Legal And Ethical Analysis And Recommendations Chapter 19

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Protecting and Promoting theHealth of NFL Players:Legal and Ethical Analysis and RecommendationsChapter 19Christopher R. DeubertI. Glenn CohenHolly Fernandez LynchPetrie-Flom Center for Health Law Policy, Biotechnology,and Bioethics at Harvard Law SchoolNFL Business PartnersIn the 2015 season, the NFL had approximately 29 official corporatepartners,a which collectively paid the NFL more than one billion dollarsannually.1 While there are many other companies that might advertise ontelevision during NFL games or around other NFL events, the businesspartners we are principally focused on here are the ones that havereached an agreement with the NFL to be considered an official partneror sponsor of the NFL. These business partners are an importantcomponent in professional football. Such a role includes the potential,and at times the obligation, to also play a role in player health.aThese corporate partners are sponsors of the NFL as opposed to sponsors of particular clubs or players. In addition, none of them areMedical Service Providers, as discussed in Chapter 2: Club Doctors.

396. \ Protecting and Promoting the Health of NFL PlayersIn order to ensure that this chapter was as accurate andvaluable as possible, we invited nine NFL business partners to review a draft version before publication: Verizon,Anheuser-Busch, Pepsi, and McDonald’s did not respond tomultiple invitations to review the Report; Gatorade, FedEx,and Nationwide Insurance declined to review the draft;Microsoft reviewed the chapter but did not provide anycomments; and, Nike provided a single comment affirmingthe importance of player health and safety to Nike.bbNike’s full comment: “As a sponsor of the NFL and the sponsor and footwear provider of many individual players, the safety and well-being of players is important tous. Through the years NIKE has worked closely with the both the NFLPA and the NFLin the NFL Foot and Ankle Committee (a subsection of the Player Safety Committee).Additionally, we have always worked directly with athletes, teams and equipment managers on testing, feedback and changes to our products to help athletesperform to their highest ability.” E-mail from Nike counsel to author (May 18, 2016,12:05 PM).( A ) BackgroundThe largest NFL business partners at the time of publicationinclude Verizon ( 250 million in sponsorship annually);2Anheuser-Busch ( 233 million);3 Nike ( 220 million);4Pepsi ( 100 million);5 and, Microsoft ( 80 million).6 Therelationship with the NFL generally provides the businesspartners, among other things, advertising during NFL gamesand through other NFL media, the right to include theNFL logo on their products and in their advertisements, theright to advertise themselves as the “official” brand of theNFL, exclusivity in their brand category, and/or the right toengage in promotional activities at NFL events, such as theSuper Bowl. The business partners have clearly determinedthat the value of their association with the NFL and therelated exposure exceeds the millions in sponsorship fees.

Part 6 \ Chapter 19 \ NFL Business Partners 397.Table 19-A:NFL Sponsors (2015)7SponsorCategorySinceGatoradeIsotonic beverage1983Visa USAPayment systems service1995Campbell’s SoupSoup1998FedExWorldwide packagedelivery service2000Frito-LaySalted snack/popcorn/peanuts/dip2000Mars SnackfoodChocolate and nonchocolate confectionery2002PepsiSoft drinks2002BridgestoneTire2009Procter & Gamble (Gillette, Head &Shoulders, Vicks, Old Spice)Grooming products, fabric care/air care, household needs2009VerizonWirelesstelecommunication service2010BarclaysAffinity card/rewards program2010Papa John’sPizza2010CastrolMotor y appreciation2011BoseHome theater system2011MarriottHotel2011Xbox (Microsoft)Video game console, interactivevideo entertainment console2011NikeAthletic apparel2012QuakerHot cereal2012Procter & Gamble (Tide, Duracell)Household cleaning, battery power2012LenovoComputers (desktop, laptop, andcomputer d software solutions, businessand business analytics2012Microsoft (Surface, Windows)Sideline technology (tablet,PC operating system)2013Cover GirlBeauty2013NationwideInsurance2014Extreme NetworksWi-Fi Analytics Provider2014HyundaiAutomobile2015

398. \ Protecting and Promoting the Health of NFL Players( B ) Current Legal ObligationscAlthough NFL players and NFL business partners benefitfrom one another, there is generally no direct legal relationship between them. While some players might also enterinto endorsement agreements with the business partners,these contracts concern marketing matters and wouldnot create any legal obligations for the business partnersconcerning NFL player health.8 Similarly, the CBA does notcreate any obligations on NFL business partners, nor couldit, since the CBA is a contract between the clubs and players. Thus, NFL business partners have no legal obligationsto NFL players specific to their status as business partners.( C ) Current Ethical CodesThe NFL is supported by a range of business partnerswhose main focus often has nothing to do with football,but instead centers on reaching the NFL’s massive audience for marketing purposes. Reaching consumers is alegitimate and important business goal, but not all advertising venues are fair game. One can imagine a wide varietyof unsavory outlets a company would prefer (and ought)to avoid, even if they would be an effective way to reachpotential customers. This is because companies are oftenconcerned —  either genuinely, or out of fear that negativeresponses from consumers will affect their bottom line —  that they may contribute to some ethically problematicendeavor, thereby becoming complicit in or even exacerbating it. Notably, complicity comes in many forms, rangingfrom failure to intervene when one has the capacity toprovide assistance to offering active support to an ethicallyproblematic activity.As increasing questions arise about the health of professional football players, NFL business partners (and theircustomers) may ask themselves, “what is our responsibility?” That is, what level and type of support should theybe providing to the NFL, or from a different angle, to theplayers? At root, these questions are about unclean hands,and whether NFL business partners are profiting on thebacks of players who may suffer dire consequences in thelong term. While the precise risks and benefits of an NFLcareer remain subject to debate, the concerns suggest thatthese are precisely the questions that ethically responsiblecompanies should ask. To avoid complicity, these companies should be concerned with what endeavors they allowtheir money to support, and in what ways they can and/orshould wield their power to affect change.cThe legal obligations described herein are not an exhaustive list but are those webelieve are most relevant to player health.The concept of corporate social responsibility seeks toaddress these questions. We find it a useful framework forunderstanding the ethical obligations NFL business partnersmight have towards players. The most influential articulation of corporate social responsibility principles is theUnited Nations Guiding Principles on Business and HumanRights, published in 2011 (“Guiding Principles”).9 Indeed,many NFL business partners have stated their intention tocomply with the Guiding Principles.10To be clear, we are not claiming that any of the problemswe discuss in this Report or that NFL players face by playing football rise to the level of human rights violations;given the simple fact of consent to play and payment forservices, the difficulties players face do not compare to thenumerous and ongoing tragedies around the world thathuman rights law is thought to govern. Nonetheless, theGuiding Principles provide a framework for understandingbusiness enterprises’ ethical obligations concerning others.This framework is useful to understanding the relationshipbetween NFL business partners and players, even if we arenot discussing human rights violations.To put the point another way, in asking the question “whatethical obligations should business partners have as to thehealth of NFL players,” it is useful to begin by understanding what recognized ethical obligations they have in thehuman rights realm, simply as a starting point. The GuidingPrinciples include several principles that may be relevant tothat inquiry: Business enterprises should “[s]eek to prevent or mitigateadverse human rights impacts that are directly linked to theiroperations, products or services by their business relationships, even if they have not contributed to those impacts.”11 “[B]usiness enterprises should carry out human rights duediligence” including “assessing actual and potential humanrights impacts, integrating and acting upon the findings,tracking responses, and communicating how impactsare addressed.”12 Business enterprises should engage in “meaningfulconsultation with potentially affected groups and otherrelevant stakeholders.”13 Business enterprises should “exercise” leverage “to preventor mitigate the adverse impact” when possible.14 Business enterprises which lack the leverage to prevent ormitigate the adverse impact should consider “collaboratingwith other actors.”15

Part 6 \ Chapter 19 \ NFL Business Partners 399.In the corporate context, these responsibilities are considered as defining the ethical business conduct, but theGuiding Principles do not purport to be legally enforceableobligations. Nonetheless, using the Guiding Principles aspersuasive authority, we highlight two of the above principles for further discussion.Importantly, the Guiding Principles do not require thatthe business enterprises’ conduct cause an adverse impact,only that they be “directly linked.” NFL business partners’ practices almost certainly do not cause player healthproblems, but for reasons discussed in this chapter, there isa direct link between business partners’ practices and playerhealth issues.Second, the second-to-last bullet point recognizes businessenterprises’ obligations to exercise leverage where appropriate. Again, for reasons discussed in this chapter, businesspartners have the ability to wield influence with the NFL.With that influence comes the responsibility to act conscientiously and force others to do the same, including on matters concerning player health.( D ) Current PracticesNFL business partners’ approach to NFL player healthissues is best highlighted by examining their response torecent NFL controversies. When the NFL faced scrutiny formishandled domestic violence incidents in the fall of 2014,many of its major sponsors issued generalized statementsexpressing disappointment in the situation and calling onthe NFL to make changes.16 However, research has notResearch has not revealedany statements by anyNFL corporate sponsorconcerning the lawsuitsover concussions orpainkillers, or anyother player health orsafety issue.revealed any statements by any NFL corporate sponsorconcerning the lawsuits over concussions or painkillers, orany other player health or safety issue.Business partners should beconcerned with what endeavors theyallow their money to support, and inwhat ways they can and/or shouldwield their power to affect change.Much of the relationship between business partners andthe NFL occurs behind closed doors. All we can see arethe public positions, statements, and actions undertakenby business partners. Taking inspiration from the GuidingPrinciples (and again emphasizing that there is no claimthat we are talking about human rights violations), andevaluating only based on the public record (a limitation,to be sure), it does not appear that NFL business partnershave undertaken any of these kinds of efforts to preventharm to the health of NFL players, or even to influence aculture that recognizes the value and importance of playerhealth. That is, there is no evidence that NFL businesspartners have: (1) sought to prevent or mitigate playerhealth problems; (2) conducted due diligence concerningplayer health issues; (3) engaged in meaningful consultation

400. \ Protecting and Promoting the Health of NFL Playerswith players concerning player health issues; (4) exercisedleverage in an individual capacity to prevent or mitigateplayer health problems; or, (5) exercised leverage ina collaborative capacity to prevent or mitigate playerhealth problems.dCommentators have opined that one way to push the NFLto make meaningful changes to its policies or course ofconduct regarding player health is to threaten financial consequences, i.e., if business partners threatened to stop doingbusiness with the NFL.17 Thus, there seemingly exists thepossibility that NFL business partners have the power toeffect change —  or to at least begin meaningful conversationabout change —  concerning player health issues.Nevertheless, so long as the NFL remains a valuableproperty with which to be associated, it seems unlikely thatindividual business partners would risk damaging their relationships with the NFL by either taking adverse positionsor putting pressure on the League. At the same time, thismay be an era where the economic realities are changing.Business enterprises that engage in sponsorship like that ofthe NFL’s business partners are principally concerned withdThe business partners’ conduct must also be viewed in light of Guiding PrincipleNo. 24, which states that “[w]here it is necessary to prioritize actions to addressactual and potential adverse human rights impacts, business enterprises should firstseek to prevent and mitigate those that are most severe or where delayed responsewould make them irremediable.” Thus, some business partners might believe thereare issues of a human rights nature that deserve greater attention and immediacythan their involvement in NFL player health matters.deriving economic value from the sponsorship throughincreased brand awareness and positive association withthe sponsored entity, e.g., the NFL. Negative publicity forthe NFL or decreased attention to the NFL (e.g., televisionratings) lessens the economic value of the business partner’ssponsorship. NFL player health issues have created negativeattention for the NFL through lawsuits, news articles, andother means. This negative attention has the potential tospread to the NFL’s business partners through a “guilt byassociation” mindset.e Thus, this may be the moment whereeconomic and ethical interests align, such that businesspartners can take on a more prominent role in pressing forprotection of player health.( E ) E nforcement of Legal andEthical ObligationsIn the absence of any existing legal or ethical obligations for NFL business partners concerning NFL playerhealth, there can be no enforcement of any such legal orethical obligations.eSuch concerns are not hypothetical. In 2014, five sponsors (Sony, Emirates Airlines,Castrol, Continental and Johnson & Johnson) pulled their sponsorship of FIFA’sWorld Cup due to extensive allegations of corruption within the international soccerorganization. See Peter Sharkey, Cup Joy’s a World Apart From FIFA ‘Toxic Brand’,Birmingham Post (UK), Jan. 29, 2015, available at 2015 WLNR 2794660.

Part 6 \ Chapter 19 \ NFL Business Partners 401.Concerning NFLBusiness Partners– continued Partners(RecommendationsF ) RecommendationsConcerningNFL BusinessNFL business partners, due to the power of their purses, have a unique ability to influence the NFL to make positivechanges concerning player health. Below we make recommendations that can improve business partners’ approachesto player health issues, to the benefit of both players and the business partners. In making these recommendations, wealso stress that while we recommend and encourage business partners to act independently when necessary, that if business partners collaborated and worked collectively on these issues they would be more likely to achieve positive changesquickly and effectively.Goal 1: To encourage NFL business partners to work towards advancing a cultureof health for NFL players.Principles Advanced: Respect; Health Primacy; Collaboration and Engagement; and, Justice.Recommendation 19:1-A: NFL business partners should not remain silent on NFL playerhealth-related policies.During the 2014 season, the NFL’s business partners condemned the NFL’s failures to handle and address domestic violence issues. Several of the business partners’ statements reflected on the NFL’s place in our society and emphasized theneed for ethical conduct and leadership.18 However, none of the business partners have ever made any statements concerning the risks players face in playing professional football and the tolls of such a career. Moreover, the business partnersnever made any statement concerning the allegations in the Concussion Litigation (see Chapter 7: The NFL and NFLPA)that for many years the NFL misrepresented the risks of playing professional football to players. Why this asymmetry? It isquite possible that business partners’ comments on the domestic violence issue were in response to greater public pressure,and the more diffuse public pressure on player health has not yet reached the same crescendo.Nevertheless, for the same reasons business partners commented on the NFL’s domestic violence issues, they should alsomake their voices heard on player health-related issues. Business partners, like everyone in the professional football universe, need to understand and accept their responsibilities and role concerning player health.A recent useful example is the energy bar company Clif Bar. Clif Bar sponsors adventure sports athletes, including mountain climbers. After determining that some of these athletes were taking risks that were excessive (such as not using safetyropes or BASE jumping), Clif Bar pulled their sponsorships of some of these athletes and issued a statement clarifying thetypes of risks Clif Bar felt comfortable supporting. Of particular relevance, Clif Bar indicated that it “no longer [felt] goodabout benefitting from the amount of risk certain athletes [we]re taking[.]”19Recommendation 19:1-B: NFL business partners should consider applying pressure onthe NFL to improve player health.The NFL is a business and, like any business, does not want to suffer a drop in revenue. Individually, the business partners might not represent a significant portion of the NFL’s revenue, but collectively the business partners’ sponsorship feescomprise more than 10 percent of the NFL’s revenue. Thus, collectively, the business partners have leverage, i.e., the abilityto force the NFL to make change at the threat of losing hundreds of millions of dollars. The business partners, consistent

402. \ Protecting and Promoting the Health of NFL PlayersRecommendations Concerning NFL Business Partners – continuedwith the spirit of the Guiding Principles and other social responsibility initiatives and aspirations they have, should usetheir power of the purse to help the players from whom they derive considerable financial value.fTo be fair, business partners might reasonably be concerned that any exercise of such leverage will only result in the NFLreplacing them with a competitor. However, the NFL has reasons to maintain continuity with its business partners. Sponsor turnover is bad for brand loyalty and identification for both the sponsor and the NFL, thus decreasing the value ofthe replacement partner’s sponsorship. For example, Pepsi is currently the official soft drink of the NFL. If Pepsi were tobe replaced by Coca-Cola, many fans might still believe Pepsi is the official soft drink or be confused as to which brandis the official soft drink, decreasing the value of Coca-Cola’s sponsorship and the amount it would be willing to pay tothe NFL.20The recommendations made in this Report and other outlets that have discussed changes to player health provide guidanceon the types of issues for

In the 2015 season, the NFL had approximately 29 official corporate partners,a which collectively paid the NFL more than one billion dollars annually.1 While there are many other companies that might advertise on television during NFL games or around other NFL events, the business

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