Protecting and Promoting the Health of NFL Players: Legal and Ethical Analysis and Recommendations Part 2: The Medical Team Club Athletic Second Neutral Personal Doctors Trainers Opinion Doctors Doctors Doctors Retained by Club Christopher R. Deubert NFL NFLPA NFL I. GlennCoaches Cohen Club Equipment Clubs Holly Fernandez LynchEmployees Managers Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics Harvard Law School Contract Financial Family Officials Equipment Media Fans NFL Advisors Advisors Mfrs. Business (Agents) Partners NCAA Youth Govern- Workers’ Health- Leagues ment Comp. related Attys Companies Part 2 concerns the various medical professionals who provide healthcare to the players in assorted contexts and circumstances: club doctors; athletic trainers; second opinion doctors; neutral doctors; and, personal doctors. As the players’ healthcare providers, these stakeholders’ actions are crucial components of player health. Some of these stakeholders reside within the club, others within the League, and still others operate outside those systems. But all must work closely with the player if player health is to be protected and promoted to the greatest extent possible. We acknowledge that there are healthcare profession- other Chapters of this Report. To the extent any of these als other than those discussed in this Part who work healthcare professionals are employed or retained by the with NFL players, including but not limited to physical Club, Chapter 2: Club Doctors and Chapter 3: Athletic therapists, massage therapists, chiropractors, dentists, Trainers are of particular relevance. To the extent any of nutritionists, and psychologists. Importantly, each of these healthcare professionals are retained and consulted these groups of professionals has their own set of legal with by players themselves, then Chapter 6: Personal and ethical obligations governing their relationships Doctors is relevant. with players. While a healthcare professional from any one of these groups might play an important role in a Finally, we remind the reader that while we have tried player’s health, it is our understanding that their roles to make the Chapters accessible for standalone read- are not so systematic and continuous to require in-depth ing, certain background or relevant information may be personalized discussion, i.e., they are typically not as contained in other parts or chapters, specifically Part 1 enmeshed within the culture of the NFL club to gener- discussing Players and Part 3 discussing the NFL and ate some of the concerns that are discussed in this Part. NFLPA. Thus, we encourage the reader to review other Moreover, the obligations of and recommendations parts as needed for important context. toward these professionals are substantially covered by Chapter 2 Club Doctors Club doctors are clearly an important stakeholder in player health. They diagnose and treat players for a variety of ailments, while making recommendations to players concerning those ailments. At the same time, the doctor has obligations to the club, particularly to advise it about the health status of players. While players and clubs often share an interest in player health — both want players to be healthy so they can play at peak performance — ​as we discuss in this chapter there are several areas where their interests are in conflict. In these areas, the intersection of the club doctors’ different obligations creates significant legal and ethical quandaries that may threaten player health. Most importantly, even if club doctors are providing the best care they can to the players, the current structure of their relationship with the club creates inherent problems in the treatment relationship. It is this structural problem about which we are most concerned, as discussed below. 90. \ Protecting and Promoting the Health of NFL Players Before we begin our analysis, it is important to point out ( A ) Background that throughout this chapter we emphasize that the prac- tice of club doctors is likely heterogeneous from club to When it comes to ensuring the health of NFL players, much club at least to some extent. For example, some clubs may of that responsibility falls on the doctors who provide them be more actively engaged with club doctors, while others medical care. The 2011 collective bargaining agreement may be more hands-off. Nevertheless, we were denied the (CBA) recognizes this, including provisions that obligate opportunity to interview club doctors as part of this Report NFL clubs to retain certain kinds of doctors. We summarize to gain a better understanding of their work. In Novem- those provisions here: ber 2014, we notified the NFL that we intended to seek a interviews with club personnel, including general managers, • Club Physicians: Clubs must retain a board certified coaches, doctors, and athletic trainers. The NFL subse- orthopedic surgeon and at least one physician board certified quently advised us that it was “unable to consent to the in internal medicine, family medicine, or emergency medi- interviews” on the grounds that “the information sought cine. All physicians hired after execution of the 2011 CBA could directly impact several lawsuits currently pending must also have a Certificate of Added Qualification in Sports against the league.” Without the consent of the NFL, we Medicine. In addition, clubs are required to retain consul- did not believe that the interviews would be successful and tants in the neurological, cardiovascular, nutritional, and, 1 thus did not pursue the interviews at that time; instead, neuropsychological fields. we have provided these stakeholders the opportunity to • Physicians at Games: “All home teams shall retain at least review draft chapters of the Report. We again requested to one [Rapid Sequence Intubation] RSI physician who is board interview club personnel in July 2016 but the NFL did not certified in emergency medicine, anesthesia, pulmonary respond to that request. The NFL was otherwise coopera- medicine, or thoracic surgery, and who has documented tive. It reviewed the Report and facilitated its review by competence in RSI intubations in the past twelve months. club doctors and athletic trainers. The NFL also provided This physician shall be the neutral physician dedicated to information relevant to this Report, including copies of the game-day medical intervention for on-field or locker room NFL’s Medical Sponsorship Policy (discussed in Chapter 2: catastrophic emergencies.”2 Club Doctors) and other information about the relation- ships between clubs and doctors. As discussed in more detail in Chapter 7: The NFL and NFLPA, Section C: A History of the NFL’s and NFLPA’s In April 2016, we engaged the NFL Physicians Society Approaches to Player Health, the 2011 CBA added many (NFLPS), the professional organization for club doctors, new provisions concerning player health, including those about reviewing relevant portions of a draft of this Report above. However, also as detailed in that section, the changes and related work. The NFLPS at that time questioned how to player health provisions in the CBA have largely been many club doctors we had interviewed in developing the incremental, with most changes occurring as part of each Report, apparently unaware of the NFL’s prior response CBA negotiation (others occur as part of side letter agree- to our planned interviews. We were surprised to find that ments between CBA negotiations). While these changes have the NFL had not previously discussed the matter with the gradually added more protections for player health, they NFLPS and immediately invited the NFLPS to have individ- may have also resulted in a fragmented system of care. ual club doctors interviewed, an offer the NFLPS ultimately declined. Instead, it chose to proceed with reviewing our Of note, the above provisions added to the 2011 CBA do work and providing feedback in that manner. not require clubs to retain and have available neurologi- cal doctors at the games. The absence of this requirement Due to limitations on our access to club doctors we cannot is offset by the Concussion Protocol’s requirement that for generate club-by-club accounts of current practices. The every game each club be assigned an Unaffiliated Neu- result may mask a level of variation in current practice, a rotrauma Consultant” to assist in the diagnosis of concus- limitation we acknowledge. sions (see Appendix A). Most (if not all) of the doctors retained by NFL clubs are members of the NFLPS. Founded in 1966, the NFLPS’s stated mission “is to provide excellence in the medical and surgical care of the athletes in the National Football League a The CBA does not define “retain” or otherwise dictate the requisite scope of involve- ment by the various doctors. Part 2 \ Chapter 2 \ Club Doctors 91. and to provide direction and support for the athletic train- that pertain to supervisory control of medical personnel by ers in charge of the care for these athletes.”3 Approximately coaches or club personnel.9 According to the NFL, there 175 doctors work with the 32 NFL clubs,4 an average of are no clubs in which the club doctor is supervised by the 5.5 per club. The NFLPS holds annual meetings at the NFL head coach.10 Without being able to independently verify Combine to discuss medical and scientific issues pertinent the NFL’s claim, we nonetheless point out that there is no to its membership.5 explicit prohibition against a coach having supervisory authority over a club doctor. According to NFLPS, 22 of the 32 club’s head orthopedists and 14 of the 32 club’s head “medicine” doctors are board The quality of medical care provided by club doctors is certified in sports medicine.6 In addition, although the 2011 obviously an important consideration in this work. For CBA requires club doctors to have a Certificate of Added approximately the past 25 years, there has been a practice Qualification in Sports Medicine, currently only 11 of the that has occasionally caused some to call into question 32 head club doctors have such a certificate.