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Thursday, October 11, 2007
 
Is Odell Thurman's Case Different from a Common EEOC Matter?

Michael McCann recently posted on Odell Thurman's decision to file an EEOC complaint against the NFL, alleging that the NFL wrongly declined to reinstate Mr. Thurman because league officials believe he is an alcoholic. (Full post available here).

I would argue that the EEOC should review Odell Thurman's case differently from a common employment matter, because here the NFL's decision not to reinstate Mr. Thurman precludes Mr. Thurman not only from working a specific job (Bengals football player), but, more globally, from practicing his profession (professional football player).

Without defending Mr. Thurman's conduct, it is worth noting that very few industries outside of pro sports have ever prevented anyone from practicing their trade based on a DWI -- and that is even absent an alleged disability. The unusual structure of pro sports makes this case unique.

In addition, while there is no perfect parallel to Mr. Thurman's suit, it in many ways brings to mind the Steve Howe baseball labor grievance from 1992 (although this was not an EEOC matter), in which Arbitrator Nicolau reinstated the former New York Yankees pitcher, even after the MLB commissioner had suspended Howe for life (repeated drug use). In that decision, Arbitrator Nicolau intertwined legal reasoning related to labor law and the CBA, with equal employment law (Howe had ADHD), and law prohibiting restraints of trade (imposition of a lifetime ban from one's profession). In doing so, Arbitrator Nicolau reached the conclusion that a lifetime ban of Mr. Howe from baseball would be inappropriate.

I find Arbitrator Nicolau's ruling in the Steve Howe case insightful, as it brings to light the wide range of issues that lurk behind the forefront of Odell Thurman's EEOC matter.





2 Comments:

Marc--your first point is precisely the analysis we used in determining to file the charge as a perceived disability case, as well as a more typical disabiity discrimination case. The employer's belief that the employee cannot perform in an entire industry should be enough to raise an issue of material fact regarding whether the player is "disabled" under the ADA. At least, we hope it is.

Anonymous John Michels, Jr. -- 10/12/2007 10:04 AM  


Perhaps the young NASCAR driver Shane Hmiel who was suspended for life for failing NASCAR's drug policy could employ a similiar strategy.

Anonymous Brandon Greer -- 10/12/2007 11:06 AM  


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