McCann: Using NLRB “Abnormally Dangerous Condition” Clause, NFL Players Could Refuse to Play With Replacement Refs
An interesting take on the NFL’s current labor situation concerning locked out referees and their temporary replacements comes from Michael McCann of the Sports Law Blog who suggests that despite the NFLPA’s “no strike” deal, the players could still join in solidarity with referees by inciting an NLRB clause that “permits a worker from refusing to work in an ‘abnormally dangerous condition.’
This clause, 29 USC 143, could pertain to NFL players since under-trained referees could pose a safety risk of unmanageable scale in an already dangerous sport. McCann looks further into TNS 309, the lead NLRB case on the issue:
The U.S. Court of Appeals for the Sixth Circuit enforced the NLRB’s order in the TNS case, which involved employees at a nuclear plant who were exposed to unsafe levels of radiation and who walked off the job. The NLRB said the workers were legally entitled to do so under 29 USC 143 because of a good faith belief and objective evidence (including evidence of kidney damage and abnormal levels of uranium exposure) that they were being harmed.
While it is unlikely that NFL players will refuse to play when the season kicks off tonight, this argument could resurface if players begin to witness injuries resulting from poor officiating or a lack of control over the games by replacement referees. McCann and other legal experts argue that there is precedent for this action.
Last week, Forbes Magazine explained why their current contract disallows NFL players from striking. NFLPA executive director DeMaurice Smith, though, echoed McCann’s safety concerns:
“In America it is the employer’s obligation to provide as safe a working environment as possible. We believe that if the National Football League fails in that obligation, we reserve the right to seek any relief that we believe is appropriate.”