ADA Questions Hover Over NFL Combine

At last year’s NFL Combine, Ohio State quarterback C.J. Stroud’s Draft stock was questioned after he reportedly did poorly on a cognitive performance test. That incident, and others, refresh concerns about whether the Combine, which starts next week, is consistent with the Americans with Disabilities Act (ADA).

The Combine has long been significant to NFL clubs. Since the 1980s, the Combine has served as a centralized process by which clubs can evaluate and gather information about players eligible for the upcoming NFL Draft. For a few days each February, NFL clubs gather in Indianapolis to assess players’ physical and mental fitness through a series of intrusive drills, exams, and interviews. Such a process would be considered unacceptable in most any other industry. More specifically, such a process potentially runs afoul of the ADA’s
ADA
prohibition on pre-employment medical exams. The NFL nevertheless seems unlikely to face legal scrutiny, either because of the Combine’s organizational structure or a reluctance by players and agents to push back.

The NFL Combine’s Organizational Structure

One would reasonably think that, given its importance, the NFL Combine was put on and controlled by the NFL. But that’s not quite right. The Combine is, and has for long time been, organized by National Football Scouting, Inc., an entity that provides scouting services to NFL clubs and that is owned and managed as a joint endeavor by several NFL clubs. National Football Scouting also owns and controls National Invitational Camp, the legal entity that runs the Combine. Thus, while the NFL and its clubs are intimately involved in the Combine’s events and details, legally they are one step removed. This separation has legal significance, as discussed below.

The Medical Exams

Since 1987, doctors with IU Health, a healthcare system affiliated with Indiana University School of Medicine, perform x-rays, MRIs, echocardiograms, EKGs, blood and drug tests, and other exams at each year’s Combine. The IU Health doctors perform examinations on behalf of the Combine, which then provides the results to NFL clubs. After the IU Health examinations, club doctors may also evaluate the participants. Dr. Richard Kovacs, a cardiologist with IU Health, has described the medical exams as “the choke point [because] . . . [n]o one goes to [the Combine] until they go through us.”

Workplace Law

Generally speaking, professional sports organizations are bound by the same labor and employment laws as an employer in any other industry, including the ADA. As most people know, the ADA prohibits firms from discriminating against employees or prospective employees because they have a disability.

Whether an employee has a disability is not always obvious. Consequently, the ADA forbids pre-employment medical exams or inquiries regarding whether an “applicant” is “an individual with a disability or as to the nature or severity of such disability.”

This prohibition potentially conflicts with the Combine. One of the principal purposes of the Combine is for clubs, via IU Health, to conduct medical exams on players and to evaluate whether any prior injuries might affect their performance or ability to play in the NFL. Clubs obviously use the results of these medical evaluations in making their Draft selections. Indeed, according to Jeff Foster, the President of National Football Scouting, NFL clubs consider the medical exams (and not the athletic drills) to be the most important part of the Combine. Yet, the Combine thus seems to run afoul of the ADA’s prohibition against pre-employment medical exams.

While the ADA bans pre-employment exams, it does allow “preemployment inquiries into the ability of an applicant to perform job-related functions.” For example, an employer might explain the physical rigors of the job to a prospective employee and then ask the applicant whether he or she could perform those functions, with or without reasonable accommodation. In addition to inquiring about specific job-related functions, an employer could also make a general inquiry regarding whether the individual has a physical or mental impairment that would prevent him or her from performing essential job functions.

In the NFL context, this means that a club could ask a player whether he has a condition which could impede his ability to play in the NFL. Given the level of fitness required to play professional football, a wide-range of health-related questions could potentially be related to a prospective player’s ability to perform job-related functions. Nevertheless, this exception is for job-related inquiries, not medical exams. Pre-offer medical examinations are forbidden regardless of job-relatedness.

Past Situations of Concern

The experience of Maurice Hurst, a former Michigan defensive lineman and current Cleveland Brown, provides a useful example. Entering the 2018 NFL Combine, Hurst was considered a first round prospect. However, at the Combine, he was diagnosed with a heart condition and did not participate in drills at the event. Hurst subsequently slid to the fifth round of the Draft. He has since enjoyed a solid career without any apparent negative effects from his supposed heart condition. Yet, the medical exam conducted at the Combine marked Hurst as unable to do the job, costing him millions of dollars on his rookie contract.

In Stroud’s case, the test results were not supposed to be made public, but nevertheless caused some to question Stroud’s mental or psychological fitness for the job. Stroud was still drafted second overall by the Houston Texans and then won Offensive Rookie of the Year. While the test in question probably would not be considered a medical exam, the incident again raised concerns about NFL clubs’ pre-employment processes.

The NFL’s Defenses

The NFL and their clubs have some defenses. First, they can argue that National Football Scouting – and not them – are conducting the medical exams and thus the clubs are not in violation of the ADA. Nevertheless, it is clear that the NFL and its clubs control the structure of the event, including the medical exams, and utilize the results of those exams. Thus, it is questionable whether the NFL could avoid ADA scrutiny by contracting out the pre-employment exams. Second, the ADA does not define an “applicant.” Consequently, the NFL and its clubs could argue that the players are voluntarily participating in a pre-Draft evaluation process and have not applied for a specific position with a particular employer-club, even though that is obviously not how employment in the NFL begins.

Change Is Unlikely

Players whose Draft prospects were negatively affected by the Combine’s medical exams are nevertheless unlikely to do anything about it. Making a complaint of any kind would be to antagonize a limited set of employers in a highly competitive industry. In other words, it could mean the end of a player’s career. At the same time, NFL clubs are not likely to change their opinion of the value of the medical exams conducted at the Combine – and may even consider it worth any legal risk. Consequently, it seems likely that the Combine will continue to operate at least partially in a legal gray area, as it has for more than 30 years.