Winning Inside Out: How the Creation of Protective Mental Health Clauses Could Elevate Professional Athlete Performance

Volume 31 Issue 2 Article 5

7-1-2024

Winning Inside Out: How the Creation of Protective Mental Health Winning Inside Out: How the Creation of Protective Mental Health

Clauses Could Elevate Professional Athlete Performance Clauses Could Elevate Professional Athlete Performance

Hannah Posencheg

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Hannah Posencheg,

Winning Inside Out: How the Creation of Protective Mental Health Clauses Could

Elevate Professional Athlete Performance

, 31 Jeffrey S. Moorad Sports L.J. 445 (2024).

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(445)

WINNING INSIDE OUT: HOW THE CREATION OF

PROTECTIVE MENTAL HEALTH CLAUSES COULD ELEVATE

PROFESSIONAL ATHLETE PERFORMANCE

I. IntroductIon: ScoutIng out Mental HealtH concernS

In ProfeSSIonal atHleteS

Viewership of professional sporting events is a pillar of Ameri-

can entertainment.

Americans are intrigued by the multi-faceted

nature of sports, and professional athletes and their impactful

presences on and off the field.

Whether it be sponsorships or part-

nerships, involvement in charitable organizations, sports betting, or

scandalous headlines, the events off the field are equally as enter-

taining to fans as those on the field.

Regardless, sports leagues are

the multi-media platform for which professional athletes begin

1. See Brad Adgate, The Audience Disparity of NFL Games and Everything Else Widens,

forbeS (Jan. 12, 2023, 9:57 AM), https://www.forbes.com/sites/bradadgate/

2023/01/12/the-audience-disparity-of-nfl-games-and-everything-else-widens/

?sh=65aef28b113a [https://perma.cc/SV3V-4Y8P] (explaining popularity of sports

viewership on television last year); see also Anthony Crupi, 2022 TV Recap: It’s the

NFL’s World; The Rest of Us Just Live In It,

SPortIco (Jan. 6, 2023, 5:55 AM), https://

www.sportico.com/business/media/2023/nfl-games-account-for-82-of-100-top-tv-

broadcasts-1234700381/ [https://perma.cc/V2SY-MV22] (highlighting statistics

that sports accounted for ninety-four out of one hundred most-watched telecasts in

2022, and National Football League accounted for eighty-two of those ninety-four).

2. See Maureen A. Weston, The Anxious Athlete: Mental Health and Sports’ Duty

and Advantage to Protect, 13

Harv. J. SPortS & ent. l. 1, 3 (2022) (exploring the mul-

tifaceted identities of professional athletes and their societal influence beyond the

field). Sports differ from other entertainment industries because professional ath-

letes are multi-faceted beings. See id. (describing athletes’ ability to gain attention

from fans and society aside from their athleticism). These individuals are athletes of

course, but they are also businesspeople, social media stars, models, and celebrities.

See id. (noting aspects of athletes’ lives outside of sports that fans are attracted to).

Essentially, the public is intrigued by athletes for more than just their physical skill.

See id. (listing elements that make athletes distinct apart from their athletic skill such

as tattoos, personalities, and marketability).

3. See Ronen Ainbinder, How Athletes Became Celebrities?,

SPortS, tecH, bIz

(May 29, 2020), https://www.sportstechbiz.com/p/how-athletes-became-celebrities

[https://perma.cc/MX3Q-H7YZ] (highlighting impact social media has on ath-

letes’ public presence). The rise of social media and modern technology advances

have allowed professional athletes to control their image and create their own

brand. See id. (outlining two different ways athletes use their name and image:

celebrity licenses and celebrity endorsements). Professional athletes now attract

massive public attention not only because of their skill, but because of their celebrity

status. See id. (describing this public attention as manifestation of “profound appeal

on consumers and particularly in young followers and fans”).

446 Jeffrey S. Moorad SPortS law Journal [Vol. 31: p. 445

their long careers, and more importantly, as celebrities in perpetual

spotlight.

In recent news, professional athletes are speaking out about the

toll the constant spotlight and intense pressure takes on their mental

health, sharing their struggles more openly than ever.

Nearly one

in every five Americans, including professional athletes, experience

anxiety, depression, or other mental health issues.

In the last cou-

ple of years, many athletes have spoken up about their mental health

challenges and how these challenges have interfered with their

lives both on and off the field.

Notable athletes like Aly Raisman,

Michael Phelps, Naomi Osaka, Serena Williams, Ronda Rousey, and

Abby Wambach have recently advocated for increased awareness,

resources, treatment, and attention to athlete mental health.

Professional athletes who have spoken out about their men-

tal health challenges have been met with mixed reactions.

While

some athletes have been given support from their fellow athletes and

4. See Weston, supra note 2, at 3 (describing unique nature and status of profes-

sional athletes in society).

5. See Christina Vogt, 9 Football Players Who’ve Spoken Up About Mental Health,

everyday HealtH, https://www.everydayhealth.com/emotional-health/football-

players-whove-spoken-up-about-mental-health/ [https://perma.cc/X8FB-PH8J]

(last visited Feb. 19, 2024) (explaining prevalence of mental health issues in ath-

letes and their recent decisions to speak out); see also Erin McDowell, 12 Athletes

Who’ve Spoken About Their Mental Health Struggles,

buS. InSIder (June 6, 2021, 9:30

AM), https://www.insider.com/athletes-mental-health-struggles-depression-2021-6

[https://perma.cc/45UN-KJYE] (providing list of famous athletes who have spoken

out about personal mental health struggles).

6. See Vogt, supra note 5 (providing statistic that one in every five Americans

experience mental health issues).

7. See McDowell, supra note 5 (explaining impact mental health challenges

have on professional athletes’ jobs and lives).

8. See id. (listing athletes who have spoken out about mental health and their

goals for mental health awareness). These athletes have called for erasing the

stigma surrounding mental health issues, encouraging an open dialogue around

asking for help, and creating a support system for their teammates. See id. (quoting

Serena Williams’ support for Naomi Osaka’s withdrawal from French Open saying,

“I wish I could give her a hug because I know what it’s like”); see also Juliet Spies-

Gans, Ronda Rousey Isn’t Ashamed of Opening Up About Her Mental Health,

HuffPoSt

(Feb. 24, 2016, 10:44 AM), https://www.huffpost.com/entry/ronda-rousey-mental-

health_n_56cdc177e4b0ec6725e4887c [https://perma.cc/ZS2H-W9H8] (detailing

Ronda Rousey’s call for open communication around mental health challenges

faced by athletes). Specifically, Michael Phelps is a huge advocate for mental health

in professional athletes. See Julie Kliegman, Michael Phelps on Mental Health and the

USOPC: ‘I Want People to Actually Do Something’,

SPortS IlluStrated (Oct. 10, 2022),

https://www.si.com/olympics/2022/10/10/michael-phelps-mental-health-advocacy-

sports-nft-cover [https://perma.cc/5AG7-KEWP] (explaining Phelps’ role in athlete

mental health advocacy). Phelps struggled with anxiety, depression, and suicidal

thoughts, and through his own struggles, he started a mental health foundation to

help reduce the stigma surrounding mental illness. See id. (highlighting advocacy

work Phelps has done for mental health awareness in athletes).

9. For further discussion of athletes speaking out about their mental health, see

infra note 10 and accompanying text.

2024] wInnIng InSIde out 447

leagues, others have not experienced such grace.

For instance, play-

ers in the National Football League (“NFL”) and National Basketball

League (“NBA”) experience predominately negative treatment by

their teams and the leagues regarding mental health.

This Comment uses two dominant American sports leagues, the

NFL and the NBA, as case studies to address the potential benefits

and drawbacks of creating contractual mental health protections.

Section II of this Comment begins by discussing how mental health

10. See Juliet Macur, Simone Biles is Withdrawing from the Olympic All-Around

Gymnastics Competition.,

n.y. tIMeS (Sept. 14, 2021), https://www.nytimes.

com/2021/07/28/sports/olympics/simone-biles-out.html#:~:text=our%20live

%20coverage-,Simone%20Biles%20is%20withdrawing%20from%20the%20

Olympic%20all%2Daround%20gymnastics,continue%20without%20risking%20

severe%20injury [https://web.archive.org/web/20240507133330/https://www.

nytimes.com/2021/07/28/sports/olympics/simone-biles-out.html] (explaining

Biles’ withdrawal from Olympics due to mental health issues and her support from

United States of America Gymnastics). In a statement released by United States of

America Gymnastics, following Biles’ withdraw from the Olympics, the organization

stated they “wholeheartedly support[ed] Simone’s decision and applaud[ed] her

bravery in prioritizing her well-being.” See id. (quoting United States of America

Gymnastics’ statement regarding Biles’ withdrawal). This support validated Biles’

decision to prioritize her mental health and gave her confidence to continue to

listen to her body without fear of career implications. See Oskar Garcia, Simone Biles

Says the Supportive Reaction to Her Withdrawal Has Been Uplifting.,

n.y. tIMeS (Aug. 3,

2021), https://www.nytimes.com/2021/07/28/sports/olympics/simone-biles-

tweet.html [https://web.archive.org/web/20240507134049/https://www.nytimes.

com/2021/07/28/sports/olympics/simone-biles-tweet.html] (“The outpouring

[of] love & support I’ve received has made me realize I’m more than my accom-

plishments and gymnastics which I never truly believed before.”). However, not all

athletes have received the same support and understanding. See Kelly McLaughlin &

Scott Davis, Naomi Osaka is Withdrawing from the French Open After Being Fined for Refus-

ing to Attend a Press Conference,

buS. InSIder (May 31, 2021, 2:13 PM), https://www.

insider.com/naomi-osaka-withdrawing-french-open-fined-press-conferences-2021-5

[https://perma.cc/J2MY-2GLT] (discussing negative reaction of French Open and

others to Osaka’s press conference absence). Naomi Osaka received extreme crit-

icism from the French Open, other tennis associations, and players for missing a

press conference. See id. (describing monetary fine imposed on Osaka, and ten-

nis stars Ashleigh Barty, Rafael Nadal, and Billie Jean King for speaking out about

importance of press conferences in tennis careers). It was not just the players that

lacked solidarity: Tennis Australia, the US Tennis Association, the French Tennis

Association, and the All England Lawn Tennis Club threatened further discipline

for Osaka’s decision. See id. (referencing statement of several tennis associations

published by Roland-Garros stadium insinuating additional repercussions for

Osaka’s actions). In response to these reactions, Osaka suggested in the future,

tennis players should get the right to take a mental break from the media without

the fear of being severely scrutinized. See Naomi Osaka, Naomi Osaka: ‘It’s O.K. Not to

Be O.K.’,

tIMe (July 8, 2021, 7:15 AM), https://time.com/6077128/naomi-osaka-essay-

tokyo-olympics/ [https://perma.cc/G9EX-ZYDZ] (explaining Osaka’s opinion on

how to deal with athlete mental health issues in future instances).

11. For further discussion of NFL and NBA players’ mental health, see infra

notes 19–51 and accompanying text.

12. For further discussion of potential benefits and drawbacks to adding mental

health protections to NFL and NBA contracts, see infra notes 145–148 and accom-

panying text.

448 Jeffrey S. Moorad SPortS law Journal [Vol. 31: p. 445

affects players in the NBA and NFL.

It then discusses the current

mental health resources the NFL and NBA provide for its players.

Section III of this Comment begins by discussing the legal obstacles

presented for NFL and NBA players struggling with their mental

health.

This Section then analyzes a current professional sports

league in the United States that has included a contractual mental

health provision in their contracts.

Finally, this Section analyzes

how a similar mental health provision would benefit players in the

NFL and NBA.

Section IV argues that a mental health clause would

be helpful in providing athletes with mental health protections

and in decreasing the stigma surrounding mental health in these

individuals.

II. background: Stacked teaM of Mental HealtH ISSueS

In tHe nfl and nba

A. Roster of NFL and NBA Players Who Have Spoken Up

About Their Struggles

NFL player Antonio Brown is an unfortunate example of how

mental health challenges may negatively affect the performance of

skilled professional athletes.

His struggles made headlines in 2022

during a game against the New York Jets where, in a moment of men-

tal health crisis, he tossed his jersey and shoulder pads towards his

team’s bench, threw his undershirt and glove to the stands, and ran

off the field throwing peace-signs to the stadium.

This incident was

13. For further discussion of how mental health conditions affect NBA and

NFL athletes, see infra notes 19–51 and accompanying text.

14. For further discussion of what the NFL and NBA have done to provide

players with mental health resources and support, see infra notes 52–84 and accom-

panying text.

15. For further discussion of legal and social obstacles players face who are

struggling with their mental health, see infra notes 85–112 and accompanying text.

16. For further discussion of a current league who has developed contractual

mental health protections, see infra notes 124–144 and accompanying text.

17. For further discussion of how a contractual mental health protection would

benefit players in the NFL and NBA, see infra notes 145–175 and accompanying

text.

18. For further discussion of the potential benefits increased mental health

protections will have on athletes and broader society, see infra notes 176–184 and

accompanying text.

19. See Rob Maaddi, Analysis: Antonio Brown’s Mental Health is No Joke,

aSSocIated

reSS (Jan. 3, 2022, 5:14 PM), https://apnews.com/article/nfl-sports-health-mental-

health-antonio-brown-1dc9e09956169dec7cafedb2ba19c2f7 [https://perma.cc/

VFS5-Q2ND] (discussing impact of Brown’s mental health challenges on his foot-

ball career).

20. See id. (describing Antonio Brown’s “bizarre” behavior during Buccaneers

game against Jets). This outburst accompanied a build-up of multiple other issues

2024] wInnIng InSIde out 449

one of many outbursts which, along with other problematic behav-

iors, have persisted throughout his entire NFL career.

People close to Antonio Brown have spoken out about their

concerns regarding his mental health.

Tom Brady released a

statement following the Jets game, stating that “[e]verybody should

do what they can to help him in ways that he really needs it . . .

I think everyone should be very compassionate and empathetic

toward some very difficult things that are happening.”

Brown’s

ex-girlfriend, Chelsie Kyriss, also released a statement on Insta-

gram stating, “[m]y hope is that [Antonio] will get help and seek

the mental health treatment that he so desperately needs so that he

can be the father all of his children need and deserve.”

Despite

including a past of sexual assault allegations and Brown’s three-game suspension

for misrepresenting his coronavirus-vaccination status. See id. (explaining ease of

piling issues on top of Brown due to frequent drama and scandal associated with

his name).

21. See id. (describing Brown’s other questionable actions and behaviors he

has shown during his career). Before this incident on the Buccaneers, Brown’s

struggles were apparent earlier in his career while on the Pittsburgh Steelers.

See Jordan Greer, Why Did Antonio Brown Leave the Steelers? Pittsburgh Exit Marked

Start of Problems for Former Buccaneers Star,

SPortIng newS (Jan. 3, 2022), https://

www.sportingnews.com/us/nfl/news/antonio-brown-steelers-buccaneers-leave-

pittsburgh/1lqi6wc8ebc0f1mub4yp4aaahi#:~:text=Despite%20that%20Brown%20

was%20coming,%2D%20and%20fifth%2Dround%20pick [https://perma.cc/

D82Q-3U8L] (explaining Brown’s tendencies of being late to practice and engag-

ing in arguments with teammates on Steelers). The Steelers head coach let Brown’s

behavior slide for a short time because of his immense skill on the field. See id.

(citing to Brown’s second place ranking in all-time receiving yards in Steelers fran-

chise and being named Pro Bowler seven times). Eventually, however, Brown was

kicked off the Steelers due to the “constant drama” caused by Brown’s behavior.

See id. (describing events leading up to Brown’s release including “a heated dis-

agreement with a teammate” and absences from meetings and practices before

important game). From the Steelers, Brown went to the Oakland Raiders who

also had issues with his unpredictable conduct. See id. (explaining Brown’s issues

on Raiders including helmet drama, missing workouts, sharing private conversa-

tions on social media, and arguing with general manager of Raiders); see also Dan

Bernstein, Five Details from Antonio Brown’s Reported Helmet Fuss That Cement His Bizarre

Reputation,

SPortIng newS (Aug. 12, 2019), https://www.sportingnews.com/us/nfl/

news/five-details-antonio-browns-helmet-fuss-bizarre-reputation/1053n17hnat0c

10diphuog0pr3 [https://perma.cc/Q4NP-N6LT] (detailing Brown’s issues with

Raiders’ helmet, insisting he would not play football again unless he could wear old

helmet). After quickly getting “sick” of Brown’s behavior, the Raiders released him

from their team. See Maaddi, supra note 19 (stating Raiders released Brown before

regular season games commenced). Following his release from the Raiders, Brown

was briefly signed on to the Patriots on a one-year contract, but they quickly released

him after just one game. See Greer, supra note 21 (explaining Brown’s release from

Patriots after being sued for sexual assault by former trainer).

22. See Maaddi, supra note 19 (explaining fellow NFL players’ concerns for

Brown’s health).

23. See id. (quoting Tom Brady’s statement in response to Brown’s actions,

emphasizing Brown’s need for help).

24. See Zac Al-Khateeb, Antonio Brown’s Ex-Girlfriend Says He ‘Desperately Needs’

Mental Health Treatment,

SPortIng newS (Jan. 22, 2020), https://www.sportingnews.

450 Jeffrey S. Moorad SPortS law Journal [Vol. 31: p. 445

his innate talent, it is uncertain whether Antonio Brown will play

professional football again.

Not all cases have been as public or controversial as Antonio

Brown’s, but there are several other NFL athletes who have experi-

enced challenges with their mental health.

NFL athletes struggle

with depression and anxiety which may be attributed in part to

the aggressive nature of the game, but also to the spotlight and

com/us/nfl/news/antonio-brown-ex-girlfriend-mental-health-treatment/

1tpnpqpm86bu21q8h53o9s7yv8 [https://perma.cc/LH24-AMP2] (quoting Chelsie

Kyriss’ statement made on Instagram).

25. See Bryan DeArdo, Antonio Brown Announces He’s Ending His Retirement

To Join the Ravens in 2023 and It Raises Some Questions,

cbS SPortS (Apr. 29, 2023,

5:39 PM), https://www.cbssports.com/nfl/news/antonio-brown-announces-hes-

ending-his-retirement-to-join-the-ravens-in-2023-and-it-raises-some-questions/

#:~:text=Log%20Out-,Antonio%20Brown%20announces%20he%27s%20ending

%20his%20retirement%20to%20join%20the,and%20it%20raises%20some%20

questions&text=Less%20than%20two%20months%20after,to%20resume%20

his%20NFL%20career [https://perma.cc/3SJL-H2KD] (explaining Brown’s retire-

ment announcement from NFL and then subsequent announcement of his return

to NFL to join Ravens). Brown’s challenges, both on and off the field, have led

teams to steer clear of him since his brief tenure with the Buccaneers. See id. (dis-

cussing Brown’s legal troubles including arrest warrants and allegations of inappro-

priate sexual and violent behavior as deterrents from being signed to new teams).

These issues have cast a dark shadow over his talent, leaving him unsigned since his

time on the Buccaneers. See id. (quoting Steelers coach’s reflection on Brown as

player, “I don’t think enough gets said about the will of that dude, about the work

ethic of that dude, about the fearlessness in which he played the game . . . We talk

about all this other stuff, but we don’t talk about that.”).

26. See Vogt, supra note 5 (highlighting unsurprising fact that many NFL play-

ers experience mental health issues despite being “household names”). Dallas

Cowboys quarterback, Dak Prescott, has spoken up about his struggles with anx-

iety and depression. See Jori Epstein, Dallas Cowboys QB Dak Prescott On Why He

Opened Up On Depression, Brother’s Suicide: ‘Being a Leader is About Being Genuine’,

uSa today (Sept. 11, 2020, 11:05 AM), https://www.usatoday.com/story/sports/

nfl/cowboys/2020/09/10/dak-prescott-dallas-cowboys-depression-brother-

jace/3460645001/ [https://perma.cc/7RXP-YH6Y] (describing Prescott’s mental

health struggles after his brother’s suicide). In opening up about his struggles

with mental health, Prescott described negative thoughts he has as a result of being

under the spotlight since the start of his NFL career. See id. (highlighting intense

critiques and attention paid to elite professional athletes). Like Prescott, now-

Philadelphia Eagles wide receiver, A.J. Brown, has also spoken up about his mental

health challenges. See Paul Kasabian, Titans’ A.J. Brown Posts Video Addressing Depression,

Importance of Mental Health,

bleacHer reP. (Nov. 12, 2021), https://bleacherreport.

com/articles/10018035-titans-aj-brown-posts-video-addressing-depression-

importance-of-mental-health [https://web.archive.org/web/20240507141040/

https://bleacherreport.com/articles/10018035-titans-aj-brown-posts-video-addressing-

depression-importance-of-mental-health] (describing Brown’s social media post

explaining struggle with depression, anxiety, and suicidal thoughts). Brown has

reflected upon the culture surrounding mental health in men and professional ath-

letes, stating in a press conference that, “I . . . really didn’t take into consideration

what depression really was . . . [t]hat’s how I grew up. I just brushed off my feelings,

and it got the best of me.” See Vogt, supra note 5 (capturing Brown’s discussion of

his mental health challenges).

2024] wInnIng InSIde out 451

pressure that comes with being a professional athlete.

Unfortu-

nately, popular sports networks are not helping the problem and are

rather perpetuating the idea that mental health challenges are a sign

of weakness in these athletes.

Players in the NBA also struggle with their mental health.

Dr. Kensa Gunter, director of the NBA’s Mind Health program,

stated in an article for The Athletic that NBA players experience men-

tal health challenges at the same rate as everyday people; however,

the majority of their lives are visible for the world to see, and in turn

are subject to intense critique by the media and fans.

This is likely

because fans view players as the pinnacle of toughness and mascu-

linity, which amplifies the stigma around mental health in these

athletes.

Further, a 2019 study done by the International Olym-

pic Committee released a consensus statement which found that

thirty-five percent of elite athletes struggle with mental health.

applying that percentage in terms of NBA players alone, upwards of

158 of 450 NBA athletes struggle with their mental health.

Recently, Ben Simmons has shared his struggles with mental

health.

While on the Philadelphia 76ers, Simmons was experiencing

27. See Vogt, supra note 5 (attributing repeated head collisions and “ultra-

masculine culture” of NFL as cause for players’ increased risk of mental health

challenges).

28. See Epstein, supra note 26 (describing Fox Sports’ Skip Bayless suggest-

ing Prescott’s depression was sign of “vulnerability” and not Cowboys quarterback

material).

29. See Joe Vardon, Why the NBA Got Serious About Mental Health: ‘We Believe in It,

But We Also Saw an Increasing Need For It’,

atHletIc (Apr. 18, 2023), https://theathletic.

com/4384992/2023/04/18/nba-mental-health/?access_token=11766543 [https://

perma.cc/92PN-V2DZ] (discussing NBA players’ experience with mental health

issues and how topic is frequently talked about in NBA).

30. See id. (“The difference between them . . . and the rest of us, Gunter said,

is that so much of their lives are carried out in the public eye. They are critiqued by

hundreds of media, thousands of fans in the seats and millions on social media.”).

Gunter also provided the statistic that one in every five Americans will experience

a mental illness every year, and this statistic does not exclude NBA players. See id.

(emphasizing idea that NBA players should not be viewed differently from rest of

population when considering mental health).

31. See id. (describing players placed under increased scrutiny because of publi-

cization of their lives); see also Epstein, supra note 26 (evidencing intense stereotype

of manliness and stigma around mental health in professional athletes).

32. See DruSmith, DeMar DeRozan, Ben Simmons, Giannis Antetokounmpo & the

Mental Health Balancing Act,

brew HooP (Oct. 19, 2022, 11:00 AM), https://www.

brewhoop.com/2022/10/19/23411766/demar-derozan-ben-simmons-giannis-

antetokounmpo-the-mental-health-balancing-act [https://perma.cc/QWZ3-DT4F]

(explaining consensus statement issued by International Olympic Committee).

33. See id. (putting thirty-five percent of all athletes into perspective of NBA

population).

34. See Farbod Esnaashari, Ben Simmons Opens Up About Mental Health Struggle on

76ers,

fannatIon (Nov. 5, 2022, 8:38 PM), https://www.si.com/nba/nets/news/ben-

simmons-opens-up-about-mental-health-struggle-on-76ers [https://web.archive.

org/web/20240507141736/https://www.si.com/nba/nets/news/ben-simmons-

452 Jeffrey S. Moorad SPortS law Journal [Vol. 31: p. 445

issues with his performance on the court.

At the start of the

2021–2022 season, he met with the team and informed them he was

not mentally ready to play up to his standards and expressed that

he needed to step away from playing.

Simmons explained in an

interview that “[he] got into a really dark place in [his] life . . . It

was a build-up of everything– all that pressure.”

The issues culmi-

nated in a pivotal moment in the 76ers’ season where, as a result of

his struggles, he failed to dunk the ball in game seven of the Eastern

Conference Semifinals against the Atlanta Hawks.

Simmons

claimed that after the game, he was criticized by the city of

Philadelphia, his coaches, and his teammates.

Simmons’ case is

one of many that give a glimpse into the mental health struggles

NBA players face, and the lack of support they receive.

opens-up-about-mental-health-struggle-on-76ers] (describing Ben Simmons’ men-

tal health challenges).

35. See Michael Kaskey-Blomain, Ben Simmons’ Beef With 76ers Explained: Complete

Timeline of Drama That Ultimately Led To James Harden Trade,

cbS SPortS (Feb. 10,

2022, 5:32 PM), https://www.cbssports.com/nba/news/ben-simmons-beef-with-

76ers-explained-complete-timeline-of-drama-that-ultimately-led-to-james-harden-

trade/#:~:text=Simmons%20met%20with%20the%20Sixers,doing%20so%20

at%20this%20point [https://web.archive.org/web/20240507142149/https://

www.cbssports.com/nba/news/ben-simmons-beef-with-76ers-explained-complete-

timeline-of-drama-that-ultimately-led-to-james-harden-trade/] (detailing Simmons’

statistics from Wizards series where he shot ten for twenty-eight free throws and

from playoffs where he shot twenty-five for seventy-three free throws).

36. See id. (explaining Ben Simmons’ request for time away after Simmons

expressed wanting trade and had missed training camp, media day, two preseason

games, and was suspended for first game of 2021–2022 regular season).

37. See Esnaashari, supra note 34 (explaining Simmons’ mental health issues);

see also Konrad Marshall, From Our Greatest Basketball Export To US Sporting Pariah: Can

Simmons Bounce Back?,

Sydney MornIng Herald (Nov. 5, 2022), https://www.smh.com.

au/sport/from-our-greatest-basketball-export-to-us-sporting-pariah-can-simmons-

bounce-back-20220726-p5b4mm.html [https://perma.cc/QB6V-7R65] (describing

interview with Simmons where he discussed his struggles with depression).

38. See Esnaashari, supra note 34 (explaining Simmons’ failure to perform like

usual to help his team win Eastern Conference semifinal game).

39. See id. (describing 76ers’ reaction to Simmons’ decision not to dunk ball).

40. See id. (describing Simmons’ struggles with mental health). Other NBA

athletes, too, have struggled with their mental health. See Alex Reimer, Delonte West’s

Mental Illness, Once Treated as a Joke, Was Never a Laughing Matter,

forbeS (Jan. 21,

2020, 3:34 PM), https://www.forbes.com/sites/alexreimer/2020/01/21/delonte-

wests-mental-illness-used-to-elicit-laughs/?sh=218abb2e347b [https://perma.cc/

LVF8-9H8Q] (explaining Delonte West’s struggles with mental health). West was

diagnosed with bipolar disorder in 2008 and struggled with the illness throughout

his basketball career. See Former NBA Player Delonte West Talks About His Battle with

Bipolar Disorder and Starting Fresh,

good MornIng aM. (July 13, 2022, 4:41 PM), https://

www.goodmorningamerica.com/gma/story/nba-player-delonte-west-talks-battle-

bipolar-disorder-86682528 [https://perma.cc/RVQ2-T78C] [hereinafter Former

NBA Player] (describing West’s diagnosis of bipolar disorder). West had a record

of “blow [ups]” and outbursts, both at his teammates and to referees, while playing

for the Cavaliers and the Mavericks. See Reimer, supra note 40 (describing West

opening up to reporters about his feelings after blowing up at referee); see also

Former NBA Player, supra note 40 (describing West’s mental health incidents while on

2024] wInnIng InSIde out 453

DeMar DeRozan, a forward for the Chicago Bulls, has been a

dominant voice in the conversation around mental health in the

NBA.

The Washington Post coined a tweet published by DeRozan

in 2018 as a catalyst for starting an honest conversation about the

presence of anxiety and depression in the NBA.

The tweet read

“[t]his depression get the best of me.”

DeRozan had been through

a tough life, and thought that making it to the NBA would help mit-

igate his struggles.

However, he found that the fame only made

his struggles with anxiety and depression worse.

Since the tweet,

DeRozan has been outspoken about his mental health and the chal-

lenges he faces being a professional basketball player.

He recently

shared on the podcast “The Old Man & The Three” with JJ Redick,

that “there’s so much internal pressure to want to be great every sin-

gle day. Every single day of like, ‘I got to go back to the gym. I didn’t

do enough.’”

These athletes and others have initiated the dialogue sur-

rounding mental health in professional athletics, and have started

to demand that leagues be responsible for addressing and accom-

modating their mental illness concerns.

This discussion calls

for an in-depth exploration of the existing legal and contractual

Mavericks). The Mavericks ended up suspending West multiple times for his con-

duct and he eventually retired from basketball all together. See id. (describing West’s

mental health incidents while on Mavericks and reporting on West’s life once he

retired from basketball, including his admission to drug rehabilitation clinics, and

being seen panhandling on the streets). Many players and members of the NBA

community have expressed their concerns for Delonte West, most notably, former

player Royce White. See Reimer, supra note 40 (describing West’s former coach at

St. Joseph’s, college teammate, and Royce White publicly expressing their concerns

for his wellbeing).

41. See Michael Lee, How the NBA Got Serious About Mental Health,

waSH. PoSt

(Apr. 19, 2022, 7:00 AM), https://www.washingtonpost.com/sports/2022/04/19/

nba-mental-health-demar-derozan/ [https://perma.cc/H8LU-6VXL] (describing

DeMar DeRozan’s time on Chicago Bulls).

42. See id. (describing intention of DeRozan’s tweet to express he was not okay

and tweet’s effect on how NBA sees mental health).

43. See id. (featuring picture of DeRozan’s tweet).

44. See id. (explaining DeRozan came from life where he had lost friends and

family members to gang violence).

45. See id. (describing DeRozan’s attempts to push away reality by burying

under new reality as basketball star).

46. See Scott Polacek, Bulls’ DeMar DeRozan: ‘I Don’t Think I Can Truly Be Happy

Until I Retire’,

bleacHer reP. (Sept. 28, 2022), https://bleacherreport.com/articles/

10050603-bulls-demar-derozan-i-dont-think-i-can-truly-be-happy-until-i-retire

[https://perma.cc/SV5B-358D] (discussing DeRozan’s role as spokesperson for

mental health in NBA).

47. See id. (quoting DeRozan in podcast where he explains pressure he feels as

NBA player).

48. For further discussion of professional athletes who have struggled with

mental health and opened up about their struggle, see supra notes 10–11 and

accompanying text.

454 Jeffrey S. Moorad SPortS law Journal [Vol. 31: p. 445

responsibilities that leagues and teams bear in safeguarding the

mental well-being of their players.

Considering the inherent dif-

ficulty of playing professional sports, and athletes’ reluctance to do

anything that may jeopardize their coveted roster spots, the onus

seems to be on the leagues and the teams themselves to protect their

players.

It also prompts consideration of whether legal obligations

between parties can be devised to effectively protect players in a

manner that benefits the leagues, teams, and players alike.

B. NFL’s Mental Health Initiatives Fall Yards Short

of the End Zone

In 2020, the NFL issued an updated collective bargaining

agreement (“CBA”).

In the CBA, the NFL and National Football

League Players Association (“NFLPA”) implemented a “Comprehen-

sive Mental Health and Wellness Committee” to spearhead mental

health initiatives for NFL teams and players.

One of the various

responsibilities the Committee is tasked with is to develop educa-

tional mental health programming for players, coaches, and other

team personnel.

The CBA also requires every team to hire a Team

Clinician who is either a board-certified psychiatrist, a doctoral level

clinical or counseling psychologist, or a professional counselor with

a master’s degree in counseling or social work.

The responsibilities

49. For further discussion of current mental health resources provided by the

NFL and NBA, see infra notes 53–84 and accompanying text.

50. See Estimated Probability of Competing in Professional Athletics, ncaa, https://www.

ncaa.org/sports/2015/3/6/estimated-probability-of-competing-in-professional-

athletics.aspx [https://perma.cc/7P98-7BXQ] (last visited Mar. 18, 2024) (provid-

ing data that 1.2% of NCAA athletes make it to NBA and 1.6% of NCAA athletes

make it to NFL).

51. For further discussion and examples of whether legal obligations between

parties can be formed to protect player mental health, see infra notes 120–144 and

accompanying text.

52. See Dan Graziano, NFL CBA Approved: What Players Get in New Deal, How

Expanded Playoffs and Schedule Will Work, eSPn (Mar. 15, 2020, 10:20 AM), https://

www.espn.com/nfl/story/_/id/28901832/nfl-cba-approved-players-get-new-deal-

how-expanded-playoffs-schedule-work [https://perma.cc/TK56-NGNB] (describ-

ing new collective bargaining agreement for NFL players).

53. See 2020 NFL-NFLPA Collective Bargaining Agreement, Art. 39, § 19

(Mar. 5, 2020), available at https://nflpaweb.blob.core.windows.net/media/

Default/NFLPA/CBA2020/NFL-NFLPA_CBA_March_5_2020.pdf [https://perma.

cc/7A5V-NAWV] [hereinafter NFL-NFLPA CBA] (describing new Comprehensive

Mental Health and Wellness Committee’s formation and responsibilities).

54. See id. (describing responsibilities of Comprehensive Mental Health and

Wellness Committee). This educational programming includes suicide awareness

and prevention and education on clinical concerns such as depression and anxiety.

See id. (describing topics Committee will educate about).

55. See id. (explaining requisite qualifications of Team Clinicians); see also

Nicholas Cothrel, Rams Helped Shape CBA With Mental Health Resource,

fannatIon

2024] wInnIng InSIde out 455

of the Team Clinician include conducting at least two educational

mental health programming sessions per season, voluntary work-

shops, being available to players on-site at least twice weekly, and

being available to speak with players who are on the Injured Reserve

or Physically Unable to Perform list.

In addition to Team Clinicians,

the CBA requires teams to implement Mental Health Emergency

Action Plans at the start of each NFL season.

The required compo-

nents of these plans include defining teams’ responses to mental or

behavioral health crises and other major incidents that could result

in extreme mental health stress.

Finally, the CBA includes injury

protection benefits for players.

These benefits only apply to players

who get “severely injured” in an NFL game or practice, and whose

contracts are eventually terminated by their team for their inability

to perform.

C. NBA’s “Mental Disability” Amendment Bounces Off the Rim

In 2019, the NBA issued a memorandum to all thirty teams

announcing new required mental health measures.

Included in

these new measures is that each team is required to have at least one

mental health professional and one licensed psychiatrist to be avail-

able for players.

Additionally, all NBA teams are required to have

action plans for mental health emergencies.

Finally, all thirty NBA

teams were required to attend a mental health and wellness meeting

in September 2019.

These requirements were in part credited to

DeMar DeRozan’s 2018 tweet, mentioned earlier in this Comment.

(Aug. 16, 2021, 6:21 PM), https://www.si.com/nfl/rams/news/los-angeles-rams-

nfl-cba-mental-health-resource-training-camp [https://perma.cc/9Q2C-PK5N]

(describing Los Angeles Rams’ mental health clinician’s role in shaping CBA man-

date for each team to require mental health clinicians).

56. See NFL-NFLPA CBA, supra note 53 (explaining duties of team clinicians).

57. See id. (describing new Mental Health Emergency Action Plans).

58. See id. (listing required components of Mental Health Emergency Action

Plans).

59. See id. (detailing injury protection benefits some players are entitled to).

60. See id. (identifying criteria for injury protection eligibility).

61. See Michael Shapiro, Report: NBA Finalizes Expanded Mental Health Program,

Adds Licensed Psychiatrists,

SPortS IlluStrated (Aug. 7, 2019), https://www.si.com/

nba/2019/08/07/nba-expanded-mental-health-program-licensed-psychologists

[https://perma.cc/2CM7-C3VF] (summarizing new required mental health measures).

62. See id. (outlining new requirements); see also Vardon, supra note 29 (explain-

ing NBA’s requirement for all teams to hire mental health practitioner).

63. See Vardon, supra note 29 (describing other mental health requirements of

NBA teams).

64. See id. (describing mental health and wellness meeting requirement).

65. See id. (mentioning DeMar DeRozan’s tweet and Kevin Love’s story in The

Players’ Tribune about their struggles with mental health, as inspiration for these

expanded resources).

456 Jeffrey S. Moorad SPortS law Journal [Vol. 31: p. 445

DeRozan has been credited with being a catalyst for increased discus-

sion of mental health.

The CBA also includes a “Mandatory Programs” section.

This

section mandates that NBA players participate in Team Awareness

Meetings which cover “mental health and wellness programming.”

If a player is absent from one of these meetings without an accept-

able excuse, they will be fined $20,000.

Further, if a player does not

attend a Team Awareness Meeting that covers the NBA Anti-Drug

Program, they must be provided with the educational materials per-

taining to the Anti-Drug Program.

There is no such requirement

for mental health and wellness programming.

On July 1, 2023, the NBA issued a new CBA that runs through

the 2029–2030 season.

The CBA does not contain specific rules

that detail procedures for dealing with mental health recovery for

players.

However, it contains an “Allowable Amendments” sec-

tion that outlines ways in which specific players and their teams may

amend certain aspects of the Uniform Player Contract.

This sec-

tion allows for players and their teams to amend the Uniform Player

Contract to protect a player’s base salary in the event their contract is

terminated due to a “mental disability.”

It also outlines the process

66. See Shapiro, supra note 61 (describing DeRozan’s efforts to speak out about

mental health).

67. See 2023-NBA-NBPA Collective Bargaining Agreement, Art. 6, § 4

(July 2023), available at https://ak-static.cms.nba.com/wp-content/uploads/

sites/4/2023/06/2023-NBA-Collective-Bargaining-Agreement.pdf [https://perma.

cc/QP8U-HLMW] [hereinafter NBA-NBPA CBA] (outlining mandatory programs

NBA players must participate in).

68. See id. (explaining Team Awareness Meetings which include mental health

and wellness programming among other programming).

69. See id. (providing consequences for not attending mandatory programs).

70. See id. (describing protocol for players who miss Team Awareness Meetings

covering Anti-Drug Program).

71. See id. (listing NBA Anti-Drug Program as sole program requiring follow-up

if missed).

72. See NBA Collective Bargaining Agreement Signed, nba (June 28, 2023, 4:25 PM),

https://www.nba.com/news/nba-collective-bargaining-agreement-signed# [https://

perma.cc/2JJA-MCSB] (issuing official release of 2023 NBA CBA).

73. See 2023 NBA-NBPA CBA, supra note 67, at Art. 22 (detailing player health

and wellness items). This section is supposed to encompass all player health and

wellness, yet it fails to make any mention of mental health. See id. (describing items

such as requirements for team player health professionals, vaccine requirements,

health and performance screenings, and medical records).

74. See id. at Art. 2, § 3 (containing Article 2, Section 3 of CBA titled “Allowable

Amendments”).

75. See id. at Art. 2, § 4 (describing mental disability amendment available to

NBA players). According to the section, a player and team may agree to guarantee

the player’s base salary in the event a “mental disability,” not covered by the team’s

insurance causes the player to be unfit to play skilled basketball. See id. (outlining

how mental disability amendment will apply to players who choose to negotiate

amendment into contract).

2024] wInnIng InSIde out 457

to procure an insurance policy for a player’s mental disability.

This process is dependent on the player producing all information

requested of him, participating in all required examinations, and

fully cooperating with the team and insurance provider in the pro-

curement process.

In order for the team and the player to agree to

this amendment, the CBA outlines that the player’s mental disability

may not be the result of a lengthy list of potential causes including

attempted suicide and substance abuse.

D. Additional Mental Health Resources

Apart from both CBAs, the NFL and the NBA, along with their

respective Players Associations, have launched mental health and

wellness webpages.

The NFL’s website serves as a summary where

NFL fans can see what the NFL has done to support the mental health

of its players.

The NFLPA’s website is a resource for current play-

ers which requires a log-in, but lists options to hire a therapist with

the NFL’s insurance provider and mental health resources such as

76. See id. (explaining process for procuring insurance policies for players’

mental disabilities if team wishes to do so).

77. See id. (explaining lengthy and invasive procedure for teams to procure

insurance policy for player).

78. See id. (indicating when player’s base salary may be protected if player’s

contract is terminated for mental disability). The items included in this lengthy list

include:

[L]ack of skill does not result from the player’s participation in activities

prohibited by Paragraph 12 of the Uniform Player Contract (as such Para-

graph may be modified by Exhibit 5 to the Player Contract), attempted sui-

cide, intentional self-inflicted injury, abuse of alcohol, use of any Prohibited

Substance or controlled substance, abuse of or addiction to prescription

drugs, conduct occurring during the commission of any felony for which

the player is convicted (including by a plea of guilty, no contest, or nolo

contendere), participation in any riot, insurrection, or war or other military

activities, or failure to comply with the requirements of Paragraphs 7(d)-(i)

of the Uniform Player Contract.

See id. (describing lengthy list of exceptions to obtaining compensation for

non-performance due to mental disability).

79. See Player Health & Safety, nfl, https://www.nfl.com/playerhealthandsafety/

health-and-wellness/mental-health/ [https://perma.cc/3MRJ-QZG8] (last visited

Feb. 4, 2024) (explaining resources and initiatives created by NFL around mental

health); see also Mental Health & Counseling, nflPa, https://nflpa.com/active-players/

health/counseling-1 [https://perma.cc/WS32-NZT8] (last visited Feb. 4, 2024)

(depicting resources for current players created by NFLPA for mental health); see

also Stop and Take a Moment.,

MInd HealtH, https://mindhealth.nba.com [https://

perma.cc/24UL-TMCW] (last visited Feb. 4, 2024) (describing mental health

resources created by NBA); see also Mental Health & Wellness Department, nbPa,

https://nbpa.com/mentalwellness [https://perma.cc/9TV8-AB48] (last visited

Feb. 4, 2024) (depicting mental health resources for current players).

80. See Player Health & Safety, supra note 79 (listing available resources for play-

ers, videos, and articles discussing mental health, and changes NFL made in most

recent CBA).

458 Jeffrey S. Moorad SPortS law Journal [Vol. 31: p. 445

Headspace.

Additionally, the NFL Life Line is a free, confidential

hotline for players, coaches, staff, and family members to connect

with mental health providers.

The NBA’s website provides several

resources that are aimed for fan-use as opposed to player use.

The

National Basketball Players Association’s (“NBPA”) website is for cur-

rent player-use, providing a short mission statement for visitors and

a password protected sign-in link for current players to access NBA

resources and contact links.

III. analySIS: levelIng uP tHe defenSe to Protect atHleteS

acIng Mental HealtH cHallengeS

Though providing resources to players is a great start, it is

extremely hard to standardize high-quality mental health care, edu-

cation, and treatment when the responsibility of providing mental

health resources is delegated to each team.

Aside from these

resources, there are legal obstacles that stand in the way of athletes

getting the mental health assistance they need.

These obstacles

lie in current NBA and NFL player contracts.

Standard NFL and

NBA contracts do not adequately account for mental health issues,

and are structured in a way that allows for relatively easy termina-

tion.

In turn, it is common for players to find themselves being

81. See Mental Health & Counseling, supra note 79 (providing information on

how to obtain mental health clinicians and how to access NFL-subsidized stress man-

agement and mental health resources).

82. See Rebecca A. Clay, A New NFL Playbook: Enhancing Mental Health, 48

MonItor on PSycH. 22, 22–23 (2017) (describing NFL Life Line initiative).

83. See Stop and Take a Moment., supra note 79 (listing various mental health

skills and resources for viewers to consume).

84. See Mental Health & Wellness Department, supra note 79 (stating NBPA’s mis-

sion is to “establish a safe place to assist NBA players to uncover the essence of who

they are and to achieve excellence”).

85. For further discussion of the variability in implementation and use of men-

tal health resources in NBA and NFL, see infra notes 91–94 and accompanying text.

86. For further discussion of the legal issues affecting NBA and NFL players

with mental health conditions, see infra notes 97–112 and accompanying text.

87. See Christopher R. Deubert, I. Glenn Cohen & Holly Fernandez Lynch,

Comparing Health-Related Policies & Practices in Sports: The NFL and Other Professional

Leagues,

PetrIe-floM ctr. for HealtH l. Pol’y, bIotecHnology & bIoetHIcS 1, 186

(2017), https://footballplayershealth.harvard.edu/wp-content/uploads/2017/05/

Harvard-Comparative-League-Analysis-5.15.17.pdf [https://perma.cc/6X58-Y477]

(examining contractual effects on health of NBA players).

88. See id. at 186, 194 (discussing issues of guaranteed contracts, salary caps,

and contract termination as potential areas that affect player health). By not guar-

anteeing players’ compensation, the players may feel more inclined to play through

injuries to remain on the team. See id. at 194 (discussing mental effect nonguaran-

teed contracts have on NFL players).

2024] wInnIng InSIde out 459

traded between teams when they are not performing their best.

These legal issues, paired with the broader societal implications for

professional athletes suffering mental health, make it difficult for

these athletes to succeed at the same rate as their mentally-healthy

counterparts.

First, though the NFL and NBA CBAs have mandatory mental

health resources, there is great variability in how these resources

are implemented and used.

For instance, though the NBA’s

CBA requires all teams to retain mental health professionals and a

licensed psychiatrist, there is no mandated or outlined procedure

or protocol for mental health recovery.

Additionally, the NFL

does not even require its franchises to hire clinicians with a sports

background.

Sam Maniar, a former clinician for the Cleveland

Browns, was quoted saying “[t]his is a very specialized area . . . The

environment of athletics, and especially at the highest level, is some-

thing that does require specialization, and not every clinician being

brought into the NFL has that.”

89. See Tyler Sullivan, Cody Benjamin & Jeff Kerr, 2022 NFL Trade Deadline

Takeaways: All the Biggest Deals, a Surprising Move, More From a Record-Setting Day,

cbS SPortS (Nov. 2, 2022, 8:05 AM), https://www.cbssports.com/nfl/news/2022-

nfl-trade-deadline-takeaways-all-the-biggest-deals-a-surprising-move-more-from-a-

record-setting-day/live/ [https://perma.cc/89AW-D8BL] (describing trades made

on NFL’s 2022 trading deadline as most ever made on deadline day); see also Jerico,

Why Do NBA Players Get Traded So Much?,

ball unlocked, https://ballunlocked.com/

why-nba-players-get-traded-so-much/ [https://perma.cc/N647-NZR4] (last visited

Feb. 4, 2024) (discussing frequency of NBA trades).

90. For further discussion of societal implications on NFL and NBA athletes,

see infra notes 116–119 and accompanying text.

91. See Mark Kreidler, NFL Has Been Slow to Embrace Mental Health Support for Play-

ers,

uSa today (Jan. 20, 2023, 5:00 AM), https://www.usatoday.com/story/news/

health/2023/01/20/nfl-slow-embrace-mental-health-players/11082135002/#

[https://perma.cc/EF4M-55AY] (citing to “great latitude” of individual franchises

as cause of NFL’s delay in implementing mental health programs). Some fran-

chises’ required clinicians vary in whether they are employed part-time or full-time,

whether they are sports psychologists or not, or whether they are even hired by a

franchise at all. See id. (describing varying qualifications allowed for licensed behav-

ioral health clinician requirement as “critical flaw”); see also Vardon, supra note 29

(listing teams with varying numbers and types of mental health clinicians).

92. See Skyler Jordan Sands, Mental Health and the NBA CBA: Making Sense of

the Ben Simmons Arbitration,

brook. SPortS & ent. l. blog (Oct. 6, 2022), https://

sports-entertainment.brooklaw.edu/sports/mental-health-and-the-nba-cba-

making-sense-of-the-ben-simmons-arbitration/#19 [https://perma.cc/PXN6-LF3Z]

(addressing hiring licensed psychiatrists as sole league rule concerning mental

health).

93. See Kreidler, supra note 91 (discussing lack of requirements for NFL

franchise-hired clinicians).

94. See id. (quoting Sam Maniar discussing NFL’s lack of requirement for clini-

cians to have sports psychology background).

460 Jeffrey S. Moorad SPortS law Journal [Vol. 31: p. 445

Second, NFL and NBA contracts are not friendly to players who

are not playing at peak performance.

NFL contracts present three

major concerns when it comes to protecting players with mental

health conditions: (1) mental health conditions are not covered by

the injury protection provision; (2) most NFL contracts are nonguar-

anteed and the NFL has a “hard” salary cap; and (3) there is a very

low threshold for contract termination.

The NFL injury protection

provision only protects players who were physically unable to play

due to a “severe football injury in an NFL game or practice.”

a player is injured and covered by the injury protection provision,

the player will continue to receive his salary for as long as the player

is physically unable to play, or until the season in which the player

was injured is over.

This provision limits protections to physical

injuries and therefore excludes mental health conditions.

Further,

the NFL contracts’ nonguaranteed nature and “hard” salary caps

leave players vulnerable to termination without any salary to support

them.

100

Thus, if a player is not performing well due to mental health

reasons, without formal protections, coaches will likely terminate the

player’s contract and hire a different, more capable player.

101

Finally,

it is extremely easy for a team to terminate a player’s contract early

for various reasons including unsatisfactory skill, performance, con-

duct, or if a team believes another player can contribute more to the

team’s success.

102

95. See NBA-NBPA CBA, supra note 67, at Art. 2, § 4 (describing low threshold to

terminate contract for unsatisfactory performance); see also NFL-NFLPA CBA, supra

note 53, at App. A (stating unsatisfactory performance is at sole discretion of team

and may be grounds for contract termination).

96. For further discussion of the concerns of NFL contracts for players with

mental health conditions, see infra notes 97–102 and accompanying text.

97. See NFL-NFLPA CBA, supra note 53, at Art. 45, § 2 (stating players must be

injured during league game or practice to be covered by this provision).

98. See id. at App. A (describing procedure if players are injured during season).

99. See id. (describing qualifying injuries as those where physical examinations

by club physician may determine injury).

100. See id. at Art. 13, § 2 (requiring that no team exceed salary cap determined

for each team in NFL). This “hard” salary cap has led to the nonguaranteed nature

of NFL contracts because teams must be extremely cautious about where their salary

money goes. See Matthew Epstein, Ball Never Lies: How Guaranteed Contracts Provide

NBA Players More Security Than NFL Players to Advocate for Social Justice, 93

unIv. colo.

l. r

ev. 253, 258, 259–60 (2022) (explaining NFL’s hard cap deters teams from giving

players more money and only money guaranteed to player is their signing bonus).

101. See Epstein, supra note 100, at 261–62 (discussing ability nonguaranteed

contracts give to teams to easily cut players and use money saved to pay other play-

ers). Players may negotiate an injury guarantee, where a player is guaranteed money

if he is released from his team due to a football injury, however this does not include

mental health injuries. See id. at 260 (describing nature of injury guarantees).

102. See NFL-NFLPA CBA, supra note 53, at App. A (“If at any time, in the sole

judgment of Club, Player’s skill or performance has been unsatisfactory as com-

pared with that of other players competing for positions on Club’s roster, or if Player

2024] wInnIng InSIde out 461

NBA contracts offer players a bit more protection because play-

ers can negotiate guaranteed contracts.

103

However, there are still

concerns regarding protections for players with mental health condi-

tions in these contracts such as a broad termination clause and limited

protections for non-performance due to mental health conditions.

104

Although players are still guaranteed money if their contract is ter-

minated early, the ease of termination threatens their job stability,

which is a major source of anxiety for professional athletes who have

a small window of opportunity to compete at the professional level in

the first place.

105

The standard player contract has similar language

in its termination provision as the NFL’s provision that allows teams

to terminate players if the team deems their performance is not up

to standard.

106

Additionally, the NBA’s CBA allows for players and

teams to negotiate amendments to the Uniform Player Contract.

107

One possible amendment is to allow for a player and a team to nego-

tiate compensation protection upon termination of a contract if the

contract is terminated for a “mental disability.”

108

This may sound

like a great option on paper, to make compensation protection avail-

able if a player experiences mental health issues that render them

unable to play.

109

However, negotiating over guarantees for mental

has engaged in personal conduct reasonably judged by Club to adversely affect or

reflect on Club, then Club may terminate this contract. In addition, during the

period any salary cap is legally in effect, this contract may be terminated if, in Club’s

opinion, Player is anticipated to make less of a contribution to Club’s ability to com-

pete on the playing field than another player or players whom Club intends to sign

or attempts to sign, or another player or players who is or are already on Club’s

roster, and for whom Club needs room.”).

103. See Andrew Brandt, How NFL and NBA Contracts Differ, and What NFL Play-

ers Can Do to Change It,

SPortS IlluStrated (July 10, 2018), https://www.si.com/

nfl/2018/07/10/nfl-nba-player-contracts-salary-cap-kirk-cousins-aaron-rodgers-

lebron-james-chris-paul [https://perma.cc/8FP6-P8LA] (stating NBA contracts

guarantee that player be paid in full upon termination of their contract).

104. For further discussion of the concerns of NBA contracts for players with

mental health conditions, see infra notes 105–112 and accompanying text.

105. See Damond L. Williams, Life After the Game: Navigating Retirement as a Bas-

ketball Player,

cHI. baSketball acad. (Apr. 17, 2023), https://www.cbaworldacademy.

com/blog/life-after-the-game-navigating-retirement-as-a-basketball-player [https://

perma.cc/EP55-A6WB] (explaining short average playing career in NBA and pro-

viding statistic that sixty percent of NBA players are unprepared for retirement after

leaving league).

106. See NBA-NBPA CBA, supra note 67, at Ex. A (including termination provi-

sion in NBA contract stating teams may terminate contracts if player shall, “at any

time, fail, in the sole opinion of the Team’s management, to exhibit sufficient skill

or competitive ability to quality to continue as a member of the Team”).

107. See id. at Art. II, § 3 (describing “Allowable Amendments” section of NBA

CBA).

108. See id. at Art. II, § 4 (explaining compensation protection for mental

disability).

109. See Deubert et al., supra note 87, at 186 (explaining compensation guaran-

tee for players who experience mental disabilities).

462 Jeffrey S. Moorad SPortS law Journal [Vol. 31: p. 445

disability protection in a contract raises potential issues.

110

Players

and their agents may not want to raise such an issue at the onset of

a new relationship between a player and a team for fear of causing

the team concern that the player suffers from a mental disability in

the first place.

111

Additionally, prospective teams may unfairly judge

a player who suffers from a mental disability and choose to sign on

someone else.

112

These contractual frameworks may inadvertently create an

environment where athletes find it challenging to cultivate last-

ing relationships with team clinicians or make effective use of the

resources provided, given the persistent apprehension of being

traded or abruptly cut from their teams hanging over their heads.

113

The pervasive uncertainty surrounding their contractual status can

hinder their ability to seek and receive crucial mental health assis-

tance.

114

This, in turn, underscores the critical need for reform

in contract structures and mental health support systems within

professional sports to ensure the well-being of athletes remains

paramount.

115

Third, the persistent stereotyping of male professional athletes,

perpetuated by fans and our greater society, contribute to an impen-

etrable stigma surrounding these athletes and mental health.

116

Even if these mental health resources exist, teams and leagues

110. For further discussion of the issues presented by negotiating a mental dis-

ability guarantee, see infra notes 111–112 and accompanying text.

111. See Weston, supra note 2, at 6 (explaining stigma surrounding mental

health in elite athletes, suggesting “[t]he ‘no-pain, no-gain’ and ‘win at all costs’

messages, more often than not, deter athletes from addressing potential debilitating

mental health concerns”).

112. See Stigma Deterring Elite Athletes with Mental Health Issues from Seeking

Help, bMJ (May 16, 2019), https://www.bmj.com/company/newsroom/stigma-

deterring-elite-athletes-with-mental-health-issues-from-seeking-help [https://

perma.cc/7MFQ-G6H9] (“Athletes fear, possibly rightly so, that disclosing mental

health symptoms or disorders would reduce their chances of maintaining or signing

a professional team contract or an advertising campaign.”). There is a common

belief in professional athletes that mental illness is a sign of weakness, and disclosing

such illness would cause coaches, peers, or fans to perceive them as such. See id.

(describing expectation of toughness in professional athletes).

113. See Sarah A. McGraw, Lauren Taylor, Christopher R. Deubert, Holly Fer-

nandez Lynch, Alixandra Nozzolillo & I. Glenn Cohen, Life on an Emotional Roller

Coaster: NFL Players and Their Family Members’ Perspectives on Player Mental Health, 12 J.

clInIcal SPort PSycH. 404, 418 (2018) (explaining players’ fear of negative impacts

that seeking mental health support could have on their career if team management

found out about it).

114. See id. at 418–19 (attributing players’ fear of negative impact on career to

confidentiality concerns between mental health clinicians and players).

115. For further discussion of potential changes in professional athletes’ con-

tracts, see infra notes 121–144 and accompanying text.

116. See Clay, supra note 82, at 22 (describing persistent stigma around mental

health in male athletes).

2024] wInnIng InSIde out 463

cannot guarantee that their athletes will effectively use or engage

with them.

117

Although mental health education and awareness is

improving, the relentless stigma and inadequate education prevent

athletes from acknowledging their issues and seeking help.

118

In a

current culture where contracts may be terminated essentially at the

will of any team who believes a player is not up to its performance

standards, it is understandable why NBA and NFL athletes may want

to try and push through the pain in an effort to keep their jobs and

avoid being perceived as weak for other prospective teams they may

play on.

119

A. Perhaps an Amendment to NFL and NBA Contracts

is the Answer

So, if offering mental health resources is not enough for these

athletes, then what is?

120

There has already been talk between the

NBA and the NBPA around treating mental health concerns like an

ailment similar to physical injury.

121

These measures would allow ath-

letes to report mental health issues on an injury report, the same as

any other physical injury, and would treat their mental health with

the same gravity as any other injury.

122

This is reassuring that the

117. See McGraw et al., supra note 113, at 420 (emphasizing fact that players may

not seek help due to their inability to recognize or identify their issues).

118. See Weston, supra note 2, at 5 (discussing existing mental health stigma

in athletes); see also William D. Parham, Invisible Tattoos, aeon (Jan. 29, 2020),

https://aeon.co/essays/if-trauma-can-propel-athletes-healing-can-make-them-soar

[https://perma.cc/7H8U-WV2W] (“[A]thletes can resist professional help due to

beliefs that, if effective, therapy might blunt their ‘edge’ and thus compromise their

drive and determination. This fear, fueled by their quest to remain in the game as

long as they possibly can, might cause them to conclude that fighting through the

grind and emotional walls of challenge remains the best option.”).

119. See NFL-NFLPA CBA, supra note 53, at App. A, (“If at any time, in the sole

judgment of Club, Player’s skill or performance has been unsatisfactory as com-

pared with that of other players competing for positions on Club’s roster, or if Player

has engaged in personal conduct reasonably judged by Club to adversely affect or

reflect on Club, then Club may terminate this contract.”); see also NBA-NBPA CBA,

supra note 67, at Ex. A (describing low threshold for NBA contract termination).

120. For further discussion of potential benefits of mental health clauses, see

infra notes 132–135 and accompanying text.

121. See Shams Charania, Shams: Where NBA CBA Talks Stand, Plus New Issues

on Players Association Agenda,

atHletIc (Sept. 19, 2022), https://theathletic.

com/3607549/2022/09/19/shams-nba-cba-negotiations/ [https://perma.cc/

4NDF-JCJ4] (summarizing talks about treating mental health concerns like physical

injuries).

122. See id. (explaining these measures would be “an unprecedented and pro-

gressive change for American pro sports”).

464 Jeffrey S. Moorad SPortS law Journal [Vol. 31: p. 445

leagues are thinking about considering mental health as a legitimate

injury, however, athletes still need more.

123

In 2022, the National Women’s Soccer League (“NWSL”) and the

National Women’s Soccer League Players Association (“NWSLPA”)

agreed on the league’s first-ever collective bargaining agreement.

124

Among other benefits, the CBA provides the players with a mental

health leave provision.

125

The new mental health leave is an unprec-

edented benefit in sports that provides players with six-months of

paid leave for mental health recovery.

126

NWSL players have enthu-

siastically spoken out about how they feel as though they finally are

protected and cared about as human beings first, then athletes.

127

Additionally, NWSL players feel empowered to seek mental health

help without worry so they can get better faster and play longer.

128

The provision is now included in all NWSL player contracts

under the “Mental Health, Physical Condition, Medical Examina-

tions, and Injuries” section of the CBA.

129

Specifically, the mental

health leave provision is in a subsection labeled “Mental Fitness to

Play” which follows the “Physical Fitness to Play” provision in this

123. See Shams Charania, Ben Simmons Feels 76ers Want to Force Him to

Play; Team Responds: Exclusive,

atHletIc (Nov. 11, 2021), https://theathletic.

com/4075358/2021/11/12/ben-simmons-feels-76ers-want-to-force-him-to-play-

team-responds-exclusive/ [https://perma.cc/Y75B-T5SG] (describing NBA’s hope-

ful attitude towards treating mental health like physical health).

124. See National Women’s Soccer League and NWSL Players Association Agree on

Transformative, First-Ever CBA to Run Through 2026 Season, nwSl (Jan. 31, 2022),

https://www.nwslsoccer.com/news/national-womens-soccer-league-and-nwsl-

players-association-agree-on-transformative-first-ever-cba-to-run-through-2026-season

[https://perma.cc/5KGJ-Y43T] (describing finalization of NWSL’s inaugural CBA).

125. See id. (reporting new competitive health and wellness benefits as well as

pregnancy, parental, and mental health leave for players).

126. See id. (highlighting unprecedented nature of CBA and outlining men-

tal health leave provision); see also Ashley Mitchell, Cari Roccaro’s Role in Securing

Historic NWSL Mental Health Leave,

ParIty (May 19, 2022, 6:54 PM), https://impact.

paritynow.co/cari-roccaros-role-in-securing-historic-nwsl-mental-health-protections

[https://perma.cc/EY4C-URFP] (describing how mental health leave is now in

NWSL athletes’ contracts and guarantees players their salary and benefits).

127. See Mitchell, supra note 126 (“It’s nice to know that you’re being acknowl-

edged as a human being, too. You’re not just an athlete, especially those big-timers

that make all this big money.”); see also Molly Geary, NWSL’s 10-Year Growth Through

the Eyes of Its Lifers,

SPortS IlluStrated (Apr. 28, 2022), https://www.si.com/soccer/

2022/04/28/nwsl-lifers-10-seasons-league-growth [https://perma.cc/RCF7-XTWY]

(explaining mental health leave focuses on greater picture of player welfare beyond

physical health).

128. See Mitchell, supra note 126 (describing how before CBA, players in NWSL

would push through their mental health struggles for fear of losing salary and even-

tually burn out).

129. See 2022 NWSLPA-NWSL Collective Bargaining Agreement, Art. 2

(Apr. 29, 2022), available at https://www.nwslplayers.com/_files/ugd/84dade_f54a9ed

0c1fa4bd48f5275563a3f9e04.pdf [https://perma.cc/V8AN-7NKW] [hereinafter

NWSLPA-NWSL CBA] (stating CBA is binding on NWSL, NWSL teams, NWSLPA,

and all players).

2024] wInnIng InSIde out 465

section.

130

There are notable positive effects a provision like this will

have for these athletes.

131

As alluded to above, this provision gives

these players ample mental health support and financial security.

132

Unlike NFL or NBA contracts where termination with little to no

pay is a major risk when players are not performing at their best,

these athletes continue to receive their salary during this leave of

absence.

133

On the flip side, there are also potential drawbacks to

implementing a provision like this.

134

For instance, allowing mental

health leave in addition to the existing injury leave could disrupt

the cohesion and chemistry of a team.

135

Athletes play a crucial role

in team dynamics, and their absence, especially if prolonged, could

impact the overall performance and success of the team.

136

Addi-

tionally, as discussed earlier in this Comment, athletes are public

figures and their absence due to mental health reasons may draw

public attention.

137

This may not be too big of an issue for players in

the NWSL, as the league is smaller and individual players are not as

130. See id. at Art. 11, § 11.8 (including “Mental Fitness to Play” subsection

following “Physical Fitness to Play” subsection). The Mental Fitness to Play sub-

section mirrors the Physical Fitness to Play section, with the difference being that

instead of the Team Physician evaluating and making a physical health recommen-

dation for a player, it is a licensed psychologist/psychiatrist evaluating and making

a mental health recommendation for the player to take leave. See id. (“If a licensed

psychologist/psychiatrist who is treating the Player provides the Player with a rec-

ommendation to take a leave of absence due to a mental health diagnosis, NWSL

shall continue to pay the Player the compensation set forth in the Player’s [Standard

Player Agreement] for the term of the [Standard Player Agreement], or for up to

six (6) months, whichever is shorter, less any workers’ compensation or short-term

or long-term disability benefits, if any, awarded to the Player solely for lost wages.”).

131. For further discussion of the positive effects of a mental health leave pro-

vision, see infra notes 132–135 and accompanying text.

132. See NWSLPA-NWSL CBA, supra note 129, at Art. 11, § 11.8 (describing

available six-month paid leave for players experiencing mental health issues).

133. See id. (“NWSL shall continue to pay the Player the compensation set forth

in the Player’s [Standard Player Agreement] for the term of the [Standard Player

Agreement], or for up to six (6) months, whichever is shorter, less any workers’

compensation or short-term or long-term disability benefits, if any, awarded to the

Player solely for lost wages.”).

134. For further discussion of the potential drawbacks of a mental health leave

provision, see infra notes 135–139 and accompanying text.

135. See Matt Verderame, Joe Burrow’s Absence from Bengals Training Camp is

Keenly Felt,

SPortS IlluStrated (Aug. 6, 2023), https://www.si.com/nfl/2023/08/07/

bengals-training-camp-joe-burrow-absence-trevor-siemian-jake-browning [https://

perma.cc/WK8A-55PM] (explaining Joe Burrow’s absence from team due to injury

is causing him to miss “valuable reps where he could be forming chemistry”).

136. See id. (discussing how Bengals’ offense “is in great peril” without star quar-

terback Joe Burrow on field).

137. See Shiv Sudhakar, Is Antonio Brown’s Meltdown a Mental Health Cry for Help?,

fox newS (Jan. 6, 2022, 2:54 PM), https://www.foxnews.com/sports/antonio-

brown-meltdown-mental-health-cry-help [https://perma.cc/JN99-9Z36] (discuss-

ing players being subject to “unrelenting scrutiny” by fans).

466 Jeffrey S. Moorad SPortS law Journal [Vol. 31: p. 445

well-known as those in the NBA and NFL.

138

However, the stardom

and expectations of NFL and NBA players avail them to increased

criticism and public opinion, potentially tarnishing their teams’ and

their own public image.

139

This type of provision mimics that of the Family and Medical

Leave Act (“FMLA”), promulgated by the United States Depart-

ment of Labor.

140

Similar to the NWSL, the FMLA grants covered

employees job-protected leave for mental health conditions that

require either inpatient care or continuing treatment by a health

care provider.

141

Unlike the FMLA, however, the NWSL offers paid

leave while the FMLA’s leave is unpaid.

142

A mental health provision

modeled after the FMLA may be an interesting alternative for NFL

and NBA teams where they would be obligated to allow players a

mental health leave without having to put up any extra money for

their players, but gives the players the job security they undoubtedly

seek.

143

Regardless, the NWSL’s provision is a pioneer of its kind

in the sports world and is a great example of a contractual mental

health provision that larger leagues in the United States, like the

NBA and the NFL, could modify and adopt.

144

138. See Claudia Kogi, NBA vs NFL: Which is the Better Sports League in the USA?,

SPortS brIef (Apr. 12, 2023, 8:12 PM), https://sportsbrief.com/nfl/24130-nba-nfl-

sports-league-usa/ [https://perma.cc/S5PA-LBHT] (describing extraordinary

popularity of NFL and NBA); see also Arif Islam, NWSL Championship Game Pulls in

817k Viewers on CBS,

SPortSPro (Nov. 15, 2023), https://www.sportspromedia.com/

news/nwsl-championship-game-2023-tv-audience-viewership-cbs-gotham-ol-reign/

[https://perma.cc/2KMP-UJFF] (providing NWSL’s viewership statistics from past

two championship games); see also NWSL Plans To Expand to 16 Teams in 2026 -

Commissioner, ESPN (May 9, 2023, 6:24 PM), https://www.espn.com/soccer/

story/_/id/37638699/nwsl-plans-expand-16-teams-2026-commissioner [https://

perma.cc/LGR3-TR3L] (stating NWSL’s plan to expand league from twelve to six-

teen teams by 2026).

139. See Epstein, supra note 26 (reporting Fox News reporter Skip Bayless cri-

tiquing Dak Prescott’s vulnerability for opening up about mental health issues on

national television).

140. See Fact Sheet #280: Mental Health Conditions and the FMLA,

u.S. deP’t lab.

(May 2022), https://www.dol.gov/agencies/whd/fact-sheets/28o-mental-health

[https://perma.cc/49RS-3P2N] [hereinafter Fact Sheet #280] (highlighting Act’s

provision of protected leave to address mental health conditions).

141. See id. (explaining like other serious health conditions covered by Act,

inpatient care or continuing treatment are required for mental health conditions to

be considered as serious health conditions for purposes of FMLA coverage).

142. See NWSLPA-NWSL CBA, supra note 129, at Art. 11, § 11.8 (imposing duty

on NWSL to continue to pay players their compensation during leave of absence for

mental health condition).

143. See Fact Sheet #280, supra note 140 (describing unpaid, but job-protected

nature of leaves taken by employees under FMLA).

144. See NWSL Passes Historic Agreement That Includes Mental Health Leave,

beyond

Port (May 27, 2022), https://www.beyondsport.org/articles/nwsl-passes-historic-

agreement-that-includes-mental-health-leave/ [https://perma.cc/77NX-LDNW]

(describing NWSL’s intent making CBA publicly available for other leagues to use

as “benchmark”).

2024] wInnIng InSIde out 467

B. Potential Benefits of a Mental Health Provision in NFL

and NBA Contracts

Maybe, the gap in mental health support for NFL and NBA

athletes can be filled by a standard, contractual provision, like

that adopted by the NWSL or that offered to employees under the

FMLA.

145

The NFL and NBA should insert a standard mental health

clause in their player contracts that allows players to take leave of

recovery following a mental health crisis or diagnosis before teams

are allowed to trade a player or terminate a player’s contract.

146

Essentially, these teams would be obligated to give their players,

say, six months of leave due to a mental health issue without fac-

ing termination, or else face civil liability for breach of contract.

147

Implementing a contractual protection like this would have several

benefits for both players and teams, such as allowing recovery time

to improve player mental health and allowing players to continue to

play their sport without fear of legal or economic repercussions.

148

1. Fear-Free Recovery

Formally permitting players to step away from their sport to

recover within an allotted time would contribute to the destigmati-

zation of seeking help for these athletes, and would allow them the

chance to actually get better.

149

Ben Simmons’ experience shows

how a formal recovery period would be an extremely helpful tool

for struggling athletes.

150

Ben Simmons was the number one pick

in the 2016 draft and is currently one of the NBA’s top defenders.

151

However, while on the 76ers, he experienced mental health issues

145. For further discussion of the mental health leave provision adopted by the

NWSL and the FMLA, see supra notes 124–144 and accompanying text.

146. See NWSLPA-NWSL CBA, supra note 129, at Art. 11 (establishing obliga-

tion of teams to allow players protected and paid mental health leave if recom-

mended by licensed psychiatrist or psychologist).

147. See Breach of Contract,

cornell l. ScH.: legal Info. InSt. (June 2022),

https://www.law.cornell.edu/wex/breach_of_contract [https://perma.cc/3LJZ-3RD]

(explaining breach of contract claim to be “whenever a party who entered a con-

tract fails to perform their promised obligations”).

148. See Mitchell, supra note 126 (describing benefits of new mental health

leave on NWSL players).

149. See id. (explaining positive effect mental health leave has had on NWSL

players recovery).

150. See Ben Simmons Says Philadelphia 76ers Didn’t Provide Support as He Dealt

with Mental Health, eSPn (Sept. 22, 2022, 12:12 PM), https://www.espn.com/

nba/story/_/id/34643029/ben-simmons-says-philadelphia-76ers-provide-support-

struggled-mental-health [https://perma.cc/ER8Z-RKFX] (describing Sixers’ coach’s

lack of understanding when Simmons explained he was not mentally ready to play).

151. See id. (describing Simmons as top NBA athlete).

468 Jeffrey S. Moorad SPortS law Journal [Vol. 31: p. 445

that inhibited his ability to play at the level he normally plays.

152

Simmons tried to take time away from playing, even expressing to his

coach that he was not mentally ready to participate in a practice.

153

The 76ers responded to Simmons’ refusal to play by explaining they

believed he should “partake in all team activities until there is infor-

mation from [the 76ers’] mental health professional or Simmons

that would preclude him from playing.”

154

As a result, a long and

very public conflict between the 76ers and Simmons ensued.

155

was eventually traded to the Brooklyn Nets, and since then, he has

not performed at the same level as he did before facing challenges

during his time with the 76ers.

156

Simmons sued the Philadelphia

76ers to recover $20 million they withheld from him due to his

refusal to play or participate in team activities.

157

He argued he was

not mentally fit to play and the NBA should treat his mental health

condition like any other physical injury.

158

The parties ended up

settling, with the settlement amount remaining confidential.

159

contractual provision that clearly stated the procedures for taking

time off for mental health reasons would have shown Simmons

respect as a player and a person, saved Simmons and the 76ers from

incurring legal costs, and granted Simmons time to work towards his

recovery more quickly.

160

152. See Esnaashari, supra note 34 (explaining Simmons’ bad play in game

against Atlanta Hawks and reaction of team and coaches).

153. See Ben Simmons Says Philadelphia 76ers Didn’t Provide Support as He Dealt with

Mental Health, supra note 150 (“I actually spoke to Doc before practice. I was like,

‘Doc, I’m not ready. Mentally, I’m not ready. Please just understand that.’”). Sixers

Head Coach Doc Rivers ended up kicking Simmons out of practice for “being a

distraction” after Simmons repeatedly told Rivers he was not ready to play. See id.

(describing Rivers’ frustration with Simmons over his mental health issues).

154. See Charania, supra note 123 (describing team’s belief that mental health

professionals or Simmons should provide information before Simmons is excused

from contractual obligation of playing).

155. See Kaskey-Blomain, supra note 35 (explaining contentious and public

nature of Simmons-76ers feud).

156. See Dhani Joseph, Ben Simmons ‘As Healthy as He Has Ever Been’ With Nets

Return Looming,

n.y. PoSt (July 27, 2023, 5:39 PM), https://nypost.com/2023/07/27/

nets-ben-simmons-as-healthy-as-he-has-ever-been-as-nets-return-looms/ [https://

perma.cc/5A6N-63Q5] (explaining Ben Simmons has not returned to his former

self since being on Brooklyn Nets).

157. See Kurt Helin, Report: 76ers, Simmons Settle Grievance Over Withheld Pay from

Missed Games,

nbc SPortS (Aug. 15, 2022, 4:47 PM), https://www.nbcsports.com/

nba/news/report-76ers-ben-simmons-settle-grievance-over-withheld-pay-from-

missed-games# [https://perma.cc/SQ8Z-TWMM] (reporting premise for Sim-

mons’ lawsuit against former team).

158. See id. (discussing Simmons’ arguments for why 76ers owed him withheld

money).

159. See id. (stating parties chose to keep details of settlement agreement

confidential).

160. See NWSLPA-NWSL CBA, supra note 129, at Art. 11 (describing procedure

of mental health leave in NWSL contracts).

2024] wInnIng InSIde out 469

2. Longevity of Performance

Allowing for athletes to take time to recover would likely increase

player-longevity.

161

This Comment has already discussed multiple

athletes whose careers were ended by mental illness.

162

For example,

Delonte West was originally diagnosed with bipolar disorder in 2008

while playing for the Cavaliers.

163

West retired after just eight sea-

sons with the NBA, and has since struggled with homelessness, drug

addiction, and persisting symptoms of his bipolar disorder.

164

Proper

time and treatment may have opened doors for a longer, successful

career for West.

165

Similarly, Royce White’s NBA career was ended

due to mental health reasons.

166

In 2012, Royce White opened up

about his struggle with anxiety, and asked the NBA to implement

a mental health policy to address his needs.

167

White claimed the

NBA “left him behind,” yet he remains an advocate for the mental

health of NBA players.

168

This Comment has also discussed Antonio

Brown’s struggle with mental health.

169

Antonio Brown is one of

the best wide receivers in NFL history, with 928 receptions, 12,291

receiving yards, 83 touchdowns, and 84.2 yards per game.

170

How-

ever, Antonio Brown ended his own career by walking off the field

during a game while on the Buccaneers.

171

This exit was a product of

161. See Lisa Patterson, Moving Beyond the Stigma: Athletes and Mental Health,

davIdSon J. (May 25, 2023), https://www.davidson.edu/news/2023/05/25/moving-

beyond-stigma-athletes-and-mental-health [https://perma.cc/R9WW-43NF] (dis-

cussing large toll that pressure to constantly perform takes on athletes).

162. For further discussion of careers ending for mental health reasons, see

supra note 40 and accompanying text.

163. See Former NBA Player, supra note 40 (stating West was diagnosed with bipo-

lar disorder in 2008).

164. See id. (describing West’s persistent struggles post-NBA career).

165. See Mitchell, supra note 126 (discussing feelings of players that mental

health leave means they do not need to push themselves to burnout).

166. See Jeremy Layton, Royce White Still Isn’t Buying the NBA’s Mental Health

Crusade,

n.y. PoSt (July 12, 2019, 8:02 PM), https://nypost.com/2019/07/12/royce-

white-still-isnt-buying-the-nbas-mental-health-crusade/ [https://perma.cc/6WHJ-

DU8F] (describing White’s career in NBA while struggling with mental health).

167. See id. (discussing NBA’s refusal to accommodate White’s mental health

issues).

168. See id. (explaining White’s continued mental health advocacy after being

cut by Sixers in 2014 and leaving NBA).

169. See Maadi, supra note 19 (describing Antonio Brown’s struggle with mental

health).

170. See Ian Valentino, Should Antonio Brown Make the NFL Pro Football Hall of

Fame?,

Pro football network (May 26, 2023, 2:37 PM), https://www.profootball-

network.com/should-antonio-brown-make-nfl-pro-football-hall-of-fame/# [https://

web.archive.org/web/20240508155237/https://www.profootballnetwork.com/

should-antonio-brown-make-nfl-pro-football-hall-of-fame/] (stating Brown’s playing

statistics make him Hall of Fame worthy).

171. See Maadi, supra note 19 (explaining Brown’s exit during Buccaneers

game).

470 Jeffrey S. Moorad SPortS law Journal [Vol. 31: p. 445

years of mental health issues Brown experienced, with no help other

than being kicked-off teams or traded, and now one of the NFL’s

best players may never play again.

172

Brown has recently announced

that he will be returning to the NFL to play on the Baltimore Ravens

via Twitter.

173

However, the Ravens have not addressed his tweet,

and it is uncertain whether any team will sign Brown again.

174

These

star-athletes’ careers were cut short due to their mental illness, and

a contractual protection giving them a chance to heal would have

allowed them to continue playing their sport.

175

Iv. concluSIon

As we navigate an era where the physical and emotional

well-being of athletes is increasingly recognized as paramount, it is

important that the sports industry adapts accordingly.

176

By incorpo-

rating a dedicated mental health provision in player contracts, teams

and leagues would demonstrate a genuine commitment to the holis-

tic welfare of their players, acknowledging that mental health is as

integral to performance and success as physical prowess.

177

This pro-

vision would not only empower athletes to seek and receive essential

mental health support, but also foster a culture of understanding,

empathy, and resilience within the sporting community.

178

Further-

more, it represents a progressive step towards dismantling stigmas

surrounding mental health, setting a powerful precedent for athletes

172. For further discussion of Antonio Brown’s experience with mental health

and being traded frequently, see supra notes 19–25 and accompanying text.

173. See Timm Hamm, Sad or Funny? LOOK: Antonio Brown ‘Excited to Return To

NFL’ ... With Ravens?,

fannatIon (Apr. 28, 2023, 1:46 PM), https://www.si.com/nfl/

ravens/news/baltimore-ravens-antonio-brown-signs-rumor-tweet-joins-nfl [https://

perma.cc/2C7C-RPZN] (citing Brown’s tweet stating he was “[e]xcited to return to

the NFL this year #RavensFlock”).

174. See id. (explaining lack of validity to Brown’s tweet and small likelihood of

Brown’s future in NFL).

175. See Patterson, supra note 161 (quoting team clinician of Kansas City Chiefs,

Shaun Tyrance, who stated “if our players don’t produce on the field they are at risk

of losing their jobs. . . Twenty-five percent of NFL players only play for one year.

Our players are under so much pressure to perform that it can be hard for them

to focus on anything other than football.”). Allowing players to take mental health

leave when they are feeling the effects of this pressure could help them recover and

continue playing their sport. See Mitchell, supra note 126 (describing ability to take

mental health leave means less burnout for athletes).

176. See Geary, supra note 127 (discussing NWSL’s ten-year evolution leading to

valuable contractual protections for its players).

177. See Mitchell, supra note 126 (evidencing NWSL as professional sports

league that has committed to players’ mental health).

178. See id. (explaining NWSL players do not fear seeking help due to new

mental health protections).

2024] wInnIng InSIde out 471

at all levels.

179

Including mental health protections in professional

sports league contracts will require major changes in the way leagues

structure their compensation packages and terminate existing con-

tracts.

180

These protections could allow leagues and teams to avoid

legal fallouts such as Ben Simmons’ feud with the 76ers, as well as

Antonio Brown’s hot potato-ing to various teams.

181

As major professional sports leagues such as the NFL and NBA

stand at the threshold of this transformative change, they have the

opportunity to redefine the narrative of professional sports, champi-

oning the well-being of athletes and inspiring a new era of inclusivity,

strength, and triumph.

182

This change could be the catalyst society

needs to finally rid mental health of the stigma it bears.

183

The time

to embrace this evolution is now, for the benefit of athletes, teams,

leagues, and the sports industry as a whole.

184

Hannah Posencheg*

179. See id. (describing NWSL’s intention of making CBA publicly accessible to

inspire other leagues in future mental health protection considerations).

180. For further discussion of current compensation and termination struc-

tures in NFL and NBA contracts, see supra notes 97–112 and accompanying text.

181. For further discussion of Ben Simmons and Antonio Brown’s experiences

with their mental health and teams, see supra notes 19–25, 34–40 and accompanying

text.

182. See NWSL Passes Historic Agreement That Includes Mental Health Leave, supra

note 144 (noting NWSL made CBA publicly available for other leagues to use as

benchmark for future mental health protections).

183. For further discussion of mental health stigma, see supra notes 116–119

and accompanying text.

184. For further discussion of increasing numbers of athletes speaking out

about mental health, see supra notes 5–10 and accompanying text.

* J.D. Candidate, May 2025, Villanova University Charles Widger School of Law;

B.A., Political Science, May 2021, Dickinson College. This Comment is dedicated

to my support system who constantly encouraged and reassured me throughout the

absolute craziness of this journey. Hayden, you are my biggest cheerleader, and I

am so lucky to have you as my best friend and twin sister. Your comforting phone

calls got me through some of the toughest moments. Sean, thank you for being my

grounding presence always. Words cannot express how grateful I am for your con-

stant love, understanding, and belief in me. And finally, Mom and Dad, I am who I

am and do what I do because of you. I love you both endlessly.