Employment Law for NFL Fans: The NFL’s legal problems provide valuable lessons for employers

The NFL kicks off its 100th season this fall. While fans are excited for the new season, the NFL and its teams have been forced to deal with numerous legal issues in the past year. Some of the legal issues have been innocuous, like Russell Wilson’s record setting $87.6 million contract negotiations. There have also been nuanced legal discussions raised regarding fantasy football and sports gambling. These discussions have come on the heels of U.S. Supreme Court’s 2018 decision in Murphy v. NCAA, which struck down a federal law banning single-game wagering, thereby paving the way for states to set their own rules for online sports gambling. Michigan residents should expect the legislature to adopt new legislation in 2019 addressing this issue.

But some of the legal issues have been public relations nightmares. For instance, Kansas City’s Tyreek Hill faces domestic violence accusations. And the NFL faces a potentially existential threat given continued questions regarding head trauma and the unwillingness of many insurance companies to accept the risks of potentially costly, future settlements. For employers and employees, the NFL’s legal issues – good, bad, or otherwise – can provide valuable lessons and reminders. Let’s sample a few.

Tom Brady – Age Discrimination

Tom Brady turns 42 this year. This means he is one of the few players in the NFL protected by the Age Discrimination in Employment Act (ADEA), which forbids age discrimination against employees who are age 40 or older. The ADEA prohibits discrimination in any aspect of employment, including firing, pay, job assignments, promotions, benefits or any other term or condition of employment.

Lesson: Under the ADEA, discrimination against employees who are age 40 or older is illegal. It’s also illogical. The Patriots probably would have failed to win the 2019 Super Bowl without Tom Brady. Your business is needlessly losing out, too, if attitudes, policies, or practices – even if unintended – result in age bias.

Richie Incognito – The Workplace Bully

Pro Bowl guard Richie Incognito was back in the news in 2019 after pleading guilty to disorderly conduct. The charges were especially disappointing considering Incognito had previously been suspended by the Dolphins after allegations surfaced that he harassed a teammate and used racial slurs. In that case, the NFL hired a lawyer to investigate the claims of workplace harassment. The investigation found a pattern of harassment and encouraged the creation of new workplace conduct rules and guidelines to ensure players acted with respect to one another. The investigation helped the Miami Dolphins, and the NFL, mitigate the potential damages and claims.

Lesson: If the NFL cannot tolerate the liability from a potential workplace harassment lawsuit, neither can your business. The best thing your business can do to avoid a lawsuit – or limit the damages – is to hire an outside investigator and make sure that prompt remedial action is taken. No employee should be subjected to workplace harassment, especially based on a legally protected characteristic such as race, gender or religion. Even your star employees need to be held accountable. Workplace bullies are a liability – not an asset.

Colin Kaepernick – Union Protections

In 2018, the NFL announced a new workplace rule to punish players who took a knee during the national anthem. The NFL, however, is subject to a collective bargaining agreement and the NFL’s players are represented by the NFL Players Association. When employees are unionized, the National Labor Relations Act (NLRA) prevents employers from changing the terms of employment without discussing the change with the union. Failure to do so is a violation of an employer’s duty to bargain in good faith. Legal experts were quick to point out the NFL’s NLRA violation.

Lesson: Employers must negotiate with unions in good faith. Failing to do so is a violation of the NLRA.

Rob Gronkowski – Workplace Injuries

After winning the Super Bowl in 2019, Patriots’ tight end Rob Gronkowski announced his retirement from the NFL at age 29. Gronkowski had a dominant NFL career, even if it was hampered by injury. Some believe that Gronkowksi’s early retirement was motivated by concerns over chronic traumatic encephalopathy (CTE), which can occur in individuals who have repeated head trauma. CTE is linked with dementia, Alzheimer’s and aggression. Under a settlement agreement, the NFL has agreed to pay more than $1 billion towards victims.

Lesson: If your company faces potential liability for potential workplace injuries, address the problem early and often. If you ignore a problem, it will likely become worse. The same goes for other legal issues. Whether your company is dealing with issues involving workplace safety, taxation, sexual harassment, or minimum wage and overtime claims, if your company fails to address the issue, government investigators or hostile opposing counsel likely will.  By then, it will be too late.

Conclusion: The NFL is a business. Like any business, it faces complex and mundane workplace legal issues. You probably cannot afford a small army of lawyers like the NFL. But you can learn from the NFL’s legal mistakes and successes and work with your local counsel to limit risks to your business. So get out the popcorn because the 100th NFL season is about to kickoff and you can expect a good show – on the field and in the courtroom.

Anders J. Gillis is an attorney with Parker Harvey PLC. Reach him at (231) 486-4507 or agillis@parkerharvey.com.