I was trying to figure out what to blog on this week. I had various possibilities in mind, but for one reason or the other I rejected each of them, though one of them I put back in my pipeline. As everyone knows, the ADA and professional sports has long been an interest of mine. Also, I have previously blogged on how the ADA applies to the NFL here and here.
Shaquem Griffin is a University of Central Florida linebacker who while at University of Central Florida had very impressive statistics, which can be found here. Right now, the NFL combine is going on. With the use of a prosthetic device he was able to bench press 20 225 lb reps, see here. He also just ran a 4.38 in the 40 yard dash, which was faster than any linebacker at the combine since 2003. It is the feel-good story of the year and NFL players, which includes his twin brother, are absolutely ecstatic, see here. For example, Richard Sherman, see here, said this: “If @Shaquemgriffin doesn’t get drafted in the first two days the system is broken. Productive and performed well at the combine. Played well against high level competition.”
There are ADA issues all over the place and they are:
- Is what is going on at the NFL combine an impermissible preemployment medical exam? As we have discussed previously in the comment section to this blog entry, I don’t see how all the testing being done at the NFL combine could be anything but a medical exam. Even if a medical exam is not involved, preemployment disability-related medical inquiries certainly are. See here and here, for example.
- All this is being done without a conditional offer of employment and labor unions are subject to the ADA. Also, the ADA applies to sports per this case.
- What are the essential functions of being an NFL linebacker? Regardless, it is pretty clear he could do the job of an NFL linebacker with or without reasonable accommodations.
- Even if somehow a conditional offer was involved, which it isn’t, would the failure to draft be job-related and consistent with business necessity, such as we discussed here. I don’t see how. Also, I don’t see how a direct threat argument works either considering his college record.
- The ADA case is very strong with respect to medical exams and medical inquiries at the combine being done outside of the ADA scheme. That said, professional sports being what they are in our culture, it will take just one lawsuit, which very well could be successful considering how outside the scheme of the ADA the system is operating in, and then it wouldn’t surprise me in the least, if Congress comes in with some kind of exception for professional sports. It is another question entirely , whether the ADA scheme could operate within the context of professional sports if it was given a chance.
Depending upon the round Shaquem goes in, a significant money differential exists. This is going to be very interesting to follow because of how the ADA scheme is simply not being followed and because a player’s disability may very well affect the ultimate remuneration that he receives, assuming he is drafted at all (it is likely that he will be drafted; it just isn’t sure what round).