Monday, August 20, 2018

Former Linebacker Tests Application of Disability Laws to NFL Workplace

The NFL is an extraordinary workplace – players face risks and earn incomes far beyond the imagination of many Americans.  Nevertheless, it is a workplace – meaning it is governed by the same state and federal laws as any other workplace.  Moreover, the NFL and NFLPA cannot collectively bargain around these laws as the NFL learned in the StarCaps case.  Williams v. Nat’l Football League, 582 F.3d 863 (8th Cir. 2009), cert. denied, 562 U.S. 1029 (disclosure: my prior law firm represented Kevin and Pat Williams).

Despite being protected by traditional workplace laws such as the Civil Rights Act, Occupational Safety and Health Act (“OSH Act”), Americans with Disabilities Act (“ADA”), and the Genetic Information Nondiscrimination Act (“GINA”), players rarely seek protections under these statutes.  In one law review article I recently co-authored, we explained the potential application of the ADA and GINA to the NFL workplace (including potential violations at the NFL Combine) – and in a forthcoming work, we address the application of the OSH Act to the NFL workplace.

Despite the application of these laws to the NFL, litigation is rare.  One former NFL player has recently initiated a lawsuit seeking their protection.  On September 29, 2017, Erin Henderson, an NFL linebacker from 2008-16 with 119 career tackles and 8.5 sacks, sued the New York Jets, his most recent employer, in New Jersey state court alleging violations of the New Jersey Law Against Discrimination.  Specifically, Henderson alleged that he suffered from bi-polar disorder and that the Jets placed him on the Non-Football Injury list (depriving him of his salary) and ultimately terminated him because of his condition.

The Jets removed the case to federal court on diversity grounds – but did not argue that Henderson’s claims were preempted by the Labor Management Relations Act, an argument that is frequently made by NFL clubs.  Henderson responded by filing an amended complaint that added a federal ADA claim.  Then, on December 20, the Jets answered the amended complaint.  The fact that the Jets did not move to dismiss supports the viability of these claims at least at the pleading stage.

Henderson will now have the benefit of discovery and we can await the prospect of a court ruling establishing important precedent about the application of the ADA to the NFL.  If Henderson is successful, perhaps more players will seek the protections afforded by workplace laws.

The case is Henderson v. New York Jets, LLC, 17-cv-10110 (D.N.J.). 
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