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Purchasing Player’s Bodies: The NHL’s Permission Problem

The franchise that paid him $10 million a year to play hockey had also purchased final say over how its investment — his body — would be repaired.”[1]

- Dan Robson, Senior Writer for The Athletic on The Buffalo Sabres

 

On June 13, 2023, John “Jack” Eichel joined the ranks of an elite few that have had the privilege to raise the Stanley Cup, a feat that—just a year prior—many did not believe Eichel would ever achieve.[2]  On March 7, 2021, Eichel sustained a neck injury (herniated cervical disk) in a game against the New York Islanders.[3]  The Sabres’ team physicians determined Eichel would need to undergo surgery to repair the herniated disk and recommended an anterior cervical discectomy with fusion.  Eichel, on the other hand, sought to undergo a different procedure— artificial disc replacement surgery. [4]  This surgery would, in theory, allow Eichel to return to play sooner, was less likely to impact his range of motion significantly, and would reduce, if not eliminate, the need for additional surgery in the future.[5]  The Sabres, however, were unwilling to allow Eichel to have the disc replacement surgery, as the procedure had not been performed on a professional athlete in the National Hockey League, and thus there was no medical precedent concerning a player’s ability to return to play post-surgery.[6]


Under the relevant provisions of the Collective Bargaining Agreement—the controlling mechanism for dispute resolution between professional athletes and team management—the Sabres’ team physician had final decision-making authority as to the ultimate course of treatment for Eichel.[7]  Yet, the Sabres could not force Eichel to undergo a medical procedure he did not want. Thus, a months-long stalemate ensued, during which the Sabres stripped Eichel of his captaincy, and Eichel was left in limbo.[8]  For Eichel, things ultimately sorted themselves out. Still, it begs the question, shouldn’t professional athletes, like Jack Eichel, have the right to make decisions about their own bodies and medical care?


The principle of self-determination is deeply entrenched in this Nation’s history.[9]  The Supreme Court has held, “No right is held more sacred . . . than the right of every individual to the possession and control of his own person, free from all restraint or interference of others[.]”[10] On the other hand, there is no question that the National Hockey League (“NHL” or “League”) has a vested interest in safeguarding the wellbeing of its players.  At the time of his injury, Jack Eichel was in his fifth year of an eight-year, $80 million contract, meaning the Sabres, and by extension, the League, had invested roughly $50 million in Eichel.[11]  It is reasonable for the League to want to ensure it has some say in how its “investments” are repaired.[12]  But granting the team the ultimate decision-making authority over its players’ medical treatment raises significant bioethical concerns. 


It has been suggested that the NHLPA could address this issue when they renegotiate the terms of the Collective Bargaining Agreement upon expiration of the current agreement following the 2025–26 season. [13]  Yet, there are significant barriers to the adoption of a provision in the agreement that would substantively address the issue at hand.  A prime example of how unequal the bargaining power is between the NHL and its players is the COVID-19 pandemic.  Although the League did not impose an outright vaccination mandate, players indicated they felt they had little choice in the matter. [14]  Canucks forward J.T. Miller stated, “. . .  I got vaccinated, I did what I had to do to come here and do my job.”[15]  Winnipeg Jets goalie Connor Hellebuyck also commented, saying, “I’m not anti-vaxx by any means, but I’d like to have that decision for myself[.]”[16]


There is no question that the League has a legitimate and vested interest in ensuring the welfare of its players.  But it is not the League that will have to deal with the consequences of decisions made by team physicians about a course of treatment.  Professional athletes are not property—professional sports leagues should not be allowed to purchase the rights to players’ bodies.

 


[1] Dan Robson, From Tua Tagovailoa to Jack Eichel: How much control should a team have over an athlete’s body?, The Athletic (Oct. 13, 2022), https://theathletic.com/3681265/2022/10/13/jack-eichel-tua-tagovailoa-body-autonomy/.

[2] Tracey Myers, Eichel savors Stanley Cup title after hard road to 1st playoffs, NHL.com (Jun. 14, 2023), https://www.nhl.com/news/jack-eichel-wins-stanley-cup-first-time-in-playoffs-344870914.

[3] Jack Eichel admits ‘disconnect’ with Sabres on treating herniated disk, The Athletic (May 10, 2021), https://theathletic.com/news/jack-eichel-admits-disconnect-with-sabres-on-treating-herniated-disk/t4JLYZIbLA4F/.

[4] Mike Harrington, Jack Eichel's doctor: Disk replacement surgery better for him now and later in life, The Buffalo News (Jul. 31, 2021), https://buffalonews.com/sports/sabres/jack-eichels-doctor-disk-replacement-surgery-better-for-him-now-and-later-in-life/article_7111c3c6-f20e-11eb-833c-673965d0db8f.html.

[5] Id. 

[6] Id. 

[7] Article 34.1, https://www.nhlpa.com/the-pa/cba.

[8] Heather Engel, Eichel stripped of Sabres captaincy, placed on IR with neck injury, NHL.com (Sep. 23, 2021), https://www.nhl.com/news/jack-eichel-stripped-of-buffalo-captaincy-placed-on-ir-with-neck-injury/c-326273214.

[9] See e.g., Mohr v. Williams, 95 Minn. 261, 104 N.W. 12 (1905)(recognizing the right of every person “to complete immunity of his person from physical interference of others[.]”); Pratt v. Davis, 118 Ill. App. 161, 166 (Ill. App. Ct. 1905)(stating “[T]he citizen's first and greatest right . . . the right to the inviolability of his person . . . and this right necessarily forbids a physician or surgeon. . .  to violate without permission the bodily integrity of his patient [.]”); Cruzan by Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990) (affirming the right of competent persons to refuse unwanted medical treatment).

[10] Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891).

[11] Mike Harrington and John Vogl, Sabres Sign Eichel to eight-year, $80 million deal, The Buffalo News (Oct. 3, 2017), https://buffalonews.com/sports/sabres/sabres-sign-eichel-to-eight-year-80-million-deal/article_b34a301a-e4b4-5d79-a0cd-a50f09a7bbbb.html. 

[12] Robson, supra note 1.

[13] Tom Gulitti, NHL, NHLPA ratify CBA extension through 2025-26 season, NHL.com, https://www.nhl.com/news/nhl-nhlpa-ratify-cba-extension-through-2025-26-season/c-317377214; Steve P. Calandrillo, Sports Medicine Conflicts: Team Physicians vs. Athlete-Patients, 50 St. Louis U. L.J. 185 (2005); Justin P. Caldarone, Professional Team Doctors: Money, Prestige, and Ethical Dilemmas, 9 Sports Law. J. 131, 134–35 (2002). 

[14] Canadian Press, Players weigh in on NHL's vaccine policy: 'We want to get back to life', SportsNet, https://www.sportsnet.ca/nhl/article/players-weigh-nhls-vaccine-policy-want-get-back-life/.

[15] Canadian Press, Players weigh in on NHL's vaccine policy: 'We want to get back to life', SportsNet, https://www.sportsnet.ca/nhl/article/players-weigh-nhls-vaccine-policy-want-get-back-life/.

[16] Id. 

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