OSHA on the Sidelines: Why OSHA Should Fine the NFL for Its Repeated General Duty Clause Violations 

Micayla Bitz^*

On January 2, 2023, thousands of excited fans packed into a Cincinnati stadium, eager to witness the high-stakes matchup between the Cincinnati Bengals and the Buffalo Bills. 

Just minutes after the game began, the roars of excited fans were replaced with an eerie silence when a routine tackle left twenty-four-year-old Bills safety Damar Hamlin lying motionless on the turf.^[1] For ten minutes, emergency workers resuscitated Hamlin. Players from both teams looked on, wiping away tears.^[2]

A mere five minutes after Hamlin was taken off the field by ambulance, players were told to warm up to resume gameplay.^[3] While the National Football League (“NFL”) eventually postponed the game, Hamlin’s cardiac arrest on prime-time television forced fans and players alike to reconcile with the inherent violence of the most popular sport in America.^[4]

As media outlets across the globe explore football’s risks with renewed concern, it is an opportune time to discuss the hazards these players — these workers — experience on the job each day. 

Under the Occupational Safety and Health (“OSH”) Act’s General Duty Clause, football players should be guaranteed “a place of employment [in] which [they] are free from recognized hazards that are causing or are likely to cause death or serious physical harm.”^[5]

Both on-air tragedies like Hamlin’s and hazards like chronic traumatic encephalopathy (“CTE”) that linger long after retirement demand agency action.^[6] To date, courts are the primary venue where NFL safety concerns are being heard.^[7] But this is a lengthy, expensive, and exclusively retroactive method of addressing workplace hazards. Instead, the NFL Players Association (“NFLPA”) should file a formal complaint with the Occupational Safety and Health Administration (“OSHA”), alleging a violation of the General Duty Clause.^[8] OSHA supervision and standard setting in the NFL would make great strides toward safer gameplay.^[9]

I. The Football Field is a Hazardous Workplace

Earlier this season, Miami Dolphins quarterback Tua Tagovailoa was carried off the same field in Cincinnati after suffering from his second concussion in less than a week.^[10] When Tagovailoa slammed his head on the field, fans saw his fingers contort unnaturally in different directions, something called a “fencing response” to a traumatic head injury.^[11]

More than just this season’s on-air injuries, though, thousands of former NFL stars suffer outside of the camera’s lens.^[12] Years of concussions and sub-concussive events have led to alarming levels of CTE diagnoses in retired NFL players.^[13] Only diagnosable after death, CTE is a degenerative brain disease with symptoms including dementia, depression, language difficulties, aggression, and suicidal ideation.^[14] A 2017 Boston University study found CTE in all but one of the 112 deceased NFL players’ brains studied.^[15] Another study concluded that the risk of developing CTE doubles every 2.6 years of playing football.^[16]

Almost a decade ago, the NFL reached a settlement with 5,500 retired NFL players who alleged negligence and fraud by the League for their role in concealing the risks of brain injuries associated with playing football.^[17] While the NFL never admitted wrongdoing, its own court filings acknowledged that nearly a third of players will likely develop long-term cognitive problems, and these problems will occur at “notably younger ages” than for the general population.^[18]

Even compared to workplace hazards in other sports leagues, injury rates are far higher in the NFL.^[19] In fact, on average NFL players suffered injuries at rates 3.4 times higher than the combined rates for players in Major League Baseball (“MLB”), the National Basketball Association (“NBA”), National Hockey League (“NHL”), and Union of European Football Associations (“UEFA”).^[20] When it comes to concussions, this number skyrockets to 6.9 times higher than the combined rates of the other leagues.^[21]

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	0.007	0.067	0.704	0.010
Rate of Concussion Per Player-Game	0.00679	0.00026	0.00035	0.00180	0.00800	0.00072

All this to say, there is a well-established causal link between an NFL career and substantial health risks both during gameplay and in the decades that follow. As discussed below, this “significant risk of material health impairment” should trigger action from OSHA.^[22]

II. OSHA Regulatory Framework

OSHA’s jurisdiction extends to all private employers within the United States.^[23] The threshold question, then, is whether NFL players are “employees” of the NFL. While such a classification could open the floodgates for litigation, many have suggested that it is warranted.^[24]

Under the OSH Act’s General Duty Clause, employers must ensure their workplaces are “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”^[25] In industries such as the NFL, where players “are working under such unique circumstances that no standard has yet been enacted to cover this situation,” the General Duty Clause “enables the federal government to provide for the protection of employees.”^[26]

But, in a 2014 opinion, then-D.C. Circuit Court Judge Brett Kavanaugh argued that OSHA lacked authority to issue a fine against SeaWorld after a trainer was drowned by a killer whale.^[27] As the sole dissenter, Kavanaugh wrote: “Congress did not in any way indicate or even hint that the [General Duty] Clause’s vague terms encompassed an implicit grant of authority . . . to regulate and re-make some undefined swath of America’s sports and entertainment behemoth.”^[28]

Of course, the General Duty Clause also never indicates that such industries are not to be included in the OSH Act’s purview. After all, when Congress intends to make exemptions in a statute, “it makes its intention clear by using language that makes express exceptions.”^[29]

To allege a General Duty Clause violation, (1) the hazards of football must pose a “significant risk of material health impairment” to NFL players, and (2) there must be feasible means by which those risks could be reduced.^[30] 

A. Significant Risk of Material Health Impairment

Before OSHA can declare a workplace unsafe, it must find a significant risk of grave harm to employees.^[31] Most commonly, courts will use the threshold outlined by the Supreme Court in the Benzene Case to determine which workplace hazards are “plainly unacceptable” and require intervention.^[32] For instance, while a risk that more than one worker out of 1,000 would experience grave harm over his working lifetime is “clearly significant,” odds of one in a billion are not.^[33]

An OSHA finding of significant risk can be “supported by a body of reputable scientific thought.”^[34] As discussed in Section I, scientific studies spanning decades all establish that the NFL’s health risks far exceed this one in 1,000 threshold. The word “significant” does not begin to encompass the devastation experienced by both current and former players. When the NFL itself acknowledges that nearly one in three players will develop long-term cognitive problems, it is time for the government to intervene.^[35]

B. Feasible Measures to Eliminate Harm

While the NFL is undoubtedly exposing its players to significant risks, there must be feasible measures to eliminate harm before OSHA can act. Regulations that would make the NFL safer are considered “feasible” when they are economically and technologically “capable of being done, executed, or effected.”^[36]

1. Economic Feasibility

Generally, OSHA “considers a standard economically feasible” when costs of compliance are less than one percent of revenue or ten percent of profit.^[37] As the most profitable professional sports league in the United States, the NFL raked in $17.19 billion in 2021.^[38] One percent of that revenue is the equivalent of $171.9 million. Therefore, any expenses for safety measures that cost the League less than $172 million would likely be deemed economically feasible.

2. Technological Feasibility

Technological feasibility, though, is far less clean-cut. A technologically feasible regulation would have to “eliminate or materially reduce the hazards associated with playing in the NFL” without changing “the essential nature of the game.”^[39]

In recent years, the NFL has made strides toward safer gameplay through initiatives such as reducing full-contact practices, investing in helmet research, and moving the kickoff line.^[40] While the NFL boasts a twenty-seven percent drop in concussions from the 2017 season to the 2019 season, CTE can occur even in players who have never suffered from a concussion.^[41] Rather, it is the cumulative forces of a career’s worth of head-on collisions that cause the chronic condition.^[42]

Adam Finkel, a former OSHA director and current professor at the University of Michigan School of Public Health studying CTE in professional football players proposed several safety measures that could reduce both concussions and sub-concussive events. For instance, the NFL could introduce “temporary medical removal” policies that mirror OSHA standards in other industries and require “longer periods of removal from play for each concussion suffered during a career.” ^[43] Other changes include investing in research to develop improved protective equipment and increasing roster sizes “to reduce each worker’s lifetime cumulative exposure to head hits and forces on the brain.”^[44]

Ultimately, the General Duty Clause exists to ensure “[a]ll preventable forms and instances of hazardous conduct . . . [are] excluded from the workplace.”^[45]  Some may argue that football players understand the risks when they are drafted into the NFL, and they are paid handsomely for assuming them. But Congress “place[d] the duty to ensure a safe and healthy workplace on the employer, not the employee.”^[46] And the General Duty “is not qualified by such common law doctrines as assumption of the risk.”^[47]

III. “The Game Always Goes On” 

After watching Hamlin’s televised collapse, former tight end for the Denver Broncos, Nate Jackson, wrote an article reflecting on the “enduring pain” of football.^[48] Jackson wrote a chilling refrain after each story of a football-related injury: “The game always goes on.”

But on the day of Hamlin’s cardiac arrest, the game did not go on.^[49] It was the first time in NFL history that a game was postponed due to an injury.^[50] Let us use this “timeout” to reflect on the inherent violence of football and OSHA’s complicity in it. It is time for safety to be more than just a position in the NFL.

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^* Micayla Bitz, J.D. Candidate, University of St. Thomas School of Law Class of 2024, Associate Editor of the University of St. Thomas Law Journal.

^[1] Ken Belson, N.F.L. Says Suspended Game Won’t Resume This Week as Hamlin Stays in Hospital, N.Y. Times (Jan. 3, 2023), https://www.nytimes.com/2023/01/03/sports/football/nfl-damar-hamlin-bills-injury.html.

^[2] Louisa Thomas, The Terrifying Collapse of Damar Hamlin and the Everyday Violence of Football, New Yorker: The Sporting Scene (Jan. 3, 2023), https://www.newyorker.com/sports/sporting-scene/the-terrifying-collapse-of-damar-hamlin-and-the-everyday-violence-of-football.

^[3] Ken Belson & Jenny Vrentas, Who Told Players to Warm Up After Damar Hamlin Collapsed?, N.Y. Times (Jan. 9, 2023), https://www.nytimes.com/2023/01/09/sports/football/damar-hamlin-injury-controversy.html.

^[4] See Coley Harvey, Bills’ Damar Hamlin Faces ‘Lengthy Recovery,’ Spokesman Says, ESPN (Jan. 19, 2023), https://www.espn.com/nfl/story/_/id/35485380/bills-damar-hamlin-faces-lengthy-recovery-spokesman-says; Michael Schottey, How the NFL Became America’s Sport, Bleacher Rep. (July 3, 2013), https://bleacherreport.com/articles/1691465-how-the-nfl-became-americas-sport.

^[5] 29 U.S.C. § 654(a)(1).

^[6] See, e.g., Vy T. Nguyen et al., Mortality Among Professional American-Style Football Players and Professional American Baseball Players, 2 JAMA Network Open, 1, 5 (2019) (finding that NFL players died from heart disease at a rate 2.4 times higher and brain disease at a rate three times higher than MLB players).

^[7] See, e.g., In re Nat’l Football League Players’ Concussion Injury Litigation, 307 F.R.D. 351, 393–94 (E.D. Pa. 2015); In re Nat’l Football League Players’ Concussion Injury Litigation 821 F.3d 410, 447–48 (3d Cir. 2016); Fatima Hussein, Do NFL Safety Concerns Mean Regulators Should Get in the Game?, Bloomberg Law (Apr. 26, 2018, 6:30 AM), https://news.bloomberglaw.com/safety/do-nfl-safety-concerns-mean-regulators-should-get-in-the-game.

^[8] Adam M. Finkel, Christopher R. Deubert, Orly Lobel, I. Glenn Cohen & Holly Fernandez Lynch, The NFL as a Workplace: The Prospect of Applying Occupational Health and Safety Law to Protect NFL Workers, 60 Ariz. L. Rev. 291, 359 (2018).

^[9] Id. (“Indeed, a hypothetical first-ever OSHA inspection to assess whether the clubs are not providing ‘safe and healthful places of employment’ with respect to repetitive head trauma would be a watershed event. . . . [A]ny citations upheld by the OSHRC and the courts would ripple throughout the NFL. . . .”).

^[10] Ken Belson, Dolphins’ Tua Tagolovailoa Hospitalized After Second Head Hit, N.Y. Times (Sept. 29, 2022), http://www.nytimes.com/2022/09/29/sports/football/tua-tagovailoa-head-injury.html.

^[11] Rob Maaddi, Tua Tagovailoa, Explainer: Fencing Response and NFL Protocol, AP News (Sept. 30, 2022), apnews.com/article/tua-tagovailoa-fencing-response-de6a1e5d95a5ab869e043369cb6546c3; see also, Sam Farmer, TV Dilemma Resurfaces After Tua Tagovailoa Injury: When to Show and When to Tell, L.A. Times (Oct. 8, 2022, 3:33 PM), https://www.latimes.com/sports/story/2022-10-07/tv-dilemma-show-traumatic-injuries-tua-tagovailoa (describing Tagovailoa’s hands as “gnarled” and “frozen in an unnatural and deeply troubling way”); Kurt Streeter, We’re All Complicit in the N.F.L.’s Violent Spectacle, N.Y. Times (Jan. 3, 2023), http://www.nytimes.com/2023/01/03/sports/football/nfl-broadcast-fans.html.

^[12] See Finkel, Deubert, Lobel, Cohen & Lynch, supra note 8.

^[13] Study: Hits, Not Concussions, Cause CTE, Bos. Univ. Chobanian & Avedisian Sch. of Med., (Jan. 18, 2018), https://www.bumc.bu.edu/busm/2018/01/18/study-hits-not-concussions-cause-cte.

^[14] Frequently Asked Questions About CTE, Bos. Univ. CTE Ctr., https://www.bu.edu/cte/about/frequently-asked-questions (last visited Jan. 22, 2023).

^[15] Jesse Mez et al., Clinicopathological Evaluation of Chronic Traumatic Encephalopathy in Players of American Football, 318 J. Am. Med., 360, 362 (2017).

^[16] Jesse Mez et al., Duration of American Football Play and Chronic Traumatic Encephalopathy, 87 Annals of Neurology, 116, 124 (2020).

^[17] In re Nat’l Football League Players’ Concussion Injury Litigation, 961 F. Supp. 2d 708 (E.D. Pa. 2014); Nat’l Football League Players’ Concussion Injury Litigation, 821 F.3d 410 (3d Cir. 2016).

^[18] Report of the Segal Group to Special Master Perry Golkin at 29, In re Nat’l Football League Players’ Concussion Injury Litigation, 307 F.R.D. 351 (E.D. Pa. 2014) (MDL No. 2323, 12-md-02323) (“The results of our assumptions, when combined with the known parameters within the model, indicate that thirty-three percent of plaintiffs and twenty-eight percent of the overall player population are expected to develop a Qualifying Diagnosis in their lifetime.”); see also, Ken Belson, Brain Trauma to Affect One in Three Players, N.F.L. Agrees, N.Y. Times (Sept. 12, 2014), https://www.nytimes.com/2014/09/13/sports/football/actuarial-reports-in-nfl-concussion-deal-are-released.html.

^[19] Christopher R. Deubert, I. Glenn Cohen & Holly Fernandez Lynch, Comparing Health-Related Policies and Practices in Sports: The NFL and Other Professional Leagues 17 (2017), https://footballplayershealth.harvard.edu/wp-content/uploads/2017/05/Harvard-Comparative-League-Analysis-5.15.17.pdf.; see also, Meredith Wadman, Former Football Pros Die at a Faster Rate than Baseball Veterans—and the Reasons are Surprising, Science (May 24, 2019), https://www.science.org/content/article/former-football-pros-die-faster-rate-baseball-veterans-and-reasons-are-surprising (explaining that football players die an average of seven years earlier than MLB players, often due to cardiovascular disease and neurodegenerative illnesses and develop heart disease at a rate 2.4 times higher and brain disease at a rate three times higher than professional baseball players); Cara Murez, Are Retired NFL Players Aging Faster Than Other Men?, U.S. News & World Rep. (Dec. 9, 2022, 7:08 AM), https://www.usnews.com/news/health-news/articles/2022-12-09/are-retired-nfl-players-aging-faster-than-other-men.

^[20] Deubert, Cohen, & Fernandez Lynch, supra note 19.

^[21] Deubert, Cohen, & Fernandez Lynch, supra note 19.

^[22] Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 639 (1980).

^[23] Occupational Safety and Health Administration, Workers’ Rights 5 (2019), https://www.osha.gov/sites/default/files/publications/osha3021.pdf.

^[24] Finkel, Deubert, Lobel, Cohen & Lynch, supra note 8 at 319–21 (arguing that NFL players “easily meet most, if not all, of the non-exhaustive list of factors considered as part of the common-law test of an employee. . . ”); Kelly Fitzgerald, Use of the NFLPA’s Collective Bargaining Agreement to Tackle Health and Safety Issues Plaguing Active and Retired NFL Players, 39 Hofstra Lab. & Emp. L. J. 465, 492–95 (arguing the amount of control the NFL “has voluntarily asserted over players” indicates an employer-employee relationship).

^[25] 29 U.S.C. § 654(a)(1).

^[26] SeaWorld of Fla., LLC. v. Perez, 748 F.3d 1202, 1222 (D.C. Cir. 2014) (citing H.R. Rep. No. 91-1291, at 21–22 (1970) (emphasis in original)).

^[27] Id.

^[28] Id.

^[29] Miller v. Clinton, 687 F.3d 1332, 1340 (D.C. Cir. 2012).

^[30] Id. (quoting Fabi Constr. Co. v. Sec’y of Labor, 508 F.3d 1077, 1081 (D.C. Cir. 2007)).

^[31] Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 639 (1980).

^[32] Id.

^[33] Occupational Exposure to Methylene Chloride, 62 Fed. Reg. 1494, 1560 (Jan. 10, 1997); Indus. Union Dep’t, AFL-CIO, 448 U.S. at 655. 

^[34] Indus. Union Dep’t, AFL-CIO, 448 U.S. at 656.

^[35] Report of the Segal Group to Special Master Perry Golkin, supra note 18.

^[36] Am. Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 506–09 (1981).

^[37] 29 C.F.R. § 1926.1153 (2019); see also, N. America’s Bldg. Trades Unions v. OSHA, 878 F.3d 271, 296–97 (D.C. Cir. 2017).

^[38] Christina Gough, Total Revenue of the National Football League 2001–2021, Statista (Jan. 2, 2023), https://www.statista.com/statistics/193457/total-league-revenue-of-the-nfl-since-2005.

^[39] Finkel, Deubert, Lobel, Cohen & Lynch, supra note 8 at 366.

^[40] See, e.g., Alaa Abdeldaiem, NFL’s New Kickoff Rules Made Permanent, Explained, Sports Illustrated (Mar. 26, 2019), https://www.si.com/nfl/2019/03/26/kickoff-rule-changes-made-permanent-explained; Helmet Innovation: More and Better Choices, Fewer Concussions, NFL Player Health & Safety (Sept. 16, 2022, 9:00 AM), https://www.nfl.com/playerhealthandsafety/equipment-and-innovation/engineering-technology/helmet-innovation-more-and-better-choices-fewer-concussions; Bill Pennington, New Rule at N.F.L. Camps: No Tackling. It’s Just Practice, N.Y. Times (Aug. 1, 2013), https://www.nytimes.com/2013/08/01/sports/football/new-rule-at-nfls-camps-no-tackling-its-just-practice.html.

^[41] Judy Battista, NFL Reveals 2019 Injury Data, Hopeful Rule Changes Are Working, NFL (Jan. 23, 2020, 4:00 AM), https://www.nfl.com/news/nfl-reveals-2019-injury-data-hopeful-rule-changes-are-working-0ap3000001098679.

^[42] Adam Finkel, How a Government Partnership Could Make the NFL Safer, Glob. Sports Matters (June 21, 2022), https://globalsportmatters.com/health/2022/06/21/how-osha-could-make-nfl-safer-cte. 

^[43] Id. 

^[44] Id.; see also, 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 actions the League could take to improve player health and safety, including the replacement and banning of all slit film turf and clearing of “excess people and dangerous equipment from the sidelines”).

^[45] SeaWorld of Fla., LLC. v. Perez, 748 F.3d 1202, 1207 (D.C. Cir. 2014).

^[46] Id. at 1211.

^[47] Nat’l Realty & Constr. Co. v. OSHRC, 489 F.2d 1257, 1266 n.36 (D.C. Cir. 1973); see also, Finkel, Deubert, Lobel, Cohen & Fernandez Lynch, supra note 8 at 297.

Even if NFL players were fully informed about the probability and severity of the risks they face and the uncertainties therein, and even if they receive higher wages as a market transaction, there would still be cause for asking whether government should stay sidelined and accept a pay-for-risk situation. Questioning this proposition is especially important in cases where the risk could readily be reduced or where the consequences are long delayed such that consent to risks in the present may not reflect an individual’s later preferences.

^[48] Nate Jackson, I Saw Horrific Things When I Played in the NFL, Atlantic (Jan. 7, 2023, 5:00 AM), https://www.theatlantic.com/ideas/archive/2023/01/damar-hamlin-collapse-buffallo-bills-football-safety/672663.

^[49] Oliver Darcy, ESPN Stands by Report that NFL Planned to Restart Game After Hamlin Collapsed, ESPN (Jan. 4, 2023, 2:41 PM), https://www.cnn.com/2023/01/04/media/espn-nfl-damar-hamlin-game-restart/index.html.

^[50] Michael Weyer, 11 Times an NFL Game Got Canceled/Postponed (& the Reasons Why), The Sportster (Jan. 5, 2023), https://www.thesportster.com/nfl-game-got-canceled-postponed-reasons-why/#2016-hall-of-fame-game-bad-field-conditions.