Volume 165, Issue 2 
January 2017
Articles

Evaluating NFL Player Health and Performance: Legal and Ethical Issues

Jessica L. Roberts, I. Glenn Cohen, Christopher R. Deubert & Holly Fernandez Lynch

This Article follows the path of a hypothetical college football player with aspirations to play in the National Football League, explaining from a legal and ethical perspective the health and performance evaluations he will likely face throughout his career. Some of these evaluations are commonplace and familiar, while others are more futuristic—and potentially of unproven value. How much information about themselves should aspiring and current professional players be expected to provide in the employment context? What are the current legal standards for employers collecting and acting on an individual’s health‐ and performance‐related information? Drawing on disability law, privacy law, and the law governing genetic testing, this Article seeks to answer those questions, as well as to provide recommendations to better protect the health and privacy of professional football players.

The upshot of our analysis is that it appears that some of the existing evaluations of players, both at the NFL Scouting Combine (Combine) and once drafted and playing for a club, seem to violate existing federal employment discrimination laws. Specifically, (1) the medical examinations at the Combine potentially violate the Americans with Disabilities Act’s (ADA) prohibitions on pre‐employment medical exams; (2) post‐offer medical examinations that are made public potentially violate the ADA’s confidentiality provisions; (3) post‐offer medical examinations that reveal a disability and result in discrimination—e.g., the rescission of a contract offer—potentially violate the ADA provided the player can still perform the essential job functions; (4) Combine medical examinations that include a request for a player’s family medical history potentially violate the Genetic Information Nondiscrimination Act (GINA); and (5) the preseason physical’s requirement that a player disclose his family medical history potentially violates GINA.

We believe all employers—including the NFL and its clubs—should comply fully with the current law. To that end, our recommendations center around four “C”s: compliance, clarity, circumvention, and changes to existing statutory schemes as applied to the NFL (and perhaps other professional sports).

The appendices cited in this article are available below:

Appendix A

Appendix B

Appendix C


What We Buy When We Buy Now

Aaron Perzanowski & Chris Jay Hoofnagle

Imagine you purchase a new book from Amazon. You visit Amazon.com, find a book that looks promising, click the familiar Buy Now button, wait a mere two days for Amazon Prime delivery, and promptly place that new volume on your bookshelf, waiting for the perfect rainy day to crack it open. The next morning, you wake up to find a book‐sized gap on your shelf. Your book has disappeared. Just then, you receive an email from Amazon customer service explaining that—at the copyright holder’s request—the book has been recalled.

Amazon informs you that it dispatched a drone to your home to silently and carefully retrieve the book while you slept in order to avoid any inconvenience. But not to worry, Amazon reassures you, your account has already been credited with a refund.

Most consumers would be outraged at such an intrusion, not only because of the physical violation it entails, but also because it contravenes some basic assumptions about the nature of personal property rights. When we buy a book, we own it; it is our property. And one right traditionally associated with personal property is the ability to keep the things you own for as long as you choose. They cannot be taken from you without your consent, certainly not by private actors for their own benefit. Yet something very similar happens online when consumers buy a product.

This Article presents the results of a study that demonstrates that a sizable percentage of consumers is misled with respect to the rights they acquire when they “buy” digital media goods. They mistakenly believe they can keep those goods permanently, lend them to friends and family, give them as gifts, leave them in their wills, resell them, and use them on their devices of choice.

Not only are consumers misled, they are misled about ownership rights that are important to them. A sizable percentage of consumers express a desire for those rights and many say they are willing to pay more to preserve them. Importantly for retailers and copyright holders, respondents in our study indicated that they would turn to streaming services and BitTorrent if they were unable to engage in the uses typically associated with personal property ownership.


The Myth of the Nondelegation Doctrine

Keith E. Whittington & Jason Iuliano

For much of the nineteenth and early twentieth centuries, the nondelegation doctrine served as a robust check on governmental expansion. Then, during the New Deal revolution, the Supreme Court reined in the doctrine, thereby paving the way for the rise of the modern administrative state. This story is one we all know well. It is taught in every constitutional law class and has been endorsed by constitutional law scholars since the 1930s. In this Article, we are the first to challenge this narrative.

Our investigation draws upon an original dataset we compiled that includes every federal and state nondelegation challenge before 1940—more than two thousand cases in total. In reviewing these judicial decisions, we find that the nondelegation doctrine never actually constrained expansive delegations of power. Ultimately, our analysis reveals that the traditional narrative behind the nondelegation doctrine is nothing more than a myth.


Comments

Revoking the Revocable License Rule: A New Look at Resale Restrictions on Sports Tickets

Alexander P. Frawley

Most sports fans consistently rely on the secondary ticket market. After all, the secondary ticket market provides fans with numerous benefits, including the opportunity to obtain tickets to sold out, high‐profile events and the ability to resell tickets to recoup the cost of a ticket for an event they cannot attend. But some key players—namely, primary ticket sellers like sports teams—have lamented the rise of the secondary market, complaining that resale exchanges unfairly profit from the teams’ labor and diminish the value of buying tickets directly from the teams. Consequently, teams have begun to develop new initiatives to curb the growth of the secondary market, including establishing official team resale exchanges to compete with sites like StubHub, prohibiting season ticket holders from selling tickets on unofficial resale exchanges, and implementing ticket delivery procedures that make it more difficult to resell tickets. Fortunately for teams, the law cuts squarely in their favor as courts, academics, and industry professionals alike adhere to the late nineteenth century notion of tickets as fully revocable licenses. As such, teams are free to impose resale restrictions as they see fit.

But in this Comment, I argue that lawmakers should reconsider the extent to which teams can continue to use the revocable license rule to restrict ticket holders’ resale rights. I show how the revocable license rule, though widely accepted today, was criticized and often rejected by early twentieth century courts and academics for seemingly allowing proprietors to unfairly and arbitrarily exclude innocent ticket‐holding patrons. I then explain how business incentives nevertheless prevented proprietors from abusing the rule and how judges and lawmakers relied on the assumption that these incentives would prevent the rule from being abused. In doing so, I show that the rule was actually adopted for a very limited purpose—namely, to protect a proprietor’s right to exclude unruly patrons. Given that limited purpose, I argue that courts and scholars have gradually—but improperly—extended the rule of tickets as revocable licenses such that primary ticket vendors now wield a type of unilateral power over ticket holders that the original proponents of the rule never intended to establish. Therefore, I urge that lawmakers stop allowing the notion of tickets as revocable licenses to inform the industry’s discourse about ticket holders’ rights. Finally, I explore various practical legislative solutions to reform the secondary market, which are free from the rigid assumptions of the revocable license rule and which account for the legitimate concerns of both ticket holders and teams.


Circuit Split: How Far Does Whistleblower Protection Extend Under Dodd–Frank?

Thomas J. McCormac, IV

Khaled Asadi and Daniel Berman worked for companies that were subject to various U.S. securities laws. During the course of their employment, both became aware of potential violations of law and dutifully reported this information to their superiors. Soon thereafter, both men lost their jobs; they believe this was in retaliation for their whistleblowing activity. Both brought suit under Dodd–Frank’s whistleblower protection provisions, which define a whistleblower as “any individual who provides . . . information relating to a violation of the securities laws to the Commission.” Because Mr. Asadi and Mr. Berman only reported violations to their supervisors internally and not to the Securities and Exchange Commission (SEC), their protection under Dodd–Frank was uncertain. The Fifth Circuit held that Dodd–Frank did not protect Mr. Asadi because it only protects employees who report to the SEC directly. The Second Circuit, in contrast, held that Mr. Berman’s internal reporting was sufficient for him to gain protection under Dodd–Frank. These conflicting outcomes have created a circuit split with major implications for the law of whistleblower protection. This Comment ultimately argues that both the text and purpose of Dodd–Frank support the Second Circuit’s conclusion: whistleblowers who report suspected violations of law internally, but not to the SEC, are protected by Dodd–Frank’s anti‐retaliation provisions.


Volume 165, Issue 1 
December 2016
Articles

Consent Is Not Enough: Why States Must Respect the Intensity Threshold in Transnational Conflict

Oona A. Hathaway, Rebecca Crootof, Daniel Hessel, Julia Shu & Sarah Weiner

It is widely accepted that a state cannot treat a struggle with an organized non‐state actor as an armed conflict until the violence crosses a minimum threshold of intensity. For instance, during the recent standoff at the Oregon wildlife refuge, the U.S. government could have lawfully used force pursuant to its domestic law enforcement and human rights obligations, but President Obama could not have ordered a drone strike on the protesters. The reason for this uncontroversial rule is simple—not every riot or civil disturbance should be treated like a war.

But what if President Obama had invited Canada to bomb the protestors—once the United States consented, would all bets be off? Can an intervening state use force that would be illegal for the host state to use itself? The silence on this issue is dangerous, in no small part because these once‐rare conflicts are now commonplace. States are increasingly using force against organized non‐state actors outside of the states’ own territories—usually, though not always, with the consent of the host state. What constrains the scope of the host state’s consent? And can the intervening state always presume that consent is valid?

This Article argues that a host state’s authority to consent is limited and that intervening states cannot treat consent as a blank check. Accordingly, even in consent‐based interventions, the logic and foundational norms of the international legal order require both consent‐giving and consent‐receiving states to independently evaluate what legal regime governs—this will often turn on whether the intensity threshold has been met. If a non‐international armed conflict exists, the actions of the intervening state are governed by international humanitarian law; if not, its actions are governed instead by its own and the host state’s human rights obligations.


Something to Talk About: Information Exchange Under Employment Law

Joni Hersch & Jennifer Bennett Shinall

To avoid the appearance of sex discrimination that would violate Title VII of the Civil Rights Act, Equal Employment Opportunity Commission (EEOC) guidance coupled with a common misunderstanding of the law have resulted in little or no information about family status being provided in pre‐employment interviews. To investigate whether concealing family information actually improves women’s employment prospects, we conducted an original experimental study fielded on more than 3000 subjects. Our study provides the first ever evidence that concealing personal information lowers female applicants’ hiring prospects. Subjects overwhelmingly preferred to hire candidates who provided personal or family information, regardless of content—any explanation improved employment prospects relative to no explanation for an otherwise identical job candidate. Our results are consistent with the behavioral economics theory of ambiguity aversion, which finds that individuals prefer known risks over unknown risks. These findings have broader implications regarding permissible pre‐employment questions, as they suggest that restrictions on questions about matters such as criminal history and credit history, both of which are currently targeted by legislatures and by the EEOC for prohibition, may likewise have adverse effects on the classes of workers such restrictions are intended to protect. Finally, our findings suggest that the interactive process model of reasonable accommodation, embodied in the enforcement guidance for the Americans with Disabilities Act, may provide a better model for accommodation of work–family balance.


Policing as Administration

Christopher Slobogin

Police agencies should be governed by the same administrative principles that govern other agencies. This simple precept would have significant implications for regulation of police work, in particular the type of suspicionless, group searches and seizures that have been the subject of the Supreme Court’s special needs jurisprudence (practices that this Article calls “panvasive”). Under administrative law principles, when police agencies create statute‐like policies that are aimed at largely innocent categories of actors—as they do when administering roadblocks, inspection regimes, drug testing programs, DNA sampling programs, and data collection—they should have to engage in notice‐and‐comment rulemaking or a similar democratically oriented process and avoid arbitrary and capricious rules. Courts would have the authority to ensure that policies governing panvasive actions are authorized by statute and implemented evenhandedly, both in individual instances and as they are distributed within the agency’s jurisdiction. Furthermore, these principles would apply regardless of whether the panvasive practice has been designated a search or seizure under the Fourth Amendment.


Comments

Maybe Publius Was Right: Relying on Merger Price To Determine Fair Value in Delaware Appraisal Cases

Daniel E. Meyer

In this Comment, I argue that calls for reform to the appraisal remedy should be aimed at the Delaware Court of Chancery. The purpose of this Comment is not to express a normative judgment about the overall desirability of appraisal arbitrage; rather, I propose a shift away from the Chancery Court’s oft‐favored valuation technique, discounted cash flow (DCF) analysis, in appraisal cases arising out of certain third‐party, or arm’s‐length, transactions. The Chancery Court should instead rely on merger price as the best estimate of the “fair value” of an appraisal petitioner’s shares when (1) the inputs required for a DCF analysis are unreliable and (2) there has been a genuine market test.

Reliance on the merger price under these conditions would allay concerns on both sides of the debate. For proponents of appraisal arbitrage, this valuation approach does not impinge on shareholders’ ability to resort to the appraisal remedy by restricting their deadline to the record date. Additionally, the Chancery Court’s embrace of merger price would incentivize additional disclosure by target companies in order to demonstrate that the sale process was fulsome. For opponents of appraisal arbitrage, when there has been a genuine market test and a DCF analysis is unreliable, the use of merger price punishes appraisal petitioners when their claims are unwarranted (i.e., purely speculative investments aimed at low‐premium transactions). Appraisal arbitrageurs cannot profit from “buying into” a lawsuit when the merger price is used as fair value; they must bear litigation expenses and additionally may face a “synergy deduction,” as appraisal claimants cannot capture any value arising from the expectation of the merger. Thus, this approach to valuation would only encourage claims where there is real reason to believe that the price achieved in the merger was not “fair”—namely, in controlling shareholder and parent/subsidiary mergers—and would remove some uncertainty from third‐party mergers (the transactions that are the primary focus of M&A lawyers).


Our Antitotalitarian Constitution and the Right to Identity

Brian T. Ruocco

Underlying the United States Constitution is an antitotalitarian principle—i.e., the government cannot define, regulate, or compel aspects of life that are fundamental to identity and personhood. Prohibitions of compulsory childbirth, flag salutes, ideological education, and racial separation most clearly evince this bulwark against totalitarianism.

Nonetheless, from birth, the government enforces legal gender, restricts the availability of legal gender reclassification, and prevents individuals from removing themselves from the legal gender system. The government thus affirmatively produces and compels identity on an individual level. Moreover, for trans* people, these laws cause expressive and dignitary harm, increase exposure to violence, and diminish life opportunities. Although these gender identity laws constitute a totalitarian occupation of individual lives, they have evaded constitutional scrutiny.

This Comment (1) evaluates the right to identity situated in the midst of the Constitution’s proscription of totalitarianism and (2) investigates constitutional arguments supporting trans* people’s right to self‐determine their gender identity. Specifically, this context illuminates the right to identity and how the government engages in compulsory, affirmative identity formation. Ultimately, this Comment demonstrates that for trans* people and our Constitution alike, we must eliminate totalitarian gender identity laws and totalitarianism in all forms.


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