Why this matters
Repetitive brain trauma has been strongly associated with the neurodegenerative disease known as chronic traumatic encephalopathy (CTE). To reduce CTE risk in the National Football League, the U.S. Occupational Safety and Health Administration (OSHA) could partner with the league to create an enforceable code of practice that would govern pro football like other workplaces and better protect players.
From trivial ankle sprains to career-ending fractures and ligament tears, physical injury is widely understood to be a risk associated with sports. By contrast, “industrial disease” – that is, serious debility or life-shortening caused by exposure to something on the job – is not usually thought of in the same way.
When it comes to contact sports and chronic traumatic encephalopathy (CTE), however, I believe it should be. I also believe that embracing this line of thinking could inform more robust government intervention in those sports in order to reduce the risk of athletes suffering harm, particularly those working in the National Football League. We call these athletes “players,” but in the eyes of the law and policy, they are workers – and deserve to be protected as such.
I’m a pioneer in developing the science of quantitative risk assessment, with extensive experience in interpreting epidemiologic studies. I’m also a former chief regulatory and enforcement official for the U.S. Occupational Safety and Health Administration (OSHA), the federal agency charged with protecting over 146 million workers from injury and illness caused by their employment. I’ve spent much of my career studying on-the-job health hazards and how to reduce them. And I see important parallels between how the federal government looks out for American workers in dangerous occupations such as chemical manufacturing and what it could be doing in football and other professional contact sports.
Most people, I’d wager, are unaware that workplace disease is the ninth-leading cause of death in the United States, with experts estimating that more than 60,000 U.S. workers die prematurely each year from on-the-job exposures to chemicals and other hazards. Each one of these deaths is a tragedy – and a sign that society has more work to do. But the numbers used to be even higher. In the manufacturing and service sectors of our economy, for example, workers are breathing far less asbestos, benzene, coal dust, and other toxic substances than they did 20 years ago.
This reduction is not a happy coincidence. Generally speaking, when an employer or industry is found to be imposing unreasonable health risks on its workers or the general public, our government takes notice. The reason that polluted rivers don’t catch on fire any more or that thousands of babies in Europe – but none in the U.S. – have lived for 60 years with a constellation of serious skeletal defects from a drug taken in pregnancy is that regulatory agencies have crafted what people in my field call “those wise restraints that make us free.”
Smart regulations, designed with broad participation by those affected, can reduce intolerable risks at little or no cost to the economy. Since 1970, OSHA has been responsible for writing and enforcing regulations designed to guarantee, as far as practicable, that no worker “will suffer diminished health, functional capacity, or life expectancy as a result of his work experience.” In practice, this means requiring that certain electrical equipment be “locked out and tagged out” when workers are performing maintenance on or near said equipment, the better to prevent electrocutions or getting carried into danger if a conveyor belt suddenly starts up. It means writing concentration limits for roughly 20 substances, like asbestos, that have been linked to grave diseases in workers who have been exposed to them. It means inspecting about 55,000 worksites annually and issuing civil penalties to employers who have violated one or more of OSHA’s standards.
But, as of now, OSHA does not influence how the NFL treats its workers with regard to the risk of CTE. Nobody from the agency is inspecting Washington Commanders training camp for safety standard violations – because there are no standards. However, there are good reasons to think that OSHA could – and should – be making an effort to reduce CTE risk in pro sports.
The Case for CTE As a Workplace Hazard
OSHA has a responsibility to protect workers from harm – and in ways that go beyond industry-crafted measures that come at relatively little cost and/or that mollify worker or public concerns without necessarily being particularly effective. Many experts who understand how epidemiologic evidence works have concluded that repeated head impacts (RHI) are the primary risk factor for CTE and are likely to be the predominant cause of the disease. A wide variety of well-conducted scientific studies, reviewed here, have shown with very little doubt that while CTE is almost unknown among people without a history of RHI, it is appearing among soldiers, domestic violence victims, and workers in various occupations who have been exposed to RHI – especially former professional football players, most of whom suffer many concussive and subconcussive blows to their heads while on the job.
To the credit of the NFL and its players union, the league has made efforts to reduce the number and severity of the head hits that on-field football workers absorb during the normal course of practices and games. The league has cut back on full-contact practice sessions, invested in research to improve the force-absorbing quality of helmets, and changed some rules of play to reduce impact forces, such as moving the kickoff line so that fewer kickoffs are returned. Recently, the league has seen a decrease in the average number of reported concussions, touting a 27 percent drop from the 2015 season through the 2017 season versus the period from 2019 through 2021.
But concussions and CTE are not the same thing. The former is an acute brain injury, typically triggered by a single impact, that produces symptoms which usually resolve with a proper diagnosis, prompt removal from play, and appropriate rest and recovery time. The latter, by contrast, is a degenerative brain disease linked to the cumulative and compounding effects of many blows to the head over a period of time; symptoms often manifest well after an athlete has retired from play, and the disease currently cannot be cured. Even the NFL’s own webpage tracking rule changes refers to the changes as “intended to … reduce the risk of injuries” and makes no mention of chronic disease.
To draw a crude workplace analogy, a concussion is akin to a warehouse employee falling off a ladder and breaking a bone in their arm or leg. CTE is more like working in a factory with high levels of carcinogenic chemicals and later developing a rare form of cancer. As the speed and mass of NFL athletes continues to increase and the number of games per season is ratcheted upward – from 14 games until 1977 to 17 games since 2021 – it’s possible that the cumulative forces that athletes’ brains may encounter in a career are going up, despite the football industry’s efforts to self-regulate.
Missing in Action
Historically speaking, OSHA largely has declined – some would say failed – to assess and manage occupational risks in pro sports. (An investigation into an NFL heat stroke death was a rare exception.) Some of this simply mirrors the favorable and deferential treatment the NFL and other leagues long have received at the hands of government, enjoying antitrust law exemptions and enormous public subsidies. And some of this stems from the specific politics of OSHA itself and the place it occupies in Washington.
While OSHA is responsible for workers at more than 9 million workplaces, it is a relatively small agency, with just 1,800 inspectors and a budget that is less than one-third of the NFL’s annual revenue. Especially when contemplating intervening in an industry sector beloved by powerful members of Congress, OSHA has to look cautiously over its shoulder. Lawmakers are primed to accuse the agency of “overreach” (or, frankly, just “reach”) and punish it with funding cuts and/or legislative restrictions that end up making workers less safe than if OSHA had not attempted to act and simply let sleeping dogs lie.
In the past, OSHA has disclaimed any responsibility over sports by claiming that pro athletes are “independent contractors” and thus not employees covered by the Occupational Safety and Health Act (OSH Act) of 1970. This passive-aggressive interpretation is absurd. I have a second career as an independent contractor, which means that I can do multiple assignments for different employers at the same time, as I please. I can’t imagine an occupation less like that than playing in the NFL, where players can’t offer their services to different teams at halftime.
Current Supreme Court Justice Brett Kavanaugh also has argued that OSHA has no authority to regulate pro sports. In 2014, the D.C. Circuit ruled that OSHA could fine SeaWorld of Florida for allowing its workers to swim with an orca that had previously killed a trainer in Canada and then killed a SeaWorld trainer in Florida. The lone dissenter was Kavanaugh, a “strict textualist” who nevertheless opined that Congress must have meant for the OSH Act to have language exempting sports and entertainment, even though no such language can be found. The Act defines “employer” as “a person engaged in a business affecting commerce who has employees,” but Kavanaugh imagined pro sports as – ahem – somehow outside of commerce.
In reality, OSHA clearly has jurisdiction over the NFL and other pro leagues. To intervene and use its many tools for improving worker health and safety, it merely needs to make clear that pro football carries a high risk of industrial disease, caused by salaried work, performed for an employer. CTE meets those three tests.
Defining 'Significant' Risk
Speaking of risk: For an OSHA rule to survive the nearly inevitable challenges brought in court or through lobbying to Congress to exercise its legislative veto authority, the agency must make a scientific determination that without intervention, the risk to employees from a particular hazard is “significant.” What does that mean, exactly? In 1980, a Supreme Court decision instructed OSHA that if the excess lifetime probability of a serious or grave disease is one chance in 1,000 or greater, it must be viewed that way. (By comparison, Congress in several statutes has explicitly instructed the Environmental Protection Agency (EPA) to regulate environmental health risks down to one chance per million, which means that OSHA’s workplace standards often allow exposures 1,000 times riskier than what society tolerates in the general environment.)
Back to CTE. Currently, the disease cannot be definitely diagnosed until after death. As such, science can offer only two kinds of risk estimates, both of which I calculated with Kevin Bieniek in a 2018 study. On the absolute low end, we found that if by bizarre coincidence no other players who joined the NFL from 1963 through 2008 ever suffered from CTE beyond the 110 who already had been diagnosed as of 2018, then the risk would be somewhere between six and 13 chances per 1,000. (Since then, reports indicate that more than 300 former NFL players have been pathologically diagnosed with CTE, which would raise this number to roughly 18 to 39 chances per 1,000.) We also calculated a more realistic “moving snapshot” of risk that computed the percentage of deaths with CTE among the subset of players who already had died of any cause, and for that estimate we came up with 155 chances per 1,000.
All of these estimates are many times greater than OSHA’s 1/1,000 threshold. Moreover, OSHA has in several prior cases expressed special concern about hazards that workers can “take home with them,” such as chemical contaminants on their work clothing that can harm family members. In the case of CTE, reports of extreme violence as a behavioral consequence of neurological dysfunction could lead the agency to see the disease as particularly grave.
If OSHA has authority and reason to help make the NFL safer for the brains and long-term neurocognitive futures of its on-field workers, then how can the agency best go about doing so? There are many paths. At the most coercive and heavy-handed end of the spectrum, OSHA could conduct traditional rulemaking, setting specific performance goals for the league or requiring it to adopt specific technologies. Alternatively, the agency could take a laissez-faire approach, publishing brochures and public-service announcements explaining how risky football can be and how teams might learn more about how to reduce these risks at minimal cost.
An Enforceable Partnership Between OSHA and the NFL
I believe that the best way forward lies in a sweet spot between these poles. While working at OSHA in the late 1990s, I pioneered something called an “enforceable partnership,” a model in which government, industry, and workers all collaborate to develop a mutually agreeable code of practice containing reasonable and beneficial actions that will reduce needless risks.
In the traditional rulemaking process, adversarial advocates for industry and public health tend to proffer extreme caricatures of their real positions, which in turn produces regulations that have the curious virtue of pleasing no one. Enforceable partnerships avoid much of this. They also lay out the specific conditions – amenable to change – that employers must abide by. Such partnerships become enforceable because employers acknowledge within the code of practice that OSHA can issue citations if they fail to comply with their own promises. Under OSHA’s General Duty Clause – a provision in federal law requiring all employers to provide workplaces free from recognized hazards that are likely to cause death or serious physical harm – the agency can require controls even without a specific regulation if the employer admits knowledge of the hazard and of ways to reduce it.
From 1998 to 2000, OSHA negotiated several enforceable partnerships, including one with all of the major manufacturers of fiberglass insulation that included a voluntary exposure limit for inhaled fiberglass – a respiratory irritant and potential carcinogen – that was far lower than the prevailing OSHA standard and led to thousands of installation contractors receiving free respirators and safety training.
Related: Sport & the Body
In my experience, enforceable partnerships work best when two factors are present:
The best ways to reduce risk are changing rapidly, leaving OSHA short on expertise and regulations quickly outdated.
The industry involved is less averse to making improvements than it is to airing all of the evidence about the harms of its industrial diseases during the highly public process of rulemaking.
Both of these conditions apply to the NFL and CTE. So what might a partnership and concurrent code of practice look like? Given the parallels between RHI and workplace chemical exposures – in which greater doses over longer periods of time lead to greater risk – provisions might include:
- Gameplay changes, and perhaps changes to the length and nature of practices and training camps, to reduce the frequency and force of head impacts.
- Ways to monitor worker exposure to head impact force, and to inform each worker periodically of their cumulative exposure.
- Many OSHA standards for chemicals spell out how to monitor workers for signs and symptoms of early disease — for example, substances that can damage the lungs require yearly pulmonary function testing. Some OSHA standards also prescribe “temporary medical removal” from the workplace: If your blood levels of lead are too high, for instance, you must be given alternate work for as long as it takes for your levels to reach a lower benchmark. In football, a similar system of medical surveillance could mean testing players’ cognitive function over time and requiring longer periods of removal from play for each concussion suffered during a career.
- Use of specific protective equipment, like improved helmets and pads, when known to be effective and safe.
- Most OSHA standards require workers to receive information about the nature of the hazards they face and how to protect themselves. In the NFL, a CTE code of practice could require the league to hold training sessions about RHI and CTE, informing players about the risks of both, methods to reduce the risks, and the signs and symptoms of damage and disease.
- Perhaps increasing roster sizes so as to reduce each worker’s lifetime cumulative exposure to head hits and forces on the brain.
It’s important to note that industry self-regulation – or “regulation” by a government agency that has been effectively captured by the very industry it is supposed to police – has a fairly depressing history. One need look no further than the 2010 Deepwater Horizon explosion and oil spill or Boeing’s fatal problems with the 737 MAX airframe to see the problems that can arise when public-private safety partnerships become too chummy.
Still, I believe that OSHA has an important role to play in the occupation we call “sports” and that the risk of CTE in the NFL can be reduced at a reasonable cost. My former agency has used science, law, and common sense to help millions of workers live longer and healthier lives. I hope it will soon see brain disease in football and other contact sports as a worthy priority for creative intervention.
Dr. Finkel was OSHA's chief regulatory official during the Clinton administration, and later a Regional Administrator during the GW Bush administration. He is currently a clinical professor at the University of Michigan School of Public Health (these views are his own).
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