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Monday, September 03, 2012
Could NFL Players walk off field and argue Replacement Referees Pose an "Abnormally Dangerous Condition" under federal law?

A labor lawyer familiar with the NLRB emailed me tonight with an interesting twist to the NFL referee lockout (between the asterisks)
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I was listening to DeMorris Smith of the NFLPA raise the possibility of a work stoppage in support of the locked out refs and noticed something no one has mentioned as of yet.

While it is true that the current collective bargaining agreement does contain a "no strike" clause, there is an exception that I think the NFLPA may be considering. 29 USC 143 permits a worker from refusing to work in an "abnormally dangerous condition.". The lead NLRB case in this issue is TNS 309 NLRB 1348 (1999). This type of argument crystallizes the minute an NFL player is injured because of a bad call.

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The U.S. Court of Appeals for the Sixth Circuit enforced the NLRB's order in the TNS case, which involved employees at a nuclear plant who were exposed to unsafe levels of radiation and who walked off the job. The NLRB said the workers were legally entitled to do so under 29 USC 143 because of a good faith belief and objective evidence (including evidence of kidney damage and abnormal levels of uranium exposure) that they were being harmed.

John B. Flood--who, to be clear, is not the lawyer who emailed me tonight--has a law review article on when the NLRB determines whether there are sufficient abnormally dangerous conditions to justify workers walking off their jobs. In Revisiting the Right to Refuse Hazardous Work Amidst the Anthrax Crisis of 2001, 5 U. Pa. J. Lab. & Emp. L. 545 (2003), Flood writes that the NLRB decides each situation on a case-by-case basis, with "immediate, presently existing dangers" given particular weight.

You might say it's inconceivable that NFL players would walk off the job because of replacement referees. NFL players make a ton of money and everyone, other than the real refs, is excited that the 2012 season is about to start. The last thing NFL players want to do is stop everything - and not get paid their salaries.

I get that. But let's say the referee lockout goes on for weeks and during that time, some of the game's top stars are injured, at least in part because replacement refs made terrible calls or failed to make obvious calls? Or say the number of injuries goes way up under replacement refs? Would the idea of walking off the field remain inconceivable if players believed they were playing in . . . abnormally dangerous conditions? How would their families and agents and those who influence them feel?


Wow! I thought the league was taking a big risk by going with replacement refs, but this takes it to a whole other level. My original concern was that using the replacements would make it appear the NFL doesn't care about safety, hurting itself in the current negligence case brought by 2,000 former players. Beyond solidarity, this piece of info is another reason the players should walk - In Case You Missed It

Blogger Shane -- 9/04/2012 4:26 AM  

If a qb is injured on a roughing penatly, does it matter of the flag was thrown or not? He's still hurt, the only difference being if he 'got anything out of it'.

Anonymous Anonymous -- 9/07/2012 1:45 PM  

"This type of argument crystallizes the minute an NFL player is injured because of a bad call."

That has already happened here:

The scab ref's don't blow the play dead the on the incomplete pass and allow a defender to take the ball and run with it, resulting in a shoulder injury to Jake Locker who makes the tackle.

Anonymous Michael -- 9/25/2012 5:18 PM  

could it be argued that the NFL negotiated the current NFLPA CBA "in bad faith" knowing full well that they would't be able to negociate a new NFLRA agreement before the season started, this placing their players in harm's way?

Anonymous Anonymous -- 9/25/2012 6:28 PM  

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