In this Essay, we assert that, despite what is written in the collective bargaining agreement (CBA), NBA players should—and in fact do—maintain their legal rights under employment discrimination statutes. At first blush, allowing players to sue the team or the NBA itself may seem to impose an unwieldy burden on professional sports. However, current disability discrimination laws like the Americans with Disabilities Act (ADA) already strike the proper balance between the employer’s interest in maintaining a safe workplace and the employee’s interest in being free from discrimination. As we will demonstrate, many ADA claims will only be cognizable when the team chooses to ignore a Fitness‐to‐Play decision in favor of the player.
This Essay explores the rights of current NBA players regarding their Fitness‐to‐Play requirements. In Part I, we outline recent changes to the CBA, highlighting how the newly effective agreement governs Fitness‐to‐Play determinations. Part II turns to players’ rights as employees under disability discrimination statutes, using the ADA as a case study. Lastly, Part III explores the interplay between the policies and procedures articulated in the CBA and NBA players’ statutorily protected antidiscrimination rights. We conclude that, at a minimum, the NBA and the NBPA should eliminate the CBA provision that requires players to waive their antidiscrimination rights. Generally speaking, sophisticated parties should be left to privately agree as to how to resolve issues that arise between them. By contrast, because parties cannot prospectively waive their statutorily guaranteed rights, a blanket exemption from employment discrimination laws for professional sports is a question for legislatures, not for the collective bargaining process. With that said, we propose that a more meaningful and reliable alternative to the current regime would be to make the Fitness‐to‐Play proceedings—however defined—binding not only on the players, but also on the team and the NBA.