This post is part of our Blog Symposium “Applying the Americans with Disabilities Act and Genetic Information Nondiscrimination Act to the NFL Workplace.” Background on the symposium and links to other blog posts are here.
In Evaluating NFL Player Health and Performance: Legal and Ethical Issues 165 U. Pa. L. Rev. 227 (2017), the authors (Jessica L. Roberts, I. Glenn Cohen, Christopher R. Deubert and Holly Fernandez Lynch) compellingly explain why the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act supply legal protections to football players at the NFL Scouting Combine (“Combine”). In this blog post, I stress the need for such protections in light of the unusual—and vulnerable—legal status of players at the Combine.
The Combine and its relationship to the NFL Draft
Held in late February and early March, the Combine is the annual scouting spectacle for NFL teams. Over seven days, NFL teams evaluate college football players who are eligible for the NFL Draft. The NFL Draft, of course, is the exclusive method of entry for players into the NFL: only players who are either drafted or who are exposed to NFL Draft and not selected are eligible to play in the NFL.
Held each April, the NFL Draft is ostensibly designed to promote parity in the NFL. For teams that fail to make the playoffs, draft order is based on inverse order of teams’ records. This means that the very worst team obtains the first overall pick and thus the chance to draft the best available player.
In addition, the NFL employment rights of the drafted player are exclusive to the team that drafts him for one year. As a result, even if a player would prefer to sign with a different team, he can only enter the league by either signing with the team that drafted him or by sitting out a year. Therein lies a less celebrated purpose of the NFL Draft: by prohibiting otherwise competing NFL teams from bidding against one other for amateur players, the NFL Draft suppresses both wages and the employment freedom of new players. With that purpose in mind, players not yet in the NFL vie to be drafted as early as possible. This ambition is not merely for prestige—drafted players are subject to a rookie wage scale that slots salaries based on how highly players are selected.
Only about 330 such players are invited to the seven-day Combine, which tests players in such physical examinations as the 40-yard dash and vertical jump and also assesses players’ mental wellness through the Wonderlic test and other psychological and intellectual measurements. The Combine is something of a standardized test for NFL players. By comparing players head-to-head at the Combine, NFL teams can compare players who played in different college programs and against varying levels of competition. As Evaluating NFL Player Health and Performance explores, these activities create an extensive range of potential health law and bioethics issues.
Players at the Combine are Prospective NFL Players, but not NFL Players
One related and important legal dynamic is the legal status of players at the Combine. Combine players are typically still college students, though some have already left school to focus on draft preparation. Whether enrolled in school or not, Combine players are not NFL players. Many of them will be drafted two months later at the NFL Draft and become NFL players, but not all will be drafted and not all will become NFL players. The math spells this point out: more players will attend the Combine (up to 335) than there are draft picks (256). Plus, some of the drafted players will not have attended the Combine. So the population pools of Combine players and of any configuration of NFL players are, by design, not identical.
The most effective way of classifying Combine players is to equate them to job applicants. They are auditioning for NFL teams in hopes that that they will be drafted as early as possible. But at the time of the Combine, these players are not NFL players.
Lack of Legal Protections for Prospective NFL Players
The reason why the classification of Combine players matters is that the various protections found in the collective bargaining agreement (CBA) between the NFL and the NFL Players Association may not extend to these players. Even if those protections do extend, players at the Combine—who can’t yet be members of the NFLPA—have no suasion over how applicable protections are designed or enforced.
Relevant law is relatively clear in concept but not necessarily in practice. Collectively bargained rules are thought to govern both current and prospective employees, including unionized employees in professional sports. This is true so long as those rules primarily affect the wages, hours and other working conditions of the relevant bargaining unit. This concept explains why prospective players, who have no seat at the collective bargaining table, can be subjected to anticompetitive age eligibility restrictions—at least in the view of the U.S. Court of Appeals for the Second Circuit, though not necessarily in the view of other federal circuit courts of appeals. It also explains why players, upon entering the league, can be subjected to a rookie wage scale that pays them less than veteran players merely because they are new to the league. What occurs during the Combine, however, takes place well before an eligibility rule or wage scale would be enforced—perhaps too long before any bargained protections would protect Combine players.
The CBA itself does little to address the Combine. While an entire Article—Article 6—and its nearly 2,100 words are devoted to the intricacies of the NFL Draft, the Combine commands merely a few sentences. This is true in spite of the Combine’s importance to NFL teams and in spite of players undertaking a bevy of physical and psychological examinations during it. It seems reasonable to assume if the Combine involved current NFL players, instead of hopeful ones, there might be detailed rules about what occurs during the Combine.
While protections for players at the Combine may be uncertain, those same players are required to sign various waivers as de facto conditions of participation. Appendix C of Evaluating NFL Player Health and Performance reveals those waivers, which authorize the release and disclosure of players’ medical records. Although waivers are nominally optional, the authors note that every player elects to sign them.
Mistreatment of players at the Combine is not merely a theoretical concern. It has happened. As I wrote in my article Loaded Question: Asking a Draft Prospect about his Sexual Orientation could land a Team in a Legal Minefield (Sports Illustrated, Mar. 25, 2013 issue, page 16), NFL team executives have asked Combine players about their sexual orientation. As New York Attorney General Eric Schneiderman reminded the NFL and its teams, such a practice is unlawful under New York law, as well as the laws of many other states and municipalities. While the NFL pledged to correct this practice, apparently not everyone at the NFL listened. As I explained in my article Legal Issues raised by Falcons asking Prospect if he likes Men (SI.com, Mar. 5, 2016), Atlanta Falcons assistant coach Marquand Manuel asked Ohio State cornerback Eli Apple at the 2016 Combine, “So do you like men?” That question led AG Schneiderman to again warn the NFL and its teams that they must abide by the law. Yet the NFL—the same league that severely punished the New England Patriots over a scientifically doubted allegation concerning slightly underinflated footballs (Deflategate)—declined to punish either the Falcons or Manuel.
There is no easy fix to this dynamic. To change how laws govern the relationship between unions and prospective employees in professional sports may have unintended consequences on bargaining relationships in other industries. To expect Combine players to sue over mistreatment that occurs during the Combine may be unrealistic given that their focus is on being drafted by a team—not on becoming a litigant against that team. For now, the most effective approach may be to press the NFL and NFLPA to appreciate the unique status of Combine players and to contemplate ways to maximize their protections. Along those lines, the NFL could go a long way by punishing teams that mistreat Combine players.
Michael McCann is the Director of the Sports and Entertainment Institute at the University of New Hampshire School of Law, where he is also a Professor of Law. McCann is also Sports Illustrated’s Legal Analyst.