The 2017 NFL Draft begins on April 27, when the nation’s most promising college football players will be holding their breath, waiting for their names to be called out (or not).  Their draft status will depend on an unknowable combination of factors, including their college career, their future potential, and last but not least, their performance at the NFL Scouting Combine.  This year’s Combine was held last month, with over 300 players — the top prospects in their draft class — descending on Indianapolis to participate in the most grueling job interview they will ever face.

Whether the Combine is a reliable indicator of NFL talent is a hotly contested topic.  The event has been criticized as “overrated,” “a waste of time,” and a “ridiculous meat market.”  And if we take a close look at its process, we might also add another criticism to that list: a potential violation of federal law.  By subjecting prospects to tests that are invasive and insufficiently job-related, the NFL Combine could be running afoul of the Americans with Disabilities Act.

What Happens at the Combine?

Much of the Combine happens behind closed doors, but what we do know about the process suggests a punishing schedule.  Before they can even set foot on the field, prospects must first complete a wide range of medical exams (including blood tests, x-rays, and MRI scans) and interviews, as well as weigh-ins, psychological evaluations, and a Wonderlic intelligence test.

For fans and commentators, the real action doesn’t start until the players take to the field for their workouts: the 40-yard dash, the bench press, the vertical jump, the broad jump, the 3-cone drill, and the shuttle drill.  The televised workouts have become a lucrative media event for the NFL, falling conveniently in the lull between the Super Bowl and the draft.  This year Washington wide receiver John Ross made headlines when he ran his 40-yard dash in a record-breaking 4.22 seconds (and almost won a private island for it).

Does the ADA Apply?

Making NFL prospects jump through one hoop after another makes for good television, but the Combine’s grueling evaluation process might also be a violation of federal law.  The Americans with Disabilities Act (ADA) prohibits employers from discriminating against qualified individuals on the basis of disability.  And while it seems counterintuitive that the ADA would extend to NFL prospects — some of the “ablest” individuals around — legal experts have argued that it does.  In a recent law review article, Professors Jessica Roberts and Glenn Cohen contend that the ADA does protect professional football players.  They believe that, because the statute defines “disability” broadly (to include present, past, and even perceived disabilities), certain athletes do fall under the legal definition of “individuals with disabilities.”

If this interpretation of the ADA is correct, it could implicate several key components of the NFL Combine.  First, it would likely prohibit the component that scouts agree is the most important: the medical exams.  The ADA restricts the inquiries employers can make of applicants during the hiring process: in the pre-offer stage, an employer can ask about an applicant’s ability “to perform job-related functions,” but it cannot conduct a medical examination.  Importantly, the prohibition on pre-offer medical exams applies regardless of whether the applicant is in fact disabled or an otherwise qualified individual.  Because the Combine is pre-offer (prospects cannot be offered a job until after they are drafted), its medical exams should raise red flags under the ADA.  Many of the exams conducted at the Combine — the bloodwork, x-rays, and MRIs — have been cited as examples of forbidden “medical examinations” by the EEOC.

Second, if NFL prospects are protected under the ADA, then the 40-yard dash and other workouts might also be problematic.  The ADA forbids “employment tests” that tend to screen out individuals with disabilities, unless the employer can show that these tests are “job-related” and “consistent with business necessity.”  Courts have held that this burden of proof is a high one: the employer must be able to show that the test is “no broader or more intrusive than necessary.”

Crucially, an employment test is not considered “job-related” under the ADA unless it “fairly and accurately measures the individual’s ability to perform the essential functions of the job.”  In this respect, the Combine workouts potentially fall short.

Is the 40-Yard Dash “Job-Related”?

As an indicator of future performance, the NFL Combine is far from perfect.  Sports commentators have long complained that the workouts are “pretty much a waste of time,” and NFL insiders agree.  One former NFL team president stresses that Combine scores are “just a small piece of a big evaluation puzzle,” where “[t]he biggest piece is how a player actually plays in real games.”  Or, in the more succinct words of Giants wide receiver Odell Beckham Jr.: “Bench [press] is not football.”

The predictive limitations of the Combine call into doubt whether its workouts are sufficiently “job-related” under the ADA.  And indeed, the evidence suggests that these tests do not “accurately measure[]” a prospect’s ability to play football: in a survey of over 600 NFL players drafted between 2002 and 2004, researchers concluded that Combine scores had a weaker correlation to future performance than other factors, such as collegiate record.  Unsurprisingly, NFL history is filled with examples of misleading Combine performances.  The most famous case might be Patriots quarterback Tom Brady, who delivered a “really, really bad” Combine performance — the footage speaks for itself — only to emerge, almost two decades later, as a five-time Super Bowl champion.

One reason for the Combine’s inaccuracy is the fact that the workouts are “not physically reflective of the actual performance context.”  Prospects compete in the Combine wearing tights instead of full football gear (hence the nickname, “the Underwear Olympics”) and are made to perform tasks that they would not usually face in an actual game.  In other employment contexts, this kind of mismatch would tend to undermine “job-relatedness.”  For example, in Gwendolyn G. v. Donahoe, the EEOC found that an employer’s 70-pound lifting requirement was not “job-related,” because the job usually only required lifting 20 to 30 pounds; thus the test was not “carefully tailored” to measure an individual’s “actual ability to [perform]” the job.  In this respect, the Combine workouts are just as poorly tailored.  The Combine’s marquee event, the 40-yard dash, is illustrative: once drafted, a player will never be expected to run 40 yards out of a sprint stance again.

This is not to say that the workouts are necessarily violations of the ADA.  Even if these tests are not sufficiently “job-related,” to make out an ADA claim a prospect would also have to demonstrate that he is a “qualified individual with a disability.”  For most NFL prospects, this would be difficult to show.  But given how broadly the ADA defines “disability,” some prospects could potentially meet that standard.  Take the example of Alabama defensive end Jonathan Allen, who until the Combine was a consensus top-5 pick for this year’s draft.  When scouts found out that he had an arthritic shoulder, they paid close attention to his bench press to see how bad it was.  Allen’s mediocre performance (he posted only 21 reps) is rumored to have lowered his draft stock, making him one of the “biggest losers” of the 2017 Combine.

Could Allen count as a qualified individual with a disability?  Possibly.  An individual is deemed to have a “disability” under the ADA even if he is only perceived to have a physical impairment, “whether or not [that] impairment limits or is perceived to limit a major life activity.”  Thus, even if Allen’s arthritis doesn’t limit any major life activity — such as walking, standing, or lifting — the fact that some scouts perceive him as impaired (and clearly some of them do) would make him disabled under the ADA.  Assuming that Allen is otherwise qualified for the position of an NFL defensive end (and note: he’s still widely considered a top-10 pick), then the bench press — to the extent that it isn’t actually “job-related” — could be a discriminatory employment test in violation of the ADA.

“Workout Warriors” and the ADA

In some cases, then, the ADA could be interpreted to protect NFL prospects.  A separate question is whether it should be interpreted this way.  Jonathan Allen might have an arthritic shoulder, but he’s 6’3” and weighs 286 pounds — compared to the average American male, who’s 5’8” and weighs 195 pounds — and he can run 40 yards in five seconds flat.  Is it fair to apply the Americans with Disabilities Act to elite athletes like him?

The answer is yes.  The ADA does not carve out an exemption for professional sports.  As the Supreme Court held in PGA Tour, Inc. v. Martin, the ADA was intended to have a “sweeping” reach and its protections extend even to “talented . . . athletes.”  And in at least one case, the EEOC has recognized that professional athletes can sue for employment discrimination under the ADA.  Professional athletes are in particular need of strong ADA protection because of the unique risks they face.  NFL players must suffer through broken bones and torn muscles, painkiller addiction and depression, concussions — which can lead to long-term brain damage — and paralyzing injuries.  These are all potential disabilities that will affect them for the rest of their lives.

And NFL prospects face the same risks.  College football is a de facto prerequisite for a professional career, but it is also extremely dangerous.  Many college athletes experience serious injuries on the field, only to have it held against them in the draft.  Having a track record of injuries (being “injury prone”) is one of the biggest disadvantages a prospect can face.  In one of last year’s biggest draft slides, UCLA linebacker Myles Jack went from being a projected top-10 pick to No. 36 amid concerns over a lingering knee injury — not because it affected his performance (his coaches have high hopes for him next season), but because it might need surgery in the future.  This is where the ADA could act as an important constraint.  The NFL has created a system that exposes college athletes to serious risk of health problems; it shouldn’t be allowed, when those same athletes are looking for jobs, to count those problems against them unless they affect their performance on the field.  Health problems that are detectable only through a medical exam or a Combine workout shouldn’t be allowed to factor into the decision.

As another draft season comes and goes, the NFL might want to take the opportunity to rethink its process.  While we’re not likely to see an ADA challenge any time soon, the statute does raise questions about the Combine, from its invasive medical exams to its arbitrary and outdated workouts. This year’s prospects have worked hard to get to where they are.  They deserve to be judged, not for their x-ray results or their workout stats, but for how they play.