provided documents and information that we requested, reviewed the Report, and

provided comments.

• The NBPA was provided with a draft of this Report to review but did not provide comments.

• The NHL reviewed the Report but declined to provide specific comments. The NHL stated

“[w]ith respect to NHL-related information contained in the draft report, there are numerous

factual and data-related inaccuracies. By way of example, the report references and relies upon

certain outdated/superceded (sic) NHL/NHLPA policies and procedures. In addition, certain of

the cited analytical data appears to be inaccurate. As a result, analysis of and conclusions drawn

from such policies, procedures and data are flawed.”

In response to this statement, on multiple

occasions we requested additional information or specification about those items the NHL

believed were inaccurate. The NHL did not respond.

In addition, the NHL declined to provide copies of the following requested documents: (1) the

NHL/NHLPA Authorization Form for Health Care Providers to Release Health Information; (2)

the NHL/NHLPA Concussion Program Authorization Form; (3) the Authorization for

Management and Release of Neuropsychological Test Results; (4) the Substance Abuse and

Behavioral Health Program; (5) the Prohibited Substances List for the Performance Enhancing

Substances Program; and, (6) the NHL Concussion Protocol.

• The NHLPA reviewed the Report and provided comments and relevant documents. The NHLPA

requested that the following statement appear in the Report to explain its involvement:

The NHLPA is pleased to have been able to respond to the authors’ request for

comments regarding a late draft of the study, and to provide certain of the

information requested. The information and comments were provided to the

authors of the study on the strict understanding that they were not to be attributed

to the NHLPA in the text of the study, either directly or by implication. Nothing

in the study, including the study’s decision not to address a question or issue, is

to be construed as reflective of the position of the NHLPA.

• MLS declined our invitation to review the Report and declined to provide relevant documents,

including a Medical Policies and Procedures Manual and MLS’ injury reporting policy.

• The MLSPU provided documents and information that we requested, reviewed the Report, and

provided comments.

• The CFL provided some degree of cooperation by providing some information during a telephone

call. However, after that call, the CFL declined to provide additional information or documents

and declined our invitation to review the Report.

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• The CFLPA provided documents and information that we requested, and was provided a draft of

the Report to review but did not provide comments.

As a result of the varying degrees of cooperation from the leagues and unions, we were not able to

explore certain issues as deeply as we would have liked, in particular the relationships among clubs, club

medical staff, and players. We again highlight this and other practices as areas calling for further research,

provided the leagues provide the necessary access and information.

Importantly, while the leagues and unions had the opportunity to comment, and their comments in many

instances did inform the content of this Report, we retained control over the final content of the Report.

We carefully considered the comments from the leagues and unions and made changes we determined

were appropriate but no reviewer had the authority to demand that any change be included. Thus, review

should not be considered an individual endorsement of any part of the final Report.

3. Evaluate

Once we understood the leagues’ varying policies, we could compare and contrast them. In cases where

other leagues had policies that differed from the NFL we asked, “If the NFL adopted this policy, would it

improve player health?” In doing so, we were careful to take into account the leagues’ different

circumstances and motivations. Nevertheless, in certain situations, we were able to identify gaps and

opportunities for better protecting and promoting the health of NFL players. On the other hand, in some

instances, we discovered that the NFL has more protective policies in place than other leagues, indicating

that the learning from this Report can be multi-directional.

4. Recommend

The primary goal of this Report is to make recommendations that improve the overall health of NFL

players. Our analysis is thus principally focused on understanding other leagues’ policies and practices

and comparing them to the NFL’s. As will be shown in this Report, it would be reasonable to conclude

that overall the NFL’s policies and practices concerning player health are the most protective of player

health among the leagues. However, there are still some areas in which the NFL might learn lessons as

compared to one or more comparator leagues and we have made corresponding recommendations.

Additionally, even though our analysis likely reveals many areas in which other leagues can and should

improve concerning the health of their players, as described above, it is beyond the scope of this Report to

make those recommendations—we focus only on advancements for NFL players.

For every recommendation we describe both the reason for the change and, where applicable, potential

mechanisms by which it may be implemented. However, we avoided being overly specific or prescriptive

when multiple options for implementation may exist, and/or when we lacked sufficient information to

determine which mechanism might be best.

While we consider and discuss a wide range changes that could improve player health, we purposefully

chose to focus on actionable recommendations that could be realistically achieved between the

publication of this Report and execution of the next NFL-NFLPA CBA.

This pragmatic approach does

not mean that we are giving relevant stakeholders a pass to simply accept the many current barriers to

change that may exist, but it does recognize that change may be difficult in this complex web of

relationships and in a culture that has developed over the course of many decades and is deeply

entrenched. Furthermore, certain changes might require further information, research, or discussion than

we were able to achieve in this Report. When we concluded that was the case, we so indicated by

recommending only that a change be “considered” or that additional information be sought. Our

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recommendations may not be easy to achieve, but we have taken into account various realities in making

them.

Finally, it is important to recognize that we do not view our recommendations as the exclusive changes

that the various stakeholders should consider. We do, however, view these as minimum next steps

forward—a floor, not a ceiling.

Appendix A is a compendium of all of the recommendations made in this Report. As discussed above, the

NFL’s policies concerning player health on the whole appear superior to the other leagues. Consequently,

we include only nine recommendations in this Report. This is not to say there are not other areas in which

the NFL can improve player health. Indeed, in our Report Promoting the Health of NFL Players: Legal

and Ethical Analysis and Recommendations, we included 76 recommendations for improving player

health directed at a variety of stakeholders, including the NFL and NFLPA. This Report is focused only

on those Recommendations that are derived from an understanding of other leagues’ policies.

F. Scope

As already alluded to, the scope of this project is to generate legal and ethical recommendations that will

improve the overall health of NFL players, current, future, and former. To fully grasp what is to come, it

is essential to clarify these parameters.

As described at length in the Introduction to our Report Promoting the Health of NFL Players: Legal and

Ethical Analysis and Recommendations, we adopt a broad definition of health that extends beyond the

sort of clinical measurements that might immediately be evoked by the phrase. We maintain the

importance of considering the full range of non-medical inputs that can influence health, also known as

the “social determinants of health.” These social determinants extend beyond the sorts of things for which

one would seek out a doctor’s care, and include broadly “the conditions in which people are born, grow,

live, work, and age,” as affected by the “distribution of money, power, and resources at global, national

and local levels.”

Indeed, the NFL’s Player Engagement Department itself includes “physical strength,”

“emotional strength,” “personal strength,” and “financial strength” within its concept of “total

wellness.”

Ultimately, for the purposes of all of our work, we define health for purposes of this Report as “a state of

overall wellbeing in fundamental aspects of a person’s life, including physical, mental, emotional, social,

familial, and financial components.”

In making recommendations regarding NFL player health, we have taken as our threshold the moment

that a player has exhausted or foregone his remaining college eligibility and has taken steps to pursue an

NFL career—from that point on, what needs to happen to maximize his health, even after he leaves the

NFL? The reason we have selected this frame is not because the health of amateur players—those in

college, high school, and youth leagues—is secure or unimportant. Instead, the reason is largely

pragmatic: there is only so much any one report can cover. We recognize that what happens at the

professional level can have a trickle-down effect on the culture of football across the board, and also that

some amateur players may be taking health risks in hopes of eventually reaching the NFL, even when that

may be highly unlikely. Nonetheless, our goal with this Report, prompted by the limited scope of the

request for proposals for this project and in part by the fact that further analysis will be possible by others,

is only to address the already complicated set of factors influencing the health of NFL players, current,

future, and former.

That said, many of our recommendations will be most relevant to current and future players, simply

because former players may not continue to be engaged with or affected by many of the stakeholders that

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we are analyzing, or may be past the point at which implementation of particular recommendations could

help them. For example, no matter what improvements we recommend related to club doctors, these

simply could not affect players who are no longer affiliated with any club.

CHAPTER 1: CLUB MEDICAL PERSONNEL

This Chapter discusses the role of club medical staff, including both doctors and athletic trainers, in each

of the sports leagues as set forth in the leagues’ various controlling policies, most principally, the CBAs.

In particular, we focus on: (1) the types of medical personnel required, if any; (2) the medical personnel’s

obligations; (3) the obligations of the players concerning club medical personnel; (4) the relationship

between the medical personnel and the clubs; and, (5) the existence of sponsorship arrangements between

medical personnel and the clubs, if any.

Our focus here is on the structural issues that are generally governed by the CBA or other policies rather

than how each individual club hires and supervises its medical personnel and how individual medical

personnel interact with individual players, matters that are not the subject of extensive reporting or

publicly available research. By understanding what is required or permitted pursuant to the CBA or other

policies we can understand the scope of possible practices, including those that might be concerning as

they relate to player health.

To provide context for the policies we examine in this Chapter, it is important to provide background on

the subjects most relevant to player health. We discuss those below, and then provide background on two

additional issues relevant to club medical personnel and this Chapter, before reviewing the policies of

each league.

Subjects Relevant to Player Health

There are a wide variety of laws, statutes, regulations, and ethical codes that govern the actions of sports

medical professionals. For example, the American Medical Association (“AMA”)’s Code of Medical

Ethics (“AMA Code”)

governs the conduct of nearly all doctors, and contains multiple provisions

applicable to the duties and obligations of club doctors. Similarly, the leading sports medicine

organization, Fédération Internationale de Médecine du Sport (“FIMS”), publishes a Code of Ethics.

And, for athletic trainers, the National Athletic Trainers Association (“NATA”) has a fairly robust Code

of Ethics.

The full panoply of laws, statutes, regulations, and ethical codes and their application to professional

sports is complex and discussed at length in our prior Report: Protecting and Promoting the Health of

NFL Players: Legal and Ethical Analysis and Recommendations. Here, we identify some of the principles

discussed in that Report most relevant to understanding the different leagues’ efficacy in protecting and

promoting player health: (a) quality of medical care; (b) disclosure and player autonomy; (c)

confidentiality; and, (d) conflicts of interest. While we do not organize the Chapter by these issues, they

served as the framework for our analysis and we thus elaborate on them here.

a. Quality of Medical Care

Playing professional sports comes with a risk of injury that likely exceeds most traditional employment

situations. Moreover, a player’s health is essential to his performance and career longevity. Consequently,

it is important that players have access to high quality healthcare and healthcare that is suited to meet their

sport-specific needs. In this respect, we are interested in whether the leagues have policies that require

certain types of medical professionals and certain certifications that are likely to be most responsive to a

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professional athlete’s healthcare needs. Additionally, we are interested in whether the leagues clarify the

standard of care to be provided to players.

b. Disclosure and Player Autonomy

There is broad support in law and ethics for a patient’s right to autonomy—the right to make his or her

own choices concerning healthcare.

A key correlate of a patient’s right to make his or her own

decisions is the obligation of the healthcare provider to disclose relevant medical information. Players are

patients too and deserve the same protections we all seek in our medical decision-making.

As it

concerns professional sports leagues, we are interested in what types of information or records the clubs

are required to provide to players, what type of healthcare options are available to players outside of the

club, and what level of control the club retains over the player’s healthcare choices.

c. Confidentiality

One of the fundamental principles of the doctor-patient relationship is that a patient’s medical information

must be treated confidentially.

However, this principle is put under pressure in situations where an

employee’s health is relevant to the employee’s ability to perform his job, and his healthcare is provided

in the employment context, both of which are the case in professional sports. While we recognize club

interests and rights in accessing certain player health information, appropriate safeguards are needed in

dictating the degree to which player medical information can be disclosed and disseminated. We look

carefully to see which leagues have put such safeguards in place and to what extent. We also examine

confidentiality protections when a player obtains care from a healthcare professional outside of the club,

including whether the club has any rights to view that information.

d. Conflicts of Interest

Club medical staff—such as doctors and athletic trainers—are clearly fundamental to protecting and

promoting player health. However, they face an inherent structural conflict of interest. This is not a moral

judgment about them as competent professionals or devoted individuals, but rather a simple fact of the

current organizational structure of their positions, in which they simultaneously perform at least two roles

that are not necessarily compatible. On the one hand, they are hired by clubs to provide and supervise

player medical care. As a result, they have a legal and ethical responsibility to protect and promote the

health of their player-patients, in line with players’ interests as defined by the players themselves. This

means providing care and medical advice aligned with player goals, and also working with players to help

them make decisions about their own self-protection, including when they should play, rest, and

potentially retire.

On the other hand, clubs engage medical staff because medical information about and assessment of

players is necessary to clubs’ business decisions related to a player’s ability to perform at a sufficiently

high level in the short- and long-term. Additionally, clubs engage medical staff to advance the clubs’

interest in keeping their players healthy and helping them recover as fully and quickly as possible when

they are injured. These dual roles for club medical staff may sometimes conflict because players and

clubs often have conflicting interests, but club medical staff are called to serve both parties. We examine

what the leagues are doing (or are not doing) to protect players from these conflicts.

Similarly, many healthcare organizations are interested in being associated with professional sports clubs

to enhance their reputation and exposure. Consequently, these organizations seek to enter into a variety of

commercial arrangements with clubs, including some whereby a healthcare organization pays the club for

the right to provide medical care to the players. Such arrangements may raise concerns about how

medical professionals treating players are being selected (e.g., skill or payment) and whether these

38!

relationships have the potential to undermine the care provided to players or trust in the healthcare

professionals providing that care.

Additional Introductory Issues

a. Independent Contractors Versus Employees

Where possible, we have provided information concerning whether club doctors in a particular league are

independent contractors or employees of the club. The distinction has important ramifications from a

potential liability perspective vis-à-vis workers’ compensation laws.

Workers’ compensation statutes provide compensation for workers injured at work and thus generally

preclude lawsuits against co-workers based on the co-workers’ negligence.

Thus, in cases where the

club doctor is an employee of the club—as opposed to an independent contractor as is the case for most

club doctors—a player’s lawsuit against the doctor is likely to be barred by the relevant state’s workers’

compensation statute. This has been the result in multiple cases brought by athletes against clubs and club

doctors,

as well as in cases brought by athletes against athletic trainers,

who are almost always

employees of the club. Where the club doctors are independent contractors instead of employees, the

players can pursue medical malpractice cases against the doctor,

but the club is not likely to be held

legally responsible for any negligence by the doctor.

b. Healthcare in Canada

The second issue worth mentioning now concerns Canadian clubs. MLB (one club), the NBA (one), NHL

(seven), CFL (all nine), and MLS (three) have Canadian clubs. As Canadian and United States laws differ

concerning healthcare, an understanding of the Canadian healthcare system is necessary for any

discussion of the relationship between Canadian clubs and medical personnel.

The Canadian healthcare system is a social, welfare-based system, wherein “access to health care is

viewed as a right” and is financed through government funding.

The ten Canadian provinces and three

territories separately administer healthcare plans modeled off of the federal Canada Health Act of 1984.

The federal government ensures provincial compliance with the federal template through the threat of loss

of federal funding.

Compliant plans must cover “insured services”—a defined term in the Canada

Health Act that includes medically necessary hospital services, hospital facilities, drugs used in hospitals,

medically necessary services rendered by medical practitioners, and medically required surgical/dental

services performed in a hospital. In addition, plans must also meet the five principles of the Canada

Health Act: public administration; provincial portability; universality; comprehensiveness; and,

accessibility.

Given the gaps in coverage (for example, drugs outside of hospitals and vision/dental

services performed outside of hospitals are generally not covered), private spending still makes up 29% of

Canadian healthcare expenditures.

“As far as delivery of services is concerned, most physicians are independent contractors operating on a

fee-for-service basis.”

These physicians receive fees that are fixed through negotiations between medical

associations and provincial governments, and there is no additional billing.

To collect payment,

physicians directly bill the provincial medical services association.

Physicians providing non-covered

services, however, directly bill patients, who pay through private insurance or out-of-pocket.

Of course,

this is different from the United States. Outside of some specific populations, including but not limited to

those covered by Medicare, Medicaid, or the Veterans Affairs healthcare system, most Americans have

private health insurance either through their own insurance plan or one sponsored by their employer.

***

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With these introductory issues in mind to provide context, we turn now to analyzing club medical

personnel policies in each of the leagues. For each league, we analyze: (1) Types of Medical Personnel;

(2) Medical Personnel’s Obligations; (3) Players’ Obligations; (4) Relationship between Medical

Personnel and Clubs; and, (5) Sponsorship Arrangements.

A. Club Medical Personnel in the NFL

1. Types of Medical Personnel

a. Doctors

The CBA obligates NFL clubs to retain certain kinds of doctors:

• Club Physicians: Clubs must retain

a board-certified orthopedic

surgeon and at least one physician board-certified in internal medicine,

family medicine, or emergency medicine. All physicians must also have

a Certificate of Added Qualification in Sports Medicine. In addition,

clubs are required to retain consultants in the neurological,

cardiovascular, nutritional, and neuropsychological fields.

• Physicians at Games: “All home teams shall retain at least one [Rapid

Sequence Intubation] RSI physician who is board certified in emergency

medicine, anesthesia, pulmonary medicine, or thoracic surgery, and who

has documented competence in RSI intubations in the past twelve

months. This physician shall be the neutral physician dedicated to game-

day medical intervention for on-field or locker room catastrophic

emergencies.”

Of note, these two provisions do not require clubs to retain and have available neurological doctors at the

games. The absence of this requirement is offset by the Concussion Protocol’s

requirement that for

every game each club be assigned an Unaffiliated Neurotrauma Consultant to assist in the diagnosis of

concussions.

Most (if not all) of the doctors retained by NFL clubs are members of the National Football League

Physicians Society (“NFLPS”). The stated mission of the NFLPS, founded in 1966, “is to provide

excellence in the medical and surgical care of the athletes in the National Football League and to provide

direction and support for the athletic trainers in charge of the care for these athletes.”

Approximately

175 doctors work with NFL clubs,

an average of 5.5 per club. The NFLPS holds annual meetings at the

NFL Combine to discuss medical and scientific issues pertinent to its membership.

According to the NFLPS, 22 of the 32 clubs’ head orthopedists and 14 of the 32 clubs’ head “medicine”

doctors are board-certified in sports medicine.

In addition, although the 2011 CBA requires club

doctors to have a Certificate of Added Qualification in Sports Medicine, currently only 11 out of the 32

head club doctors have such a Certificate. The remaining club doctors were with clubs before the 2011

CBA and were grandfathered in under the new policy.

Notably, the NFLPS does not have a code of ethics for its members.

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b. Athletic Trainers

The CBA dictates the required presence, education, and certification of athletic trainers:

All athletic trainers employed or retained by Clubs to provide services to

players, including any part time athletic trainers, must be certified by the

National Athletic Trainers Association and must have a degree from an

accredited four-year college or university. Each Club must have at least

two full-time athletic trainers. All part-time athletic trainers must work

under the direct supervision of a certified athletic trainer.

Each NFL club employs approximately four athletic trainers, including a head athletic trainer and three

assistants. Head athletic trainers have an average of 21.9 years of experience in the NFL, while assistants

average approximately 8.4 years of experience in the NFL.

In the 2014 season, 26 athletic trainers had at

least 20 years of experience and eight had more than 30 years of experience.

Athletic trainers—unlike

most club doctors—are full-time employees of the club and not independent contractors.

The Professional Football Athletic Trainers Society (“PFATS”) is an organization that represents the

athletic trainers of NFL clubs.

“[M]embership in PFATS is limited to those professionally certified in

accordance with the most current NFL Collective Bargaining Agreement and who are employed full-time

as head or assistant athletic trainers by any of the 32 NFL franchises.”

PFATS’ mission statement is as

follows:

The Professional Football Athletic Trainers Society (PFATS) is a

Professional Association representing the athletic trainers of the National

Football League. We serve the players of the NFL, the member Clubs,

and other members of the community. Our purpose is to ensure the

highest quality of health care is provided to the National Football

League. We are dedicated to the welfare of our members and committed

to the promotion and advancement of athletic training through education

and research. The Society is founded on the professional integrity and the

ethical standards of our members and the fellowship that exists among

us.

PFATS does have a Code of Ethics for its members. However, as discussed in greater depth in our

Report, Protecting and Promoting the Health of NFL Players: Legal and Ethical Analysis and

Recommendations, the Code of Ethics is seriously flawed and requires substantial changes to be

protective of player health.

2. Medical Personnel’s Obligations

The CBA requires each NFL club to “use its best efforts to ensure that its players are provided with

medical care consistent with professional standards for the industry.”

The CBA expounds on this

provision by articulating its conception of the club doctor’s standard of care:

[E]ach Club physician’s primary duty in providing medical care shall be

not to the Club but instead to the player-patient. This duty shall include

traditional physician/patient confidentiality requirements. In addition, all

Club physicians and medical personnel shall comply with all federal,

state, and local requirements, including all ethical rules and standards

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established by any applicable government and/or other authority that

regulates or governs the medical profession in the Club’s city.

(Emphasis added.)

This CBA provision is susceptible to multiple interpretations. On a generous reading (i.e., one that does

not give the italicized language any special emphasis), club doctors’ primary duty is to the player at all

times. On a less generous reading, the CBA provision demands a primary duty to the player-patient only

in situations where the club doctor is “providing medical care,” and thus is inapplicable when the club

doctor is rendering services to the club. Importantly, however, the way club doctors are currently situated

within the club precludes the two roles from being truly separated, and thereby precludes club doctors

from having their exclusive duty be to the players. This is because at the same time that the club doctor is

providing care to the player, he is simultaneously performing duties for the club by judging the player’s

ability to play and help the club win.

Thus, the club doctor is required by the CBA to provide medical care that puts the player-patient’s

interests above the club’s (in the event these interests conflict), which is as it should be. However, in most

instances—and as seemingly recognized by the CBA—it is impossible under the current structure for the

club doctor to always have a primary duty to the player-patient over the club, because sometimes the club

doctor is not providing care, but rather is advising the club on business decisions, i.e., fitness-for-play

determinations. In other words, the club doctor cannot always hold the player’s interests as paramount

and at the same time abide by his or her obligations to the club. Indeed, a club doctor could provide

impeccable player-driven medical care (treating the player-patient as primary in accord with the CBA),

while simultaneously hurting a player’s interests by informing a club that the player’s injury and

treatment course will negatively impact his ability to play. Thus, under any reading of the CBA provision,

players lack a doctor who is concerned with their best interests at all times—an unacceptable situation.

Relatedly, the CBA provision also seems to require that the care relationship between players and club

doctors be afforded “traditional” confidentiality protections. However, clubs request or require players to

execute collectively-bargained waivers effectively waiving this requirement—and no player refuses to

sign the waiver.

Questions might be raised as to whether the players are providing meaningful and

voluntary informed consent in their execution. Players are being compelled to waive certain legal rights

concerning their health without meaningful options. There is no doubt that players execute the waivers

because they fear that if they do not, they will lose their job. Indeed, the waivers (which are collectively

bargained with the NFLPA)

permit the athletic trainer and club doctors to disclose the player’s medical

information to club employees, such as coaches and the general manager. Thus, it is unclear what work

this CBA language is doing. Of course, given this communication, it is inevitable that players will be less

than forthcoming about their medical needs, lest it negatively affect their career prospects.

In reviewing a draft of our Report, Protecting and Promoting the Health of NFL Players: Legal and

Ethical Analysis and Recommendations, the NFL rejected our claim that the CBA provision “requires the

traditional patient-physician confidentiality requirements of a private system,”

even though the

provision in question specifically says club doctors have a duty to provide “traditional physician/patient

confidentiality requirements.” The CBA provision does not qualify the club doctor’s duty in the context

of the employer-employee relationship. The NFL should abide by its obligations under the CBA.

The CBA also imposes disclosure requirements on club doctors:

All Club physicians are required to disclose to a player any and all

information about the player’s physical condition that the physician may

from time to time provide to a coach or other Club representative,

whether or not such information affects the player’s performance or

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health. If a Club physician advises a coach or other Club representative

of a player’s serious injury or career threatening physical condition

which significantly affects the player’s performance or health, the

physician will also advise the player in writing. The player, after being

advised of such serious injury or career-threatening physical condition,

may request a copy of the Club physician’s record from the examination

in which such physical condition was diagnosed and/or a written

explanation from the Club physician of the physical condition.

Additionally, club doctors are obligated to permit a player to examine his medical records once during the

pre-season and once after the regular season. Club doctors are also obligated to provide a copy of a

player’s medical records to the player upon request in the off-season.

Nevertheless, in reality, the NFL

now has an electronic medical record system that permits players to obtain access to their medical records

at any time.

Finally, there are no CBA provisions that address an athletic trainer’s obligations.

3. Players’ Obligations

The CBA and Standard NFL Player Contract impose certain obligations on players concerning their

relationship with club medical personnel.

First, players are required to “undergo the standardized minimum pre-season physical examination and

tests” that are agreed to as part of the CBA.

Second, players are obligated to “undergo a complete physical examination by the club physician upon

club request, during which physical examination Player agrees to make full and complete disclosure of

any physical or mental condition known to him which might impair his performance… and to respond

fully and in good faith when questioned by the Club physician about such condition.”

Third, players seemingly have an ongoing obligation to report injuries to the club. The CBA permits clubs

to fine players up to $1,770 if the player does not “promptly report” an injury to the club doctor or athletic

trainer.

We are not aware of any guidance on what constitutes “promptly report[ing].”

Fourth, whenever a player seeks a second medical opinion or exercises his right to have the surgeon of his

choice perform an operation, the player must first consult with the club doctor if he wishes to have the

club pay for the second medical opinion or surgery.

Additionally, if the player sees a second opinion

doctor and wants the club to pay for it, “the Club physician must be furnished promptly with a report

concerning the diagnosis, examination and course of treatment recommended by the other physician.”

4. Relationship between Medical Personnel and Clubs

As a preliminary matter, each member of an NFL club’s medical staff is typically chosen by the club’s

front office executives, e.g., the club president or general manager.

a. Doctors

Club doctors are affiliated with a wide variety of private practice groups, hospitals, academic institutions,

and other professional sports leagues. Some of these institutions have long-standing relationships with

clubs which often help lead to the doctor being retained by the club. The NFLPA plays no role in the

selection of club doctors other than ensuring they have the qualifications required by the CBA and are

43!

properly licensed in the relevant state(s), via Synernet, a third-party vendor jointly selected by the NFL

and NFLPA.

Additionally, of the NFL’s 32 head club doctors, two are employees and 30 are

independent contractors.

Also, while it is our understanding that club doctors’ contracts are generally reviewed and renewed on an

annual basis, there is very little turnover among club doctors.

Actual statistics and practices of club doctor compensation are difficult to ascertain. In the course of our

research, we were informed by some familiar with the industry that club doctors are generally paid in

relatively nominal amounts compared to what one might expect ($20,000–$30,000).

In reviewing a draft

of our Report, Protecting and Promoting the Health of NFL Players: Legal and Ethical Analysis and

Recommendations, the NFL stated that this estimate “grossly underestimates compensation to Head Team

Physicians, Head Team Orthopedists and Head Team Internists.”

Nevertheless, the NFL did not provide

alternative compensation statistics.

In addition, despite the relatively high scrutiny club doctors face, it is our understanding that their

contracts with the clubs do not include any type of indemnification whereby the club would pay for the

defense, settlement, or verdict of a medical malpractice claim.

Despite the various challenges, club doctors have a variety of reasons for being interested in the position.

Many of them are sports fans and thus the opportunity to work up close and personal with some of the

best athletes in the world is exciting. From a business perspective, a doctor’s association with an NFL

club could be powerful in terms of professional respect and name recognition, resulting in more patients.

b. Athletic Trainers

Athletic trainers—unlike most club doctors—are full-time employees of the club and not independent

contractors.

Athletic trainers are generally an NFL player’s first and primary source of medical care.

Club doctors

are only with the club sporadically during the week of practice and then attend the games, whereas the

athletic trainers are with the club at all times. Players will first meet with the athletic trainer concerning a

medical issue and the athletic trainer then typically determines whether the player should meet with the

club doctor. The athletic trainers and club doctors are in regular communication about players’ conditions

and treatment. The club doctors are responsible for directing and supervising the care of the players by the

athletic trainers.

Players execute waivers permitting the athletic trainer and club doctors to disclose the player’s medical

information to club employees, such as coaches and the general manager.

Athletic trainers—in

consultation with the club doctors—thus keep coaches and general managers apprised of players’ injury

statuses during regular meetings so the general manager can make a decision about whether or not to sign

another player in the event a player is unable to play.

These waivers effectively undermine the

confidentiality protections outlined in the CBA.

5. Sponsorship Arrangements

The NFL first instituted a Medical Sponsorship Policy in 2004.

At its core, the Policy, most recently

amended in 2014, permits clubs to enter into a Sponsorship Agreement

100

with a medical services provider

(“MSP”)

101

, but prohibits such agreements that also include the provision of medical services. Stated

another way, “[n]o Club may enter into a contract for the provision of medical services to its players that

is interdependent with, or in any way tied to a Sponsorship Agreement with a [MSP].” The Medical

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Sponsorship Policy does not define “interdependent” and instead the NFL reviews the arrangements to

ensure there is no interdependence.

102

The Policy also explicitly declares that clubs are permitted to enter into agreements with MSPs whereby

the MSP obtains the right to advertise itself as an “official” or “proud” “sponsor,” “partner,” or

“provider.”

103

A review of club websites and media guides shows that at least 25 clubs currently have

some type of “official” healthcare sponsor or partner.

Additionally, the Medical Sponsorship Policy does not prohibit MSPs from paying for the right to provide

medical services to players, although, according to the NFLPS, no MSP currently pays for the right to

provide medical services to players. The Policy also does not limit an MSP’s ability to bargain for the

right to provide healthcare to a club by offering discounted or free services.

Importantly, even in situations where an MSP enters into an agreement to provide medical services to a

club but has not entered into a sponsorship agreement of any kind, the MSP can benefit from the

association. The MSP could still identify itself as a healthcare provider for the club on its website and in

advertisements, within the bounds of relevant intellectual property, professional advertising, and

consumer protection laws and regulations. In other words, the MSP likely could not use the club’s logo

without permission or try to make it appear that the club was actively endorsing the MSP’s services. In

2004, the marketing director of Methodist Hospital explained the value of the hospital’s association with

the Houston Texans:

We track phone calls coming in from new patients…. The No. 1 driver of

our calls is the association with our local teams. People say they heard

that Methodist is where the players go, so it must be the best. It’s not a

coincidence that we are the best, but there isn’t a better way to convince

them. That’s a win-win situation.

104

Finally, it is worth noting that institutional MSPs can be a party to the doctor’s contract with the club to

the extent that such an arrangement is necessary for medical malpractice insurance or for practice

privileges.

When asked for its position on medical sponsorship in the NFL, the NFLPA stated only that it “insisted

upon changes that minimized conflicts of interest resulting in changes to the NFL’s Medical Sponsorship

Policy in 2014/15.” The NFLPA declined to provide further detail on the negotiations or what specific

changes it insisted upon, indicating that the discussions were confidential and that the Medical

Sponsorship Policy is unilaterally promulgated by the NFL. The NFLPA indicated that its “sole

objective” regarding the Medical Sponsorship Policy “is to reduce conflicts of interest and to ensure the

best care possible for its members.” Nevertheless, the NFLPA did not indicate that it is opposed to

medical sponsorship agreements. In addition, we recognize the medical sponsorship agreements provide

clubs—and thus the players—with a lucrative source of revenue.

Below are examples of relationships between MSPs, including doctors, and clubs with a discussion of

whether these relationships would be prohibited or permitted by the 2014 Medical Sponsorship Policy.

However, it is important to keep in mind that the 2014 Medical Sponsorship Policy is complex and, at

times, unclear. Additionally, the document is not collectively bargained and there is no generally

available guidance. Thus, what follows is our best interpretation of the Policy. A more detailed discussion

of the Medical Sponsorship Policy can be found in our Report, Protecting and Promoting the Health of

NFL Players: Legal and Ethical Analysis and Recommendations.

105

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Table 1-A: Arrangements Prohibited by Medical Sponsorship Policy

Description

Explanation

Agreement with MSP to provide medical services to

club on an exclusive basis.

Policy prohibits agreements with MSPs for the

exclusive provision of medical services, thus

enabling clubs and players to seek necessary

medical care elsewhere.

Agreement allowing institutional MSP to select the

doctors mandated by the CBA to provide care to the

club.

Policy prohibits agreements that permit MSP to

select CBA-mandated doctors; these doctors

must be selected by the club.

Agreement with MSP to provide medical services to

club on a non-exclusive basis alongside the right to

post advertisements in the club’s stadium using club

trademarks.

Each of these agreements would be permitted on

its own, but not jointly; policy prohibits medical

services agreements that are interdependent with

Sponsorship Agreements with MSPs.

Agreement with MSP to provide medical services to

club on a non-exclusive basis alongside naming

rights to the club’s practice facility.

Each of these agreements would be permitted on

its own, but not jointly; policy prohibits medical

services agreements that are interdependent with

Sponsorship Agreements with MSPs.

Agreement with doctor to provide medical services to

club on a non-exclusive basis alongside agreement

for his or her institutional MSP to post

advertisements in the club’s stadium using club

trademarks.

Each of these agreements would be permitted on

its own, but not jointly; policy prohibits medical

services agreements that are interdependent with

Sponsorship Agreements with MSPs.

Agreement with doctor to provide medical services to

club on a non-exclusive basis but doctor reports to

institutional MSP concerning care provided to

players

Policy requires doctors to report directly to the

club.

Table 1-B: Arrangements Permitted by Medical Sponsorship Policy

Description

Explanation

Potential Concerns

Agreement with MSP to pay the

club to provide medical services

to club on a non-exclusive basis.

Policy does not prohibit MSPs

from paying for the right to

provide medical services.

Club might choose MSP that is

willing to pay the most rather

than the best MSP.

Agreement with MSP to provide

medical services to club on a

non-exclusive basis, whereby

MSP has agreed to no

compensation or compensation at

rates below the MSP’s standard

rate and market rates.

Policy does not prohibit MSPs

from discounting the costs of

their services for the right to

provide medical services.

Club might choose MSP willing

to charge lowest rates rather than

the best MSP.

Agreement with MSP to provide

medical services to club on a

non-exclusive basis and MSP has

the right to call itself the

“official” doctor or healthcare

provider of the club.

Policy expressly permits

agreements that permit MSPs to

call themselves the “official”

doctor or healthcare provider.

MSP will attach monetary value

to “official designation,” and

alter payment structure as a

result—leading to clubs choosing

MSPs based on reduced rates

rather than skill.

Agreement with MSP to provide

Policy permits MSPs and clubs

Whether the two agreements are

46!

medical services to club on a

non-exclusive basis and a

separate agreement to post

advertisements in the club’s

stadium using club trademarks.

to enter into medical services and

Sponsorship Agreements so long

as they are not “interdependent.”

“interdependent” is difficult to

enforce. Implied agreements and

long-standing practices could

result in clubs choosing MSPs

based on Sponsorship

Agreements rather than skill.

Agreement with MSP to pay the

club for the right to call itself the

“official” healthcare provider of

the club and to post

advertisements in the club’s

stadium using club trademarks

but does not actually provide any

medical services to the club.

Policy expressly permits

Sponsorship Agreements with

MSPs “so long as these

agreements do not involve the

provision of medical service to

players.”

Does not directly affect player

health but raises concerns about

whether the general public will

falsely rely on the MSP’s

declaration that it is the “official”

healthcare provider.

In reviewing a draft of our Report, Protecting and Promoting the Health of NFL Players: Legal and

Ethical Analysis and Recommendations, the NFL stated that it “disagree[d] entirely with the conclusions

reached in Table [1]-B,”

106

without explaining why it reads the plain text of the Policy so differently than

we do. The fact that two sets of trained attorneys (those who authored this Report and those at the NFL)

interpret the Policy differently demonstrates that it should be clarified. Ideally, the NFL will make the

Policy public to allow for further discussion and review.

107

As these charts demonstrate, while the NFL has made progress in regulating the payment to and from club

doctors for sponsorship, on a plain reading of the Policy, there are still a number of ethically fraught

arrangements the current Policy appears to leave in place.

108

With this understanding of the NFL policies, we are now ready to begin the comparison to the other

leagues.

B. Club Medical Personnel in MLB

As explained in the Introduction, Section C: Collective Bargaining Agreements, in the fall of 2016, MLB

and the MLBPA agreed to and ratified the terms of a new CBA. However, as of the date this Report went

to press, the parties had not yet published the new CBA. Thus, this Section summarizes the information

contained in the 2012 CBA, with relevant changes revealed

in a joint press release issued by the parties summarizing the changes agreed to in 2016. Additional

details, nuance or context may be contained in the full length CBA when it is publicly released.

1. Types of Medical Personnel

a. Doctors

MLB policy requires “[t]he home Club [to] have a Club physician (medical or surgical) present for every

game.”

109

The home club doctor is also “expected to provide medical coverage for the visiting Club.”

110

addition, MLB policy requires each club to appoint a head doctor to be “responsible for all medical

decisions of the Club, and [to] serve as the primary liaison between the Club and the Office of the

Commissioner‘s Medical Director on all medical issues.”

111

A club’s head doctor must be “licensed to practice medicine in the club’s home state and be Board

Certified in his or her specialty.”

112

In addition, club doctors providing medical coverage at games must

47!

be “able to handle all common injuries and illnesses that would be expected during a professional baseball

game, including the evaluation and management of concussions.”

113

MLB’s policies concerning club doctors differ from the NFL’s in four important respects. First, while

there are several provisions referencing club doctors in the CBA,

114

there is no CBA provision that

explicitly requires clubs to retain doctors. Second, of the policies that do exist, none are in the CBA,

which permits MLB to change them without MLBPA input or approval. Third, neither MLB policy nor

the CBA requires clubs to retain certain kinds of doctors, whereas the NFL CBA requires clubs to retain a

board-certified orthopedic surgeon at least one physician board-certified in internal medicine, family

medicine, or emergency medicine, and consultants in the neurological, cardiovascular, nutritional, and

neuropsychological fields.

115

Fourth, unlike the NFL, MLB does not require that all club doctors have a

Certificate of Added Qualification in Sports Medicine.

The professional organization for MLB club doctors is the MLB Team Physicians Association

(“MLBTPA”). MLBTPA’s “mission is to maintain the earned trust of the athletes and teams of Major and

Minor League Baseball, as well as the public, by providing the highest quality medical care and services

aimed at securing and enhancing their safety, health and well-being.”

116

The MLBTPA website lists 117

members, an average of 3.9 per MLB club. Research did not reveal an MLBTPA code of ethics specific

to its members.

The 2012 CBA did not require clubs to retain doctors and the publicly released details of the 2016 CBA

do not indicate that anything has changed in that regard. However, the 2016 CBA did make two relevant

additions: (1) clubs are now required to provide access to a sports psychologist;

117

and, (2) MLB and the

MLBPA agreed to jointly retain a dietician to provide recommendations to players and clubs on nutrition

and supplements.

118

b. Athletic Trainers

Like the NFL CBA, the MLB CBA requires the employment of certified athletic trainers:

Each Club shall employ two Certified Athletic Trainers on a full-time

basis. Both trainers will travel with the Club on the road; provided, that

one trainer may remain in the Club’s home city if necessary for the Club

to fulfill its obligations to disabled players who do not travel with the

Club.

Individuals newly appointed as trainers shall be certified by the National

Athletic Trainers Association (NATA) or the Canadian Athletic

Therapists Association (CATA), or shall be physical therapists licensed

by an appropriate state authority.

119120

The professional organization for MLB club athletic trainers is the Professional Baseball Athletic Trainer

Society (“PBATS”). “PBATS mission is to serve as an educational resource for the Major League and

Minor League Baseball athletic trainers. PBATS serves its members by providing for the continued

education of the athletic trainer as it relates to the profession, helping to improve his understanding of

sports medicine so as to better promote the health of his constituency—professional baseball players.”

121

Research did not reveal a PBATS code of ethics specific to its members.

In reviewing a draft of this Report, MLB stated as follows:

48!

The insinuation in the report that MLB team physicians and certified

athletic trainers do not have a code of ethics is patently untrue. All MLB

physicians are board certified in their respective specialties and are

obligated to practice medicine under general ethical codes that govern all

licensed physicians, as well as the more specific codes of ethics of the

appropriate licensing bodies and other professional organizations by

which they are a member (e.g., AAOS, AMSSM, etc.). Since all MLB

athletic trainers are members of the National Athletic Trainers

Association and are also licensed by their respective state authorities,

these codes of ethics apply to and govern this group of medical

professionals. MLB takes the position that the duties and obligations of

Club medical representatives are not negotiable subjects of bargaining,

and are not an appropriate part of our CBA.

We understand MLB’s point and revised the report to clarify that there are not codes of ethics specific to

members of the MLBTPA and PBATS. Nevertheless, we disagree with MLB that medical personnel

working with professional sports clubs do not need their own codes of ethics. Club medical personnel

face a variety of complex situations that are not adequately contemplated or addressed by existing codes

of ethics, most notably balancing their obligations to provide care to the player while also advising the

club about players’ health. Codes of ethics adopted by professional organizations for club medical

personnel would supplement existing codes of ethics by providing guidance and tenets for the unique and

competitive environment in which they must operate.

122

2. Medical Personnel’s Obligations

a. Doctors

The CBA contains the following provisions concerning the club doctor’s duties or obligations.

123

First, club doctors are “prohibited from making any public disclosure of a Player’s medical information

absent a separate, specific written authorization from the Player authorizing such public disclosure.”

124

The NFL CBA does not contain a specific prohibition such as this, but the AMA’s Code of Ethics does.

125

Second, “[i]f a player on a visiting Club receives medical treatment from the home Club’s physician,

certified athletic trainer or other medical professional for a work-related injury, a copy of any written

medical evaluation prepared by the home Club’s medical professional shall be provided to the Player and

his Club’s physician.”

126

Third, if a player is a free agent and requests a copy of his medical records from his prior club, the “Club

shall provide such records within 10 days of such request.”

127

Fourth, the CBA requires club doctors to use a standardized medical history questionnaire when

conducting initial physical examinations of players.

128

Fifth, the CBA requires that for a player to be placed on the Disabled List, a standard form of diagnosis,

including an estimated time period for recovery, must be submitted by the club doctor, a copy of which

must be provided to the player.

129

Sixth, the CBA sets forth MLB’s policy concerning the assessment and management of concussions.

130

Club doctors are involved in determining whether a player has suffered a concussion, whether the player

should be placed on the Disabled List, and clearing the player to return to play.

131

49!

We turn now to the standard of care for MLB club doctors. When asked specifically about this issue,

MLB directed us to its minimum game day standards and the MLBTPA mission statement, both of which

were discussed above. However, neither the game day standards nor the mission statement sets forth a

standard of care for club doctors specific to MLB club doctors or that goes beyond what is already

required by codes of ethics and relevant law applicable to all doctors. By comparison, the NFL, NHL and

MLS CBAs all set forth standards of care for their club doctors which, in particular, attempt to address the

conflict of interest inherent in having doctors that treat players while also providing services to the club.

132

Also unlike the NFL, MLB policies do not: require club medical staff to inform players about

communications between the medical staff and the club; entitle players to the surgeon of their choice

(discussed further below); or, entitle players to their medical records as a general matter.

Concerning medical records, in reviewing a draft of this Report, MLB “dispute[d]… that players are not

entitled to their medical records as a general matter. The medical records maintained in MLB’s league-

wide electronic medical records system is a player’s legal medical file, and players are entitled to this

information upon request.” While it is useful that players can obtain their medical records upon request,

players would likely view their records more if they were able to access their records without having to

obtain the club’s assistance, as NFL players can.

b. Athletic Trainers

The CBA is also sparse concerning athletic trainers’ obligations. The only provision governing athletic

trainers is their involvement in MLB’s protocol for assessing and managing concussions. MLB’s

concussion protocol requires that players “involved in an incident during a game that is associated with a

high risk of concussion… will be evaluated on the field for a potential concussion by a Certified Athletic

Trainer (‘ATC’) following the National Athletic Trainers’ Association (‘NATA‘) guidelines for

management of sports-related concussions.”

133

As stated above, the player cannot return to play until he

has been cleared by the club doctor.

134

Additionally, MLB regulations require that “[a]ll ATCs comply with the NATA definition of an athletic

trainer, which states that ‘athletic trainers work under the direction of physicians, as prescribed by state

licensing statutes.’”

135

3. Players’ Obligations

Players are subjected to the following requirements concerning their relationships with club medical

personnel.

First, MLB’s Uniform Player Contract requires players, “when requested by the Club, [to] submit to a

complete physical examination at the expense of the Club, and if necessary to treatment by a physician,

dentist, certified athletic trainer or other medical professional in good standing.”

136

While the NFL CBA

requires players to submit to physical examinations, it does not directly require players to submit to

treatment. Nevertheless, in practice, if an NFL player failed to undergo treatment recommended by the

club medical staff, the club could argue that the player failed to fulfill his obligations under the contract.

Second, “[p]rior to undergoing a ‘second evaluation,’ a Player shall inform the Club in writing of his

decision to seek a second medical opinion, and the name of the physician who will be performing the

diagnosis and medical evaluation.”

137

In order for the club to pay for the cost of the second medical

opinion, the doctor providing the opinion must be on a list of doctors created by MLB’s Medical

Advisory Committee and a medical professional designated by the MLBPA.

138

The NFL CBA similarly

50!

requires players to consult with the club before seeking a second medical opinion but does not limit a

player’s options to a pre-approved list.

Third, if a player seeks medical treatment from a doctor unaffiliated with the club for a baseball-related

injury, the player must advise the club in advance and obtain the club’s authorization for the treatment.

139

The player does not have to notify the club of consulting with another doctor if the player does not

receive treatment for the injury, and is not invoking his right to have the club pay for a second medical

opinion.

140

Additionally, a player does not have to advise the club about treatment for a non-baseball-

related injury, provided the injury does not affect his ability to play.

141

4. Relationship between Medical Personnel and Clubs

MLB does not have any policies concerning how clubs select or monitor medical personnel.

142

Club-

doctor relationships, including compensation, duration of a contract, supervisory control, and hiring and

termination, are decisions made by each individual club.

143

Perhaps partially as a result, club doctors’

roles, employment situations, and compensation vary significantly around MLB.

144

In 2004, MLB

attorneys reportedly suggested that clubs consider classifying their doctors as employees in order to

reduce medical malpractice insurance premiums.

145

Despite this report, as in the NFL, most club doctors

are independent contractors and “only a few” club doctors are employees.

146

Clubs retain certain rights concerning a player’s healthcare. Specifically, “the Club has the right to

designate the doctors and hospitals when a Player is undergoing a surgery for an employment related

injury,” but are required to “take a Player’s reasonable preferences into account when designating doctors

to perform surgery[.]”

147

In contrast, NFL players have the right to a surgeon of their choice.

MLB and the MLBPA have collectively bargained a form that permits club medical personnel to disclose

any of the player’s health information to “the Owner, President, General Manager, Assistant General

Manager, Field Manager, Physicians and such medical personnel as they may designate, Certified

Athletic Trainer, Assistant Certified Athletic Trainer, Club Rehabilitation Coordinator, In-House Counsel,

Risk Manager and Workers’ Compensation Coordinator of the Club” “for any purpose relating to [the

player’s] employment as a player for the Club[.]”

148

The player has the right to revoke the authorization

(assuming he signed it).

149

However, any revocation appears to be effectively meaningless because, as

part of the Uniform Player Contract, the player agrees “that the Club’s physician and any other physician

or medical professional consulted by the Player… may furnish to the Club all relevant medical

information relating to the Player.”

150

The club also has the right to provide the player’s medical

information to clubs with which the player’s club is in trade negotiations.

151

MLB’s practices in this

regard are comparable to the NFL, where players generally sign broad waivers permitting clubs to obtain,

use, and disclose their medical information.

Turning to athletic trainers’ practices specifically, like in the NFL, MLB athletic trainers are the primary

caregivers for injuries suffered during the season.

152

Indeed, club doctors are not permitted by MLB

regulations to sit in the dugout.

153

Club doctors reportedly do not travel to regular season away games,

and, instead, the home club’s doctors are responsible for overseeing the healthcare of both the home and

visiting clubs, as well as all managers, coaches, and umpires.

154

MLB regulations also require that athletic

trainers “comply with the [National Athletic Trainers Association] definition of an athletic trainer, which

states that ‘athletic trainers work under the direction of physicians, as prescribed by state licensing

statutes.’”

155

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5. Sponsorship Arrangements

In 2004, MLB prohibited sponsorship arrangements between clubs and medical providers that included

“the right of the [sponsor] to be the medical service provider for the club’s players and employees.”

156

Under MLB’s policy, clubs must negotiate at arm’s length for medical services, and the Commissioner

must approve all sponsorship agreements with healthcare providers.

157

The Commissioner has approved

such sponsorship arrangements with medical providers where “the Club has had a pre-existing

relationship with the hospital or doctors prior to the sponsorship, and the terms of the health care

agreement were unaffected by the sponsorship.”

158

Additionally, MLB’s medical sponsorship policy is the

result of negotiations with the MLBPA.

159

Nevertheless, MLB’s policy does not prohibit clubs from “enter[ing] into traditional sponsorship

arrangements with [medical service providers] involving, for example, advertising, hospitality or the use

of trademark rights, provided that such agreements are otherwise consistent with Major League Baseball

policy and applicable law.”

160

Thus, it appears that MLB clubs are permitted to enter into sponsorship

agreements with medical service providers so long as those agreements do not involve the provision of

medical care to the players. Indeed, many MLB clubs have sponsorship relationships with regional

healthcare providers.

161

MLB’s medical sponsorship policy is substantially similar to the NFL’s. While there are gaps and room

for interpretation, the general purpose of both policies is to prevent healthcare providers from paying for

the right to provide medical care to the players. Additionally, MLB’s medical sponsorship policy is

slightly less concerning from a player perspective since it was negotiated with the MLBPA. In contrast,

the NFL’s Medical Sponsorship Policy is unilaterally imposed.

C. Club Medical Personnel in the NBA

1. Types of Medical Personnel

a. Doctors

Like the NFL CBA, the NBA CBA requires clubs to retain doctors with certain qualifications:

Each Team agrees to secure the services of at least two (2) physicians as

team physicians. Beginning with the 2017-18 Season, each individual

hired for the first time to perform services as a team physician must be a

duly licensed physician who as of the hiring date: (i) is board certified

and fellowship trained in his/her field of medical expertise; (ii) has at

least five (5) years of post-fellowship clinical experience; and (iii) has

successfully completed a fellowship in sports medicine, has a

Certification of Added Qualification (CAQ) in sports medicine, or has

other “sports medicine” qualifications as the parties may agree.

162

In addition, the CBA provides that:

Each Team has the sole and exclusive discretion to select any doctors,

hospitals, clinics, health consultants, or other health care providers

(“Health Care Providers”) to examine and/or treat players pursuant to the

terms of this Agreement and the Uniform Player Contract; provided,

however, no Team will engage any such Health Care Provider based

primarily on a sponsorship relationship (or lack thereof) with the Team,

52!

and without considering the Health Care Provider’s qualifications

(including, e.g., medical experience and credentials) and the goal of

providing high quality care to all of its players.

163

This provision’s application to potential sponsorships will be discussed below.

The professional organization for NBA club doctors is the NBA Physicians Association (“NBAPA”).

164

review of NBA club websites and media guides demonstrates that NBA clubs are typically affiliated with

two to three doctors. Research did not reveal an NBAPA code of ethics specific to its members.

However, according to the NBA, the NBAPA By-Laws provide that the first purpose of the organization

is “to achieve the best possible medical care for the professional basketball player.” Finally, NBPA

representatives are permitted to participate in meetings of the NBAPA “for the purpose of discussing

matters related to the medical care and treatment of players.”

165

b. Athletic Trainers

Like the NFL CBA, the NBA CBA dictates the required presence, education, and certification of athletic

trainers:

Each Team agrees to secure the services of at least one (1) athletic trainer

to serve as the Head Athletic Trainer and one (1) athletic trainer to serve

as an Assistant Athletic Trainer on a full-time basis. Beginning with the

2017-18 Regular Season: (i) each individual hired for the first time to

perform services as an athletic trainer for a Team must as of the hiring

date: (a) be certified by the National Athletic Trainers Association

(NATA)

166

or the Canadian Athletic Therapists Association (CATA) (or

a similar organization as the parties may agree), and (b) hold a current

certification in Basic Cardiac Life Support or Basic Trauma Life

Support; and (ii) each individual hired for the first time to perform

services as a Head Athletic Trainer for a Team must, as of the hiring

date, have at least three (3) years of experience as an athletic trainer since

he/she first received the foregoing NATA/CATA certification.

167

The professional organization for NBA club athletic trainers is the National Basketball Athletic Trainers

Association (“NBATA”). The NBATA describes itself as “a professional organization of highly skilled

certified athletic trainers who provide specialized health care and critical support services to the athletes

and organizations of the National Basketball Association.”

168

The NBATA further describes its purpose as

to: “[l]ead the management and practice of exceptional health care; [p]rovide continuing education to our

members; [p]rovide education and conduct basketball-related sports medicine research to benefit our

athletes, the National Basketball Association, and the National Basketball Athletic Trainers Association,

and our communities; [and,] [u]phold the athletic training profession’s highest moral and ethical

standards.”

169

According to the NBATA, there are 57 athletic trainers, approximately 1.9 per club.

Research did not reveal an NBATA code of ethics specific to its members, beyond its statement of

purpose.

The role of NBA athletic trainers is similar to that of athletic trainers in the other leagues. Athletic trainers

are typically with the club at all times, are the player’s first line of medical care and will liaise with

doctors and other medical professionals as necessary.

170

53!

2. Medical Personnel’s Obligations

The NBA CBA contains two notable provisions concerning club medical personnel’s obligations.

171

First, the CBA requires that “a player requiring the care and treatment of an orthopedic surgeon will, as

far as practicable, be referred to and treated by one (1) orthopedic surgeon (rather than several.)”

172

Second, the club must provide a player with his medical records within 48 business hours of the player’s

request.

173

In contrast, the NFL CBA only entitles players to their medical records once during the pre-

season, once after the regular season, and upon request in the off-season.

174

However, in practice, the

NFL’s electronic medical records system provides players with 24/7 access to their medical records.

Similarly, the NBA CBA says that one of the goals of its electronic medical records system is to “give

players the ability to easily access their own health information” but it is unclear whether there is a portal

through which players can access their medical records 24/7.

In addition to the above CBA provisions, according to the NBA, the NBA Operations Manual also

regulates medical personnel’s obligations including but not limited to their “timing of presence at games,

handling of situations involving blood, gloves, washing skin surfaces, cleaning procedures for skin, and

additional obligations under cardiac and concussion screenings, prescription drug policies, etc.”

Notably, unlike the NFL, no NBA policy sets forth the standard of care for club doctors. Also unlike the

NFL, NBA policies do not: require club medical staff to inform players about communications between

the medical staff and the club; or, entitle players to the surgeon of their choice. The NBA CBA—like the

NFL’s—does entitle players to their own medical records.

The 2017 NBA CBA did, however, introduce an interesting CBA provision that is worth discussing. In

the event the NBA, a club or the NBPA

has been advised by a physician that a player is medically unable and/or

medically unfit to perform his duties as a professional basketball player

as a result of a potentially life-threatening injury, illness or other health

condition and/or that performing such duties would create a materially

elevated risk of death for the player, then the NBA, a Team, or the

Players Association may refer the player to a Fitness-to-Play Panel….

Once so referred, the player will not be permitted to play or practice in

the NBA until he is cleared to do so by the Panel[.]

175

Beginning in 2017, the NBA and NBPA are creating Fitness-to-Play Panels with respect to: (i) cardiac

illnesses and conditions; and, (ii) blood clots and other blood conditions and disorders, and will consider

others as necessary.

176

The three-member Panels are to consist of expert doctors in these fields, with one

doctor appointed by the NBA, one doctor appointed by the NBPA, and the third doctor appointed by the

first two doctors.

177178

The determination to be made by the Panel is whether, in the panel’s

reasonable medical judgment and experience, and having considered

current medical knowledge and the best available objective evidence: (i)

the player is medically able and medically fit to perform his duties as a

professional basketball player; and (ii) performing such duties would not

create a materially elevated risk of death for the player.

179

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If a player’s condition is referred to a Fitness-to-Play Panel, prior to the Panel’s review of his condition,

he must “(on behalf of himself, his heirs and assigns)… sign a release and covenant not to sue agreement

in the form agreed upon” by the NBA and NBPA.

180

Similarly, if the player is cleared to play, the player

must sign an “informed consent and assumption of risk agreement” in a form agreed to by the NBA and

NBPA.

181

These forms are not publicly available, and thus we cannot opine on whether they comport

with applicable law and codes of ethics.

Nevertheless, even if the Panel clears the player to play, the club is not required to let him play or

practice.

182

Instead, if the club continues to believe that the player should not play, within 60 days the club

must trade the player, release him from the club or amend his contract in such a way that might enable

him to play.

183

The “Fitness-to-Play” provision is, as far as we know, unprecedented in professional sports and

seemingly arises out of a challenging situation in the NBA. In February 2015, Miami Heat star player

Chris Bosh was diagnosed with a blood clot in his calf muscle, that later spread to his lungs.

184

As a result,

Bosh missed a significant portion of the Heat’s games in the 2014-15 and 2015-16 seasons.

185

Then, in

September 2016, with the 2016-17 season approaching, Bosh failed his physical with the club when the

Heat’s doctor determined Bosh’s need for blood thinners made playing professional basketball too

risky.

186

Bosh’s desire to continue playing may have prompted the creation of the Fitness-to-Play Panels

though, as of February 2017, it is unclear whether Bosh intends to utilize the process.

187

The new Fitness-to-Play Panels are interesting and innovative but new. Thus, we recommend that the

NFL monitor their use and consider their potential application to the NFL. In its review of the Report, the

NBA indicated its belief that the Fitness-to-Play Panels are an important new right for players. However,

we note that NBA clubs retain considerable discretion in choosing whether to play players and thus it is

unclear how much value the Panels provide to players. Lastly, we note that the Fitness-to-Play provision

may implicate the Americans with Disabilities Act and/or the Genetic Information Nondiscrimination

Act. For more on the intersection of these statutes and professional sports, see our law review article,

Evaluating NFL Player Health and Performance: Legal and Ethical Issues, 165 U. Penn. L. Rev. 227

(2017).

3. Players’ Obligations

NBA players are entitled to a second medical opinion at the club’s expense provided the player’s injury or

illness meets one of the following criteria:

(i) has prevented the player from participating in a Regular Season or

playoff game for two (2) weeks or more; (ii) in the opinion of a Team

physician for the player’s Team, is more likely than not to prevent the

player from being able to participate in an NBA game for two (2) weeks

or more (or during the off-season, from participating in competitive

basketball without restriction for two weeks or more); (iii) in the opinion

of the Team physician will not be significantly aggravated by the player

continuing to participate in NBA games (or during the offseason

participating in basketball without restriction) when the player

reasonably believes that continued participation will significantly

aggravate his injury, illness or condition; (iv) results in direction from the

Team physician that the player should undergo surgery; or (v) results in

direction from the Team physician that the player should not undergo

surgery when the player reasonably believes that surgery is necessary for

the injury, illness or other health condition.

55!

Additionally, the club will only cover the cost of the second medical opinion if: (1) the doctor providing

the second medical opinion is from a list of doctors jointly maintained by the NBA and NBPA;

188

and, (2)

prior to obtaining the second medical opinion, the player provides the club with the “name of the

physician who will be performing the evaluation, and the date and location of the evaluation.”

189

The circumstances under which NBA players can obtain second opinions are limited as compared to

players’ options in the NFL. NBA players can only obtain second opinions in the above described

scenarios whereas NFL players can obtain a second opinion whenever they would like, provided that if

the club is to pay for the second opinion, the player first consults with the club doctor. Nevertheless, NBA

players’ rights to a second opinion was only added as part of the 2017 CBA. It thus remains to be seen

how the provision operates in practice. For example, NBA players may be able to obtain second opinions

as freely as NFL players.

Despite the player’s right to obtain a second medical opinion, the club is only required to “consider the

second opinion in connection with [the player’s] diagnosis or treatment” (emphasis added).

190

In other

words, the club doctor’s opinion as to the proper course of treatment controls even if it conflicts with the

second opinion doctor’s opinion. If the player fails to comply with the club doctor’s recommended

course of treatment, it is possible the player could be found to be in violation of his obligations under his

contract, including “to keep himself throughout each NBA Season in good physical condition.”

191

While

this provision potentially provides club doctors with the authority to determine the course of treatment

against a player’s wishes, we are not aware of any circumstance in which that has been the case.

Nevertheless, this arrangement contrasts with the situation in the NFL, where the CBA does not grant

club doctors the ultimate authority to determine the diagnosis and treatment for the player. In practice,

players are generally free to follow the course of treatment recommended by the second opinion doctor, a

clear positive for NFL players.

In addition to obligations in order to obtain a second medical opinion, the NBA Uniform Player Contract

imposes several requirements on players concerning their cooperation with the club’s medical personnel.

First, a player must “provide to the Team’s coach, trainer, or physician prompt notice of any injury,

illness, or medical condition suffered by him that is likely to affect adversely the Player’s ability to render

the services required under [his] Contract, including the time, place, cause, and nature of such injury,

illness, or condition.”

192

NFL players are similarly obligated to report their injuries.

Second, “[s]hould the Player suffer an injury, illness, or medical condition, he will submit himself to a

medical examination, appropriate medical treatment by a physician designated by the Team, and such

rehabilitation activities as such physician may specify.”

193

NFL players are also obligated to submit to a

medical examination but are not obligated to follow the treatment recommended by the club medical staff.

Instead, NFL players are entitled to a second medical opinion and the surgeon of their choice.

Third, a player must “submit to a physical examination at the commencement and conclusion of each

Contract year… and at such other times as reasonably determined by the Team to be medically

necessary.

194

Relatedly, players are required to “submit to reasonable screening and baseline testing (e.g.,

pursuant to NBA cardiac and concussion protocols) and, in connection with such screening and testing,

shall accurately and completely answer all reasonable health questions (including, upon request,

providing accurate and complete medical histories).”

195

Again, NFL players are also obligated to submit

to medical examinations and to provide an accurate medical history.

Fourth, a player must “at the commencement of [his] Contract, and upon the request of the Team…

provide a complete prior medical history.”

196

Similarly, the Standard NFL Player Contract and

56!

standardized minimum pre-season physical both require NFL players to provide a complete medical

history.

Fifth, a player must “supply complete and truthful information in connection with any medical

examinations or requests for medical information authorized by [his] Contract.”

197

“A player who knows

he has an injury, illness, or condition that renders, or he knows will likely render, him physically unable

to perform the playing services required under a Player Contract may not validly enter into such Contract

without prior written disclosure of such injury, illness, or condition to the Team.”

198

If a player does not

make the required disclosure, he risks having his contract voided. The Standard NFL Player Contract

imposes similar disclosure obligations on NFL players.

Sixth, if a player “consults or is treated by a physician (including a psychiatrist) or a professional

providing non-mental health related medical services (e.g., chiropractor, physical therapist) other than a

physician or other professional designated by the Team [the player] shall give notice of such consultation

or treatment to the Team and shall authorize and direct such other physician or professional to provide the

Team with all information it may request concerning any condition that in the judgment of the Team’s

physician may affect the Player’s ability to play skilled basketball.”

199

The NBA CBA imposes this

obligation on players regardless of whether the club is paying for the outside consultation or treatment. In

contrast, the NFL CBA does not require NFL players to make their clubs aware of treatment sought

outside of the club’s medical staff unless the player wishes to have that care paid for by the club.

Seventh, “[a] Player who engages in five (5) or more training or workout sessions with a trainer,

performance coach, strength and conditioning coach, or any other similar coach or trainer other than at the

direction of the Team (each a “Third-Party Trainer”), shall give notice of such training or workout to the

Team prior to the first such training or work out (sic) session, provided that if the player does not initially

plan to continue working with any such Third-Party Trainer for five (5) or more sessions, such notice

must be provided no later than prior to the fifth such session.

200201

The NFL does not contain any

requirement for players to give notice to their clubs of training with third-party trainers.

Eighth, a player is required to “execute such individual authorization(s) as may be requested by the

Team… or as may be required by health care providers who examine or treat the Player.”

202

Although the

NFL CBA does not require players to execute authorizations permitting disclosure of their medical

information, in practice all players execute such authorizations.

4. Relationship between Medical Personnel and Clubs

Our research was unable to determine how many NBA club doctors are employees versus independent

contractors. We also were unable to find reliable information about the typical compensation of NBA club

doctors. The NBA also did not provide non-public information concerning club doctors’ employment

relationships and structures.

203

Clubs are permitted broad access to player medical information. Club doctors are permitted to “disclose

all relevant medical information concerning a player to (i) the General Manager, coaches, and trainers of

the Team by which such player is employed, (ii) any entity from which any such Team seeks to procure,

or has procured, an insurance policy covering such player’s life or any disability, injury or illness such

player may suffer or sustain, and (iii)… the media or public on behalf of the Team.”

204205

Clubs

considering acquiring a player via trade are also entitled to a player’s medical records.

206

Additionally,

according to the NBA, “[e]ach player in the NBA signs a health information authorization form each

season that references disclosure to the media.” These policies are similar to the practices of NFL clubs,

whereby players execute waivers permitting broad disclosure and use of their medical information.

57!

5. Sponsorship Arrangements

As discussed above, the NBA CBA prohibits clubs from retaining medical personnel or entering into

agreements with healthcare providers to treat players if those agreements are “based primarily on a

sponsorship relationship.”

207

Thus, the NBA does not prohibit agreements whereby a healthcare provider

pays for the right to be the club doctor and to be a sponsor of the club, provided the sponsorship is not the

primary reason for the relationship. Consequently, it is not surprising that several clubs are engaged in

sponsorship relationships with healthcare providers that include the provision of care to the players.

208

this respect, the NBA policy falls short of the NFL and MLB’s general prohibitions on healthcare

providers paying for the right to provide care to players. However, in reviewing a draft of this Report, the

NBA noted the possible difference between policy and practice: stating that “[t]he practical differences of

the NBA and NFL/MLB policies may not be as pronounced as the statement in the report implies.” We

acknowledge this distinction between policy and practice. Without additional information concerning

medical sponsorship arrangements, which the leagues were generally unwilling to provide, we cannot

fully evaluate the effects of the leagues’ different medical sponsorship policies.

D. Club Medical Personnel in the NHL

1. Types of Medical Personnel

The NHL CBA, like the NFL CBA, contains robust requirements for club medical personnel.

a. Doctors

The CBA requires doctors to be present at all games:

Each Club shall have a minimum of two (2) team physicians in

attendance at all home games. At least one of the team physicians shall

have successfully completed hockey-specific trauma management

training or Advanced Trauma Life Support training during the previous

three (3) years. Each Club shall have consultant specialists at each home

game (the selection of whom shall be at the discretion of the head team

physician) to complement the skill set of the two (2) team physicians.

Each Club’s team physicians in attendance at home games shall include,

either as part of the two (2) main team physicians or as consultants, (i) an

orthopedist, and (ii) an internal medicine, emergency medicine or

primary care sports physician. At least one of the team physicians shall

have familiarity with the NHL Modified SCAT2 or other comprehensive

standardized acute concussion assessment tool as recommended by the

NHL/NHLPA Concussion Working Group.

209

Since the execution of the CBA, the above requirements have been amended. Clubs are now required to

have three doctors in attendance at each home game, including: (1) an orthopedic surgeon; (2) an internal

medicine or primary care physician; and, (3) a doctor certified and active in emergency medicine. In

addition, now the club’s two primary doctors, their athletic trainers, and any doctor that travels with the

club to away games must be proficient with the X2 SCAT3 App used for evaluating possible concussions.

The CBA also dictates club doctors’ required qualifications:

Each medical doctor hired or otherwise retained by the Club after the

Effective Date of [the CBA] to treat its Players as part of the Club’s

58!

primary medical team shall, in the United States be board certified in his

or her respective field(s) of medical expertise, and in Canada be board

certified by either the Royal College of Physicians and Surgeons (for

specialists) or the College of Family Practice of Canada (for family

physicians). Each Club medical doctor who is part of the primary

medical team hired or retained after the Effective Date of this

Agreement, and any head team physician hired or promoted to such

position after the Effective Date of this Agreement, shall have

successfully completed a fellowship in Sports Medicine or have other

“sports medicine” qualifications as the parties may agree.

210

Nevertheless, our research did not reveal a code of ethics specific to NHL club doctors, which was

confirmed to us by one NHL club athletic trainer that reached out to us concerning our work.

211

b. Athletic Trainers

The NHL CBA also requires the full-time employment and presence of athletic trainers:

Each Club shall employ at least two (2) ATs on a full-time basis. In the

event both ATs do not travel with the Club on the road, and to the extent

reasonably necessary in the Club’s reasonable discretion to provide

adequate services and treatment, the Club shall arrange for alternative

means to provide athletic training services by providing at least one AT,

and either an additional AT or other person of equal or greater medical

training, or a massage therapist. All ATs employed or retained by a Club

to provide services to Players must be certified by the National Athletic

Trainers Association (“NATA”) or the Canadian Athletic Therapists

Association (“CATA”), or shall be physical therapists licensed by an

appropriate state or provincial authority and/or certified as a specialist in

physical therapy, and shall hold current certification in Basic Cardiac

Life Support or Basic Trauma Life Support. At least one of the ATs shall

have familiarity with the NHL Modified SCAT2 or other comprehensive

standardized acute concussion assessment tool as recommended by the

NHL/NHLPA Concussion Working Group.

212

An AT shall be available on the bench at all times during games and

practices. If the AT must leave the bench for any reason, either (A)

another AT must be available to immediately replace such AT on the

bench, or (B) another person with equal or greater medical training must

be available to immediately replace the AT on the bench.

213

As with the CBA provision governing club doctors, the parties have also amended the policies governing

athletic trainers. The new policy requires that, when on the road, each club shall arrange to have at least

one athletic trainer and either an additional athletic trainer or a person of equal or greater medical training

available to the players. The revised policy eliminates discretion clubs previously enjoyed as to whether

to provide such services, and now makes this mandatory.

The professional organization for NHL club athletic trainers is the Professional Hockey Athletic Trainers

Society (“PHATS”). PHATS’ stated mission is to:

59!

1. Encourage and promote the consistent application of the most advanced

knowledge and techniques of the science of athletic training in the

prevention, treatment, and rehabilitation of sports injuries to professional

hockey players.

2. Function as a professional association for professional hockey athletic

trainers to promote the welfare of its members, the profession of athletic

training, and safe participation in the sport of hockey.

3. Provide for the exchange among its members of current ideas,

techniques, and scientific data relating to the prevention and care of

hockey injuries.

4. Support the continued advancement of the athletic training profession.

214

Nevertheless, research did not reveal a PHATS code of ethics specific to its members, which was

confirmed to us by an anonymous NHL club athletic trainer.

The role of NHL athletic trainers is similar to that of athletic trainers in the other leagues. Athletic trainers

are typically with the club at all times, are the player’s first line of medical care, and will liaise with

doctors and other medical professionals as necessary.

215

2. Medical Personnel’s Obligations

The NHL CBA directs that “[e]ach Club shall provide its Players with high quality health care appropriate

to their needs as elite professional hockey players, including access to health care professionals[.]”

216

Seemingly in accordance with this obligation, the CBA also outlines the required relationship between the

club medical personnel and the players:

The primary professional duty of all individual health care professionals,

such as team physicians, certified athletic trainers/therapists (“ATs”),

physical therapists, chiropractors, dentists and neuropsychologists, shall

be to the Player-patient regardless of the fact that he/she or his/her

hospital, clinic, or medical group is retained by such Club to diagnose

and treat Players. In addition, all team physicians who are examining and

evaluating a Player pursuant to the Pre-Participation Medical Evaluation

(either pre-season and/or in-season), the annual exit examination, or who

are making a determination regarding a Player’s fitness or unfitness to

play during the season or otherwise, shall be obligated to perform

complete and objective examinations and evaluations and shall do so on

behalf of the Club, subject to all professional and legal obligations vis-a-

vis the Player-patient.

217

Above, we discussed problems with a similar standard of care outlined in the NFL CBA. The NFL’s

provision requires that “each Club physician’s primary duty in providing medical care shall be not to the

Club but instead to the player-patient.” However, the NFL’s standard of care fails to account for the club

doctor’s obligations to the club—namely to perform fitness-for-play evaluations. The NHL’s provision

seemingly resolves this concern in part, by requiring—without limitation to the circumstances of

providing medical care—that the Club doctor be subject to his or her obligations to the player “regardless

of the fact that he/she… is retained by such Club[.]”

218

The CBA imposes other health-related requirements on clubs and club medical personnel.

60!

First, “If a Player on a visiting team receives medical and/or health diagnosis, treatment, or fitness to play

determination(s)” from the home club medical personnel, the home club must send the visiting club a

written medical report.

219

The NFL CBA has no such provision.

Second, “[e]ach Club shall identify one (1) individual who is responsible for monitoring on an ongoing

basis, or auditing on a regular basis, prescription drugs that have been given to each Player on the Club,

with a particular emphasis on monitoring controlled substances and sleeping pills, if any, that have been

prescribed.”

220

The NFL has no such provision, however, NFL clubs do not store controlled substances

and any prescription drugs are obtained from a retail pharmacy.

221

Third, the club is required to provide a doctor giving a second opinion all relevant medical information

regarding the player, as long as the second opinion doctor is on a “list of medical specialists mutually

agreed upon” by the Joint Health and Safety Committee,

222

a medical advisory committee consisting of

five NHL members and five NHLPA members.

223

The NFL does not explicitly require such cooperation

but, in practice, the second opinion doctor receives all relevant medical information.

224

Fourth, “[a]t the conclusion of each season, the Club shall provide each Player with a complete copy of

his medical records at the time of his annual exit physical (to the extent the Club maintains physical

possession of the Player’s medical records; otherwise the Club’s physician will provide the Player with a

complete copy of his medical records upon the Player’s direction to do so). The exit physical shall

document all injuries that may require future medical or dental treatment either in the near future or post-

career.”

225

This provision is outdated, as the NHL’s electronic medical record system now provides players with

access to their medical records. NFL players are also able to access their electronic medical records at any

time.

226

3. Players’ Obligations

Like the NFL CBA, the NHL CBA provides players the right to a second medical opinion concerning

diagnoses or courses of treatment

227

and the surgeon of their choice, but imposes obligations on players

related to that care.

When seeking a second medical opinion, the player must “advise the Club in writing of his decision to

seek a Second Medical Opinion and the name of the Second Medical Opinion Physician.”

228

The club is

only obligated to pay for the second medical opinion if the player consults with a doctor from the Joint

Health and Safety Committee’s list or otherwise obtains the approval of the club.

229

If the player uses a

doctor from the approved list or approved by the club, the player (or the second opinion doctor) must

provide the club doctor “with a report concerning the diagnosis, examination, and course of treatment

recommended by the Second Medical Opinion Physician[.]”

230

Players do not have to provide the club

with information from a second opinion doctor if the second opinion is obtained outside of the process

outlined in the CBA and if the player arranges and pays for the consultation himself.

If the club doctor and second opinion doctor disagree, the two doctors can agree to have the player

examined by a third doctor.

231

Nevertheless, in the NHL, the club doctor is ultimately entitled to

“determine the diagnosis and/or course of treatment,”

232

including whether “a surgical procedure is the

appropriate course of treatment for the Player.”

233

If the player fails to comply with the recommended

course of treatment, it is possible the player could be found to be in violation of his obligations under his

contract, including “to keep himself in good physical condition[.]”

234235

Nevertheless, we are not aware of

any circumstances in which surgery was performed or recommended against the player’s wishes. In

contrast, the NFL CBA does not set forth how to resolve a dispute between the club doctor and second

61!

opinion doctor. More importantly, the NFL CBA does not grant club doctors the ultimate authority to

determine the diagnosis and treatment for the player. In practice, players are generally free to follow the

course of treatment recommended by the second opinion doctor, a clear positive for NFL players.

An NHL player is entitled to the surgeon of his choice, but the club will only cover the cost of the surgery

if the doctor is on the Joint Health and Safety Committee‘s list or is otherwise approved by the club.

236

After any such surgery, the player (or his doctor) must provide the club doctor “with all relevant records

from the surgeon regarding the surgery[.]”

237

The NFL CBA imposes similar requirements.

Finally, if a player wishes to rehabilitate an injury during the off-season in a city of his choice, the player

must obtain permission from the club and send periodic status reports to the club.

238

If the club is not

satisfied with the player’s progress, the club can require the player to continue his rehabilitation in the

club’s city.

239

The NFL CBA does not address player’s off-season training locations.

4. Relationship between Medical Personnel and Clubs

The NHL declined to provide any information concerning the employment or financial relationships

between NHL clubs and their doctors, and our independent research did not uncover more information.

240

The only information we received on this issue was from the anonymous athletic trainer discussed above,

who explained that the club medical staff is typically hired by the club’s general manager.

Most of our information about the relationship between NHL clubs and their medical staff is based on the

CBA itself. The CBA permits clubs to disclose player medical information in a variety of situations. The

CBA requires players to execute three different health-related authorizations: (1) the NHL/NHLPA

Authorization Form for Health Care Providers to Release Health Information; (2) the NHL/NHLPA

Concussion Program Authorization; and, (3) the Authorization for Management and Release of

Neuropsychological Test Results.

241

The content of the authorization forms is unknown, but the CBA

does explicitly allow disclosure of player medical information “as reasonably required for professional

sports operations, between and among a Club’s Club Personnel

242

for purposes related to the Player’s

employment as an NHL hockey Player.”

243

Additionally, club personnel, the NHL and the NHLPA may disclose a player’s medical information: (1)

as required by the player’s Standard Player Contract or the CBA, e.g., determining a player’s fitness to

play; (2) when the information is relevant to a grievance; (3) when the information is relevant to an

investigation of whether the player or club violated the CBA or Standard Player Contract; (4) as permitted

by the authorization forms discussed above; (5) for purposes of the club seeking advice regarding its

rights and obligations; (6) for purposes of injury surveillance and as authorized by the electronic medical

record system; (7) to a club considering acquiring the player via trade; (8) to the player’s agent; (9) as part

of the player obtaining a second opinion; (10) to treat the player in an emergency; (11) to doctors and

individuals involved in managing the Performance Enhancing Substances Program or the Substance

Abuse and Behavioral Health Program; and, (12) to vendors and administrators as necessary.

244

These

disclosure policies are similar to the practices of NFL clubs.

5. Sponsorship Arrangements

Our research has not revealed whether the NHL has a medical sponsorship policy and the NHL declined

to provide any information on the matter. In 2012, the Canadian newspaper The Globe and Mail reported

that at least ten US-based NHL teams had an “official medical provider.”

245

According to the report, these

clubs had a variety of relationships with their healthcare providers, with some clubs paying their club

doctors a salary, others exchanging perks for pro bono services, and a minority of clubs accepting

payment from medical groups.

246

Additionally, some clubs entered into a sponsorship agreement with a

62!

medical service provider but independently retained club doctors from outside of that service provider’s

network.

247

The anonymous athletic trainer who contacted us confirmed that in his experience these sponsorship

arrangements exist. The athletic trainer expressed his belief that many NHL clubs enter into long-term

agreements whereby medical service providers such as local hospitals pay the club millions of dollars per

year for the right to provide medical services to the club’s players, including the right to select the club’s

doctors. Moreover, the athletic trainer indicated to us that under these agreements, medical specialists

needed by the players, such as neurologists and ophthalmologists, are chosen by the hospital. In sum, the

athletic trainer expressed his belief that players are “forced” to see doctors from a specific hospital, rather

than the best doctors for the players’ needs. The NHL did not respond to an email asking if the athletic

trainer’s assertions are accurate.

In contrast, as discussed above, the NFL has indicated that its medical sponsorship policy prohibits the

type of arrangement that might occur in the NHL, i.e., where medical service providers pay for the right

to provide care to players. Nevertheless, also as discussed above, the boundaries of the NFL’s medical

sponsorship policy are not clear. Additionally, the NFL’s medical sponsorship policy prohibits

agreements whereby medical service providers provide exclusive care to players, which might be a

problem in the NHL.

E. Club Medical Personnel in the CFL

1. Types of Medical Personnel

Unlike the NFL CBA, the CFL CBA does not require clubs to retain doctors. However, like the NFL

CBA, the CFL CBA does require clubs to retain certified athletic trainers, known in Canada as “Athletic

Therapists”:

Member Clubs shall employ or retain a minimum of one trainer who is

certified by the Canadian Physiotherapists Association and/or the

Canadian Athletic Therapists Association (CATA) or equivalent

qualifications. All head therapists in the C.F.L. must be certified athletic

therapists in good standing with CATA. The head therapists from each

Member Club will be required to submit their CATA certification

indicating that they are in good standing with CATA to the C.F.L. Office

on an annual basis.

248

Nevertheless, a review of CFL club websites reveals that CFL clubs are typically affiliated with five to

ten medical professionals.

249

These professionals typically include orthopedists, emergency physicians,

sports medicine physicians, chiropractors, and optometrists.

250

The clubs also generally employ 3–4

athletic trainers.

251

2. Medical Personnel’s Obligations

The CFL CBA’s only requirement of medical personnel is that they provide players with their medical

records upon request.

252

Unlike the NFL, the CFL lacks policies concerning: (1) the standard of care for club medical personnel;

(2) communications between medical personnel and the club; (3) a player’s right to a second opinion;

and, (4) a player’s right to a surgeon of his choice. The CFL CBA—like the NFL’s—does entitle players

to their own medical records.

63!

3. Players’ Obligations

The CFL’s Standard Player Contract imposes only one medical personnel-related obligation on players:

Prior to the start of each football season, the Player shall attend before

the Club’s Medical Committee for a complete physical and medical

examination, and, shall answer completely and truthfully all questions

asked of him with respect to his physical and medical condition[.]

253

The NFL CBA similarly requires players to submit to a pre-season physical and “to make full and

complete disclosure of any physical or mental condition known to him which might impair his

performance… and to respond fully and in good faith when questioned by the Club physician about such

condition.”

254

4. Relationship between Medical Personnel and Clubs

According to the CFL, all CFL club doctors are independent contractors.

255

The CFL’s characterization of

its relationship with club doctors accords with Canadian physicians’ general status as independent

contractors within its government-sponsored healthcare system; however, two 1980s Canadian cases that

considered whether NHL Canadian club doctors were independent contractors or employees for liability

purposes both looked beyond the parties’ understanding of their relationship.

256

Based on the differing

factual scenarios, the British Columbia Supreme Court—which heard both cases—concluded that club

doctors were employees in one case and independent contractors in another. In both cases, the perceived

level of control proved to be dispositive. Thus, a court considering the status of CFL club doctors for

vicarious liability purposes may look beyond the manner in which the club doctors receive compensation

or the title that the league ascribes to clubs’ relationships with doctors. In doing so, the court will likely

examine the degree of control clubs have over the doctors.

Concerning the duties of CFL club doctors, the CBA provides that a club has “the right to conduct a

medical examination at any time[.]”

257

However, the CBA also dictates that a pre-season physical “to

determine the status of any pre-existing condition” is to be performed by a neutral physician.

258

Although there is limited information available on CFL club doctors, in 2007, the Saskatchewan

Roughriders’ club doctor, Dr. Robert McDougall, acknowledged the complications in being a club doctor:

You have a responsibility to the organization for which you work... but in

addition you have a responsibility to the athlete and you can’t function

independently from that athlete. Because you administer care to the

athlete, he/she needs to be fully informed of the events. . . . So I feel like

there is a triad of duties: the organization you work with, the athlete, and

in the end, yourself as a physician. Above all, you have a responsibility

as a physician to make the right medical decision.

259

These concerns were echoed by CFL Hall of Fame player Chris Walby, who explained that there are

many situations “where the physician definitely supports the team before the player.”

260

According to

Walby, the club doctor’s “job is to get you back on the field in as short a time frame as possible.”

261

5. Sponsorship Arrangements

According to the CFL’s former President and Chief Operating Officer, Michael Copeland, no CFL clubs

64!

engage in sponsorship arrangements whereby a healthcare provider pays the club for the right to provide

healthcare to the club’s players.

262

The practice of leagues and their member clubs accepting payment

from medical groups is reportedly “frowned upon” in Canada.

263

F. Club Medical Personnel in MLS

MLS’ most recent CBA was agreed to in March 2015. In addition, MLS’ Medical Policies & Procedures

Manual (“MLS Medical Manual”), which is not collectively bargained, provides guidance on these

issues.

264

The MLS Medical Manual is a league-imposed manual with which MLS clubs and their doctors

and athletic trainers are required to comply.

265

1. Types of Medical Personnel

The MLS CBA declares that after its execution, MLS and the MLSPU would “meet to agree on a side

letter/provision to include in the CBA regarding the required number of medical/training personnel each

Team shall retain (e.g., Team physician, athletic trainers, therapists, and appropriate minimum

certification requirements for such personnel).”

266

As of the date of publication, it is unclear whether the

side letter has been executed. Nevertheless, the MLS Medical Manual suggests that MLS clubs “establish

a network” of the following medical professionals:

• Head club physician/chief medical officer;

• Orthopedic sub-specialists (special attention given to foot and ankle specialists);

• Primary care sports medicine;

• Internal medicine;

• Head athletic trainer;

• Assistant athletic trainer;

• Strength and conditioning coach;

• Cardiologist;

• Neuropsychologist;

• Neurosurgeon;

• Dentist;

• Oral and maxillofacial surgeon;

• Massage therapist;

• Physical therapist;

• Chiropractor;

• Nutritionist;

• Podiatrist;

• Dermatologist;

• Ophthalmologist; and,

• Imaging center.

267

The professional organization for MLS club doctors is the MLS Team Physicians Society (“MLSTPS”).

MLSTPS’ stated mission is “[t]o be a global leader and collaborator in the science of soccer medicine

focused on research, education and athlete care.”

268

Research did not reveal an MLSTPS code of ethics

specific to its members.

The corresponding organization for MLS club athletic trainers is the Professional Soccer Athletic

Trainers’ Society (“PSATS”). According to PSATS, the organization “serves to enhance the personal and

professional development of its membership. PSATS strives to provide educational opportunities for its

65!

members so they may better serve Major League Soccer, their organization, and the professional soccer

players under their care.”

269

Our research did not reveal a PSATS code of ethics specific to its members.

According to the MLS Medical Manual, MLS athletic trainers are required to be certified by the National

Athletic Trainers Association (“NATA”).

270

However, this is an error and a requirement with which

athletic trainers cannot comply. NATA is a voluntary professional association but does not certify athletic

trainers. Athletic trainers are certified by the BOC.

271

The BOC used to be part of NATA, but split from

the voluntary association in 1989.

272

As in all of the leagues, MLS athletic trainers are the players’ first line of medical care.

273

The athletic

trainers are with the club on a constant basis, preparing them for practices and games, treating conditions

as needed, and updating the club on players’ health statuses.

274

In addition, the athletic trainers liaise with

club doctors when the players need more extensive care.

275

2. Medical Personnel’s Obligations

The CBA directs that “[e]ach Team shall provide its Players with high quality health care that is

reasonably appropriate to their needs as elite professional soccer players, including access to health care

professionals[.]”

276

Seemingly in accordance with this obligation, the CBA also outlines the required

relationship between the club medical personnel and the players:

The primary professional duty of all individual health care professionals

(such as Team physicians, athletic trainers, physical therapists

chiropractors, dentists and neuropsychologists) providing health care to a

Player, shall be to the Player-patient regardless of the fact that the health

care professional or his/her hospital, clinic, or medical group is retained

by such Team to diagnose and treat Players. In addition, all individual

health care professionals, such as Team physicians who are examining

and evaluating a Player shall be obligated to perform complete and

objective examinations and evaluations and shall do so on behalf of the

Team and League, subject to all professional and legal obligations vis-a-

vis the Player-patient.

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These provisions are almost verbatim replicas of the NHL CBA provisions. Above, we discussed

problems with a similar standard of care outlined in the NFL CBA as compared to the NHL CBA. The

same analysis applies here. The NFL’s provision requires that “each Club physician’s primary duty in

providing medical care shall be not to the Club but instead to the player-patient.” However, the NFL’s

standard of care fails to account for the club doctor’s obligations to the club—namely to perform fitness-

for-play evaluations. The NHL’s and MLS’ provision seemingly resolves this concern in part, by

requiring—without limitation to the circumstances of providing medical care—that the club doctor be

subject to his or her obligations to the player “regardless of the fact that he/she… is retained by such

Club[.]” Nevertheless, we still do not believe the NHL’s and MLS’ provisions sufficiently protect player

health as discussed in the Analysis Section.

In addition to the CBA provision, the MLS Medical Manual directs in multiple provisions some form of

the following: “Club physicians and Athletic Trainers are always expected to comply with the highest

standards of medical care and to use their best professional judgment.”

278

Finally, the MLS CBA also requires clubs to “cooperate with all requests by a Player or former player

and/or his representative(s) for copies of the Player’s or former player’s medical recording, including

66!

athletic trainers’ notes, and shall provide such records and notes within fourteen (14) days of any request

by a Player or former player.”

279

3. Players’ Obligations

The CBA imposes numerous health-related obligations on players.

First, as part of the Standard Player Agreement, the player represents that “he knows of no physical or

mental conditions that could impair his ability to play skilled professional soccer during the Term of th[e]

Agreement and he has not knowingly concealed any such conditions[.]”

280

The standard NFL Player

Contract also requires players to represent that they are in “excellent physical condition.”

281

Second, the Standard Player Agreement also obligates a player to “maintain a high level of physical and

mental conditioning and competitive skills, not engage in alcohol abuse, not use drugs or any other

substances in contravention of the MLS Player Substance Abuse and Behavioral Health Program and

Policy, and generally develop and maintain a physical and mental readiness necessary to play for the

Team.”

282

The NFL Player Contract also requires players to “maintain” themselves in “excellent physical

condition.”

283

Third, a player must “immediately… notify the Team’s coach, trainer or physician of any illness or injury

contracted or suffered by him which may impair or otherwise affect, either immediately or over time, his

ability to play skilled professional soccer.”

284

The CBA does not describe the punishment in the event a

player fails to disclose an injury. NFL players are similarly required to report their injuries.

Fourth, “[p]rior to the start (including, during the season, when a Player first joins his Team) and at the

conclusion of each League season, Players shall submit to complete medical examinations by a physician

designated by MLS, at times designated by MLS and at MLS’s expense. Such medical examinations may

include, without limitation, blood tests…. The Player shall answer completely and truthfully all questions

asked of him concerning his physical and mental condition.”

285

The NFL CBA imposes similar

requirements on its players.

Fifth, “[i]n addition to the Pre-season and end of League Season medical and physical examinations,

Players may also be required to submit, on reasonable dates and times at the expense of MLS, to such

reasonable additional medical examinations (including blood tests…) as may be requested by his Team or

MLS.”

286

NFL players are also required to submit to medical examinations.

Sixth, a “Player is required to execute any authorizations required to release all of his medical records to

MLS and/or Team physicians, relevant officials, and to the workers’ compensation insurance carrier of

MLS…. It is understood that medical information relating solely to the reasons why such Player has not

been, is not or may not be rendering services as a Player may be released to the public by MLS or a Team.

A medical information release… shall be executed by each Player during Pre-Season each year or upon

joining MLS during the League Season.”

287

Although the NFL CBA does not require players to execute

authorizations permitting disclosure of their medical information, in practice, all players execute such

authorizations.

Seventh, if a player seeks a second medical opinion and the second opinion doctor disagrees with the club

doctor, “[t]he physician for the player shall evidence his determination by completing [a form], which

shall be provided to the Player’s Team no later than forty-eight (48) hours after completion of the

examination.”

288

If the second opinion doctor and club doctor are unable to resolve the disagreement, the

“relevant medical issue(s)” are determined by a neutral doctor agreed upon by the club’s doctor and the

second opinion doctor.

289

The player is obligated to “promptly submit to treatment recommended by” the

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club doctor or the neutral doctor, as applicable.

290

If the player refuses to submit to the treatment

recommended by the club doctor, the player is considered in breach of his contract and thus subject to

suspension or termination.

291

In contrast, the NFL CBA does not set forth how to resolve a dispute between the club doctor and second

opinion doctor. More importantly, the NFL CBA does not grant club doctors the ultimate authority to

determine the diagnosis and treatment for the player, or require players to submit to any treatment. In

practice, players are generally free to follow the course of treatment recommended by the second opinion

doctor. However, it is important to remember that NFL players have an obligation to maintain themselves

in excellent physical condition.

292

If the player does not take certain steps to recover from an injury—

including perhaps the treatment recommended by one or more doctors—it is possible that the player could

be found to have breached his contract and thus subject to suspension or termination.

4. Relationship with Clubs

The MLS Medical Manual dictates that clubs are responsible for negotiating agreements with doctors and

athletic trainers for the treatment of players.

293

In addition, while the MLS Medical Manual requires that

athletic trainers be “year-round employees,”

294

there is no direction on whether club doctors should be

employees or independent contractors. Otherwise, we were unable to discover information about the

financial relationships between MLS clubs and their doctors. MLS declined to provide any information

related to these issues. Additionally, according to the MLSPU, there are no “collectively bargained

provisions regarding the relationships between team medical personnel and the clubs.”

295

Some information about the relationships between MLS clubs and their doctors can be gleaned from a

2012 lawsuit filed by former D.C. United player Bryan Namoff against the club, the club’s coach, Tom

Soehn, the club doctor, Christopher Annunziata, and the club athletic trainer, Brian Goodstein.

296

Namoff

alleged that the D.C. United medical staff had failed to properly treat his concussion, resulting in a variety

of physical and mental conditions.

297

In a May 8, 2014, order, a District of Columbia court determined that Namoff’s claims against D.C.

United, Soehn, and Goodstein were barred by workers’ compensation laws.

298

The court noted that

Goodstein was employed by D.C. United as an athletic trainer,

299

and found that MLS and D.C. United

were “concurrent employers” of Namoff.

300

Consequently, the workers’ compensation laws barred

Namoff’s lawsuit against his co-employee Goodstein.

In an August 12, 2014, order, the court found that Annunziata was an independent contractor.

301

The court

based its decision largely on Annunziata’s ethical requirements as a doctor to “make clinical decisions

and exercise his independent professional medical judgment when managing, caring for, and treating

patients.”

302

Additionally, the court found that the MLS Medical Policies and Procedures Manual “directs

team physicians to provide care based on their own ‘best professional judgment’ and recognizes that they

are ultimately responsible’ for treating players.”

303

Thus, because D.C. United could not direct his work,

Annunziata was not an employee of the club.

The court’s order also revealed some interesting details about the relationship between Annunziata and

D.C. United. There was no written contract between the parties and Annunziata was not paid for his

work.

304

Instead, D.C. United provided Annunziata “tickets to games, permissions to use his association

with D.C. United in his promotional and marketing materials, and paid travel expenses.”

305

The arrangement revealed by the Namoff lawsuit comports with the typical arrangements in the NFL,

where the club doctor is generally an independent contractor and the athletic trainer is an employee.

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As mentioned above, MLS players are required to sign an authorization permitting disclosure of their

medical information. The authorization form is broad.

306

The authorization form permits “all physicians,

hospitals, laboratories, pharmacies, clinics, and other health care providers (including, but not limited to,

all athletic trainers/therapists) (collectively, ‘Health Providers’)” to release the player’s medical

information to:

(a) the Health Providers, coaches, soccer operations staff, player

operations staff, legal staff, human resources staff, owners, executives,

general managers, assistant general managers, and other officials

(collectively “Soccer Personnel”) of Major League Soccer, L.L.C., MLS

Canada LP, and the Major League Soccer (“MLS”) Team or Teams (and

such MLS Team Operators) for which [the player] ha[s] agreed (or may

agree) to play while this authorization is in effect, (and, in the event of

any contemplated assignment of my playing services to another MLS

Team or Teams, the Soccer Personnel of such other MLS Team or

Teams (and such MLS Team Operators); (b) at the direction of MLS and

consistent with the collective bargaining agreement, to the Soccer

Personnel of the United States Soccer Federation, the Canadian Soccer

Association, and any other National Federation (and their respective

Teams) for which [the player] ha[s] agreed (or may agree) agree [sic] to

play while this authorization is in effect; and (c) at the direction of MLS,

any individual or entity from which MLS or an MLS Team may receive

services in furtherance of uses and disclosure of [the player’s] Health

Information permitted by this authorization, such as electronic medical

records vendors and worker’s [sic] compensation insurance carriers,

provided that such individual or entity shall be required to maintain the

confidentiality of my Health Information.

307

These disclosure policies are similar to the practices of NFL clubs.

5. Sponsorship Arrangements

Research has not revealed an MLS medical sponsorship policy. However, some MLS clubs have entered

into sponsorship arrangements with healthcare providers and hospitals while at the same time retaining a

doctor from that healthcare provider as the club doctor. For example, the Hospital for Special Surgery in

New York is the “Official Hospital of the New York Red Bulls,”

308

and a doctor affiliated with the

Hospital for Special Surgery is listed as one of the Red Bulls’ two club doctors.

309

Similarly, Orlando

Health is both the jersey sponsor and “official medical team” of the Orlando City Soccer Club,

310

and a

doctor from Orlando Health serves as Orlando City’s club doctor.

311

In addition, the MLS Medical Manual tangentially admits that medical sponsorship is permitted. In

outlining policies concerning whether certain healthcare costs are the responsibility of the league or the

club, the MLS Medical Manual states that clubs are responsible for healthcare costs where “[c]lubs have

created either written or verbal marketing agreements in which clubs funnel billable therapy to a

particular club sponsor group.”

312

This provision thus strongly suggests that MLS permits sponsorship

arrangements whereby healthcare providers pay for the right to provide care. In contrast, the NFL does

not permit such arrangements.

G. Analysis

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Table 1-C below summarizes the leagues’ handling of certain issues concerning the different principles

identified at the beginning of this Chapter.

Table 1-C: Summary of Club Medical Personnel Policies and Practices

Do the Leagues’ Policies:

NFL

MLB

NBA

NHL

CFL

MLS

Quality of Medical Care

Require retention of doctors?

Yes

Require retention of athletic trainers?

Yes

Require sports-specific certification for

doctors?

Yes

Set forth a standard of care?

Yes

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Yes

Disclosure and Player Autonomy

Require medical staff to disclose

communications with club to player?

Yes

Require club to pay for second opinion?

Yes

Provide club doctor right to determine a

player’s course of treatment?

Yes

Entitle players to surgeon of their choice?

Yes

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Yes

Entitle players to medical records?

Yes

Require players to submit to physicals

upon request?

Yes

Confidentiality

Permit non-medical club personnel to

obtain and disclose player health

information?

Yes

Require players to inform club of care by

other medical professionals, regardless of

payment source?

basebal

Yes

Conflicts of Interest

Insulate club medical staff from influence

by coaches and other club personnel?

Prohibit healthcare providers from paying

for right to provide care?

Yes

Partiall

Unkno

Before analyzing the results of the above Table, it is important to note that some of the leagues’ practices

concerning these issues might be positive towards player health but are not codified in the CBA or other

policy document. Therefore we cannot capture them in our analysis, especially since some leagues were

unwilling to provide us information we requested. With that caveat in mind, we turn to our analysis of the

leagues’ policies concerning medical personnel. In particular, our focus is on how the NFL compares to

the other leagues.

The above Table suggests that the NFL’s policies concerning club medical personnel are the most

protective of player health in almost all cases by providing players with superior control and information

about their healthcare. The NHL’s policies are similarly protective of player health, with one worrisome

provision that permits club doctors to “determine the diagnosis and/or course of treatment,”

315

including

whether “a surgical procedure is the appropriate course of treatment for the Player.”

316

The NHL’s policy

would seemingly permit players to be compelled to undergo a surgery even if they (or their own doctor)

believe it inappropriate, at risk of having their contract voided should they refuse. That the NFL and NHL

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lead on these issues is perhaps not surprising considering they are generally the two leagues with the

highest rates of serious injuries (See Chapter 2: Injury Rates and Policies) and the most controversies

concerning player health. The CFL is a football league too of course, but it does not compare in size to the

NFL or NHL and thus does not engage in the same level of collective bargaining, policy making, or

litigation.

While overall the NFL appears to offer the medical personnel policies most protective of player health,

there are, however, four areas in which the NFL might learn lessons as compared to one or more of the

other leagues. We explain these areas below, including those resulting in recommendations for the NFL.

First, it appears the NFL might learn lessons when it comes to players’ access to medical records. The

NBA requires club medical personnel to provide players with medical records within 48 hours of a

player’s request. In contrast, the NFL CBA only entitles players to their medical records once during the

pre-season, once after the regular season, and upon request in the off-season.

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However, in practice, the

NFL’s recently implemented electronic medical records system provides players with 24/7 access to their

medical records. Consequently, the NFL’s deviation on this issue is no longer relevant.

Similarly, the NHL CBA requires club medical personnel to provide players with a complete copy of their

medical records during their end-of-season physical. In contrast, while NFL players have 24/7 access to

electronic versions of their records, there is no NFL CBA provision that obligates clubs to provide players

with their medical records as a matter of course. It is not clear whether providing players with paper

copies of their medical records versus electronic access is preferable. It is possible that one approach – or

the two approaches combined – could increase the possibility that a player will review his records and

seek appropriate or necessary care. However, without additional information, it is speculative to say the

NHL’s policy is superior.

Second, the NHL CBA requires clubs to identify an individual responsible for monitoring the club’s

prescription drug use. The NFL CBA has no such requirement. Nevertheless, the absence of any such

provision is mitigated by the NFL’s policies concerning medications. NFL clubs do not store controlled

substances at their facilities and any prescription medications are filled through a local pharmacy.

Third, while the CFL Standard Player Contract requires players to submit to a pre-season physical by the

club’s doctors, the CFL CBA also requires that pre-season physicals “to determine the status of any pre-

existing condition” be performed by a neutral physician.

318

The stated purpose of this requirement is to

help determine “in the future” whether there was “an aggravation of… [a] pre-existing condition.”

319

Furthermore, the provision is housed within the Injury Grievance article of the CBA,

320

and thus it appears

that the provision is designed to ensure that there is an accurate record of a player’s injury history. In

contrast, NFL club doctors perform all pre-season physicals and would be the ones to opine about a

player’s prior injury history. We believe the CFL’s approach is preferred, for reasons explained below.

Fourth, the NHL’s and MLS’ required standards of care appear preferable to that of the NFL, in that they

seemingly require club doctors to subjugate their duties to the club to their duties to the player at all times.

In contrast, the NFL CBA only explicitly requires that the doctor’s first priority be the player when the

doctor is “providing medical care.” Club doctors have important roles for the club beyond providing

medical care, specifically performing fitness-for-play evaluations, the outcomes of which might not be in

the player’s interests. Consequently, by its specific terms, the NFL CBA only requires club doctors to

consider players as their principal responsibility some of the time. But while the NHL’s and MLS’

provisions are preferable in their specificity and demands, they still fail to sufficiently protect player

health.

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Despite the possible protections provided by the NHL’s and MLS’ standards of care, they do not – nor do

any of the other leagues – address perhaps the most fundamental structural issue concerning player health:

the conflicts of interest faced by club medical personnel. In each of the leagues, the club’s medical staff

treats the players, but is selected by, reports to the club, including providing advice on the players’ short-

term and long-term usefulness to the club. While the Canadian healthcare system seemingly insulates the

Canadian club doctors from payment as a source of conflict, American clubs have financial or other

arrangements with their club doctors that can influence doctors’ decision-making and care (consciously or

unconsciously). While the various player health provisions discussed herein can improve a player’s

options and empower him to receive better care, there will be concerns about the quality and primacy of

player health, and trust in club medical personnel, so long as it is principally clubs that control the

medical staff.

For these reasons, in our report Protecting and Promoting the Health of NFL Players: Legal and Ethical

Analysis and Recommendations, we recommended that club doctors and medical staff be redefined as

“Players’ Doctors” and “Players’ Medical Staff,” to reflect their exclusive responsibility to advance the

health of players.

322

Moreover, we recommended that these medical professionals should be chosen and

subject to review and termination by a Committee of medical experts selected equally by the NFL and the

NFLPA and that their only interaction with clubs should be via the head Players’ Doctor’s written reports

on the status of players currently receiving medical treatment. Finally, we recommend that a Players’

Doctor’s determination of a player’s playing status should be controlling. The rationale for this proposed

structure is discussed at length in our report but, generally, this arrangement removes the structural

conflicts of interest that can and do impede player health. The NHL’s standard of care supports our

proposed approach, but does not go far enough. To ensure the best possible and most independent care, a

standard of care is insufficient—structural changes are needed.

H. Recommendations

Given the general superiority of NFL policies compared to other leagues, and uncertainty about possible

areas where the NFL can learn by comparison, we have only one recommendation related to medical care,

generated by comparison to the CFL.

Recommendation 1-A: Pre-season physicals for the purpose of evaluating a player’s prior injuries

should be performed by neutral doctors.

The CFL requires pre-season physicals for the purpose of evaluating a player’s prior injuries to be

performed by a neutral doctor. The NFL should adopt the same rule. The use of neutral doctors ensures

that players’ medical history is being recorded in an accurate manner, i.e., in a manner that correctly

details a player’s injury history and the ways in which those prior injuries are manifesting themselves

today. Clubs—and thus club doctors—have an incentive to minimize players’ injuries and declare them

fit to play in order to avoid further financial liability. For example, if an NFL player is injured during one

season, and fails the pre-season physical the next season, the player is entitled to an Injury Protection

benefit, an amount equal to 50% of his Paragraph 5 Salary (i.e., base) for the season following the season

of injury, up to a maximum payment of $1,150,000 (in 2016).

323

If the player is still injured during the

next pre-season, he can obtain Extended Injury Protection, a benefit that permits a player to earn 50% of

his salary up to $500,000 for the second season after suffering an injury that prevented the player from

continuing to play. Additionally, similar to the CFL, if the club doctor finds that a player is healthy

enough to play, a player’s potential Injury Grievance

324

is undermined. In these situations, the club doctor,

acting in the interests of the club, might be motivated to find that the player is healthy enough to play

during the pre-season physical, preventing the player from receiving benefits and compensation to which

he is entitled. While we do not know if such practices are common or widespread, in our Report

Protecting and Promoting the Health of NFL Players: Legal and Ethical Analysis and Recommendations,

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we provided examples from players attesting that such situations do occur.

325

Whatever the frequency, a

structural conflict still exists and needs to be addressed. A neutral doctor avoids the potential for bias, and

ensures players are receiving their just compensation and care.

As discussed in the Introduction, the NFL declined to review this Report. However, MLB did provide

comments on the Report which may provide insight into the viewpoints of the other professional leagues.

In reviewing a draft of this Report, MLB expressed its disagreement with this recommendation, stating:

The recommendation (1-A) that preseason physical examinations be

performed by a neutral doctor misses the point of the PPE

[preparticipation physical evaluation]. Continuity of care is an important

aspect of player health care and it is the view of our medical experts that

having a separate physician for the preseason exam would result in worse

care during the season. The recent Consensus Monograph on PPE, which

was prepared by several national physician groups and is viewed as the

governing document on these types of exams, does not include a

recommendation for independent physicians.

While we generally agree with MLB that continuity of care is important, we disagree with MLB’s

comment for several reasons.

First, it is important to understand we believe there is a structural conflict of interest whereby NFL club

doctors provide care to players while also providing services for the club.

326

As a result, players have

business reasons to be concerned about the outcome of the pre-season physical. As explained above, club

doctors may not accurately record a player’s condition, which can negatively affect his contract status and

benefits to which he is entitled.

Second, our recommendation would not affect continuity of care as MLB’s comment seems to suggest.

Assuming doctors working for the club continue to treat players (which is not what we recommend as

explained in the footnote below), the club doctor would have full access to the results of the pre-season

physical and is also permitted to re-examine the player at any time, including during the pre-season.

However, a physical performed by a neutral doctor should be used to establish the player’s pre-existing

conditions in order to better protect the player’s business interests.

Third, MLB’s reference to the consensus monograph

327

is misplaced. The monograph specifically states

that it “is intended to provide a state-of-the-art, practical, and effective screening tool for physicians who

perform PPEs for athletes in middle school, high school, and college.”

328

Thus, the monograph does not

apply to professional sports, and does not speak to the issues raised above.

CHAPTER 2: INJURY RATES AND POLICIES

329

An important measurement of player health is the incidence and type of injuries players may sustain in

the course of their work. Additionally, given the importance of player injuries, the manner in which

player injuries are handled administratively and reported can indicate a league’s approach to player health

issues more generally. In this Chapter, we examine the leagues’: (1) injury tracking systems; (2) injury

rates; (3) injury-related lists; and, (4) policies concerning public reporting of injuries. At the conclusion of

this Chapter, Table 3-E will summarize some of the key statistics and policies concerning injuries.

Before beginning our analysis, we provide some background information and qualifications on some of

the topics we will discuss.

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Injury Tracking Systems and Rates

As will be discussed below, all of the leagues (except the CFL) have an electronic medical record

(“EMR”) system into which the club’s medical staff enters player injuries and through which the club and

league are then able to track player injuries and conduct a variety of statistical analyses, all on a de-

identified basis.

330

While these data are valuable, they are not routinely made available to the public.

Consequently, obtaining data on injury incidence, specifically in the form of injury incidence rates,

requires release of the data either by the leagues themselves or through academic studies (many of which

have requested the data from the leagues).

There are additional limitations with the injury tracking systems.

As a general matter, injuries in sports are underreported.

331

Players routinely hide their medical conditions

from the club. Players principally do this to protect their status on the club and due to fear of being

viewed as less tough by the coaches.

332

Players know that their careers are tenuous and also know that if

the club starts perceiving a player to be injury-prone, it is often not long before the club no longer

employs that player.

333

Similarly, club medical staff might not enter player injuries into the system or might discourage players

from seeking help for a medical condition so that it appears players are healthier than they actually are.

Medical staff also might not input injuries in order to: (1) make it appear they are doing their job well and

keeping players healthy; or, (2) to help the club in a potential dispute with the player. For example, if an

NFL club terminates a player’s contract while he is injured, the club is responsible for the player’s salary

for so long as the player is injured. A club’s medical staff might not include the full extent of a player’s

injuries in the system in order to support the club’s potential argument that the player was not injured

when the club terminated the player’s contract. While we do not mean to imply such actions are common,

and we have no way of estimating the incidence, in our report Protecting and Promoting the Health of

NFL Players: Legal and Ethical Analysis and Recommendations, we discuss evidence from interviews

with players who attest that such actions do occur in the NFL.

334

It is not known whether there is any

prescribed punishment in any of the leagues if a club’s medical staff fails to fully and accurately report

player injuries. Beyond non-reporting by club medical staff, some injuries might not be documented

because the athlete does not report the injury to the medical staff.

In particular, as other scholars have noted, concussions are underreported.

335

Diagnosing concussions

requires review of various criteria, such as whether the player has balance problems, a blank or vacant

look, disorientation, or cognitive issues.

336

Additionally, a concussion diagnosis often requires a player to

self-report symptoms, such as headaches, dizziness, vision problems, and/or sensitivity to light or

sound.

337

As a result of the varied diagnostic criteria and the ability of players to hide symptoms,

concussion rates are likely higher than the reported statistics.

In light of the above, we emphasize that the injury statistics we provide in this Chapter reflect only those

that are reported and that actual injury rates are likely higher. Aside from underreporting, our analysis is

also limited by differences between the leagues, including scheduling, EMR systems, and injury

definitions.

Injury severity is a potentially interesting statistic to calculate and compare. Indeed, several of the studies

discussed below attempt to quantify injury severity by the amount of time players lost, i.e., the number of

practices or games a player missed. However, because the leagues’ practice and game schedules vary

considerably, a cross-league comparison of the severity data would not be useful. For example, NFL clubs

play a 16-game regular season and practice four to five times per week. In contrast, MLB clubs play a

162-game regular season and have almost no practices during the season. An injury that might cause an

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MLB player to miss four or five games might not cause an NFL player to miss any games. Consequently,

determining the severity of injuries by the number of games or practices missed does not provide for an

accurate comparison across the leagues.

338

Finally, in this Chapter, unless otherwise indicated, we are only comparing data from regular season

games, not pre-season or post-season games or practices. We generally limit our analysis in this way

because in many cases only regular season injury data are available. Additionally, several other domains

we discuss such as the number of games, players, and plays, have more readily available and consistent

data in the regular season, permitting better comparisons. Lastly, the number of practices per season in

each of the sports varies considerably, making comparisons that include practices problematic. While this

method results in reporting lower aggregate injury incidence, we believe statistics focused on injuries per

regular season game, and injuries per player-season

339

provide the best understanding of the incidence of

injury in each sport.

Injury Studies

In this Chapter, we utilize data from several studies concerning injury rates in the respective leagues.

Several of these studies retrieved data from the leagues’ injury tracking system. Consequently, those

studies (and our use of that data) are limited in the same way that the injury tracking systems are limited,

as discussed above. In addition, we identify other limitations of the studies that are relevant to our

analysis. Despite these limitations, the studies we have used are the best publicly-available sources for

injury data in the leagues and, we believe, provide useful data. Nevertheless, in light of these limitations

and the limited number of studies, we caution the reader about interpreting our findings too strongly.

Indeed, one important recommendation we make is that more research is needed on injury rates in the

NFL, as well as more sharing of league data on injuries. Similarly, while our focus is on the NFL, it is

likely desirable for the other leagues to engage in the same type of research.

Concussions

Given the above concerns about underreporting of injuries, specifically concussions, it is also important to

know what we mean by “concussion.” The leading definition of a concussion comes from the 4th

International Conference on Concussion in Sport held in Zurich, Switzerland, in November 2012, and

published in the British Journal of Sports Medicine. The publication (identified by lead author Paul

McCrory of the Florey Institute of Neuroscience and Mental Health in Australia) is a consensus statement

from 28 of the leading sports medicine and sports concussion professionals, including many with ties to

the leagues and unions.

340

The consensus statement (which improves on definitions from prior

conferences) defines a concussion “as a complex pathophysiological process affecting the brain, induced

by biomechanical forces.”

341342

In addition, the consensus statement lists symptoms and conditions

associated with concussions, including headaches, cognitive impairment, behavioral and emotional

changes, loss of consciousness, amnesia, and sleep disturbance.

343

The NFL, MLB, NBA, NHL, and MLS

concussion protocols specifically cite the consensus statement’s criteria for a concussion as the required

procedure.

344

Given the nature of this Report, some may wonder why we are not providing analysis of each of the

leagues’ concussion protocols, that is, the policies that dictate how the clubs treat players who have

suffered or are suspected of having suffered a concussion. We have chosen not to discuss these policies in

depth because they are substantially similar. The consensus statement sets forth the leading medical

opinion as to the appropriate process for evaluating a possible concussion, including the diagnostic tests

to be performed (both pre-season and post-concussion), and a recommended return-to-play process,

consisting of a graduated increase in activity, provided the player remains free of concussion-

symptoms.

345

In reviewing the leagues’ concussion protocols (or reports describing the protocols where

75!

the protocols themselves were not available), it is clear that all of the leagues’ protocols are in line with

the procedures recommended by the consensus statement.

346347

We acknowledge that at times questions have been raised as to whether certain leagues or clubs are

sufficiently following the protocols.

348

While these are important questions, we were unable to find any

objective data from which to analyze the leagues’ compliance. This is an issue that the leagues and unions

must investigate and enforce.

349

Injury-Related Lists

In this Chapter, we also discuss injury-related lists—a type of roster on which injured players are placed

for a certain number of days or games. All of the leagues have such lists. The lists vary in their meaning

and duration, potentially alleviating or creating pressure on the player to play through, or return from, an

injury. We will discuss each league’s approach to injury lists and analyze their effects in the Analysis

Section.

***

With this background in hand we now turn to an analysis of each of the leagues on the relevant issues

relating to player injuries.

A. Injuries in the NFL

1. Injury Tracking System

In 1980, the NFL created the NFL Injury Surveillance System (“NFLISS”) to document, track, and

analyze NFL injuries and provide data for medical research.

350

When an injury occurs, each club’s athletic

trainer is responsible for opening an NFLISS injury form and recording the medical diagnosis (including

location, severity, and mechanism of injury) and details about the circumstances (e.g., date, game or

practice, field surface) in which it occurred.

351

Prior to 2015, a reportable injury was defined as only those

injuries, football-related or not, associated with any time lost from practice or games or specific

conditions regardless of time lost, including but not limited to concussions, fractures, dental injuries

requiring treatment, health-related illness requiring IV fluid administration, and injuries or illness

requiring special equipment (e.g., a knee brace). Beginning with the 2015 season, all injuries, regardless

of whether or not they result in time lost from practice or games, are included in the NFLISS.

352

The

athletic trainer is required to update the injury form with details about all medical treatments and

procedures the player receives, including surgery.

353

Since 2011, the NFLISS has been managed by the

international biopharmaceutical services firm Quintiles.

354

Quintiles analyzes injury data and provides

reports to the NFL and NFLPA throughout the year.

355

The NFLISS provides the best available data concerning player injuries and we thus use it here. Although

the NFL’s past injury reporting and data analysis have been publicly criticized as incomplete, biased, or

otherwise problematic, those criticisms have been in response to studies separate from the NFLISS

356

and

we are not aware of any criticism of the NFLISS.

357

The next Section is a compilation of NFLISS data on

player injuries, which was reviewed and updated (where necessary) by the NFL. However, in considering

this data, it is important to recognize that the NFL’s injury reporting systems have undergone substantial

change in recent years. An electronic version of the NFLISS was launched as a pilot with five clubs in

2011;

358

the electronic NFLISS expanded to all 32 clubs in 2012;

359

then, in 2013, the NFL launched an

electronic medical record (“EMR”) system on a pilot basis with eight NFL clubs, which was expanded to

all clubs in 2014.

360

The EMR system integrates with the NFLISS and provides the most accurate injury

reporting data in NFL history. Consequently, the different reporting structures over time almost certainly

76!

contributed to fluctuations in the injury rates identified below. Therefore, it is not possible to be certain

whether injury rates have increased in recent years, or if, instead, the apparent increases are due to

improved injury reporting, or some combination of the two. Similarly, increased attention to player

injuries in recent years, concussions in particular, might also lead to higher reported injury totals.

2. Injury Statistics

The tables below summarize key injury statistics of NFL players.

Table 2-A: Number of Practice, Game, and Total Injuries in NFL Pre-season (2009–2015)

361

Year

Number of

Practice

Injuries

Number of

Game Injuries

Total Injuries

2009

551

360

911

2010

560

410

970

2011

641

399

1,040

2012

675

431

1,106

2013

688

416

1,104

2014

823

503

1,326

2015

780

498

1,278

Totals

3,138

2,016

7,735

Table 2-B: Mean Number of Practice, Game, and Total Injuries in NFL Pre-season per Year, over

6 Seasons (2009–2015)

362

Mean Number

of Practice

Injuries

Mean Number

of Game

Injuries

Mean Number

of Total Injuries

623.0

403.2

1026.8

Table 2-C: Number of Practice, Game, and Total Injuries, and Mean Number of Injuries per Game

in NFL Regular Season (2009–15)

363

Year

Number of

Practice

Injuries

Number of

Game

Injuries

Total Regular Season

Injuries

Mean Number of

Injuries per Regular

Season Game

2009

165

1,372

1,537

5.36

2010

176

1,346

1,522

5.25

2011

295

1,426

1,721

5.57

2012

262

1,380

1,642

5.39

2013

264

1,500

1,764

5.86

2014

401

1,823

2,224

7.12

2015

336

1,730

2,066

6.76

Totals

1,899

10,577

12,476

N/A

Table 2-D: Mean Number of Practice, Game, and Total Injuries per Year, and Mean Number of

Injuries per Game in NFL Regular season, over 6 seasons (2009–15)

Mean

Mean Number of

77!

Number of

Practice

Injuries

Number of

Game

Injuries

Total Regular Season

Injuries

Injuries per Regular

Season Game

364

271.3

1,511.0

1,782.3

5.90

Table 2-E: Number of Practice, Game, and Total Concussions, and Mean Number of Concussions

per Game in NFL Regular Season (2009–16)

365

Year

Number of

Practice

Concussions

(Pre- and

Regular Season)

Number of

Pre-season

Game

Concussions

Number of

Regular

Season Game

Concussions

Total

Concussions

Mean Number

of Concussions

per Regular

Season Game

2009

159

224

0.62

2010

168

263

0.66

2011

167

252

0.65

2012

173

261

0.68

2013

148

229

0.58

2014

115

206

0.45

2015

183

272

0.71

2016

167

244

0.65

Totals

315

359

1,280

1,951

Table 2-F: Mean Number of Practice, Game, and Total Concussions, and Mean Number of

Concussions per Game in NFL Regular Season, over 8 Seasons (2009–16)

366

Mean Number of

Practice

Concussions (Pre-

and Regular

Season)

Mean

Number of

Pre-season

Game

Concussions

Mean

Number of

Regular

Season Game

Concussions

Mean

Number of

Total

Concussions

Mean

Number of

Concussions

per Regular

Season Game

39.4

44.9

160.0

243.9

0.625

Table 2-G: Number of Regular Season Game Concussions per Player, and Mean Number of

Regular Season Game Concussions per Player per Season (2009–16)

367

Year

Number of Regular

Season Game

Concussions

Number of Regular

Season Players

Rate of Concussions

per Player-Season

2009

159

2,123

0.075

2010

168

2,187

0.077

2011

167

2,144

0.078

2012

173

2,183

0.079

2013

148

2,188

0.067

2014

115

2,202

0.052

2015

183

2,251

0.081

2016

167

2,274

0.073

Totals

1,280

17,552

0.073

78!

In considering the mean number of concussions per player-season, it is important to point out that the

number of players who played in a regular season NFL game includes both players who played all 16

games in a season and those who played only 1 game in a season. Thus, while there is a mean of 0.073

concussions per player per regular season, the mean is likely different for different subsets of players, i.e.,

depending on how many games a player played in that season.

Table 2-H: Concussion Incidence by Player Position in the Regular Season (2013)

Position

2013

Offensive Line

Running Back

Tight End

Quarterback

Wide Receiver

Offense Total

73 (49.3%)

Defensive Secondary

Defensive Line

Linebacker

Defense Total

48 (32.4%)

Special Teams Total

27 (18.2%)

Table 2-I: Mean Number of Injuries per Play, NFL Regular Season Games (2013)

Total Number

of Injuries

Total Number

of Plays

368

Mean Number of Injuries Per

Play

369

1,500

43,090

0.035 injuries/play

As shown in Table 2-I, the mean number of injuries per play in 2013 was 0.035, indicating that there was

an injury on 3.5% of all plays. Additionally, from the available information regarding the total number of

injuries, total number of players per game, games per year, and years of data, we can calculate the overall

rate of injury as 0.064 per player-game.

370

In other words for every particular game there is a mean of 5.90

injuries (0.064 injuries per player-game x 92 players per game). That equates to one injury for every 15.6

players in that game.

We can also determine the mean rate of how often concussions occur in a game. Between 2009 and 2016

there were a total of 1,280 regular season concussions. Using the available information regarding the total

number of concussions, total number of players per game, games per year, and years of data, we can

calculate the overall rate of concussion per player-game as 0.0068 concussions per player-game.

371

We can also determine the rate of injuries per player-season. During the 2009–15 seasons, there were a

total of 15,278 player-seasons played.

372

During this same time period there were a total of 10,577 game

injuries. This equates to an overall rate of 0.69 injuries per player-season (10,577/15,278). Some

readers—particularly players—may be surprised that this statistic is not higher. It is important to

remember that this statistic is the mean of all players who played in the NFL during these seasons,

including players who might have only played in one game. Additionally, the statistic does not include

injuries that occurred during pre-season practices or games or regular season practices. Thus, while

helpful, this statistic is an incomplete picture of the injuries suffered by NFL players during the course of

a season.

79!

Readers might be interested in the mean number of games a player plays before suffering an injury. We

calculated above that the rate of injuries per player-game was 0.064. Thus, we can calculate that players

play a mean of 15.6 games before suffering one injury (1/0.064). We can also calculate the mean number

of games a player plays before suffering a concussion. We calculated above that the rate of concussion

per player-game was 0.0068. Thus, we can calculate that players play a mean of 147.10 games before

suffering one concussion (1/0.0068). With 16 regular season games, players theoretically play a mean of

9.2 seasons before suffering a concussion. For context, although there is a debate about career lengths

generally, the mean career length for a drafted player is about 5 years.

373

Nevertheless, it is important to

remember that these are mean statistics and thus include players who play very little in the game or

players who play positions less likely to suffer injuries or concussions. Players with more game time and

players at certain positions are likely to suffer injuries and/or concussions at rates higher than those

provided here.

Finally, we can calculate what percentage of player injuries are concussions. Between 2009 and 2015,

there were a total of 10,577 regular season injuries (Table 2-C). During this same time period, there were

1,113 regular season concussions (Table 2-E). Thus, concussions represented 10.5 percent of all regular

season injuries (1,113/10,577).

Finally, below is some additional information from the NFLISS:

374

• The most common types of injuries during regular season practices in 2013 were hamstring

strains (46), groin adductor strains (10), high ankle sprains (6), and shoulder sprains (6).

• The five most common types of injuries during regular season games in 2013 were concussions

(147), hamstring strains (approximately 128

375

), medical collateral ligament (MCL) sprains

(approximately 76), high ankle sprains (approximately 58), and groin adductor strains

(approximately 47).

• The most common mechanisms of concussions during regular season games in 2013 were contact

with other helmets (49.0%), contact with the playing surface (16.3%), contact with another

player’s knee (10.2%), and contact with another player’s shoulder (7.5%).

3. Injury-Related Lists

Injured NFL players are placed on different lists depending on the expected duration of the injury and the

timing of the injury.

If a player fails the pre-season physical, i.e., the club doctor determines the player is not physically ready

to play football, and is unable to participate in training camp but is expected to be able to play later in the

season, the player can be placed on the Physically Unable to Perform (“PUP”) List. A player on the PUP

List cannot practice or play until after the sixth game of the regular season and does not count towards the

club’s 53-man Active/Inactive List during that time.

376

Players who are injured during the pre-season or regular season and are unable to return that season are

placed on Injured Reserve, which typically precludes them from practicing or playing further that season.

Players on Injured Reserve do not count towards the club’s 53-man Active/Inactive List. In 2012, the

NFL and NFLPA amended the rules to permit clubs to allow one player in any season to return from

Injured Reserve after a minimum of six weeks.

377

Finally, players who suffer short-term injuries are only given a different status on the day of the game.

NFL clubs have a 53-man Active/Inactive List.

378

This is the roster of players clubs have to choose from

each week. On the day of the game, the number of players who are permitted to play, i.e., the Active List,

is reduced to 46 players.

379

Thus, seven players are declared Inactive and cannot play on each game day.

80!

Generally, at least some of the seven players declared Inactive have been so declared due to injury (the

rest would be for skill reasons). A player is Inactive for that particular game, but can be Active for the

next game. In this way, the Inactive List serves as a short-term, non-durational injured list.

4. Injury Reporting Policies

The NFL’s “Personnel (Injury) Report Policy” (“Injury Reporting Policy”) requires each club to report

information on injured players to both the NFL and the media each game week (“Injury Report”).

380

The

stated purpose of this reporting is “to provide a full and complete rendering of player availability”

to all

parties involved, including the opposing team, the media, and the general public.

381

According to the NFL,

the policy is of “paramount importance in maintaining the integrity of the game,”

382

i.e., preventing

gambling on inside information concerning player injuries.

383

The Injury Report is a list of injured players, each injured player’s type or location of injury, and the

injured player’s status for the upcoming game. Each injury must be described “with a reasonable degree

of specificity,” e.g., ankle, ribs, hand. For a quarterback’s arm injury or a kicker’s or punter’s leg injury,

the description must designate left or right. No other injuries require the side of the injury to be disclosed.

Historically, the player’s status for the upcoming game was classified into four categories: “Out

(definitely will not play)”; “Doubtful (at least 75 percent chance will not play)”; “Questionable (50-50

chance will not play)”; and, “Probable (virtual certainty player will be available for normal duty)”.

384

2016, the NFL changed the classifications for player injuries by: (1) eliminating the “probable”

designation; (2) changing the definition of “questionable” to “uncertain as to whether the player will play

in the game”; (3) changing the definition of “doubtful” to “unlikely the player will participate”; and, (4)

only using the “out” designation two days before a game.

385

The Injury Report also indicates whether a

player had full, limited, or no participation in practice, whether due to injury or any other cause (e.g.,

team discipline, family matter, etc.).

For a typical Sunday game, clubs must issue an Injury Report after practice each Wednesday, Thursday,

and Friday of game week. If there are any additional injuries after the Friday deadline, the club must

report these injuries to the NFL, the club’s opponent, the televising network, and the local media on

Saturday and Sunday.

The Injury Reporting Policy dictates that all injury reports be “credible, accurate, and specific within the

guidelines of the policy.” In “unusual situations,” clubs are requested to contact the League’s public

relations office and, when in doubt, clubs should include a player in the Injury Report. Clubs and coaches

that violate the policy are subject to disciplinary action. If a question arises as to why a player did not

participate in a game, the club can be required to provide a written explanation to the NFL within 48

hours.

Despite the enforcement system and disciplinary action for abuse (typically fines of $5,000 to $25,000

386

many in the media along with coaches and players have questioned the Injury Report’s accuracy and

value. A 2007 USA Today analysis of two-and-a-half seasons of Injury Reports found a high variance in

the number of injuries reported by teams, with 527 reported by the Indianapolis Colts versus just 103 by

the Dallas Cowboys.

387

Interviews with coaches in that article as well as others suggested that the

different philosophies of coaches to report even minor injuries versus only major injuries accounted for

this variance.

388

In the same article, former Pittsburgh Steelers coach Bill Cowher was quoted as saying

that he deliberately changed the location of injuries (e.g., reporting hip instead of knee) to protect his

players from having their injuries targeted by opponents.

389

Baltimore Ravens head coach Jim Harbaugh,

after being fined for not listing an injured player in 2012, told the media that “[t]here’s no credence on the

injury report now…. It doesn’t mean anything. It has no value.”

390

In March 2014, two former players on

the New England Patriots stated that head coach Bill Belichick filed inaccurate and false injury reports.

391

81!

Many in the media have referred to the Injury Report as a “game” or “joke.”

392

Nevertheless, some

believed that the 2016 changes to the injury reporting policy allowed for even more gamesmanship.

393

Many clubs have policies prohibiting players from speaking to the media about injuries.

394

Finally, to facilitate the Injury Reporting Policy, clubs, request or require players to execute waivers

permitting broad disclosure and use of their medical information.

395

With this understanding of the NFL’s policies, we can now begin our comparison to the other leagues.

B. Injuries in MLB

1. Injury Tracking System

In 2010, MLB—with agreement and assistance from the MLBPA—launched a web-based electronic

medical record (“EMR”) system “designed to allow trainers to have more and better information at their

fingertips.”

396

The EMR system is linked to MLB’s electronic Baseball Information System (“eBIS”),

397

that clubs use to complete the Standard Form of Diagnosis for Disabled List applications,

398

which will be

discussed in more detail below. With the EMR system, clubs’ athletic trainers enter data on “all injuries,

illnesses, and preventative events”

399

—whether baseball-related or not.

400

In addition, the EMR system

provides MLB with robust data, which—once de-identified and centralized in MLB’s Health and Injury

Tracking System (“HITS”)—MLB can use to monitor, study, and analyze injuries in baseball.

401

“HITS

includes any injury or physical complaint sustained by a player that affects or limits participation in any

aspect of baseball-related activity (e.g., playing in a game, practice, warm up, conditioning, weight

training).”

402

2. Injury Statistics

MLB’s efforts to study injury data should serve as a model for other leagues. Since the creation of MLB’s

EMR and HITS systems, MLB has undertaken, in partnership with the Johns Hopkins University

Bloomberg School of Public Health, to conduct and publish comprehensive studies of injuries by major

and minor league baseball players for the purpose of amending policies and practices to better protect

player health.

403

As of the fall of 2016, doctors affiliated with MLB and their research partners have

published studies on overall injury trends,

404

hamstring injuries,

405

knee injuries,

406

hip and groin

injuries,

407

and traumatic brain injuries,

408

in major and minor league players. Moreover, additional studies

are forthcoming.

409

In 2016, the researchers discussed above published a study describing the implementation of the EMR

and HITS systems, which included aggregate MLB injury data, shown below in Table 2-J.

410

Importantly,

“[f]or research studies, injuries are operationally defined as those that are work-related, did not occur in

the off-season (i.e., occurred only [in] spring training, the regular season, or the postseason), were a

primary diagnosis, and resulted in at least 1 day out of play.”

411

In the Analysis Section at the end of this

Chapter, we explain how this definition varies slightly from injury data we provide from other leagues.

Table 2-J: Number of Injuries during Spring Training, the Regular Season, or Postseason over Five

Seasons (2010-14)

Year

2010

2011

2012

2013

2014

Total

Injuries

2,076

1,641

1,347

1,270

1,249

7,583

82!

Importantly, the number of injuries recorded in HITS is considerably more than the number of players

placed on the Disabled List (“DL”), as shown in Table 2-K.

Table 2-K: Number of Disabled List Designations over Five Seasons (2010–14)

412

Year

2010

2011

2012

2013

2014

Total

Designations

459

515

504

519

488

2,485

The DL is a roster designation for players “unable to render services because of a specific injury or

ailment.”

413

During the time players are on the DL, clubs are permitted to replace the player on the club’s

active roster. However, not all injured players are placed on the DL. DL designations only include injuries

that result in time loss.

414

Thus, DL data underrepresents the actual total number of injuries and for that

reason we do not use it here.

Between 2010 and 2014, there were 4,614 spring training games,

415

12,150 regular season games,

416

and

32 postseason games,

417

for a total of 16,941 games. We can thus estimate that there are 0.45 injuries per

game (7,583/16,941). It is important to note that injuries that would occur during practice are included in

the total number of injuries and thus the actual mean number of injuries per game is probably lower.

However, we think the number of injuries that occur during practice are minimal—players play 162

games in 183 days

418

and there are very limited practices during the season.

419

We can also calculate a rate of injuries per player-game. A 2015 study conducted by MLB’s Medical

Director Dr. Gary Green (“Green Study”)

420421

revealed that during the 2011 and 2012 seasons, players

played a total of 138,085 regular season games.

422

During this same time period, there were 2,988

injuries.

423

However, these statistics include spring training and postseason injuries. From the data above,

we know that 71.7% of all MLB games between 2010 and 2014 were regular season games

(12,150/16,941). If we assume that the rate of injuries is constant among spring training, regular season,

and postseason games,

424

we can estimate that between 2011 and 2012, there were 2,142 injuries in

regular season games (2,988 x 71.7%). We can thus estimate that the rate of injuries per player-game

during this time period is 0.016 (2,142/138,085) assuming players only suffer one injury per game.

Finally, we can calculate the rate of injuries per player-season. Approximately 1,337 players played in an

MLB regular season game in 2014.

425

During 2014, there were 1,249 injuries. Thus, the rate of injuries

per player during the 2014 regular season was 0.93 per player-season (1,249/1,337). There are two

important points concerning this statistic: (1) this statistic represents a per player per season statistic,

regardless of whether they played one game or all 162 games; and, (2) there is likely variation in injury

rates among the different positions on the field.

Between 2011 and 2014, the five most commonly injured body parts were upper leg (thigh) (724

injuries), shoulder/clavicle (672), hand/finger/thumb (501), elbow (430), and knee (410).

426

We turn now to the incidence of concussions in MLB. The Green Study focused on exactly this issue.

The Green Study reported that there were 41 concussions in MLB during the 2011 and 2012 seasons, but

only 36 occurred during games.

427

It is important to note that the Green Study acknowledged that the

possible underreporting of concussions was a limitation of its study.

428

Nevertheless, the Green Study

offers the most reliable data on MLB concussions and we thus use it here.

With 4,860 regular season MLB games occurring during these two seasons,

429

there is a mean of 0.007

concussions per game (36/4,860). From the available information regarding the total number of

83!

concussions, total number of players per game, games per year, and years of data, we can calculate the

overall rate of concussion as 0.00026 per player-game.

430

Finally, we can estimate the rate of concussions per player-season. As stated above, in 2014, 1,337

players played in an MLB regular season game. In the same year, players were placed on the DL due to a

concussion or concussion-like symptoms 21 times.

431

Thus, in 2014, the rate of concussion per player-

season was 0.016 (21/1,337).

The Green Study also examined the number of concussions by “athlete exposures,” or “AE.” The Green

Study based the number of AEs on the actual number of games played by players.

432

This methodology

resulted in 138,085 AEs over the two seasons. With 36 concussions occurring in the two seasons, that is

the equivalent of 0.26 concussions per every 1,000 AEs, or, put another way, players experienced 0.26

concussions for every 1,000 games played. The Green Study also found that catchers experience more

concussions than fielders,

433

and “struck by batted ball” is the most likely mechanism by which a player

sustains a concussion.

434

Readers might be interested in the mean number of games a player plays before suffering an injury. We

calculated above that the rate of injuries per player-game was 0.016. Thus, we can calculate that players

play a mean of 62.5 games before suffering one injury (1/0.016). We can also calculate the mean number

of games a player plays before suffering a concussion. We calculated above that the rate of concussion

per player-game was 0.00026. Thus, we can calculate that players play a mean of 3,846.15 games before

suffering one concussion (1/0.00026). With 162 regular season games, players theoretically play a mean

of 23.74 seasons before suffering a concussion. For context, the mean career length for a drafted player is

about 5.6 years.

435

Nevertheless, it is important to remember that these are mean statistics and thus

includes players who play very little in the game or players who play positions less likely to suffer

injuries or concussions. Players with a lot of play time and players at certain positions are likely to suffer

injuries and/or concussions at rates higher than those provided here.

Finally, we can calculate what percentage of player injuries are concussions. In 2014, there were 1,249

injuries and 22 instances in which players were placed on the DL due to a concussion or concussion-like

symptoms. Concussions thus represented 1.8% of all injuries (22/1,249).

3. Injury-Related Lists

MLB has three DLs: a 7-day DL, which is exclusively for players who have suffered “acute”

concussions;

436

a 10-day DL; and, a 60-day DL.

437

To place a player on one of the DLs, a club must

submit an application to MLB that includes the Standard Form of Diagnosis (appended to the MLB CBA)

and a separate document indicating the estimated time period of recovery.

438

The club doctor-prepared

Standard Form of Diagnosis provides MLB with information about the nature of the player’s injury

(including “Body Side,” “Part of Body Injured,” and “Body Part Detail”), the date of the injury, and the

club doctor’s diagnosis.

439

MLB may request “that a Club provide additional information in support of a

Disabled List placement before the application is approved[.]”

440

Once MLB has accepted a DL

application, the player covered by the application must remain inactive for at least the number of days

enumerated in the title of the DL to which he has been assigned.

441

4. Injury Reporting Policies

Unlike the NFL, MLB does not obligate clubs to report player injuries publicly. However, the CBA

permits clubs to disclose the following “about employment-related injuries: (a) the nature of a Player’s

injury, (b) the prognosis and the anticipated length of recovery from the injury, and (c) the treatment and

surgical procedures undertaken or anticipated in regard to the injury.”

442

Despite this permission, club

84!

doctors are “prohibited from making any public disclosure of a Player’s medical information absent a

separate, specific written authorization from the Player authorizing such public disclosure.”

443

Thus, club

officials, such as coaches or the general manager (and not the doctor), are most likely the ones to update

the media on player injuries.

As a matter of course, clubs effectively report injuries through roster transactions. An MLB club’s active

roster is limited to 25 players (except during September).

444

If a player is injured and placed on the DL,

his spot on the active roster will be filled by another player. Clubs publicly update their active rosters and

DL as needed. Thus, when a player is moved from the active roster to the DL, the club is indicating that

the player is injured.

C. Injuries in the NBA

1. Injury Tracking System

Since 2012, the NBA has employed an EMR system, called HealtheAthlete. Cerner Corporation, the

creator of HealtheAthlete, describes the “secure electronic platform” as “enhanc[ing] the standard of

medical record keeping for all NBA athletes.”

445

The system allows each player to have an integrated

record of their care, gives medical personnel easy access to these records, and improves the NBA’s ability

to track trends in player health and healthcare.

446

The EMR system also “allow[s] for authorized academic

researchers to access the data (on a de-identified basis) and conduct studies designed to improve player

health and broaden medical knowledge” (with the NBPA’s approval, which cannot be unreasonably

withheld).

447

The CBA specifically permits disclosures of player health information to be made via

“secure systems” with EMRs to the extent that medical disclosures are otherwise allowed by the CBA.

448

Prior to the EMR system, the National Basketball Athletic Trainers Association (“NBATA”), comprised

of all athletic trainers working for an NBA club, maintained a record of “all injuries and illnesses

sustained by NBA players.”

449

An injury or illness was considered reportable if it: (1) required physician

referral, prescription medication, or both; (2) resulted in a missed game or practice; or, (3) necessitated

emergency care.

450

Entries into the NBATA system were “completed by the team’s athletic trainer and

cosigned by the team physician.”

451

The reported data included pathology, time and place of injury or

onset of illness, activity, and the mechanism of injury.

452

The HealtheAthlete system collects the same

data formerly recorded by the athletic trainers.

453

In reviewing a draft of this Report, the NBA stated that

the HealtheAthlete system also provides additional unspecified information. Additionally, since 2014, the

NBA has worked with the international biopharmaceutical services firm Quintiles to analyze injury data

and provide reports to the NBA and NBPA.

454

2. Injury Statistics

The most recent comprehensive study on NBA injury rates was led by Dr. Mark C. Drakos and published

in Sports Health in 2010.

455

The study looked at injury data from the NBATA injury database for 17

seasons (1988–89 through 2004–05).

456

The Drakos study stated that it did not examine injury rates “for

practices and pre-season games” due to “unreliable reporting methods and lack of a standardized

protocol.”

457

Given the source of the data, “injuries” as defined in the study included those: (1) requiring

physician referral, prescription medication, or both; (2) resulting in missed games or practices; and, (3)

those requiring emergency care.

458

Additionally, the study only included injury data for injuries that

occurred during the NBA regular season.

459

The Drakos study acknowledged that it was limited by the fact that the injury data may be underreported

for a variety of reasons.

460

Additionally, the length of study complicates the analysis, as it seems likely

that over the 17 seasons knowledge about injuries and attitudes towards reporting injuries changed,

85!

resulting in changes in the data over time. Nevertheless, the Drakos study provides the most reliable

publicly-available data on NBA player injuries and we thus use it here.

Like the Green Study discussed above in MLB, the Drakos study examined injury rates through AEs,

defined as “1 athlete appearing in 1 game.”

461

During the time period studied, there were 6,287 injuries in

regular season games.

462

The study determined there was an injury rate of 19.1 per 1,000 AEs.

463

Using the data from the Drakos study, we can also calculate several other statistics. Over the 17 seasons,

there was a mean of 369.8 injuries per season (6,287/17). Also, during the time period studied, there were

38,268 regular season NBA games.

464

Thus, there were 0.16 injures per regular season NBA game

(6,287/38,268).

To determine additional statistics, we used data from basketball-reference.com for the 17 seasons covered

by the Drakos study. During these seasons, players made a total of 387,673 game appearances. Thus, the

injury rate per player-game was 0.016 (6,287/387,673). Additionally, during the seasons of the study,

there were a total of 7,115 player-seasons.

465

Using the Drakos study’s calculation of 6,287 injuries, we

can calculate that the injury rate per player-season was 0.88 (6,287/7,115). Again, there are two important

limitations to this statistic: (1) this statistic represents a per player-season statistic, regardless of whether

he played one game or all 82 games; and, (2) there is likely variation in injury rates among the different

positions on the court.

According to data in the Drakos study, the most commonly injured body parts during regular season

games were ankles (66.1 injuries per season), knee (29.5), femur (28.4), lumbar spine (28.3), and tibia

(25.4).

466

Ankle sprains (distinct from all ankle injuries) were the most common injury (62.7 per

season).

467

Concussions were among the least-reported injuries in the study. During the 17-year period, there were

only 53 reported concussions that occurred during games, which accounted for only 0.8% of total injuries

reported during games and contributed to only 0.4% of games missed.

468

With 38,268 games played

during the period, a diagnosed concussion occurred only once every 722.0 games, or a mean of 0.0014

per game. Over the length of the Drakos study, the rate of concussion was 0.00014 per player-game

(53/387,673). During the 2013–14 season, there were only nine reported concussions,

469

a mean of one

every 136.7 games, or 0.007 per game. Players made 25,618 game appearances during the 2013–14

season,

470

and therefore suffered a per player-game concussion rate of 0.00035 (9/25,618). Additionally,

during the 2013–14 season, 483 players played in the NBA. Thus, there were 0.019 concussions reported

per player-season (9/483).

Readers might be interested in the mean number of games a player plays before suffering an injury. We

calculated above that the rate of injuries per player-game was 0.016. Thus, we can calculate that players

play a mean of 62.50 games before suffering one injury (1/0.016). We can also calculate the mean number

of games a player plays before suffering a concussion. We calculated above that the rate of concussion

per player-game was 0.00035. Thus, we can calculate that players play a mean of 2,857.14 games before

suffering one concussion (1/0.00035). With 82 regular season games, players theoretically play a mean of

34.8 seasons before suffering a concussion. For context, the mean career length for a player is about 4.8

years.

471

Nevertheless, it is important to remember that this is a mean statistic and thus includes players

who play very little in the game. Players with more game time are likely to suffer concussions at rates

higher than those provided here.

Finally, as stated above, during the time period of the Drakos Study (1988–2005), concussions

represented only 0.8% of game injuries. Based on increased attention to concussions since 2005, it seems

likely that this proportion has increased. However, we do not have more recent injury data against which

86!

to compare recent concussion data.

472

For this reason, we also do not provide a Figure showing

concussions as a percentage of injuries, as we do for the NFL, MLB, and NHL.

3. Injury-Related Lists

NBA rosters are generally limited to 15 players, divided between an Active List and an Inactive List.

473

club typically has 12 or 13 players on its Active List, who are eligible to play in games, and then has 2 to

3 players on the Inactive List who cannot play.

474

While NBA clubs generally place their injured players

on the Inactive List, healthy players can also be on the Inactive List.

475

Thus, the NBA has no list specific

to injured players. Moreover, players are not required to be on the Inactive List for any specific period of

time. Consequently, like in the NFL, NBA clubs can declare players inactive for as little as one game at a

time.

4. Injury Reporting Policies

Like the NFL, the NBA obligates clubs to report player injuries publicly, including the nature of the

player’s injury.

476

The CBA authorizes each club to make public injury information relating to its players,

so long as the information relates solely to the reasons that a player is not rendering his services as a

player.

477

Further, a player or his immediate family (where appropriate) “shall have the right to approve

the terms and timing of any public release of medical information relating to any injuries or illnesses

suffered by that player that are potentially life- or career-threatening, or that do not arise from the player’s

participation in NBA games or practices.”

478

In practice, NBA clubs release injury reports prior to every game, describing a player’s status (out,

doubtful, questionable, probable) and the nature of the player’s injury, including the injured body part.

D. Injuries in the NHL

1. Injury Tracking System

The NHL’s injury tracking system is part of the Athlete Health Management System (“AHMS”). The

AHMS is the NHL’s “electronic health records system focusing on the diagnosis, treatment and

rehabilitation of injuries suffered by athletes in the course of athletic competition and training.”

479

The

AHMS “has an injury surveillance component,” which requires “NHL Athletic Team Trainers/Therapists

and Team Physicians [to] document[] all injuries using a standardised ‘injury/illness event’ (IIE) form for

each event causing a player to miss one or more games.”

480

“Medical staff [are] also instructed to create

an IIE for each event needing medical assessment and treatment, regardless of time loss.”

481

2. Injury Statistics

The most comprehensive study on NHL injury rates was led by Carly McKay and published in the British

Journal of Sports Medicine in 2014.

482

The study looked at injury data from the AHMS for six seasons

(2006–07 through 2011–12).

483

The McKay study acknowledged that it was limited by the potential underreporting of injuries,

484

as is a

common and complex occurrence in injury surveillance. Additionally, it acknowledged the possibility that

athletic trainers’ practices in reporting injuries vary among the clubs.

485

Nevertheless, the McKay study

provides the best available data on NHL player injuries and we thus use it here.

Like the MLB and NBA studies discussed above, the McKay study examined injury rates through AEs.

This study defined 1 AE as 1 player participating in 1 game.

486

During the time period studied, there were

87!

4,368 injuries during regular season games.

487

Thus, using this methodology, there was an injury rate of

15.58 injuries per 1,000 AEs.

However, the study also presented injury rates per hours of ice time, where exposure was measured in

terms of the number of hours on the ice. Using this methodology, the study determined that there were

49.4 injuries per 1,000 hours on the ice.

488

The study explained that the approximately threefold increase

in injury rate is due to the fact that no player (other than the goaltender) plays the entire 60-minute

game.

489

Using the data from the McKay study, we can also calculate several other statistics. During the time

period studied, there were 7,380 NHL regular season games.

490

Thus, there were 0.59 injuries per game

(4,368/7,380).

From the available information regarding the total number of injuries, total number of players per game,

games per year, and years of data, we can calculate the overall rate of injury per player-game as 0.015.

491

Additionally, during the seasons of the study, there were a total of 5,145 player-seasons.

492

With 4,386

injuries during this span, there was thus a mean of 0.85 injuries per player-season (4,386/5,145). Again,

there are two important limitations to this statistic: (1) this statistic represents a per player-season rate,

regardless of whether they played one game or all 82 games; and, (2) there is likely variation in injury

rates among the different positions on the ice.

The study found that the most common injuries were to the head (16.8%), thigh (14.0%), and knee

(13.0%).

493

Additionally, body checks were the most frequent cause of injury at 28.6%.

494

Turning to concussions in the NHL, there are two principal studies.

495

In an independent study led by Dr.

Richard A. Wennberg and published in the Canadian Journal of Neurological Sciences in 2008 examined

concussion as reported in the media for ten NHL seasons (1997–98 through 2007–08).

496

While media

reported concussion data is not the ideal data set, the NHL and NHLPA declined our requests for data on

the number of concussions suffered over the last ten years. The Wennberg study concluded that the

concussion incident rate during these seasons was 1.45 per 1,000 AEs, with an AE defined as one player

playing in one NHL game.

497

The Wennberg study reported that there was a total of 688 concussions over

the ten years studied,

498

which we can calculate equals a mean of 68.8 reported concussions per season, or

.058 per regular season game.

499

From data provided by the Wennberg study, we can calculate that player

exposures (i.e., games played) was a total of 477,240 games during the seasons studied.

500

Thus, the rate

of concussions per player-game is 0.0014 (0.688/477,240).

In 2011, the doctors in charge of the NHL/NHLPA Concussion Program

501

published their own study

concerning NHL concussion rates.

502

The NHL/NHLPA study examined concussions reported by club

doctors on standardized injury reporting forms for the seasons of 1997–98 through 2003–04.

503

The

NHL/NHLPA study reported a total of 559 concussions during the time period studied,

504

equaling a mean

of 79.9 concussions per season, or 0.068 per regular season game.

505

If we estimate that 38 players play

per game,

506

we can estimate that during the seasons analyzed by the NHL/NHLPA study, players played

a total of 313,158 games.

507

Thus, according to the data from the NHL/NHLPA study, the rate of

concussions per player-game is 0.0018 (559/313,158). The NHL/NHLPA study also calculated those

statistics as the equivalent of 1.8 concussions per 1,000 player-hours on the ice.

508

As awareness of concussions has grown, and reporting of concussions has likely improved, more recent

data concerning concussions are more useful. The NHL does not make its concussion data publicly

available like the NFL, but, nevertheless, it was reported that there were 78 concussions during the 2012–

13 regular season and 53 concussions during the 2013–14 regular season.

509

However, because of a work

stoppage, there were only 48 games during the 2012–13 regular season, rather than the normal 82. We can

88!

extrapolate that 78 concussions during 48 regular season games is the equivalent of 133 concussions

during a normal 82 game regular season.

510

53 concussions reportedly suffered during a full-length 2013–

14 regular season is considerably less (60.2%) than the 133 concussions during a hypothetical full-length

2012–13 regular season, which necessarily calls the data into question. Nevertheless, as stated earlier, the

NHL and NHLPA declined to provide more recent or reliable data on concussions and thus we rely on the

best available data.

There were a total of 1,950 regular season games in the 2012–13 and 2013–14 regular seasons.

511

With

131 concussions having occurred during these season, we can calculate that a concussion occurred once

every 14.9 regular season games,

512

equivalent to a rate of 0.067 per regular season game.

513

Again,

estimating that 38 players play per game, we can estimate that players played a total of 74,100 games

during the 2012–13 and 2013–14 seasons.

514

We can thus calculate that the rate of concussions per player-

game during those seasons was 0.0018 (131/93,480). This rate is slightly more than that from the

Wennberg study and matches the rate calculated using data from the NHL/NHLPA study.

We can also try to calculate the number of concussions per player-season. Using the extrapolated

concussion data for the 2012–13 season, we can estimate a hypothetical total of 186 concussions during

the 2012–13 and 2013–14 seasons. Using data from the McKay study, we can calculate that there during

the time period studied (2006–12), a mean of 857.3 players played each season.

515

If we assume that the

mean number of players played for the 2012–13 and 2013–14 seasons was the same as during the time

period of the McKay study, we can estimate that there are 0.108 concussions per player-season

(186/1,714.6).

516

Readers might be interested in the mean number of games a player plays before suffering an injury. We

calculated above that the rate of injuries per player-game was 0.016. Thus, we can calculate that players

play a mean of 62.5 games before suffering one injury (1/0.016). We can also calculate the mean number

of games a player plays before suffering a concussion. We calculated above that the rate of concussion

per player-game was 0.0018. Thus, we can calculate that players play a mean of 555.56 games before

suffering one concussion (1/0.0018). With 82 regular season games, players theoretically play a mean of

6.8 seasons before suffering a concussion. For context, the mean career length for a player is about 5.6

years.

517

Nevertheless, it is important to remember that this is a mean statistic and thus includes players

who play very little in the game. Players with more game time are likely to suffer concussions at rates

higher than those provided here.

Finally, by combining data from the different studies, we can estimate what percentage of player injuries

are concussions. The McKay study found that there was a mean of 728 injuries per season during the

2006–07 through 2011–12 regular seasons. Again in an effort to use the most recent data, there was an

estimated mean of 93.0 concussions per season during the 2012–13 and 2013–14 regular seasons,

assuming the 2012–13 season was normal length (186/2). Based on these statistics, we can estimate that

12.8% of regular season injuries are concussions (93/728).

518

3. Injury-Related Lists

Like the NFL, injured NHL players are placed on different lists depending on the expected duration of the

injury and the timing of the injury.

First, the Injured Reserve List (“IR”) is for a player “reasonably expected to be injured, ill or disabled and

unable to perform his duties as a hockey Player for a minimum of seven (7) days from the onset of such

injury, illness or disability.”

519

NHL club rosters are limited to 23 players.

520

During the time a player is

on IR, the club can replace him on the roster.

521

89!

Second, players who fail the pre-season physical are placed on the Injured Non-Roster list.

522

A player on

the Injured Non-Roster list does not count against the club’s 23-man roster.

523

NHL clubs are permitted to

have up to 50 players under contract,

524

thus, the purpose of the Injured Non-Roster list is unclear.

Third, like the NFL, players injured for only a short period of time are only temporarily declared inactive.

NHL clubs have 23-man rosters. But clubs are only permitted to have 20 players play in each game. Thus,

clubs declare three players inactive for each game. As in the NFL, the players declared inactive are

frequently players with an injury that is expected to keep them out of only for a game or two.

4. Injury Reporting Policies

Like the NFL, the NHL requires clubs to report publicly information about player injuries. Specifically,

clubs are “required to disclose that a player is expected to miss a game due to injury, or will not return to

a game following an injury.”

525

Additionally, “Clubs are prohibited from providing untruthful information

about the nature of a player injury or otherwise misrepresenting a player’s condition.”

526

The CBA authorizes clubs to publicly disclose the nature of a player’s injury, the prognosis and

anticipated recovery time, and the treatment and surgical procedures that have been or will be

undertaken.

527528

Nevertheless, unlike in the NFL, clubs are not required “to disclose the specific nature of

player injuries.”

529

Accordingly, individual clubs may disclose information as they see fit, and

designations such as “upper-body injury” and “lower-body injury” are both common and acceptable.

530

The NHL may fine clubs for failing to abide by the policy, but the NHL does not publicly disclose those

fines.

531

E. Injuries in the CFL

1. Injury Tracking System

Research has not revealed any injury tracking system in use by the CFL.

2. Injury Statistics

There has not been a comprehensive study of general injury rates in the CFL, perhaps because CFL clubs

are not required to publicly report injuries, as will be discussed below.

532

In 2010, the CFL implemented a concussion protocol, requiring the standardization of concussion

reporting and allowing the League to more accurately track concussions.

533

In the first year of the new

protocol, there were 50 reported concussions in 85 CFL games for a mean of 0.59 per game.

534

It is

unclear whether this data includes pre-season or postseason games.

535

The CFL does not publicize its concussion data in the same manner as the NFL. Thus, it is challenging to

find more recent statistics concerning the number of concussions in the CFL. However, in a 2015 news

article, Dr. Dhiren Naidu, the club doctor for the CFL’s Edmonton club, stated that in 2014, there was a

mean of slightly more than eight concussions per club.

536

With nine CFL clubs, that means there were

slightly more than 72 concussions in the CFL in 2014. In the same article, it was reported that

concussions in the CFL “dropped by 25 percent in 2015.”

537

Thus, if we assume that the number of

concussions in 2014 was 76 (which is closer to eight per club than nine per club), a 25% reduction would

mean that there were 57 concussions in 2015. Thus, in 2015, there was an estimated mean of 0.704

concussions per game.

538

90!

Using this estimated number of concussions in 2015, total number of players per game, and games per

year, we can calculate a rate of 0.0080 concussions per player-game.

539

With this statistic we can also

calculate that the mean number of games a player plays before suffering one concussion is 125.0

(1/0.0080). With 18 regular season games, players theoretically play a mean of 6.9 seasons before

suffering a concussion. Nevertheless, it is important to remember that this is a mean statistic and thus

includes players who play very little in the game or players who play positions less likely to suffer

concussions. Players who play a lot and players at certain positions are likely to suffer concussions at

rates higher than those provided here.

3. Injury-Related Lists

CFL clubs maintain a 44-player active roster, a two-player reserve list,

540

and a 10-player practice-squad

roster.

541

In the event that a player is injured, his club may place him on either a six-game or one-game

Injured List, depending on the severity of the injury.

542

Players on either Injured List do not count toward

the club’s roster limits.

543

4. Injury Reporting Policies

The CFL does not require public disclosure of injuries, but clubs report injuries to the CFL through the

process of placing a player on the Injured List, and clubs must report concussions to the League.

544

F. Injuries in MLS

1. Injury Tracking System

Like the NBA, MLS uses the “HealtheAthlete” EMR system for recording player medical information

and tracking injuries.

545

Cerner Corporation, the creator of HealtheAthlete, describes the “secure

electronic platform” as providing the ability to “improve the standard of medical record keeping for

injured athletes, as well as ease communication between the athlete’s key care providers.”

546

Additionally,

according to Cerner, the platform “allows MLS athletic trainers to increase the accuracy of injury

documentation by accessing the platform from any location and integrating care-related media, like notes,

X-rays, and MRIs, directly into the athlete’s injury report.”

547

Athletic trainers are required to “document

soccer related Player complaints, injuries, treatments, [and] medications, including over-the-counter

medications[.]”

548

2. Injury Statistics

The only study ever done of MLS injury rates was performed by San Jose Earthquakes athletic trainer

Bruce E. Morgan following MLS’ inaugural 1996 season.

549

The study determined that MLS players

suffered injuries at a rate of 35.3 per 1,000 hours of game play.

550

Data from the MLS’ HealtheAthlete system are not publicly available and thus it is difficult to provide

current MLS injury data. More helpful data can be derived from studies or reports concerning injury rates

in the Union of European Football Associations (“UEFA”), a European soccer organization whose

members generally include the best soccer clubs in the world and who play in some of the best soccer

leagues in the world (such as the English Premier League and Spain’s La Liga). While UEFA and MLS

are different soccer organizations, we nonetheless believe that data from UEFA, an elite soccer

organization like MLS, can be instructive of the injury rates in MLS. Indeed unless and until MLS makes

its own data public, we think the UEFA data provides the best proxy estimate of the underlying injury rate

in that league.

91!

In 2014, UEFA released a report on injuries suffered by players playing for a selection of 29 (out of 54)

UEFA member clubs (“UEFA Report”).

551

The UEFA Report does not provide a definition for a

reportable injury. Nevertheless, the UEFA Report stated that the mean match injury incidence for all

clubs was 23.2 injuries per 1,000 hours of match play during the 2013–14 season.

552

Additionally, a study

done of UEFA injuries from 2001 to 2008 determined that players suffered injuries at a rate of 27.5 per

1,000 hours of game play.

553

The UEFA Report acknowledges two relevant limitations. First, it acknowledged that the Report only

includes injuries from one season.

554

Second, the UEFA Report acknowledged that there is variation

among the clubs in injury incidence,

555

which might be explained by different practices in the reporting of

injuries. For example, the UEFA Report does not discuss a standardized injury reporting system or

process among the clubs. Nevertheless, the UEFA Report provides the most reliable data on UEFA player

injuries and we thus use it here.

The UEFA Report determined that the body parts most commonly injured during games are thigh

(27.0%), knee (17.5%), ankle (14.6%), hip/groin (13.8%), and lower leg/Achilles tendon (7.6%).

556

Using the data from the UEFA Report, we can also calculate several other statistics. The UEFA Report

included data from 29 clubs.

557

Additionally, the UEFA Report found there to be a total of 739 injuries

from games,

558

for a mean of 25.5 injuries per club for the 2013–14 season (739/29).

The UEFA report also reported that the clubs participating in the study played a mean of 59 games,

559

for

a total of 1,711 games played by the clubs (59 x 29). To provide an accurate analysis of the injuries per

game, we can only count games in which the clubs played against one another as one game, i.e., we only

count the unique games. We thus reviewed the 2013–14 seasons of the 29 clubs (which participate in 12

different leagues) and determined that the clubs played 327 games against one another. Thus, the clubs

played in a total of 1,384 unique games (1,711 less 327). With this number of games, we can calculate

that there were 0.53 injuries per UEFA game (739/1,384).

We can also calculate injury rates per player. Data on player participation during the 2013–14 season was

not readily available. Thus, we make our best estimates. There are generally 11 players per club in a

soccer game at a time. FIFA’s

560

rules limit clubs to three substitutions in official games.

561

Thus, we can

estimate that 14 players play in each game per club, assuming clubs use all of their substitutions. As a

result, we can estimate that were 19,376 player appearances during 2013–14 games (14 x 1,384). We can

then estimate a rate of 0.038 injuries per player-game (739/19,376). We again remind the reader there is

likely variation among the different positions on the field.

The UEFA Report found that the most common injuries were to the thigh (27.1%), knee (18.5%), and

hip/groin (14.5%).

562

The UEFA Report reported 14 concussions during games.

563

Using the above statistic of 1,384 unique

games, we can calculate a mean of 0.010 concussions per game (14/1,384). With an estimated 19,376

player appearances, we can thus also estimate that the rate of concussion per player-game was 0.00072

(14/19,376).

Readers might be interested in the mean number of games a player plays before suffering an injury. We

calculated above that the rate of injuries per player-game was 0.038. Thus, we can calculate that players

play a mean of 26.32 games before suffering one injury (1/0.038). We can also calculate the mean number

of games a player plays before suffering a concussion. We calculated above that the rate of concussion

per player-game was 0.00072. Thus, we can calculate that players play a mean of 1,388.89 games before

suffering one concussion (1/0.00072). Nevertheless, it is important to remember that this is a mean

92!

statistic and thus includes players who play very little in the game. Players who play a lot are likely to

suffer concussions at rates higher than those provided here.

Finally, we can calculate what percentage of injuries were concussions. The UEFA report found that 14 of

739 injuries were concussions, equal to 1.9%.

MLS, without explanation, has refused to publicly release data on the number of concussions suffered by

its players.

564

3. Injury-Related Lists

MLS club rosters are limited to 28 players.

565

Injured players can be placed on two different lists,

depending on the severity of the injury.

First, players with “short-term” injuries are placed on the Disabled List (“DL”) and replaced on the roster

with another player.

566

The player must remain on the DL for a minimum of six matches.

567

Second, players who have suffered season-ending injuries are placed on the Season Ending Injury List.

568

These players are then replaced on the club’s roster.

569

4. Injury Reporting Policies

Like NFL clubs, MLS clubs are required to submit injury reports about players’ statuses.

570

MLS requires

clubs to include in their “Match Notes” information about player injuries.

571

Match Notes are programs of

pre-game information including rosters, statistics, and other information about the game that are publicly

available. In the Match Notes, the clubs must designate a player either as “out” or “questionable,” indicate

the affected part of the body, and provide an injury diagnosis.

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According to the MLS Medical Manual,

the “injury reports should be as accurate as possible.”

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Policies concerning the public reporting of injuries can seem somewhat contradictory. The CBA dictates

that public reporting of player injuries be limited to medical information relating to why the player “ha[s]

not been, [is] not, or may not be rendering playing services as an MLS player.”

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However, the MLS

Medical Manual directs that “[i]n circumstances where a player injury or illness requires a complex

medical examination (e.g., to review a surgical procedure),” the club doctor or athletic trainer can

publicly describe “the nature of the injury or illness, the prescribed treatment or rehabilitation, and the

excepted timing of the player’s return to action.”

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While the MLS Manual does say the club doctor or

athletic trainer should first consult with the player,

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there is no indication the player can prevent the club

doctor or athletic trainer from discussing his medical condition.

G. Analysis

Tables 2-L and 2-M summarize some of the key injury-related statistics and policies. Nevertheless, it is

important to understand the limitations of the injury statistics. At the beginning of this Chapter, we

identified various limitations with analyzing injury statistics, including that injuries in sports are likely

underreported and that there are important differences between the leagues including practice and game

scheduling, EMR systems, and injury definitions. Moreover, for each of the leagues, we described various

limitations or statistical assumptions we made to calculate the statistics discussed in these tables.

Additionally, for the reasons discussed above, the injury statistics for MLS include MLS-specific data as

well as the data provided by the UEFA Report.

Table 2-L: Comparison of Leagues’ Regular Season Injury Statistics

577

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NFL

MLB

NBA

NHL

CFL

578

UEFA

MLS

579

Electronic

Tracking

System

Yes

N/A

580

Yes

Mean Injuries

Per Season

581

1,511.0

1,516.6

369.8

728.0

N/A

Rate of

Injuries Per

Player-Season

0.69

0.93

0.88

0.85

N/A

582

N/A

Mean

Concussions

Per Season

583

160.0

18.0

9.0

93.0

57.0

584

N/A

585

N/A

586

Rate of

Concussions

Per Player-

Season

0.073

0.016

0.019

0.108

N/A

587

N/A

588

N/A

Concussions

As Percentage

of Injuries

589

10.5%

1.8%

2.4%

12.8%

N/A

1.9%

N/A

Mean Injuries

Per Game

5.90

0.45

0.16

0.59

N/A

0.53

N/A

Rate of Injury

Per Player-

Game

0.064

0.016

N/A

0.038

N/A

Regular

Season Games

Per Player-

Injury

15.60

62.50

N/A

Most Common

Injury/Injured

Body Part

590

Concussio

Upper leg

(thigh)

Ankle

Sprain

Head

N/A

Thigh

N/A

Concussions

Per Game

0.625

0.007

0.067

0.704

0.010

N/A

Rate of

Concussion

Per Player-

Game

591

0.00679

0.00026

0.00035

0.00180

0.00800

0.00072

N/A

Games Per

Concussion

Per Player

147.10

3,846.15

2,857.14

555.56

125.00

1,388.89

N/A

Table 2-M: Comparison of Leagues’ Injury Reporting Policies

NFL

MLB

NBA

NHL

CFL

UEFA

MLS

Authorized to

Disclose

Injuries

(Existence

and Nature)

By waiver

Yes

N/A

Yes

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Required to

Disclose

Existence of

Injuries

Yes

N/A

Yes

Required to

Disclose

Nature of

Injuries

Yes

592

N/A

Yes

Before proceeding with our analysis, there are some important limitations to our comparison of injury

statistics across the leagues that should be noted.

First, in describing the leagues’ injury statistics, we are limited by the injury definitions used by the

leagues and studies. These definitions vary slightly among the leagues. Generally speaking, the NFL,

NBA, and NHL report all player injuries that result in treatment, regardless of whether the injury causes

the player to miss a practice or game. In contrast, MLB’s publicly available injury data (through the

research studies conducted by its partners and affiliates), only includes injuries that cause a player to miss

“at least 1 day… of play.” Thus, MLB’s injury data is low as compared to the other leagues.

Second, the data comes from different time periods. Generally speaking, the injury data for the NFL is

from 2009–16, for MLB from 2010–14, for the NBA from 1988–2005, and the NHL from 2006–12. It is

possible that injury rates and injury reporting practices have changed over time. Nevertheless, we believe

that this is still sufficiently reliable and transferrable to the present and thus provides useful information

for examining the injury rates across the different sports leagues.

With these limitations in mind, we turn now to an analysis of the data.

The NFL’s injury rates appear to be much higher than those of the other leagues. Indeed, if one combines

the estimated mean number of injuries suffered per game in MLB, the NBA, and the NHL, the estimated

mean number of injuries suffered per game in the NFL is approximately 4.9 times higher than the sum of

those other leagues. Additionally, if one combines the per-game concussion rates of all of the non-football

leagues (including UEFA), the NFL’s concussion rate is approximately 6.9 times higher than the sum of

those other leagues.

Nevertheless, it is important to point out one area in which the NFL may not be more injurious. The

NFL’s rate of concussions per player-season is 0.073; the NHL’s is 0.108. Thus, if one were to imagine a

comparison of one NFL player and one NHL player, the NHL player would be more likely to suffer a

concussion in his next regular season than the NFL player during his next season. However, this

discrepancy is due to the fact that the NHL plays substantially more regular season games than the NFL

(82 versus 16). When comparing concussion statistics on a per game basis, an NFL player is

approximately 3.8 times more likely to suffer a concussion in a regular season game as compared to an

NHL player (0.00679/0.00180).

In addition, limiting our analysis to the leagues’ regular season games (a function of available data)

underestimates injury rates. As shown in Section II.A on NFL injury rates, there are a significant number

of injuries and concussions sustained during NFL practices and during the pre-season (90 concussions in

2015 practices and pre-season games). In particular, pre-season NFL training camps can often be

extremely physical as players fight to prove themselves and make the club.

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With that increased level of

intensity and physicality comes injuries and concussions. The reader should bear this limitation in mind.

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It is beyond our expertise to recommend specific on-the-field rule changes for professional football, but

we acknowledge that the rules of play can have an important impact on minimizing player injury. Rule

changes have historically been implemented to increase the safety of the game, and that trend continues

today.

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However, the effects of these changes are not always clear at the outset: some injury-reducing

rule changes may inadvertently induce other types of risk-taking behavior, or reduce certain injuries while

exacerbating others. As in any contact sport, a certain number of injuries in football are unavoidable.

Which on-the-field changes would be desirable depends on a multi-factorial analysis of the benefits and

drawbacks of the current version of the game (in regards to health and otherwise), the benefits and

drawbacks of moving to a radically different game, and a method of weighing those benefits and

drawbacks against the welfare consequences of injuries to players and players’ own desires and goals as

they define them. Thus, while we welcome recommendations for rule changes to improve player safety

made by appropriate experts, evaluated in light of what players themselves want, we are not in a position

to make these determinations as a definitive matter. Ultimately, we conclude that we are likely to be far

more effective in protecting and promoting player health via off-the-field intervention than by suggesting

that the game itself fundamentally change.

In our efforts to improve and promote player health, we instead focus our analysis on three of the issues

discussed above: (1) injury tracking systems; (2) injury-related lists; and, (3) policies concerning public

reporting of injuries.

Injury Tracking Systems

Each of the Big Four leagues and MLS has an injury tracking system of some kind. Discussions with

experts on this issue indicated that the injury tracking systems are generally comparable; each of them is a

sophisticated and modern system that should enable accurate reporting and provide interesting and useful

data. The differences may come in how the leagues use the data that is available to them.

The NFL and NBA employ Quintiles, a health information technology firm, to perform sophisticated data

analysis concerning player injuries. While the studies discussed above demonstrate that the other leagues

have occasionally made injury data available for analysis, our research has not revealed whether the other

leagues perform an ongoing annual analysis like Quintiles does for the NFL and NBA. The academic

studies discussed above demonstrate that such analyses are possible. We will discuss this issue and others

in the Recommendations Section below.

Injury-Related Lists

The NFL, NBA, and NHL all permit their clubs to declare players inactive one game at a time,

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which is