The Strike Zone—September 13, 2021

With the wide distribution of the vaccine, new COVID-19 protocols negotiated by the professional leagues and their union counterparts are drawing a stark line between vaccinated and unvaccinated players. In the NBA, unvaccinated players are subject to a host of additional restrictions meant to decrease the chance of coronavirus transmission: their lockers will be situated further from vaccinated teammates; they must eat, fly, and ride buses in separate sections; they will have to test more often; and they will be required to quarantine after being deemed a close contact to someone who has tested positive. Similar restrictions are in place for unvaccinated players in the NHL: on the road, they may not go anywhere but the team hotel, practice facility, and arena, and they may not use the hotel bar, restaurant, gym, or pool; they may not carpool or use saunas; they are encouraged not to socialize with people outside of their households; and teams may suspend unvaccinated players who test positive and are unable to participate in club activities if the positive test did not arise in the course of the player’s employment as a hockey player.

Meanwhile, in the NFL, where the differential application in certain health and safety protocols related to vaccination status had already drawn some mixed reactions from players, the NFL Players Association has opened an investigation of the Jacksonville Jaguars after their head coach, Urban Meyer, said he took a player’s vaccination status into consideration while considering final roster cuts. The team later clarified that vaccination status was just one of many factors considered, and no player was cut only because they were unvaccinated. The team explained that vaccination status played a role in making roster decisions due to the more stringent protocols imposed on unvaccinated players, which would affect players’ availability and therefore the team’s ability to practice and prepare. The NFL is not mandating vaccinations for players, although 93.5% of all players have received the vaccine.

At the San Francisco Giants Oracle Park, 96.7% of concession workers voted to strike, citing concerns over COVID-19 safety and health coverage, as at least 20 concession workers have contracted the virus since the stadium reopened this season. In a statement, the Giants said that Bon Appetit Management Company, the workers’ employer, and UNITE HERE Local 2 have been engaged in collective bargaining negotiations.

After concussion litigation against the NFL led to a $1 billion settlement, attention has turned to the college game. A proposed class action suit, which aims to cover athletes who played at the University of Notre Dame across six decades, alleges that the school and the NCAA allowed football players to accrue brain injuries while downplaying the danger of concussions. Since 2013, when the case against the NFL settled, more than 528 NCAA concussion cases have been transferred to U.S. District Judge John Lee in the Northern District of Illinois, who is overseeing multidistrict litigation over concussion suits. In 2019, he approved a $75 million settlement between the NCAA and student-athletes that established a medical monitoring fund and required the NCAA to update its concussion management policies.

Concussion litigation also remains alive against the NHL, even after hundreds of cases were consolidated into a multidistrict litigation that was dissolved, and most players settled. The U.S. District Court for the Northern District of Illinois recently allowed the estate of deceased hockey player Steve Montador to proceed with state law claims that the NHL promoted a culture of violence and misrepresented the dangers of head trauma. Those claims, which are grounded in common law and not the collective bargaining agreement between the players and the league, are not preempted by the LMRA, which gives federal courts jurisdiction to hear suits for violations of contracts between an employer and labor organization and completely preempts claims founded directly on rights created by CBAs. Montador suffered repeated brain trauma throughout his career, which caused memory issues, sleep disturbances, chronic pain, a substance abuse problem, and mood and behavioral changes. He died of an accidental overdose in 2015, and a post-mortem exam showed he suffered from chronic traumatic encephalopathy, a brain disease associated with repeated traumatic brain injuries, including concussions and blows to the head.

In the most recent development of the continuing saga of the United States Women’s National Soccer Team’s equal pay dispute, U.S. Soccer Federation president Cindy Parlow Cone requested that the men’s and women’s national team’s unions agree to a plan that would equalize the FIFA World Cup prize money distributed to the federation. FIFA awards considerably larger sums to men’s World Cup participants, and, according to U.S. Soccer, the organization “is legally obligated to distribute those funds based on [their] current negotiated collective bargaining agreements with the men’s and women’s teams.” The agreement called for by Cone’s letter would require the men’s national team to allow the federation to reallocate a portion of the FIFA payment to the women’s team.

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