Sports Law Blog
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Monday, September 24, 2012
Destination: "Abnormally dangerous conditions"
After watching this weekend’s NFL games, it is obvious that the replacement referees are patently incapable of maintaining order during a game. Blown calls—made or not—are maddening, inconsistency and human error are part of officiating sports. What is unacceptable is the loss of control on the field, leading to an unsafe environment for the participants.
The caliber of officiating is abysmal, these aren’t even elite Division I referees because those conferences are not letting them work NFL games. With Division II referees attempting to manage games, the players are responding like the teacher has left the room and they have a poor substitute teacher trying to maintain order—it’s not happening. Let's be clear, the referees are doing the best they can, but are overmatched by the speed, violence, and intensity of NFL football.
What can be done?
1. The NFL’s CBA has a “no strike clause” which, in theory, would restrict the ability of the players to strike in sympathy with the referees.
2. However, as Michael McCann recently analyzed on Sports Law Blog, clause 29 USC 143 of the NLRB permits a worker from refusing, in good faith, to work under “abnormally dangerous conditions”, and 29 USC 143 is applicable to NFL labor conditions. Aren’t we there? Football is a violent sport. Referees who are grossly inexperienced are posing a real and imminent safety risk to the players on the field.
3. The NFLPA could, and at this point I’m arguing should, take action. Either:
a. The NFLPA could refuse to play under the current conditions, citing the very real fact that the workplace is fret with “abnormally dangerous conditions”…OR
b. Could ask the courts for an immediate injunction, terminating the current lockout by the NFL of the referees. In theory, the referees could go back to work while the parties continue to negotiate or mediate this mess.
4. We love sports and the tort doctrine "assumption of the risk" is well established because injuries are part of the game. However, when a football player consents to risk, they do so under the assumption that the game will be managed by professionals, able to maintain safety standards that are paramount to the operation of these contents. Based on what we have seen in the first three weeks of the 2012 NFL season, that safe work environment is missing.
5. An even bigger issue facing the NFL than the debacle surrounding replacement referees is the concussion litigation. Here, the NFL is doing everything imaginable to argue that they care about player safety--with potential damages in the $ 1 BILLION range. Doesn't it make sense to show some legitimate good will regarding player health and safety now?