Players’ Rights To Medical Care and Treatment
Section 17NFL Game Concussion Protocol Enforcement
The prevention, diagnosis and management of concussion is important to the National Football League, its member clubs, the players, and the NFL Players Association. As required by this Article, the NFL Management Council, on behalf of the NFL, and the NFLPA, through their respective medical advisory committees, have developed a protocol to address the in-game evaluation and diagnosis of potential concussions, and the subsequent management and treatment of players diagnosed with concussions, entitled the NFL Game Day Protocols Regarding the Evaluation and Management of Concussion (“NFL Game Concussion Protocol”), which is incorporated by reference into Section 17 of this Article and Appendix W attached hereto. The NFL Game Concussion Protocol is a necessary component of player medical care in the NFL and is therefore deemed mandatory by the Parties. Pursuant to the joint and continuing obligations set forth in this Article, the Parties have agreed to evaluate and address the potential deviations from the NFL Game Concussion Protocol, as set forth below:
General Policy: The NFL’s Head, Neck and Spine Committee, in consultation with the NFLPA’s Mackey-White Committee, have issued a mandatory NFL Game Concussion Evaluation and Management Checklist (“NFL Concussion Checklist” or “Checklist”), which provides a clear summary of the steps required by the currently existing NFL Game Concussion Protocol, following a specified triggering incident, and is attached to the Concussion Protocol set forth in Appendix W of this Agreement.
Enforcement: The application of the NFL Concussion Checklist to evaluate potential concussions during NFL preseason and regular season games is mandatory. Club medical teams must complete every step in the Checklist. Pursuant to the NFL Game Concussion Protocol, a player identified as requiring evaluation under the terms of the NFL Concussion Checklist shall not be permitted to return to play until each step in the Checklist has been completed and the player has been cleared by the Club physician. A player’s failure to participate in the evaluation process shall preclude him from returning to play in that game. Should a Club employee or other member of the Club medical staff knowingly and materially fail to follow a mandatory step in the Checklist, they will be subject to discipline, as set forth herein:
- 1. The NFL Management Council and NFLPA shall each designate one (1) or more representatives to monitor the enforcement of the NFL Concussion Checklist and investigate potential deviations therefrom (the “Representatives”). In addition, the NFL and NFLPA’s designated medical advisors will be provided with copies of the Unaffiliated Neurotrauma Consultant (“UNC”) and Booth ATC reports from every game, when they are filed with the NFL.
- 2. The NFLPA, the NFL Management Council or any player involved in an alleged failure by a club employee or other member of a club’s medical staff to follow any of the mandatory steps required by the NFL’s Concussion Checklist shall each have the right (independently or collectively) to bring forward a complaint about such alleged failure to the Representatives, which complaint shall be submitted in writing. The complaint shall be investigated and resolved by the NFL Management Council and the NFLPA as described herein.
- 3. Upon initiation of an investigation, the Representatives will have the authority to interview involved parties, witnesses and others reasonably believed to be in possession of information relevant to the inquiry (including players, league employees, club employees and members of the involved club’s medical staff) and, upon request from any Representative, shall be provided, as quickly as reasonably possible, with a copy of all game film, other recorded evidence and any other documentation relevant to the investigation of the complaint. Such requests shall not be unreasonably denied. Representatives shall complete their investigation and produce a report of their findings within two (2) weeks following the filing of a complaint. These reports shall remain confidential. Neither party is required to share its report with the other. These reports shall not be publicly disseminated.
- 4. No later than three (3) weeks following the filing of a complaint, or sooner if practical, the Executive Director of the NFLPA and the NFL Deputy General Counsel, Labor shall be advised of the status of the investigation and shall attempt to determine if a violation occurred and, if so, the proper disciplinary response. If the Parties are unable to agree upon whether or not a violation occurred or the appropriate discipline that should be imposed within three (3) weeks following the filing of a complaint, the matter will be immediately referred to the Impartial Arbitrator (as established by Article 16), who will review the complaint under the authority of this Article, using the following standards and procedures:
- a. Review: The Impartial Arbitrator shall determine: (1) whether a Club employee or member of a club’s medical team knowingly and materially failed to follow any of the mandatory steps in the NFL Concussion Checklist and, if so, (2) whether there were any relevant mitigating or aggravating factors present in the incident, including, without limitation: (a) whether the deviation resulted from an ambiguity in the Checklist or its failure to address the facts triggering the underlying violation, (b) whether any player interfered with the club employee or medical team’s ability to perform its duties, and (c) whether competitive concerns motivated the deviation. The parties recognize the Impartial Arbitrator is not a medically-trained professional and therefore his or her review and decision shall be limited to whether or not all of the steps required by the NFL Concussion Checklist were followed or whether there was a knowing and material failure to follow any of the required steps. The Impartial Arbitrator shall not opine on the quality of the care provided or whether additional measures should have been taken.
- b. Procedure: The Impartial Arbitrator shall conduct a hearing as soon as is reasonable (but no later than thirty (30) days following the date on which the matter is referred to the Impartial Arbitrator), using the following procedures: The designated Representative(s) of the NFL and the designated Representative(s) of the NFLPA may present whatever documents, film, or summary they deem relevant to the Impartial Arbitrator’s inquiry. The Impartial Arbitrator is free to request additional information or live witness testimony, should he or she determine that such additional evidence is relevant and necessary to a decision. Any party that is the subject of the inquiry shall have the right to participate in the proceeding and to present a defense. Within one (1) week of the close of evidence, the Impartial Arbitrator will issue a written report to the NFL Commissioner, the NFLPA Executive Director and the involved parties detailing his or her findings as to: (1) whether a club employee or other member of a club’s medical staff knowingly and materially failed to follow any of the mandatory steps required by the NFL Concussion Checklist and, if so, (2) whether there were any relevant mitigating or aggravating factors, including, without limitation: (a) whether the deviation resulted from an ambiguity in the Checklist or its failure to address the facts triggering the claimed underlying violation, (b) whether any player interfered with the medical team’s ability to perform its duties, and (c) whether the deviation from the Protocol was motivated by competitive concerns. The Impartial Arbitrator shall not offer his or her opinion as to the appropriate discipline, if any, that should result from the violation.
- 1. First Violation in a League-Year: In the event that the Impartial Arbitrator finds, or in the event that the NFL and NFLPA agree, that a club employee and/or a member of a club’s medical staff knowingly and materially failed to follow any of the mandatory steps required by the NFL Concussion Checklist, the Commissioner shall impose discipline against the club by: (a) issuance of a letter of reprimand advising that club employee(s) and/or member(s) of the club’s medical staff knowingly and materially violated the NFL Game Concussion Protocol, (b) requiring the club employees or medical team members involved with the deviation from the Protocol to attend remedial education; and/or (c) a fine against the club in an amount no more than Five Hundred Thousand Dollars ($500,000); and any other discipline that the Commissioner deems warranted by the violation. In the event that the Impartial Arbitrator finds, or the Parties agree, that the violation involved aggravating circumstances, the Club shall be subject, in the first instance, to a fine in an amount no less than One Hundred Thousand Dollars ($100,000). In this regard, the Commissioner shall consider the Impartial Arbitrator’s findings with regard to relevant aggravating factors in making his determination as to appropriate discipline.
- 2. Second and Subsequent Violation(s) in a League-Year: In the event that the Impartial Arbitrator finds, or in the event that the NFL and NFLPA agree, that a club is responsible for a second knowing and material failure to follow any of the mandatory steps required by the NFL Concussion Checklist in the same league year, regardless of whether such deviation was caused by the same employee and/or member of a club’s medical staff involved in the first incident, the Commissioner shall impose a fine of at least Two Hundred and Fifty Thousand Dollars ($250,000) against the club plus whatever other measures he deems warranted. The Commissioner shall consider the Impartial Arbitrator’s findings with regard to relevant aggravating or mitigating factors in making his determination as to appropriate discipline.
- 3. Competitive Considerations: In the event that the NFL Commissioner determines that the violation of the NFL Concussion Checklist was motivated by competitive considerations (e.g., intent to leave player in game and knowingly, intentionally and materially disregard the Protocol in order to gain a competitive advantage) the Commissioner may require the club to forfeit draft pick(s) and additional fines exceeding those amounts set forth above.
NFL Players: The Parties have determined that club medical teams must apply each step of the NFL Game Concussion Evaluation and Management Protocol when evaluating an NFL player for a potential concussion during an NFL game. The Parties also recognize that player participation and cooperation is essential to the diagnosis and management of this injury. To that end, the Parties shall jointly develop education and messaging to be shared with players on a regular basis, including, but not limited to, the importance of (i) reporting concussion symptoms and (ii) cooperating with team medical staffs in all areas of concussion care. For purposes of enforcement, if an NFL player interferes with the medical staff’s ability to perform its duties under the Protocols, such interference shall be considered by the Parties or the Impartial Arbitrator as a mitigating factor and may serve as an affirmative defense to discipline under Section 4 (c) above.
Fines: Beginning in the 2022 League Year, all fine amounts set forth in this Section shall increase by three percent (3%) each League Year. All fines shall be assessed and collected by the Commissioner pursuant to this Article and shall be used by the league in furtherance of its player-related medical and scientific research programs.
Amendments: Any and all changes to the NFL Game Concussion Protocol and/or the NFL Concussion Checklist shall be subject to mutual agreement by the Parties. The Parties, through their respective medical advisory committees, shall regularly review the same and implement changes and improvements as necessary.