Many N.F.L. Players Get Brain Disease. Why Hasn’t OSHA Intervened?

The most notorious form of workplace illness in the United States might be black lung disease. Scientists say that 10 to 20 percent of coal miners who have worked 25 years or more have gotten it. It has long been considered an epidemic.

Imagine an American job that is less safe than that, where one in four workers (and maybe far more) ends up with an incurable, degenerative brain disease that withers the mind, sometimes after just a few years of exposure.

Imagine the outrage at the working conditions, the demands that something be done to protect the employees, the questions about whether the industry needed to be overhauled, if not abolished.

“I don’t think that this would be abided in any industry,” said Doug Parker, the head of the Occupational Safety and Health Administration under the Biden administration.

Unless that profession was N.F.L. football.

New research shows that 25 percent of all former N.F.L. players who died during a recent six-year period had the degenerative brain disease known as C.T.E. — a tally that does not include the nearly three-quarters of deceased players who were not tested for the disease, which can be diagnosed only posthumously.

“That is clearly a minimum; the true percentage has to be higher,” said David Michaels, who was head of OSHA from 2009 to 2017, just as C.T.E. emerged as a health issue in football. “Whatever it is, the number is astoundingly high.”

Another former OSHA official, the chief scientist Adam Finkel, called it “apocalyptically high,” noting that Russian roulette carries better odds. To him, a risk of 1 in 100 would be an “epidemic.” But 25 percent?

“We never see things that are this dire,” he said.

Yet OSHA has never addressed football, has never made recommendations to make it safer, even as hundreds of former N.F.L. players — workers, with a union — have been diagnosed with C.T.E., or chronic traumatic encephalopathy.

“In most cases,” the agency said in a statement, “OSHA does not take enforcement action with regard to professional athletes.”

Some, including Brett M. Kavanaugh before he joined the Supreme Court, have argued that inherently dangerous entertainment can’t be regulated with the same approach as other industries. Sometimes, risk is the product.

But former OSHA administrators said that the N.F.L. is too powerful and football is too popular to be regulated. As a governmental agency under the direction of politicians, OSHA has to pick its priorities.

“I recognized when I ran OSHA that intervention in football, in telling the league to make changes, even if OSHA had the expertise, would essentially be detrimental to the agency,” Mr. Michaels said. “The public would not welcome OSHA telling the N.F.L. how the game has to be played. And that would hurt the agency’s ability to protect workers who desperately need OSHA.”

Mr. Parker said that OSHA was unlikely to act on its own.

“For OSHA to get involved, the ideal situation would be a congressional mandate — not because they necessarily need one legally, but because it would be the best way to ensure that they really had the government’s backing to take action,” Mr. Parker said.

There is a scientific hurdle, too. What could OSHA even do to reduce the likelihood of C.T.E.? With some workplace issues, OSHA can make simple solutions to mitigate major risks — increase ventilation in a factory, require protective gear, add safeguards to machinery — without eliminating the essence of the business.

Tackle football has no easy fixes other than not playing it. C.T.E. is caused by repeated hits to the head, including blows that are less severe than concussions and may not register as problematic at the time. The only certain way to significantly reduce chances of C.T.E., scientists say, is to eliminate collisions, which are at the heart of the game.

OSHA, an agency within the Department of Labor, was established by an act of Congress in 1970 and signed into existence by President Richard Nixon. Its mandate is to protect most private-sector employees through standards and enforcement. “Federal law entitles you to a safe workplace,” OSHA writes on its website. “Your employer must keep your workplace free of known health and safety hazards.”

But what if your employer is the N.F.L.? Theoretically, it shouldn’t matter, Mr. Michaels said.

“From an OSHA point of view, remove the idea that these are football players, but workers,” Mr. Michaels said. “That’s how I would think about this. You essentially have billionaire owners whose wealth grows by selling a product that endangers their workers, and they sell it to eager customers willing to pay substantial sums to consume the product.

“At the same time, you have workers, in this case, the players, who know they’re likely to be employed in the industry for very few years,” he said. “Many come from disadvantaged backgrounds, and so they’re willing to accept an arrangement in which they take very substantial risks of severe impairment in exchange for large financial rewards.”

Most players arrive after years of tackle football at the youth, high school and college levels — all outside OSHA’s jurisdiction.

OSHA’s General Duty Clause requires employers to protect workers even if no specific OSHA standard exists. OSHA can cite a violation of the clause if it can establish four things: a hazard exists; the employer or industry recognizes the hazard; the hazard is likely to cause death or serious physical harm; and a “feasible means to eliminate or materially reduce the hazard existed.”

It’s that last one that might prevent regulatory oversight. Under the Trump administration in 2025, OSHA proposed changes to the General Duty Clause to carve out exemptions for sports and entertainment — places with “known hazards that are inherent and inseparable from the core nature of a professional activity or performance.”

The language is familiar to Mr. Finkel. It is derived from a case brought against Sea World after the death of a trainer working with an orca. In 2014, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, in a split vote, upheld a ruling against Sea World, saying it must improve safety measures. One of the affirming judges was Merrick Garland.

The lone dissenter was Mr. Kavanaugh, later appointed to the Supreme Court by President Trump. “In sports events and entertainment shows, there is no distinction between the product being offered and its production: the product is the production,” Mr. Kavanaugh wrote at the time.

Without the risk or danger, in other words, there would be no business or industry.

“When should we as a society paternalistically decide that the participants in these sports and entertainment activities must be protected from themselves?” Mr. Kavanaugh added in his 2014 dissent. “And most importantly for this case, who decides that the risk to participants is too high?”

That logic might be applied to football. OSHA’s 2025 move to carve out an exemption for sports and entertainment came under a president who has complained that the N.F.L. is not as tough as it used to be.

Mr. Finkel was among those who submitted pleas against the change to the General Duty Clause during a comment period that ended last year. (No official changes have taken effect.) Limiting the scope of the clause, he and others argue, could take away rights to reasonable safety for millions — including athletes, circus performers and Hollywood stunt people.

“You shouldn’t have to bear more needless risk than some other kind of worker just because the work you do has fans and patrons watching it,” Mr. Finkel said.

In 2013, the N.F.L. settled a lawsuit for $765 million with about 4,500 former players and their families who accused the league of hiding known dangers of hits to the head. Congress has held occasional hearings about C.T.E., but they have slowed.

It was during a 2016 meeting with Congress that Jeff Miller, a league vice president, made the N.F.L.’s first public acknowledgment of a link between football and C.T.E.

Mr. Michaels’s 2020 book, “The Triumph of Doubt,” argues that the N.F.L. and other industries — tobacco, opioids, chemicals and sugar among them — were aware of health risks but moved slowly to address them, in the name of profits.

The book opens with a 1935 quote from Upton Sinclair, decades after he wrote “The Jungle,” about conditions in the meatpacking industry.

“It is difficult to get a man to understand something when his salary depends upon his not understanding it,” Mr. Sinclair said.

In his book, Mr. Michaels wrote: “No other profession — not one — outranks professional football in causing life-altering injuries. … These men are damaged beyond repair: no cast, no surgery, no medicine, no rehab can change their fates.”

Should someone stand up to protect them? Or, as Justice Kavanaugh argued more than a decade ago, are the inherent risks just part of the game, blockumed by workers who know the risks involved?

“It starts with informed consent,” Mr. Finkel said. “A lot of us would be a lot happier if, especially at the high school or college level, there was a lot more frank and honest discussion about what you’re about to embark on, and this is our best understanding of the risks. And that’s not happening.”