Jack Eichel’s Dispute With Sabres Reveals NHL-NHLPA CBA In Conflict with Bioethical Principles
Jack Eichel, a center for the Buffalo Sabres, is one of the young stars of the NHL. Unfortunately, he is currently mired in a dispute with the Sabres about his healthcare which is creating considerable uncertainty as to the next time he might step onto the ice. Eichel’s 2020-21 season ended early due to a neck and back injury. Since then, Eichel and the team have disagreed about the appropriate course of treatment.
According to ESPN, “[t]he Sabres prefer Eichel to receive a fusion surgery, which would have him back on the ice in six months. Eichel's doctors have suggested a disk replacement surgery, which would have him sidelined for six weeks and carries a much lower risk that the center would need future surgeries later in life. The disk replacement surgery has never been performed on an NHL player.”[1] As a result of the dispute, the Sabres stripped Eichel of his captaincy and placed him on long-term injured reserve.
In such disputes, it is standard to first examine the relevant collective bargaining agreement (CBA).[2] Article 34.4 of the NHL-NHLPA CBA governs second medical opinions. The Article provides a process through which a player can obtain a second medical opinion which might conflict with the club physician’s opinion. If the club physician and second opinion physician do not agree on a course of treatment, the two doctors may recommend that the player be evaluated by a third doctor. Despite these multiple layers of medical review, including the possibility that two doctors might disagree with the club doctor, the CBA declares that “the team physician shall determine the diagnosis and/or course of treatment (including the timing thereof) after consulting with the Second Medical Opinion Physician and the Third Physician Expert, if any, and giving due consideration to his/her/their recommendation(s).”
The club physician’s ultimate authority to determine the course of treatment raises serious bioethical concerns. From 2014-17, I was part of the Football Players Health Study at Harvard University, which, among other projects, examined the application of bioethical principals to the health, safety, and medical treatment of NFL players.[3] Bioethics is “the study of ethical, social, and legal issues that arise in biomedicine and biomedical research.”[4] To inform this line of study, bioethics has four generally recognized core principles: respect for autonomy; non-maleficence (the duty to avoid harm); beneficence (the duty to do good); and, justice.[5]
The Eichel situation – and the related-CBA provision – appear to run afoul of the principle of autonomy. Respect for autonomy “means at a minimum respecting self-rule that is free from both controlling interference by others and limitations that prevent meaningful choice, such as inadequate understanding.”[6] Pursuant to Article 34.4 of the CBA, Eichel does not have the right to choose his own course of treatment, depriving him of both “self-rule” and “controlling interference” in one of the most important domains of life – the right to control what is done to one’s own body.
The situation also raises legal concerns. An important step in the performance of any non-emergency medical procedure is obtaining the patient’s informed consent. Failure to do so generally constitutes medical malpractice. If the Sabres were to prevail in their preferred course of action, it is debatable whether Eichel could provide informed consent. Even if he were to sign the medical provider paperwork indicating consent, given his long-standing and publicly known protestations against the Sabres’ preferred course of treatment, it is unclear whether Eichel’s consent would be legally valid.
Unfortunately, the NHL’s approach is not unique. Both the NBA and MLS CBAs also provide the clubs with the right to determine a player’s course of treatment. The better approach – and the one that comports with bioethical principles – is that adopted by the NFL and MLB, which permits the player to make the final decision about his treatment.[7]
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[1] https://www.espn.com/nhl/story/_/id/32328616/vegas-golden-knights-robin-lehner-accuses-nhl-teams-medical-malpractice
[2] The NHL-NHLPA CBA and subsequent extensions can be viewed here: https://www.nhlpa.com/the-pa/cba.
[3] Christopher R. Deubert, I. Glenn Cohen, & Holly Fernandez Lynch, Protecting and Promoting the Health of NFL Players: Legal and Ethical Analysis and Recommendations (2016), available at https://footballplayershealth.harvard.edu/wp-content/uploads/2016/11/01_Full_Report.pdf.
[4] https://www.niehs.nih.gov/research/resources/bioethics/index.cfm
[5] Protecting and Promoting, supra n. 3, at 46-47.
[6] Id. (citation omitted).
[7] See Christopher R. Deubert, I. Glenn Cohen, & Holly Fernandez Lynch, Comparing Health-Related Policies and Practices in Sports: The NFL and Other Professional Leagues, at 62 (2017), available at https://footballplayershealth.harvard.edu/wp-content/uploads/2017/05/Harvard-Comparative-League-Analysis-5.15.17.pdf.