sexual harassment

The Strike Zone—November 8, 2021

Alex Blutman

Alex Blutman is a student at Harvard Law School and a member of the Labor and Employment Lab.

A settlement agreement has been unsealed, revealing that the NFL has formally committed to discontinuing the use of “race-norming” in the cognitive testing used to determine payouts as part of the players’ long-running concussion litigation against the league. The NFL announced earlier this year that it would be taking this step, but now a formal agreement is ready for the official approval of U.S. District Judge Anita Brody. The class settlement provides payouts to players with diagnoses of degenerative brain conditions connected with brain injuries caused by playing football, but “race-norming,” a kind of statistical manipulation that assumes Black players have a lower baseline cognitive functioning, made it more difficult for those athletes to qualify. Under the deal, no race norms or race demographic estimates will be used in the settlement program, and Black players who already filed claims may have their cases reexamined.

In long-running litigation that has already been remanded twice by the Ninth Circuit, the NFL is arguing that the Labor Management Relations Act preempts the only remaining cause of action of former NFL players alleging that injured players were provided painkillers to remain on the field. Earlier this year, the court denied class certification, siding with the NFL that individual questions predominate. Now, the only remaining claim is whether the NFL breached a voluntarily undertaken duty to intervene in teams’ administration of pain medications. The league contends that resolution of this issue requires an interpretation of the collective bargaining agreement and is thus preempted by the LMRA. The players contend that no CBA interpretation is needed to resolve the voluntary undertaking claim and that the district court in February and appellate court in 2018 already decided as much.

On October 28, each of the professional sports players associations in the country received a letter from the NAACP urging free agent players to consider carefully whether to sign with teams based in Texas. Citing the state’s restrictive abortion and voting rights legislation, as well as its handling of the coronavirus, the organization’s President and CEO, Derrick Johnson, implored players: “If you are considering signing in Texas, I ask you to ensure that owners are upholding their responsibility of protecting you, the athlete, and your family. I ask you to use your influence to help protect the constitutional rights of each individual at risk…we are asking that you seek employment with sports teams located in states that will protect, honor and serve your families with integrity…if you are a free agent and are considering employment in Texas, look elsewhere.”

Chicago Blackhawks general manager Stan Bowman and director of hockey administration Al MacIsaac have resigned, and the NHL has fined the team $2 million after an investigative report found the team violated its own sexual harassment policies when it failed to “promptly and thoroughly investigate” a sexual assault allegation by a player against a former video coach. In early May 2010, player Kyle Beach and video coach Brad Aldrich had a sexual encounter, which Beach claimed was non-consensual. The incident was reported to and discussed by team management at a meeting on May 23, but the allegation was not reported to the team’s HR department until June 14, five days after the team’s Stanley Cup victory and four days after Aldrich made an unwanted sexual advance on a Blackhawks intern. Subsequently, Aldrich was given a choice to submit to a team investigation or resign. He chose to resign but was allowed to take part in the traditional Stanley Cup celebration activities. The report also determined that NHL Players Association executive director Donald Fehr was made aware of Beach’s claims in December 2010. In an NHLPA conference call last week, Fehr recommended that the union hire an outside law firm for an independent review of its handling of the allegations, but there was no discussion about Fehr’s removal as executive director despite some discontent among the players.

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