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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?


Bottom line is this...the "NFL" ie Goodell, is an employee of the 32 owners. THAT is where the pressure needs to be directed to get this deal done. The fact that blown call are occurring is frightening ESPECIALLY from an injury standpoint. The Heyward-Bey no call was appalling. The other problem is the TIME it is taking to make and decide a routine call....these guys are taking 5min to make a call that should be made on the spot. Look at the average times of an NFL game this season. The games are taking close to 4hrs because of the constant delays. Needs to be fixed...FAST.

Blogger James O'Brien -- 9/24/2012 11:56 AM  

It's funny that this was posted BEFORE the Seahawks/Packers debacle last night. That just multiplies this problem tenfold - now we have a blown call that actually and unequivocally decided the outcome of a game. Any update base on that?

Anonymous Anonymous -- 9/25/2012 2:53 PM  

how about the NFL negociating the new CBA in bad faith knowing full well they would never be able to close an agreements with the refs in the first place?

Anonymous Anonymous -- 9/25/2012 6:31 PM  

I think it would be difficult for the NFLPA to prove to the satisfaction of the NLRB (or whoever would eventually hear the case) that the current conditions under the replacement refs are abnormally dangerous when compared to the normal dangers of playing in the NFL. Abnormal, in this context, has to mean something more than merely out-of-the-norm. In addition, couldn't it be argued that the players who commit more (or more egregious) rule infractions because they think they can now get away with it the real cause of the abnormally dangerous conditions? And, if so, does that absolve the NFL for failing to field competent officials? Probably not, but if I were representing the NFL I'd still make the argument.

Personally, I'd love to see the NFLPA go on strike over this. Legally, an application for a preliminary injunction in federal court is probably the better choice - or at least a good first step.

Blogger echasseur1 -- 9/26/2012 1:36 AM  

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