Miami Dolphins quarterback Tua Tagovailoa on Wednesday returned to practice for the first time since suffering a concussion in the Dolphins’ Sept. 12 game against the Buffalo Bills. Tagovailoa would now received authorization of a neurological consultant appointed by the Dolphins and approved by the NFL and NFLPA to return to play this Sunday. Tagovailoa’s imminent return from his third diagnosed concussion in two years raises difficult ethical, legal and economic considerations.

Bioethical considerations

Bioethics refers to the application of ethics – the philosophical discipline relating to the concepts of right and wrong – to the fields of medicine and health care. Bioethical analyzes are generally conducted through the prism of specific principlesthe most commonly recognized being respect for autonomy, non-maleficence (the duty to avoid evil), beneficence (the duty to do good) and justice.

The concept of autonomy is most relevant to Tagovailoa’s situation. As described According to prominent bioethicists Tom Beauchamp and James Childress, “(p)ersonal autonomy is, at a minimum, autonomy that is free both from the controlling interference of others and from limitations, such as inadequate understanding, which prevent meaningful choice. » Autonomy is considered a “fundamental moral and political value” in Western societies.

The opposite of autonomy is paternalism, generally defined as “overriding the preferences of others in order to benefit them or protect them from harm.” Of course, parents regularly adopt paternalistic behaviors towards their children. The relevance of paternalistic conduct becomes much trickier when governments, employers and doctors (among others) are involved.

In Tagovailoa’s case, some might argue that the Dolphins, the NFL and related medical personnel should prevent him from returning to the field given his concussion history. Putting aside legal considerations for the moment, such a move would undoubtedly be a highly paternalistic decision that would undermine Tagovailoa’s autonomy.

Whether there are sufficient reasons to do so therefore depends in part on Tagovailoa’s ability to make an informed decision about whether to continue playing football without undue influence. The class-action lawsuit filed a decade ago over concussions in the NFL was based largely on accusations that the NFL intentionally or negligently covered up the risks of head injuries.

The NFL has since revamped its efforts on player health issues and considerable progress has been made in understanding the health risks associated with playing football, particularly in the NFL (Disclosure: From 2014 to 2017, I worked on the Football Player Health Study at Harvard University, which produced. considerable research on medical issues associated with NFL careers). Although there is still much to learn about brain science, there is no doubt that playing in the NFL poses a risk for serious head and brain injuries.

Furthermore, there should be no reasonable doubt at this point that Tagovailoa is aware of these risks. The NFL and NFLPA make significant efforts to educate players about the risks of concussion, how to mitigate those risks, and the importance of reporting concussion symptoms. Every NFL locker room includes a poster with such information.

Indeed, Tagovailoa recognized but minimized risks at a press conference earlier this week. Additionally, he described his decision not to wear the protective helmet Goalkeeper cap as a “personal choice”.

Legal considerations

The federal Occupational Safety and Health Act requires employers to “provide for each of their employees employment and a workplace free from recognized hazards that cause or are likely to cause death or serious physical harm to their employees “. To establish a violation of this general service clause, there must also be a “feasible means of eliminating or materially reducing the existing risk.”

This element makes the analysis of the NFL as a workplace difficult. Questions clearly exist about the extent to which the NFL can reduce the serious risks associated with gambling without fundamentally changing the sport and its commercial appeal. Indeed, when Supreme Court Justice Brett Kavanaugh began the confirmation process in 2018, press articles discussed his dissent in a case in which he argued that the Occupational Safety and Health Administration (OSHA) did not have the authority to ban SeaWorld trainers from entering the water with orcas due to the nature of SeaWorld as an entertainment business.

Anyway, for political and practical considerationsthere is little to no chance of OSHA getting involved in NFL affairs, let alone the Tagovailoa situation.

The Americans with Disabilities Act (ADA) presents more interesting considerations. The ADA prohibits employers from discriminating against employees based on a disability or the perception of a disability, provided the employee is able to perform the essential functions of the job with or without reasonable accommodation.

The Dolphins may consider Tagovailoa disabled, meaning the club may believe his concussion history is a physical impairment that significantly limits a major life activity (or previously was). The club may want to prevent him from playing on this basis. However, the ADA prohibits the Dolphins from doing so if Tagovailoa can still perform the essential functions of playing quarterback, which he appears to be able to do.

Yet the ADA allows employers to prevent potentially disabled employees from working if they pose a direct threat to the health and safety of themselves or others. “A direct threat means a significant risk of significant harm. By that standard, the Dolphins would at least have an arguable argument that preventing him from playing would not constitute a violation of the ADA.

Finally, there are of course contractual considerations. Whether through workers’ compensation or the benefits and protections provided in the NFL-NFLPA collective bargaining agreement, Tagovailoa would receive the remainder of his contract if he was unable to play due to injury. However, if he voluntarily retired after being medically cleared to play, he might not be.

Behavioral economics considerations

We examined earlier whether Tagovailoa had enough autonomy to decide whether or not to continue playing football. He probably has the information necessary to make this decision, but it is still likely that his decision-making is made against a backdrop of cognitive biases.

Behavioral economics is the study of “how and why people behave the way they do in the real world.” This disrupts the traditional economic model based on the assumption that actors in a given scenario act rationally, that is, in their best interest. In fact, people often engage in behaviors or make decisions that are not in their best interests.

Two behavioral economics concepts are important for understanding NFL player behavior. First, optimism bias refers to the tendency of people to overestimate the probability of experiencing positive events and underestimate the probability of experiencing negative events. Second, present bias (or hyperbolic discounting) refers to the tendency of people to value a smaller reward today over a larger reward in the future (you may be familiar with the marshmallow experiment).

In the world of the NFL, optimism bias can lead players to not accept statistically supported risks in their careers, such as rates of knee replacements or dementia among former players. Current biases would lead them to prioritize fame and high salaries now over potentially debilitating health problems later (Hall of Famer Ronnie Lott said had a partially amputated finger to minimize the number of missed matches). Numerous studies have found the existence of both of these biases among athletes, including in situations where no such bias has been found in the general population (see here, here, hereAnd here).

Tagovailoa may be underestimating the risks of continuing to play football and/or valuing football glory today over health later. In classical economic thought, such behavior might be considered irrational. Furthermore, many would say that he (and other stakeholders) need to be better informed about the risks and realities, i.e. they should be “deprecated”.

Such education makes sense, but its disadvantages must also be considered. Many NFL players succeed at least in part because of the belief – an irrational one at that – that they are invincible, or nearly so. They play the game at high speeds with almost reckless abandon, causing and sustaining impacts similar to car crashes. They might not do so if they had in mind former NFL players’ rates of arthritis or dementia, which could diminish their performance. Such hesitation or second-guessing could therefore contribute to the end of an otherwise successful and lucrative NFL career.

While it is clear that players should be provided with relevant health and safety data, there is an argument that NFL players could achieve greater success on the field by mentally excluding risks from their jobs. For now at least, that appears to be Tagovailoa’s approach.