Persons with disabilities and the National Football League have been in the news of late. In particular, the Chicago Bears acquired a person with a mental disability and then there was the person in the draft that scored very poorly on the Wunderlic test. I thought it would be interesting to go through the collective bargaining agreement that the National Football League has with the union to see what Americans with Disabilities Act issues might be there. For years, I have written on how the Americans With Disabilities Act applies to sports. I enjoy the area because instinctively it seems counterintuitive that a person with a disability could be playing professional sports. The United States Supreme Court, in PGA Tour v. Martin, has held that the Americans with Disabilities Act does apply to professional sports.
When I reviewed the collective bargaining agreement, I was pleasantly surprised. I thought there would be more significant ADA issues than turned out to be. I did find a few sections of the agreement that are worth noting with respect to the Americans with Disabilities Act. First, section 6 of article 39 of the collective bargaining agreement says that each player will undergo the standardized minimum preseason physical exam and test. That physical exam is quite comprehensive. When it comes to post employment physical exams, an employer has the right to insist on that if it is job-related and consistent with business necessity. The case law is still evolving as to what job-related and consistent with business necessity means. However, whether a National Football League player can do the essential elements of the job, play their position, certainly depends upon their physical condition. Also, National Football League teams only get a limited number of player slots. Therefore, an argument can be made that such an exam would also be consistent with business necessity.
Second, article 40 of the collective bargaining agreement says that each player can examine his medical and trainer’s records in the possession of the club. Presumably, per the requirements of the Americans with Disabilities Act, the club is keeping that information in separate confidential files and not as part of the personnel record.
Third, article 49 of the collective bargaining agreement contains the nondiscrimination clause. Interestingly enough, disability discrimination is not included. The argument might be made how can a player with a disability possibly play in the National Football League? However, certainly, there are disabilities that would allow a player to play in the National Football League. For example, mental disabilities or learning disabilities just to name two. Also, the Americans with Disabilities Act contains protections for the team should the player have disabilities for. For example, the player still have to be able to perform the essential functions of the job, his position, with or without reasonable accommodations. Slso, the player cannot be a direct threat to himself or others.
In short, with respect to the collective bargaining agreement, from what I can see, there are some interesting issues with respect to the Americans with Disabilities Act, but those issues do not present insurmountable problems with respect to the game.