Marshall Kelner*
This blog post is a response to Micayla Bitz’s post, entitled “OSHA on the Sidelines: Why OSHA Should Fine the NFL for Its Repeated General Duty Clause Violations.”
On January 2, 2023, the nation watched in horror as Buffalo Bills safety Damar Hamlin suffered cardiac arrest and collapsed on the field after making a tackle.[1] Thankfully, Hamlin has made a remarkable recovery, but the cause of his cardiac arrest (the blow to the chest, a pre-existing condition, or something else) remains unknown.[2]
Regardless of the cause, the incident reignited the debate about the safety of football.[3] Anyone who has watched a National Football League (“NFL”) game knows that football is a violent sport. Making the game safer is a worthy goal, but how can we accomplish that within the confines of the law?
Ms. Bitz’s suggestion that the Occupational Safety and Health Administration (“OSHA”) should step in and regulate the NFL is misguided for three main reasons. First, the purpose of the Occupational Safety and Health (“OSH”) Act of 1970 was not to regulate sports and entertainment organizations. Second, the NFL Players Association (“NFLPA”) is perfectly capable of advocating for the safety of its players without government interference. Finally, there are no feasible means to significantly improve player safety in football. It is an inherently violent game.
I. The OSH Act of 1970 Was Not Meant to Cover Sports
OSHA operates under the Department of Labor (“DOL”) and on DOL’s website, the Department goes into great detail about the legislative intent behind the OSH Act of 1970.[4] The purpose was to protect workers in factories, coal mines, steel mills, automobile plants, and other similar industries.[5] There is no mention of sports whatsoever.[6]
The General Duty Clause of the OSH Act of 1970 is very broad.[7] It requires that employers provide their employees with a place of employment “free from recognized hazards that are causing or likely to cause death or serious physical harm to [their] employees.”[8] Likewise, in the Congressional Statement of Findings and Declaration of Purpose and Policy earlier in the bill, similarly broad language is used and there is no mention of sports or entertainment.[9]
In his dissent in SeaWorld of Florida, LLC v. Perez, then-D.C. Circuit Court Judge Brett Kavanaugh underscored this point: “The Congress that enacted the Act in 1970 was certainly aware of the hazards in many popular sports such as football, baseball, ice hockey, and boxing.”[10] Despite this knowledge, Congress elected not to include any language about sports in the legislation. As Kavanaugh emphasized, “In the real world, it is simply not plausible to assert that Congress . . . silently intended to authorize the Department of Labor to eliminate familiar sports and entertainment practices, such as punt returns in the NFL, speeding in NASCAR, or the whale show at SeaWorld.”[11]
While playing football is likely a more dangerous job than most people have, there are many jobs in America that are far more dangerous. According to the Bureau of Labor Statistics, about 5,200 U.S. workers died of injuries sustained on the job in 2021, an average of about fifteen per day.[12] This does not “include workers who perish as a result of chronic job site hazards, such as black lung disease, cancers from chemical exposure or cardiovascular disease.”[13] In addition, 2.6 million private sector employees suffered “nonfatal workplace illnesses or injuries in 2021,” which is likely an undercount.[14]
From 2019–2021, football players specifically were not tracked by the Bureau of Labor Statistics, but sports professionals in general were.[15] Fishing, logging, roofing, painting, mining, and several other professions were far more dangerous during this time period.[16] These are the types of industries OSHA should regulate, not the NFL.
II. The NFLPA Can Advocate for its Players Without Government Assistance
The NFLPA is the union for players in the NFL and is very powerful.[17] It negotiates the Collective Bargaining Agreement (“CBA”) on behalf of the players, in addition to providing them with a multitude of other services.[18]
In the latest CBA, the NFLPA secured “an increased share in revenue, expanded roster sizes, a sizeable bump in minimum salaries, health & safety advances, rookie contract bonuses, and more.”[19] On top of that, player representatives are free to advocate for additional changes to improve player safety.[20] The long history of rule changes in this area shows how effective the NFLPA has been.[21] For example, just this season, the NFL and NFLPA agreed to modified concussion protocols after Miami Dolphins quarterback Tua Tagovailoa suffered multiple concussions.[22] Notably, all of this was accomplished without government intervention.
Then-Judge Kavanaugh astutely pointed out that “the sports and entertainment industries regulate themselves, often through collaboration between management and participants, to ensure that the risks are at least known to all.”[23] Rule changes, such as Major League Baseball prohibiting home plate collisions and the NFL prohibiting certain hits to the head, occur as a result.[24] While government occasionally has a role to play in regulating sports, we should resist that temptation whenever possible. As former President Ronald Reagan famously said, “The nine most terrifying words in the English language are: I’m from the Government, and I’m here to help.”[25]
III. There Are No Feasible Means to Materially Reduce Violence of Football
Football is an inherently violent game and while attempts to reduce injuries and the long-term impact players suffer are admirable, it will always be risky for players to step onto the field. Then-Judge Kavanaugh outlined that to apply the General Duty Clause of the OSH Act, the Department of Labor and courts have determined “it must have been ‘feasible’ for the employer to eliminate or materially reduce the recognized hazard at issue. . . . [T]he Department has acknowledged that hazards posed by the normal activities intrinsic to an industry cannot be ‘feasibly’ eliminated and so may not form the basis of a General Duty Clause citation.”[26]
Tackling is a normal activity intrinsic to football and the NFL. Almost every play ends with a tackle. Offensive and defensive linemen collide violently on every play and there are countless other collisions between players throughout a game. As then-Judge Kavanaugh correctly described, “In the sports and entertainment fields, the activity itself frequently carries some risk that cannot be eliminated without fundamentally altering the nature of the activity as defined within the industry.”[27]
No players are forced to play in the NFL. They play because they have a passion for the game and an opportunity at a lucrative career. As Pittsburgh Steelers center Mason Cole said, “‘We understand the risks that come with it. . . . But we love this game. We love the life it’s given a lot of us. It’s a job that we’ve chosen.’”[28]
Reforms have been and will continue to be made to reduce the risk of serious injury.[29] For example, the fact that the heroic medical professionals were on the sidelines and reacted so quickly likely saved Damar Hamlin’s life.[30] Football, however, will always remain violent. As Hall of Fame quarterback and former Minnesota Viking Brett Favre bluntly said, “[H]ow do you make the game safer? You don’t play.”[31]
* Marshall Kelner, J.D. Candidate, University of St. Thomas School of Law Class of 2024, Associate Editor of the University of St. Thomas Law Journal.
[1] Alaina Getzenberg, Damar Hamlin in Critical Condition After Suffering Cardiac Arrest; Bills-Bengals Postponed, ESPN (Jan. 2, 2023), https://www.espn.com/nfl/story/_/id/35368372/damar-hamlin-collapses-field-bills-bengals-temporarily-suspended.
[2] Aya Elamroussi & David Close, Damar Hamlin Discharged After Spending More Than a Week Hospitalized Due to a Cardiac Arrest, CNN: Sports, https://www.cnn.com/2023/01/11/sport/damar-hamlin-buffalo-bills-hospital-release-spt/index.html (Jan. 11, 2023, 1:37 PM).
[3] Jenna Ryu, Damar Hamlin, Football Safety and What We’re Missing in the ‘Violent Spectacle’ Debate, USA Today: Health & Wellness, https://www.usatoday.com/story/life/health-wellness/2023/01/06/damar-hamlin-injury-nfl-football-safety-debate/10994893002 (Jan. 10, 2023, 11:03 AM).
[4] Judson MacLaury, The Job Safety Law of 1970: Its Passage was Perilous, U.S. Dep’t Lab. (Mar. 1981), https://www.dol.gov/general/aboutdol/history/osha#:~:text=On%20December%2029%2C%201970%2C%20President,most%20of%20the%20country’s%20workers.
[5] Id.
[6] Id.
[7] 29 U.S.C. § 654(a)(1).
[8] Id.
[9] 29 U.S.C. § 651.
[10] 748 F.3d 1202, 1221 (D.C. Cir. 2014) (Kavanaugh, J., dissenting).
[11] Id. at 1222.
[12] Jacob Bogage, Taylor Telford & Andrew Van Dam, ‘We Know What It’s Like’: Workers in Dangerous Jobs Empathize with NFL’s Hamlin, Wash. Post: Econ. (Jan. 6, 2023, 1:12 PM), https://www.washingtonpost.com/business/2023/01/06/hamlin-nfl-dangerous-jobs.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] How the NFLPA Works, NFLPA, https://nflpa.com/about (last visited Feb. 19, 2023).
[18] Id.
[19] Id.
[20] See JC Tretter, NFL Player Health & Safety Lies Beneath the Surface, NFLPA (Nov. 12, 2022), https://nflpa.com/posts/nfl-player-health-safety-lies-beneath-the-surface (recommending several changes, including replacement and ban of slit film turf, fields with visual abnormalities, testing of field surfaces, and removal of dangerous equipment from the sidelines).
[21] The History of the Rules, NFL Football Operations, https://operations.nfl.com/the-rules/evolution-of-the-nfl-rules (last visited Feb. 19, 2023).
[22] Around the NFL Staff, NFL, NFLPA Agree to Modify Concussion Protocols Following Completion of Tua Tagovailoa Investigation, NFL (Oct. 8, 2022, 6:43 PM), https://www.nfl.com/news/nfl-nflpa-agree-to-modify-concussion-protocols-following-completion-of-tua-tagov.
[23] SeaWorld of Fla., v. Perez, 748 F.3d 1202, 1217 (D.C. Cir. 2014) (Kavanaugh, J., dissenting).
[24] Id.
[25] News Conference – I’m Here to Help, Ronald Reagan Presidential Found. & Inst., https://www.reaganfoundation.org/ronald-reagan/reagan-quotes-speeches/news-conference-1 (last visited Feb. 19, 2023).
[26] SeaWorld of Fla., 748 F.3d at 1219 (citations omitted).
[27] Id.
[28] Ryu, supra note 3.
[29] Id.
[30] Id.
[31] Brett Favre: ‘If You Want to Make Football Safer – Don’t Play’, CNN: Sports (Feb. 1, 2018, 1:59 PM), https://www.cnn.com/2018/02/01/sport/brett-favre-superbowl-concussion/index.html.
University of St. Thomas Law Journal 
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