Sam Darnold met with the media for one of the first times as a member of the Carolina Panthers on Wednesday, and it didn’t take long for the quarterback to make league-wide waves.
Darnold revealed that he has not been vaccinated, despite the on-the-books consequences of testing positive for COVID-19 in the NFL. "There's a ton of different things that go into it,” Darnold said. “I'm gonna evaluate that on my own and make the best decision that I feel is the best for myself."
A few hours earlier, Washington defensive end Montez Sweat had offered up a similar I’m-still-waiting-on-the-facts rationale, saying he “probably won’t get vaccinated until I got more facts and that type of stuff, but I’m not a fan of it at all.” He then went a step further than Darnold, adding, “I haven’t caught COVID yet. I don’t see me treating COVID until I actually get COVID.”
Darnold and Sweat are two of the first to face questions, either asked or unasked, that will dominate the NFL preseason: are you vaccinated? If not, why not? Can a team force its players to get vaccinated so they don’t miss games?
We’re in the early stages of a fight pitting players’ medical history against the public’s right to know, with workplace employment and privacy laws as the battleground. Are fans entitled to know if their team’s players are vaccinated? Is the media allowed to ask about a player’s vaccine status? As players return to camp, this is the privacy-versus-greater good debate they’re facing.
Running afoul of COVID protocols
The challenge for NFL players isn’t so much medical as procedural. Young, healthy individuals with no underlying medical conditions are at low risk of suffering severe consequences from COVID-19. But the NFL’s COVID protocols don’t make allowances for players in good health — a positive test, confirmed by retests, lands a player on the COVID-IR list, and that player must separate from team facilities and activities until they test negative, which can take up to two weeks.
The issue, then, is this: unvaccinated players run a much greater risk of running afoul of COVID protocols, and thus ending up sidelined. The fact that a player may be asymptomatic is irrelevant; the presence of the disease alone is enough to trigger the separation protocols.
Employers do have the right, under U.S. law, to force their employees to get vaccinated. “Those employers are in the minority right now,” said Lindsey Conrad Kennedy, a labor and employment attorney with Eckert Seamans Cherin & Mellott LLC of Pittsburgh. “The federal Equal Employment Opportunity Commission has greenlighted mandatory vaccination requirements, as long as exceptions are made for disabled or religious reasons.”
However, the NFL’s relationship with its players is governed by the collective bargaining agreement the league struck with the NFL Players’ Association. “As a general matter,” said Jason Wojciechowski, an attorney with Bush Gottlieb of Glendale, California, “a vaccine mandate would be a mandatory subject of bargaining, so the NFL could not implement it unilaterally.”
The current 10-year CBA passed in March 2020, but the NFL and the NFLPA have reached agreement on certain protocols since then. (The NFLPA did not respond to a Yahoo Sports request for comment.)
Vaccination: newsworthy or not?
Vaccination is a personal choice, but to see the potential real-world consequences of going unvaccinated, look no further than Saturday, when PGA Tour golfer Jon Rahm tested positive for coronavirus and had to withdraw from the Memorial Tournament. Rahm was leading the contest by six strokes at the time and, if he could have held that lead, would have cashed a $1.67 million paycheck. Instead he went home with nothing but a positive test and a world of regret.
In a statement after the round, Rahm did not elaborate on his vaccination status, but the PGA Tour is not testing vaccinated players. Rahm’s positive test was a costly one, but in the every-player-for-themselves world of golf, the impacts hit only Rahm and those connected to him financially. On a team, a positive test has a far greater potential impact, particularly if the player happens to be, say, the starting quarterback.
The possible ripple effects of a positive test, and the far greater likelihood of infection for unvaccinated players, mean that in a team setting, the vaccination status of players is a potentially newsworthy matter. It’s potentially everyone’s business, in other words, as opposed to the status of private citizens.
That brings us to two key questions about the NFL, and sports in general: does the media have the right to ask about players’ vaccination status, and do fans have the right to know?
The first question is an easy one. The media has the right to ask literally anything of players — vaccination status, pizza preference, Social Security number and mother’s maiden name.
Whether questions are appropriate or in good taste is another matter, and players always have the option to take the Marshawn Lynch approach and not answer. Multiple Buffalo Bills players recently declined to talk about their vaccine status, and that’s certainly their right.
But there’s an argument to be made that a player’s vaccination status is at least as noteworthy as, say, his recovery from injury. You can’t catch a concussion from someone who’s got one, after all. And a player who’s at greater risk for infection is at greater risk for being sidelined for that infection. The media asks, and fans want to know, about injury rehab, contract status, locker-room dustups and other impacts on playing time — vaccination status ought to fit squarely in that category.
A right to privacy
It’s not hard to see why players want to preserve their right to privacy. Talking about a rehab assignment or future plans doesn’t carry the political and judgmental weight of vaccination. There’s not the immediate with-me-or-against-me judgment of a player documenting how he’s recovering from a strained hamstring. Now that vaccination has been weaponized as a political litmus test, literally every answer — “yes, I’m vaccinated”; “no, I’m not vaccinated”; “I prefer not to answer” — will ignite the rage of one group or another.
Numbers have shown a dramatic decrease in COVID cases and fatalities as vaccines have spread across the country. But vaccine skepticism isn’t quite as simple as “anyone who doesn’t want a vaccine is an idiot.” Black communities, for example, have a long, well-documented history of racially-motivated mistreatment at the hands of the medical community, and as a result many may not be willing to take promises of the vaccine’s benefits at face value.
Other vaccine skeptics, now and in the past, have fallen prey to a widespread network of misinformation, half-truths and outright lies, as well as a focus on individual rights and freedoms over and above community benefits.
Given that berating vaccine skeptics — or even asking about vaccines in news conferences — runs the risk of hardening opposition to the vaccine, many workplaces, including the NFL and the NFLPA, have turned their focus to education rather than punishment.
"All clubs should continue their efforts to educate about available vaccines to maximize vaccine acceptance among their staffs, players, and family members," the league and the players association said in a joint memo released in April. "Each club should make the vaccine easily and conveniently available through a 'Vaccination Day' or other program, and we will continue to work with the joint NFL-NFLPA committee to develop additional educational material that communicates the benefits of the vaccine to players, staff and families. All clubs are participating in this effort."
Coaches are taking varied approaches to the question of whether players should be vaccinated. Carolina’s Matt Rhule brought out the punting unit Wednesday, saying “I don’t tell anyone what to do.” Bills head coach Sean McDermott, while keeping his discussions with his players private, conceded that he is “concerned” about his team not having enough vaccinated players to meet the NFL’s 85 percent standard to relax COVID protocols. Bills general manager Brandon Beane took heat from the NFLPA last month for saying he would cut an unvaccinated player to help the team operate free from COVID protocols.
Either way, coaches and GMs who talk about players’ vaccination status run the risk of breaking federal privacy laws. That would in turn trigger a grievance from the players' union.
“Employers are obligated under the Americans with Disabilities Act to keep medical information, such as vaccination status, confidential and in a separate file apart from an employee’s regular personnel file,” said Lindsay Massillon, an attorney with Fowler White Burnett in Miami. “It would be a violation for the employer, which would likely include the coach/management, to disclose [vaccine status] without the player’s consent.”
So that means the public wanting to know about players’ vaccination status — whether for fantasy football or gambling reasons, or just because they want to win on Sunday — is out of luck. There’s no such thing as a right to know sensitive medical information, even for public figures.
“The player’s rights under the collective bargaining agreement and/or the ADA would trump the fans’ desire to know vaccination status,” Massillon said. “I would expect that the NFLPA and NFL would need to come to a consensus for how to handle media inquiries — there’s no doubt this would be something media and fans would want to know if it prevents certain players from playing.”
Unless and until the league and the union can reach that accord, expect a whole lot of no-comments and next-questions … and all the speculation that goes along with those evasions.
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