What if the NFL submitted an OSHA 300 form?
Damar Hamlin's injury in week 17 of the 2022 NFL season was emotionally intense. I wasn’t watching it live, but when I saw it as a reply I immediately related to the emotions of the players and spectators. Post-incident, I then witnessed a coalition of competitors and teammates rallying behind the health of Damar, recognition of the heroic actions of Denny Kellington, and holistic support to Damar’s charitable organizations through the "The Chasing M's Foundation Community Toy Drive" GoFundMe. Anyone in manufacturing who has been part of a serious safety incident could probably relate to this blend of emotions and actions. This got me thinking about why OSHA doesn’t regulate the NFL and, if they did, what injury rates would they report.
Buffalo Bills players and coaches on Thursday praised assistant athletic trainer Denny Kellington, whose "textbook" administration of CPR to Damar Hamlin on the field when he collapsed on Monday was crucial to saving his life. - Rory Carroll, Reuters
I am assuming that most people in the manufacturing industry fully understand that OSHA is responsible for establishing and reporting the safety responsibilities of an employer while being an entity that is organically empowered to improve the health and well-being of the employees. I wasn’t taking a position if OSHA should or shouldn’t regulate the safety of the NFL, but instead curious to know why it wouldn’t be. This debate has slipped by me for years but quenched when I read an exploratory paper on SSRN that gets deep into the discussion. Citing itself as a first to explore in depth what might happen if our society treated professional football like a workplace, if you have an hour to devote to this subject it is worth the read.
Athletes who participate in professional football are commonly referred to as football “players,” not football “workers,” reflecting the reality that as exhausting and high-pressure as their efforts are, they are ultimately playing a sport. - Adam M. Finkel, Christopher R. Deubert, Orly Lobel, Glenn Cohen, Holly Fernandez Lynch, The NFL as a Workplace: The Prospect of Applying Occupational Health and Safety Law to Protect NFL Workers
Basis for OSHA
If you are unfamiliar with the foundational reasons for OSHA’s existence, this paper will get you quickly up to speed on the intent of OSHA and its ability to regulate. The three regulatory methods it unravels are 1. Standard Setting for Toxic Materials or Harmful Physical Agents, 2. Standard Setting for Hazards that Are Not Toxic Materials or Harmful Physical Agents, 3. General Duty Clause Enforcement.
Consider the first regulatory method and how OSHA would look upon the long-term health effects of an NFL player. Citing specific cases, the paper allows you to relate neurological injuries after an NFL retirement to someone in manufacturing that was routinely exposed to asbestos 40 years ago. The second regulatory method would allow you to explore the logic to compare a wide receiver tearing an ACL on a wet natural-grass field versus an employee tearing an ACL coming down a flight of uneven steps.
The third regulatory method is the General Duty Clause which emphasizes that the employer must foster a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees. This is generally referred to as the catch-all within the burden of responsibilities of OSHA. If OSHA was to take the position that tackling lead to injuries, could OSHA make the NFL a tag sport? In this case, the employer, and not the employee, could receive fines for discouraging employers who tackle to the severity of someone tackling Tom Brady. I highly recommend reading this paper on SSRN if you want to debate someone on this OSHA vs. NFL subject.
When OSHA seeks to cite an employer for a violation of the General Duty Clause, OSHA bears the burden of proving that the hazard in contention was not only recognizable but also “preventable.” - Adam M. Finkel, Christopher R. Deubert, Orly Lobel, Glenn Cohen, Holly Fernandez Lynch, The NFL as a Workplace: The Prospect of Applying Occupational Health and Safety Law to Protect NFL Workers
After researching a variety of additional references on the plausibility of OSHA's institutionalizing an ability to influence entertainment markets (e.g. Sea World fatality, Korey Stringer's heat stroke death with the Minnesota Vikings), I transitioned to what would be some of the NFL’s reporting statistics if OSHA did indeed regulate the NFL. I didn’t want to do a full season, nor did I intend to complete every component of an OSHA 300 form. I also didn't want to compare these statistics to the likes of other entertainment entities like the NHL, PGA, and NBA. Instead, I simplistically wanted to understand the statistical magnitude of the NFL's Total Recordable Incident Rate (TRIR) and its Lost Time Incident Rate (LTIR). So I selected a small data set; the 2022 season and weeks 15 through 17.
SeaWorld argued that eliminating “waterwork” (trainers swimming with the whales) changed the nature of its business so fundamentally that it could not be considered a feasible means of eliminating or reducing the hazard, the fourth element of a General Duty Clause violation. Sewell Chan - New York Times
Determining the numerator
In an attempt to apply similar rules that OSHA places on employers to report statistics within their OSHA 300 form, I had to establish some estimates and create definitions that categorized injury types. I also elected to take the position that no one in the staff departments of the NFL gets injured (note: Baltimore Ravens' Poe got hurt earlier in the year). Here are my injury-type definitions and how they are categorized to determine if an NFL player got injured in a specific week.
First Aid = AND[Not on the previous week’s Injury Report, Practice Status = “Full Participation Practices” in the current week’s Injury Report, Game Status = BLANK in the current week’s Injury Report]
Recordable = AND[Not on the previous week’s Injury Report, Practice Status = “Did not Participate in Practice” in the current week's Injury Report, OR(Game Status = BLANK in the current week’s Injury Report, Game Status = “Questionable” in the current week’s Injury Report, Game Status = “Out” in current week’s Injury Report)]
Lost Time = AND[Not on the previous week’s Injury Report, Game Status = “Out” in the current week’s Injury Report]
Obtaining this information from NFL Injury Report for Week 15 through Week 18, I determined I could calculate the TRIR and LTIR for Week 15 through Week 17. For example, I would look at the data on Injury Report Week 18 based on my injury definitions to obtain a count of injuries and their severity from Week 17. These definitions would exclude players that got hurt in the earlier weeks, by making sure they were not on the previous week’s Injury Report. I also selected Week 15 to start with because I wanted to avoid the complexity of the rate's calculation with the bye-week influences (i.e. bye-week ends Week 14). Finally, I also would exclude who got injured on Week 18, because the data would only show the following week's Wild Card teams on the Injury Report. This approach would allow me to strictly understand who got hurt in practice or a game in a given week.
The OSHA 300 form is called the Log of Work-Related Injuries and Illnesses, the 300-A is the Summary of Work-Related Injuries and Illnesses, and the OSHA 301 form is called the Injury and Illness Incident Report. - OSHA.gov
Assumptions on labor hours
Now with the numerator complete, I had to make some assumptions about the hours that an NFL player works in a week and the staff's size. I first considered that the employer pays their employees to train, stretch, study film, travel, and play. All of which I considered as working hours regardless of the levels of risk within the task. To keep it simple and avoid arguing this component of the denominator, I simply left the hours worked at 40 hours per week per player.
Is "Total hours worked by all employees" on Form 300A actual work time after leave deductions? A: Yes, this figure should reflect the actual number of hours worked by employees. Include hours worked by salaried, hourly, part-time and seasonal workers, as well as hours worked by other workers subject to day-to-day supervision by your establishment (e.g., temporary help services workers). Do not include vacation, sick leave, holidays, or any other non-work time, even if employees were paid for it. If your establishment keeps records of only the hours paid or if you have employees who are not paid by the hour, please estimate the hours that the employees actually worked. -OSHA.gov
As the NFL’s teams employ players to play, players cycle through the individual team's active roster. Players may get moved up from the practice squad to be activated one week, then moved back to the practice squad a few weeks later when a star player returns from an injury. Regardless, there are 32 teams and each team has a 55-man roster plus 12 extra on the practice roster. So this would be 85,760 hours per week to use for this exercise. I understand that if I consider the NFL as an employer in this calculation, I also have to include their trainers, staff, and office employees. A variety of references indicate that there are approximately 3600 employees employed by the NFL. So with approximately 2100 players, this leaves ~1500 employees in the other employment positions. Under the assumption staff employees also work 40 hours per week and there are not any layoffs during a season, I will add another 60,000 hours per week for a total of 145,760 hours per week. So running with these estimates and statistics from NFL.com, here is what I came up with.
TRIR = (Sum of Recordables) * 200,000 Hours / (Sum of Hours)
LTIR = (Sum of Lost Time) * 200,000 Hours / (Sum of Hours)
Data was used from NFL.com/injuries for the 2022 season
Table 1 - Injury statistics Weeks 15 through 17 of the NFL in the 2022 Season
I have a few takeaways from just looking at this small data set. First, it is plausible that there are weeks in an NFL season when there are as many Lost Time injuries as there are football teams (32). This is higher than I anticipated but supports the active visibility of injuries and their importance to the gambling industry.
Second, was the ratio of First Aid to Recordables. This number was a 4:5 ratio for each week and hints to me that there is a clear delineation of playing with bumps and bruises versus teams holding players out during practices to be prepared for games. This could be just coincidental, but it is probably something to explore more at another time to see if this is consistent week after week.
Lastly, were the rates. Concerning the manufacturing industry, employers could report on their OSHA 300 forms that it was a bad or good year from a safety perspective with a TRIR between 1.2 to 3.0 or an LTIR between 0.2 and 0.5. However, the NFL’s TRIR and LTIR could be interpreted as being up to 100X more during the football season.
What does this mean?
Will the NFL be mandated under OSHA in the future? I doubt it. I agree with The NFL as a Workplace: The Prospect of Applying Occupational Health and Safety Law to Protect NFL Workers' position that OSHA doesn’t have the available funding to take on the NFL and if so, they would most likely extremely disrupt the spirit and entertainment value of the game. The NFL teams, the employers in this argument, do indeed provide the tools, have causes that improve the safety rules of the game, and evolve equipment intended to improve their employee’s safety. If the NFL was manufacturing a product, the product is the entertainment that it provides to us in the stands or on the other end of the television screen. This does indeed create an awkward stance between OSHA’s burden of responsibilities and the NFL’s product it produces for the market. This will remain a great debate in the entertainment space and one that I look forward to continuing to explore and reflect on.
"In the sports and entertainment fields, the activity itself frequently carries some risk that cannot be eliminated without fundamentally altering the nature of the activity as defined within the industry. Tackling is part of football, speeding is part of stock car racing, playing with dangerous animals is part of the zoo and animal shows, and punching is part of boxing, as those industries define Themselves." - excerpt referencing Circuit Judge Brett M. Kavanaugh in The NFL as a Workplace: The Prospect of Applying Occupational Health and Safety Law to Protect NFL Workers