NFL Settlement Raises Legal Question

What Did the NFL Know?

The National Football League Thursday agreed to pay $765 million over 20 years to settle claims that it hid evidence about the dangers of head trauma suffered by NFL players.

Should that end the matter? Of course not. 

NFL players are employees. 

Under the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act (OSHA) of 1970, employers are required to provide their employees with a place of employment that “is free from recognizable hazards that are causing or likely to cause death or serious harm to employees.”

 Courts have interpreted OSHA’s general duty clause to mean that an employer has a legal obligation to provide a workplace free of conditions or activities that either the employer or industry recognizes as hazardous and that cause, or are likely to cause, death or serious physical harm to employees when there is a feasible method to abate the hazard.

 The NFL owners had a legal duty to protect the players when they became aware (or should have become aware) of the devastating brain damage being suffered by their players on the field. At that point, the NFL and NFL team owners should have acted to “abate the hazard.”  Professional football is entertainment and there are many feasible ways the NFL could have made the game safer.   

As a result of the settlement, the NFL may be able to avoid the legal discovery process which would have included the deposition of  league officials and doctors about what they knew and when they knew it.  The settlement, however, does not prevent federal authorities from looking into whether  the NFL recognized the risks and still subjected players to serious physical harm. 

To allow the NFL to bury this matter under a rug through a private legal settlement would be akin to the federal government ignoring coal mine owners in West Virginia who failed to properly tunnel or vent a coal mine that caved in and resulted in  catastrophic loss of life. 

 Workplace Fatalities

The U.S. Department of Labor (DOL) reported last week that  4,383 workers died from work-related injuries in 2012 – that’s  3.2 workers  per 100,000 full-time equivalent workers. In a recent press release. DOL Secretary Thomas Perez said: “No worker should lose their life for a paycheck.”

The DOL’s list of  workplace fatality statistics probably didn’t include Kansas City Chiefs linebacker Jovan Belcher who fatally shot his girlfriend last December and then drove to Arrowhead Stadium and committed suicide in front of his coach and general manager. Or Junior Seau, a retired linebacker for the New England Patriots who fatally shot himself in the chest in at his California home last May.

 The deaths of Belcher and Seau were the latest to raise an alarm about head trauma suffered by  players on the football field. A  2012 study by Boston University School of Medicine of 35 former football players (33 had played for the NFL) found that 34 showed signs of brain disease before their deaths.  Dozens of athletes donated their brains to be studied by the medical school, which found a link between head injuries suffered in the heavy-impact sport and degenerative brain disease.

Lesson of the Boys on the Bus

Could videotaping be a solution to workplace bullying?

It was in Karen Klein’s case.

As a result of a cell phone video that went viral on the Internet, four seventh-graders in upstate New York recently were suspended for a year for bullying Karen Klein, a 68-year-old school bus monitor.

Meanwhile, a fund drive started on Klein’s behalf has yielded more than $650,000 to date.

It is unlikely that anyone would have believed what Klein went through on that bus ride home if it had not been videotaped.  The youths’ behavior is so vile that it is shocking !

The four boys cruelly taunt and humiliate Klein, even commenting about the suicide of her oldest son.  (“You don’t have a family because they all killed themselves because they don’t want to be near you.”)  They invaded her personal and emotional space, as well as her physical space. They drove her to tears and they were positively gleeful about it.

Surveys show that at least one in four American workers experience a hostile workplace as a result of bullying. Adult bullies tend to be more sophisticated than middle school boys. Most bullies in the workplace are supervisors but they can also be co-workers and customers.

Supervisors undermine the target over time with unfair criticism and demeaning comments.  They sabotage the target’s work by providing inadequate resources and unrealistic deadlines. They set out to systematically destroy the target’s reputation and self-esteem.

Targets of workplace bullying currently have little or no legal recourse to address the problem unless they are targeted in violation of civil rights laws on the basis of race, sex, religion, national origin, age, disability, etc.  Most targets of workplace bullying must either endure the bullying until they are sick, forced to quit or fired.

Other countries have adopted laws and regulations addressing workplace bullying but there is no state or federal law on the problem in the United States. Workplace bullying has been virtually ignored by the U.S. Secretary of Labor and the U.S. Occupational Health and Safety Administration.

So back to Klein’s case. The videotape of the boys on the bus drew international attention to her plight. Maybe there’s a lesson there.

Employers today routinely monitor employees to insure against theft or fraud. Why shouldn’t employees electronically monitor the workplace?

Keep in mind that several states have laws that prohibit the use of devices that record, photograph or overhear events or conversations in private places. Private areas include places where a reasonable amount of privacy is expected, such as a restroom or a locker room. Most work areas are considered public but … anyone who is seriously considering the surreptitious monitoring of their workplace should review (in advance) the laws of their state and, if they’re smart, consult an attorney.

It’s a radical idea but maybe a few viral videos that demonstrate the real problem of workplace bullying in the United States would prompt some long overdue federal attention to the problem.