The NHL’s Collective Bargaining Agreement (CBA) is an incredibly comprehensive document, covering everything from injuries, to escrow, to insurance, and so much more. Because it forms the foundation of the relationship between the players, the league, and each NHL franchise, the document is constantly being referred to in order to settle disputes.
This season, Jack Eichel‘s ability to make medical decisions for his body versus the team’s right to decide what makes sense for their player is under the microscope. There are a couple of different ways to look at this issue. The first is medical, which was outlined effectively by Elliotte Friedman and Jeff Marek on the 31 Thoughts Podcast, but the other, which has not been talked about as clearly, is what the CBA says about it. Let’s break this down.
What does the CBA say about medical second opinions?
First and foremost, it is worth noting that teams have the final right to make medical decisions for their players. This is a structural part of playing in the league, and for both insurance and liability reasons, this is how the CBA is structured.
What players do have is the right to ask and receive a medical second opinion. They do not need to disclose to the team, team doctor, general manager, or anyone else within the organization as to why they wish to do so. The league has a list of doctors and specialists that are pre-approved to provide a second opinion, and there is a long list of criteria as to how a doctor is allowed to be on that list. If a player wishes to receive a second opinion from a specialist on that list, the team is required to pay all costs for that appointment including travel.
The list of specialists on the list is quite extensive, but obviously, not every single doctor is on that list. If a player wishes to receive a second opinion from a doctor on the list, the team can pay for that visit if agreed upon in advance. However, there are some cases where players may not wish to disclose to the team that they want a second opinion on medical care. In those cases, the cost of the medical opinion, as well as additional travel costs, are the responsibility of the player.
Here is where things get interesting. If a player asks for a second opinion and receives one, either from a specialist on the pre-approved list or not, the team’s doctor is “required to give it serious consideration”. What this means is ambiguous, but they likely need to weigh the science and the risks to the player in order to come to an understanding of what may be best.
If there is still a disagreement where the team doctor does not agree with the second opinion after giving it serious consideration, the dispute can be taken to a third independent doctor to provide an opinion. The cost for this is also the responsibility of the team, however, there is nothing in the CBA to say that the team doctor can be overruled by the third independent specialist.
Fundamentally, this document is structured around the idea of giving the player the best possible care. In the CBA, it says that “you are encouraged to seek a second opinion if you have any questions concerning your Club Doctor’s diagnosis and any prescribed treatments of your condition, and in all cases where surgery has been prescribed or denied”.
Subsequently in bold, it says, “it’s not a question of trust- it’s a question of being smart”.
How does this get problematic?
In the spirit of being smart, let’s take a deep dive into this protocol and how this creates a number of issues.
The spirit of this agreement is clear. First, teams are the final decider of the medical treatment received by the players, and second, that players should have the full medical picture of what procedures are happening to their bodies. Let’s break it down one by one.
First, teams make the final call. This one is pretty straightforward. Team sign players to contracts in order to help them achieve success on the ice. Be it a long-term deal, a short-term deal, UFA, RFA, it’s all the same. The player is signed to help the team succeed, ideally on the ice, and thus succeed off the ice in making money. In theory, this is the objective of everyone. Players perform well fueling more fans coming out to games and spending money. This increases the revenue for teams and the league, and thus means the cap goes up and more money flows back to the players.
Because of this cycle, teams are intrinsically invested in their players succeeding on the ice, and if they get hurt, in ensuring that they can return to the game in as close to full health as possible as quickly as possible. While there are some cap considerations that can limit this (cc. The Tampa Bay Lightning), broadly speaking this is the objective of teams.
Medical decisions are not black and white. Science changes all the time, and the procedures that players can get evolve over time. However, some doctors can take longer than others to feel comfortable prescribing new treatment programs or surgeries. When you go to one doctor to treat an ailment, they may offer one course of treatment, while another doctor in the same city at the same time may offer something completely different, simply based on their assessment and comfort with different treatments.
For professional athletes, the calculus that doctors make changes even further, as the risks should something go wrong is even greater than for the average person. If a player were to undergo a new treatment that had not been fully tested, and they suffer a side effect that makes them unable to continue playing, not only does that player lose out on millions of dollars in potential career earnings, but the teams lose out on their ability to use that player on the ice.
This is also a major liability, as doctors are taking a much greater risk should something go wrong. When there is a track record of success for a course of treatment, be it surgery, a pharmaceutical, or otherwise, there is more comfort than going with that option makes the most sense. This is especially true when other athletes in the same sport have done it successfully. This is a big factor in why teams make this decision.
The problem is that the ends of this strategy are to enhance the team’s success, without taking into account the needs or desires of the player, which brings us to the second point. The whole point of the medical second opinion is so that players have the right to understand what will be happening to their bodies from an independent practitioner. This allows them to better understand the situation and what the objectives of that treatment are.
This should also theoretically give players more of a say in what happens to their bodies, however, this is not the case given that players cannot opt to have another course of treatment instead. While it may provide teams the opportunity to stop players from receiving unproven or unscientific treatments, it does not give players the agency to choose what happens to their own bodies. Sports is one of the only fields in the world where management has this level of involvement in their employees’ bodily choices.
If players were able to take their second opinion back to their team’s doctor for medical review, and should that doctor disagree, then take that ruling to a third independent medical professional to issue a binding ruling that one be one thing, but the fact that players cannot make choices for their bodies enters an ethical grey zone.
Teams also worry about the short-term impacts on their players while they are able to play, and may not worry as much about the long-term concerns post-playing career. However, players have to think about what happens to them following their time in hockey. Nobody wants to struggle down the road when they want to just enjoy their retirement but are languishing in pain from short-term medical thinking earlier in their career.
Team doctors are also not independent entities. They are paid by the teams, not the players, and as such have an implicit bias to follow the will and direction of the team’s management when making decisions. And while doctors have a duty to do no harm when engaged in a doctor-patient relationship, a 2016 study by Harvard University found this to be an issue in the NFL, where they called the relationship between team doctors, management and player wellness to be a “undeniable conflict of interest”. This study recommended that team doctors be jointly paid by both the players and the team so as to avoid this conflict. As well, it recommended that perhaps there should be a doctor to advise players as well as a separate doctor paid by the team to monitor player health for management. While this was a study at the NFL level, the findings absolutely beg the question as to whether athletes in other sports face similar issues.
Where do we go from here?
Jack Eichel is not the first player to challenge his team for the right to receive a treatment that he and his doctor prefer, but this has been the one with the most media coverage. We will likely never know which players have asked for second opinions, come back with one that differs from the teams, have that request denied and refused to push it further. Whether Eichel ends up receiving an artificial disc in his neck or undergoes a spinal fusion, the underlying issue that this has raised is one that must be discussed and corrected in the next CBA.
It is a big issue that will only keep rearing its head should it not be addressed. Teams and players need to work together in order to find the best medical solution for each player. Given that each situation and each player’s needs are so different, ensuring that teams work with their players to get them the treatment that they need will go a long way to build trust and community within the organization. This is just one thing that teams can do to make their players feel like they are part of a team, and help them to be at their best both on and off the ice.
