COVID-19’s Impact on the Future of NFL Liability for Player Injuries

By: Kelly Fitzgerald

The National Football League (NFL) has faced continuous criticism regarding its handling of player injuries. Within the NFL, there is no uniform standard of care implemented regarding players, as club teams are assigned to handle the medical care of their players.[1]  When players enter the league and sign their contracts, they agree to be bound by the NFL Constitution which provides that immediately following assignment to their club, the club becomes responsible for that player.[2]  This assignment includes injury care, which is administered by the team physicians.[3]  This allocation means that teams possess wide latitude regarding how they medically treat their players and allows the NFL to remove itself from liability for player injuries.[4]  In litigation regarding these injuries the NFL has chosen to settle, with one of the main conditions being that the NFL denies any wrongdoing.[5]  However, the increased involvement of the NFL in the health and safety of players may lead to an expansion of liability for player injuries in the future.

The recent Coronavirus pandemic (COVID-19) has highlighted an increased level of control over player health and safety. Prior to the start of the 2020 season, the NFL and National Football League Players Association (NFLPA) released a joint COVID-19 Protocol document detailing the requirements and expectations for teams and players during the season.[6]  The protocol stated the education and standards set and presented to players “was jointly-developed by the NFL and the NFLPA …”[7] The collaborative nature of this COVID-19 Protocol shows that the NFL has taken some amount of control regarding player health and safety.[8]  The screening and testing protocol prior to the start of the season was referred to as the “NFL return to work plan” and continues to be monitored by both the NFL and the NFLPA.[9]  

The testing mechanisms for COVID-19 required by the protocol and implemented by teams have to be approved by both the NFL and the NFLPA in order to be considered in compliance.[10]  Further, prior to their first game teams were required to submit an Infectious Disease Emergency Response Plan which would detail the team’s plan for “mitigating risk” of a COVID-19 outbreak.[11]  These plans were required to be reviewed by both the NFL and NFLPA to ensure they met the standards of the COVID-19 protocol.[12]  The protocol also states that when a player tests positive or experiences symptoms consistent with COVID-19, the club must notify the NFL Chief Medical Officer.[13]  The club must also provide information to the NFL such as the date of the positive test, the method of detection, facility access the person had, and the people the infected person was in contact with.[14] 

In order for a player to return to the club facility, the team physician must approve the return and the NFL Chief Medical Officer has to be notified regarding the return.[15]  These newly implemented procedures highlight the involvement of the NFL in the health and safety of players regarding the COVID-19 pandemic.  This increased level of involvement by the league displays that the NFL is taking more responsibility for player health and safety and may not be able to escape liability for injuries and threats to player health and safety for much longer.

[1] See NFL Const. art. XVII, §16.

[2] See NFL Const. art. XV, §1.

[3] See NFL Const. art. XVII, §16.

[4] See id.

[5] In re Nat’l Football League Players’ Concussion Injury Litig., 307 F.R.D. 351, 425-26 (E.D. Pa. 2015), amended sub nom. In re Nat’l Football League Players’ Concussion Injury Litig., No. 2:12-MD-02323-AB, 2015 WL 12827803 (E.D. Pa. May 8, 2015), and aff’d sub nom. In reNat’l Football League Players Concussion Injury Litig., 821 F.3d 410 (3d Cir. 2016), as amended (May 2, 2016).

[6] NFL & NFLPA, NFL-NFLPA COVID-19 Protocols for 2020 Season (2020).

[7] See id. at 3.

[8] See id. at 1 (stating that the NFL and the NFLPA with their “respective infectious disease experts have developed material that Club medical staffs must use” when educating their employees about COVID-19).

[9] See id. at 58.  

[10] See id. at 59 ( “all testing required by this Protocol must be mutually approved by the NFL and NFLPA and FDA approved”).

[11] See id. at 45 (stating that the Infectious Disease Emergency Response Plan is subject to review and approval by the NFL, NFLPA, and Infection Control for Sports).

[12] See id.

[13] See id. at 25.

[14] See id.

[15] See id. at 36 (showing a flow chart displaying the necessary steps a team must take once an individual within the club tests positive for COVID-19).

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