Tua’s return raises questions about autonomy, disability and cognitive biases

On Wednesday, Miami Dolphins quarterback Tua Tagovailoa returned to practice for the first time since suffering a concussion during the Dolphins’ Sept. 12 game against the Buffalo Bills. Tagovailoa is now reportedly received approval from a neurological consultant appointed by the Dolphins and cleared by the NFL and NFLPA to return to play this Sunday. Tagovailoa’s impending 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 concerned with notions of right and wrong – to the fields of medicine and healthcare. Bioethical analyzes are generally conducted through the lens of specific principlesThe most widely recognized are respect for autonomy, non-maleficence (the duty to prevent harm), beneficence (the duty to do good), and justice.

Of paramount importance to Tagovailoa’s situation is the concept of autonomy. As described by leading bioethicists Tom Beauchamp and James Childress: “(Personal) autonomy is, at a minimum, self-government that is free from both controlling interference by others and from constraints, such as inadequate understanding, that prevent meaningful choices.” Autonomy is considered a ‘fundamental moral and political value’ in Western societies.

The opposite of autonomy is paternalism, generally defined as “overriding another person’s preferences to benefit him or her or protect him or her from harm.” Parents naturally regularly exhibit paternalistic behavior towards their children. The appropriateness of paternalistic behavior becomes much more difficult when governments, employers and (among others) doctors are involved.

In Tagovailoa’s case, some might argue that the Dolphins, the NFL and associated medical staff should keep him from returning to the field given his concussion history. If we set aside the legal considerations for the time being, this would undoubtedly be a highly paternalistic decision that infringes on Tagovailoa’s autonomy.

Whether there are sufficient grounds to do so therefore depends in part on whether Tagovailoa is able to make an informed decision about whether or not to continue playing football without undue influence. The class action lawsuit a decade ago over concussions in the NFL was based in large part on allegations that the NFL intentionally or negligently concealed the risks of head injuries.

The NFL has since overhauled its player health efforts and significant progress has been made in understanding the health risks associated with playing football, including specifically in the NFL (Disclosure: From 2014 to 2017, I worked as part of the Football Players Health Study at Harvard University, which produced significant research on medical issues related to NFL careers). While there is still much to learn about the science of the brain, there is no doubt that playing in the NFL carries the risk of serious head and brain injuries.

Furthermore, there should be no reasonable doubt at this time that Tagovailoa is aware of these risks. Both the NFL and NFLPA make extensive efforts to advise players about the risks of concussions, how to reduce those risks and the importance of reporting concussion symptoms. Every NFL locker room contains a poster with such information.

Tagovailoa indeed recognized but downplayed the risks during a press conference earlier this week. He further described his decision not to wear the protection Protective cap as a ‘personal choice’.

Legal considerations

The federal Occupational Safety & Health Act requires employers to “provide to each of its employees an employment and a place of work free from recognized hazards which are causing or likely to cause death or serious bodily injury to its employees.” To establish a violation of this General Duty Clause, there must also be a “feasible means of eliminating or materially reducing the danger present.”

That element makes the analysis the NFL as a workplace difficult. There are clearly questions about the extent to which the NFL can reduce the serious risks associated with the game without fundamentally changing the sport and its commercial appeal. When Supreme Court Justice Brett Kavanaugh was going through the confirmation process in 2018, news 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 killer whales due to SeaWorld’s nature as an entertainment company.

Anyway, for political and practical considerationsThere is little to no chance of OSHA interfering in the NFL’s business, let alone Tagovailoa’s situation.

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

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

Still, 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 substantial harm.” Under this standard, the Dolphins would at least have an arguable argument that preventing him from playing wouldn’t be an ADA violation.

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

Behavioral economics considerations

Previously, we considered whether Tagovailoa has enough autonomy to decide whether to continue playing football. He probably has the information to make that decision, but there is still a likely chance that his decision-making is taking place against the backdrop of cognitive biases.

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

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

In the NFL world, optimism can lead to players not accepting the statistically based risks of their careers, such as the number of knee replacements or dementia in former players. Current bias would cause them to prefer glory and high wages now over potentially debilitating health problems later (Hall of Famer Ronnie Lott famously said had a finger partially amputated to minimize the number of missed matches). Multiple studies have shown the existence of both biases in athletes, including in situations where such biases were not found in the general population (see here, here, hereAnd here).

Tagovailoa may very well be underestimating the risks of continuing to play football and/or valuing football glory today over his health later. In classical economic thinking, such behavior could be considered irrational. Furthermore, many would argue that he (and other players) need to be better informed about the risks and realities, i.e. given ‘less bias’.

Such education makes sense, but you also have to take the disadvantages into account. Many NFL players achieve success at least in part through the belief—an irrational one at that—that they are invincible, or nearly invincible. They play the game at high speeds and with almost reckless abandon, causing and experiencing shocks similar to car crashes. They might not do that if they had former NFL players’ arthritis or dementia rates in mind, which could potentially diminish their performance. Such hesitations or doubts, therefore, could contribute to the end of an otherwise successful and lucrative NFL career.

While it is clear that players should be provided with the relevant health and safety data, an argument can be made that NFL players could achieve greater success on the field by mentally eliminating the risks of their job. At least that seems to be Tagovailoa’s approach for now.