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Monday, June 12, 2006
The Psychology of Al Jefferson: Privacy Laws and Psychological Testing of Prospective NBA Draft Picks

In a recent interview with, Portland Trail Blazers President Steve Patterson discussed why he opted to pass on Al Jefferson with the 13th pick in the 2004 NBA Draft:

We had to fly a psychologist down there for him to take a test. He had difficulty with it. There were some other things that weren’t positive about him that I’m not going to talk about in the interview.

I'm surprised by Patterson's candor. Revealing that a prospective draft pick failed or struggled with a psychological test is a rather disparaging nugget of information. Granted, this revelation was made two years after the fact, and since that time, Jefferson has played reasonably well for the Boston Celtics, who drafted him with the 15th pick in the 2004 NBA Draft. He has also been a good teammate/citizen by all accounts (e.g., Celtics Blog on Jefferson; True Hoop on Jefferson).

But should Patterson have publicly disclosed medical information obtained in a pre-employment inquiry? And could he have broken the law by doing so?

Generally, employers are forbidden from disclosing to a third party any medical information requested of an applicant or voluntarily revealed by an applicant during the interview process. In fact, any medical information obtained by a prospective employer must be safeguarded from other applicant materials (i.e., kept in a different file, with heightened protection from accidental disclosure). This is part of the duty of confidentiality owed by employers to applicants. This duty can be waived if the applicant later assents to a disclosure, or if there is a court order directing a disclosure.

Presumably, Patterson would argue that the process leading up to a sports draft should be considered qualitatively different from a normal interview process. This argument, however, would probably not work, as plaintiffs and defendants in lawsuits concerning pro sports drafts have usually treated them akin to collectively-bargained employment practices. Moreover, even if there was a distinction, it may not be salient to the circumstances in this instance.

A better argument for Patterson may be that a psychological examination for a prospective draft pick is not a medical examination. And the U.S. Equal Employment Opportunity Commission has stated:
Psychological examinations are medical if they provide evidence that would lead to identifying a mental disorder or impairment. For example: An employer gives applicants an RUOK Test, an examination that reflects whether applicants have characteristics that lead to identifying whether the individual has excessive anxiety, depression and certain compulsive disorders.

On the other hand, psychological examinations designed to measure only things such as honest, tastes, and habits, are not medical. For example: An employer gives the IFIB Personality Test, an examination designed and used to reflect only whether an applicant is likely to lie.
We don’t know enough about the psychological examination administered to Jefferson to make an assessment, but I suspect it went beyond what is normally examined in a non-medical psychological examination. We also don't know if Jefferson assented to the disclosure, or if, by merely participating in the draft, all prospective draft picks assent to this type of disclosure.

Slander laws may also be relevant in this analysis: by telling the world that Al Jefferson struggled with a psychological test, Steve Patterson may have defamed him. And just think about what comes to your mind when you hear that someone struggled with a psychological test--there's a good chance you may think that he's crazy or dangerous, or at least weird. You might also equate "psychological test" with "intelligence test," even if they are very different types of examinations. But not only is slander's standard of proof higher for public figures, but truth is an absolute defense, and Patterson seemingly told the truth: Jefferson struggled with a psychological examination.

I think it is fair to say that Al Jefferson is highly unlikely to pursue any kind of litigation against Steve Patterson and the Portland Trail Blazers, even if the relevant statue of limitations were favorable. Not only is Jefferson off to a promising NBA career, but the viability of any prospective claim seems questionable. For that reason, the analysis in this post is very much a thought exercise, rather than any kind of litigation roadmap. On the other hand, if a GM in the future were to make a similar remark, and if the affected player weren't off to a successful career, perhaps there would be some practicality to all of this.

Regardless, I do question the appropriateness of Patterson’s comment. Badmouthing someone in public is almost never a good idea, particularly when you question their mental state. Perhaps there is a pattern here with NBA teams and NBA players.

Also see: Paul Secunda of Workplace Prof Blog discussing this post (6/14/2006).
Also see: Adam Kolber of Neuroethics & Law Blog discussing this post (6/13/2006).


"Badmouthing someone in public is almost never a good idea, particularly when you question their mental state."

How True, MM, but isn't this what sports has become (i.e., devolved to?)

Anonymous Anonymous -- 6/12/2006 3:36 PM  


Unfortunately, you're probably right. But I do think that there may be something qualitatively different/worse about indicating the results of an actual psychological exam (a presumably factual statement) from merely stating an opinion about one's mental state. But I agree with your general point: sports has clearly devolved.

Blogger Michael McCann -- 6/12/2006 3:49 PM  

There's no doubt that this is insulting, but I very much doubt, as you conclude, Mike, that any lawsuit will be involved.

For one, Patterson's statement is vague. As you say, there's no indication of what kind of test it was. He doesn't even say that Jefferson failed the test (perhaps he failed in that the Trail Blazers didn't draft him, but it's not made clear if he failed by the test standards).

From the context, since Jefferson refused to work out or take tests, it's possible that his performance wasn't failing, but were not good enough either, so that considering the test score in relation to his obstinacy about working out (which likely made more of an impact on Portland's view of him than the test itself), Portland decided to pass on him and take Telfair.

I'm not saying that the above was the way things occurred, but just as an illustration of how Patterson might defend his statement. There's no defending the fact that it was in bad taste of course.

Last, if Jefferson refused to work out for them or take psych tests, why did Portland only fly a psychologist down for one test? Couldn't they have sent a scout to watch him work out there? Or conducted more than one test? Was there one test because Jefferson insisted on only one (which would be strange) or because Portland weighs one psych test heavily in its prospect evaluations (which would be rather dumb)?

Blogger Satchmo -- 6/12/2006 4:39 PM  

Will (Satchmo),

Thanks, those are excellent points, and they raise additional and important questions about the context of Patterson's remarks. I agree with you that his remarks were ill-advised, if not worse. I wish we knew more about the nature of the examination and how heavily the Trail Blazers weighed it (and if anyone reading this has a copy of a typical psychological test administered by an NBA team or a NFL/MLB/NHL team, I would love to see it -- please shoot me an e-mail).

Blogger Michael McCann -- 6/12/2006 8:02 PM  

Very interesting points. I am going to leave the "privacy law" matter aside, though, since you covered all the bases, and focus on one aspect: the Portland Trail Blazers lately have picked or traded for players whose off-court antics have made fans re-christen the team the "Jail Blazers". So, if those psychological exams had to prove that Jefferson is dumb, well, I guess that the success the Blazers' Front Office has had tracking his future players'psychological status before drafting them or trading for them speaks by itself. "Medice, cura te ipsum": if there's somebody who did not pass the exam, that's the Portland GM.


Anonymous Anonymous -- 6/13/2006 5:21 PM  

Nothing to see here ...move along....

Seriously, two years after the fact an ambiguous statement and you want to clain defamement?

What world are you living in? I guess Charles Barkley should be getting sued on a nightly basis then....

Anonymous Anonymous -- 6/13/2006 7:43 PM  


Outstanding point. I hadn't really considered the underlying subtext, but it is very salient: What kinds of players have the Blazers actually obtained/drafted? And you're right: based on those kinds of players, maybe they should employ a different psychological test!


It sounds like you are a defense lawyer or an aspiring defense lawyer! They love to say "nothing to see here . . . move on"--it's almost like the first thing they teach you in Defense Lawyer Lingo 101. And usually when they make those statements, you know you should stop and take a close look.

As to the specifics of your comments, I'm not sure how Patterson's statement was "ambiguous." Here is what Patterson said: "We had to fly a psychologist down there for him to take a test. He had difficulty with it." Maybe I am missing something, but it sure sounds like Patterson is saying, rather lucidly, "We gave Al Jefferson a psychological exam and he had difficulty with it."

Also, I got a good laugh out of your Charles Barkley Red Herring. Ask yourself this: Has Charles Barkley ever revealed the results of a psychological exam administered by an NBA team to a potential draft pick, and if he has, was he an employee of that team when he did so? If the answer to that two-part question is "no", then I'm not sure why you mention him, because whatever he's said is obviously irrelevant to what's raised in this post. Nice try, though.

Thanks to you both for taking the time to comment.

Blogger Michael McCann -- 6/13/2006 10:30 PM  

To be honest, this is just another incident in a disturbing trend where general managers and players fight their battles in the court of public opinion as opposed to across the bargaining table. A much more disturbing example of this took place last year, when John Paxson disclosed information regarding a dispute between the Chicago Bulls and Eddy Curry over whether certain tests were needed to investigate a potential heart problem. I was dismayed at Paxson's tactics and have rooted against the Bulls since. The problem is that the professional athlete protocal is to keep all problems in-house, meaning players fear retribution should they fight back against these unlawful tactics.

Anonymous KC -- 6/15/2006 3:02 PM  

Im a friend of Al Jefferson and I was around during the 2004 draft. Lets clear some things up. For one, he did well on his tests and portland GM John Nash wanted to draft him. He was however, 2 hours late to meet the doctor mainly because the test took place in Jackson and Jefferson lives about outside of Jackson. Beside that, we strongly believe adidas had more to do with them passing on Al and taking Sebastion.

Anonymous Anonymous -- 6/15/2006 4:16 PM  

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