This article highlights a recent report published by the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School, entitled, “Protecting and Promoting the Health of NFL Players: Legal and Ethical Analysis and Recommendations”.
By Rick Maese | The Washington Post | November 17, 2016
A new report from Harvard University proposes drastic changes in the way health care is administered in the NFL, urging the nation’s most popular sports league to upend its system of medicine and untangle the loyalties of the doctors and trainers charged with treating players.
Asserting that the long-standing current structure has inherent conflicts of interest, the 493-page report outlines a new system in which a team’s medical staff is devoted solely to players’ interests and no longer reports to team management or coaches.
“The intersection of club doctors’ dual obligations creates significant legal and ethical quandaries that can threaten player health,” the report states.
The two-year study bills itself as the first of its kind in “examining the complicated and often-paradoxical universe of stakeholders that may influence NFL player health.” The NFL strongly took issue with the methodology and conclusions drawn by the Harvard researchers.
On Nov. 1, Jeffrey Miller, the NFL’s executive vice president of health and safety, sent the researchers a 33-page response in which he rejected any suggestion that NFL doctors have conflicts of interest and called the proposed change “untenable and impractical.” He said researchers have called for “several unrealistic recommendations that would not improve player care.”
The report “cites no evidence that a conflict of interest actually exists,” Miller wrote. “. . . The Report identified no incident in which team physicians were alleged to have ignored the health status of players, failed to adhere to patient confidentiality consent procedures, or made recommendations to clubs that were contrary to the health of players.”
The report — called “Protecting and Promoting the Health of NFL Players: Legal and Ethical Analysis and Recommendations” — is authored by members of Harvard Law School’s Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics. It is part of a multiyear, multimillion-dollar project that includes several Harvard studies examining the well-being of NFL players. Though funded by the NFL Players Association, the research is independent, and Harvard officials stress that neither the union nor the league has any control over the studies.
An NFLPA spokesman declined to comment on the study’s conclusions, and the union also declined an offer by researchers to submit a written response, similar to the NFL’s.
In interviews, the Harvard researchers say they were surprised by the league’s response.
“I had expected we’d maybe be quibbling around the margins of how it would actually be implemented,” said Holly Fernandez Lynch, the executive director of the Petrie-Flom Center and one of the report’s authors. “I did not expect that we would have to have this conversation about whether there is, in fact, a conflict because it’s so obvious on its face.”
“Admitting you have a problem is the first step to get over,” added Harvard law professor Glenn Cohen, another of the report’s authors, “and while we think many of the people who serve as club medical staff are wonderful doctors and excellent people — this is not to besmirch them or their reputation — it is not going to produce a good system if you’re operating under an inherent structural conflict of interest and one that is corrosive to player trust.”
Since the league’s inception, players have been treated by doctors and trainers hired, fired and paid by the teams. They consult with coaches and team management about all manners of player health. The Harvard report suggests players instead should be treated by a doctor and staff that is selected by a neutral committee. Though still paid by the team, the medical staff would serve solely the players’ interests, deciding whether the players should participate in practices or games.
The report says doctors and team trainers should not have communication with the team about player health. They would instead prepare a “Player Health Report,” which would detail the player’s condition, playing status and level of permissible participation, among other things.
The club then would employ its own doctor to review that report and communicate with coaches and team officials. The team doctor could perform pre-employment physicals and also examine players during the season.
“However, they would not treat the players in any way,” the report states.
In its response, the league said the proposed change would “unnecessarily complicate the patient-physician relationship to the detriment of the player’s health.” The league said relying on a written report “would lead to confusion, errors and ultimately failure . . . particularly with respect to complex medical situations.”
The NFL contends its wide array of doctors are in no way conflicted and points out that the players’ union hasn’t called for such a drastic overhaul to the medical structure.
“We think the standard of care offered to our players really is top of the line,” said one league official who had read the report.
League officials point out that the collective bargaining agreement between owners and the players’ union states in Article 39, Section 1 that “each Club physician’s primary duty in providing player medical care shall be not to the Club but instead to the player-patient.”
Researchers suggest that the NFL has tacitly acknowledged some value in utilizing independent medical professionals. Under the league’s concussion protocol, unaffiliated neurotrauma specialists are stationed at each game, and any player who suffers a concussion must be cleared by an independent doctor before returning to practice.
“So actually, we think what we’re doing is asking them to extend something they’ve seen the merit of: the need for independence to foster trust,” said Cohen, the Harvard Law professor.
The NFL’s response outlined many of the measures undertaken in recent years to address player health, noting that the league has committed tens of millions of dollars to research, have as many as 29 medical professionals on hand at most NFL games and has made 42 rule changes since 2002 to improve player safety. League officials point out that myriad protections are in place for players: They’re allowed to seek second opinions from doctors of their choice, can choose their own surgeons at the club’s expense and utilize union resources and employ agents to serve as advocates on health-related issues.
In its response, the NFL complained that Harvard researchers failed to cite specific instances in which a conflict of interest was apparent or players might have received compromised treatment. “At some point, policy changes need to be based on fact,” said one NFL official who has reviewed the report.
The NFL also took issue with what it called “deeply flawed methodology,” criticizing the report for relying too heavily on the 10 current NFL players and three former players who were interviewed by researchers. The NFL said the sample size was too small considering more than 2,000 players will suit up in an NFL game this year, while researchers pointed out the report is not a clinical study and the player comments were intended to illustrate certain points, not necessarily be representative of all players.
Despite two attempts, researchers were denied access to team employees, including coaches, doctors and trainers.
Two years ago, the NFLPA contracted with Harvard to create the Football Players Health Study. This is the 14th report to date from the study and includes a total of 76 recommendations aimed at various stakeholders, which include:
●The league and union shouldn’t use health issues as a bargaining chip in CBA negotiations;
●Players diagnosed with a concussion should be placed on a short-term injured reserve list that would not count against the team’s 53-man roster;
●The league and union should research the feasibility of offering more guaranteed money to players;
●Anyone who violates the CBA’s provisions that concern player health should face penalties;
●Players who make threats to target another player’s injury should be subject to discipline.
Read the full article, originally published by The Washington Post.
