Odell Thurman plays linebacker for the Cincinnati Bengals. That is, he used to. He’s currently under a one year suspension for violating the NFL’s substance abuse policy: his first violation resulted in a four game suspension; that was followed by a full year off after he was arrested for DUI (blood alcohol at 0.18). He has filed suit with the EEOC claiming that the NFL has discriminated against him, based upon a disability.
Thurman claims that the league’s actions prove that he is either an alcoholic or the league perceives him to be one – either way, he might be protected by the ADA. However, Thurman has some formidable obstacles to overcome to win his case. As a professional football player, he operates under the rules of the NFL and its collective bargaining agreement. If you read the league’s substance abuse policy (over 20 pages long), you will see oh-so-carefully crafted wording governing drug and alcohol testing, first strike sanctions, second strike sanctions, complete with rules for determining how much of the signing bonus has to be returned after violations. The league appears to have followed its own procedures to the letter in suspending Thurman.
Under the ADA, active drinking is not protected. The ADA’s own guidance for employers states:
While people with alcoholism may be individuals with disabilities, the ADA still allows employers to hold them to the same performance and conduct standards as all other employees, including rules prohibiting drinking on the job.
The NFL’s collective bargaining agreement gives the commissioner considerable leeway in determining punishment. Thurman’s case is presumably based on the fact that he is no longer drinking. He has probably completed some kind of treatment program, and thus might possibly qualify under the ADA definition of an individual with a disability: assuming, of course, that he is an alcoholic or the league believes him to be one (this is not at all clear) and assuming he is now under the ADA’s protection. That’s a lot of assuming. Somehow, it’s hard to imagine a 235 pound man who can bench-press over 400 pounds and who can shed the block of a 300 pound behemoth, and who presumably shows up sober for practice and for game day is, well, an individual with a disability, who cannnot perform “one or more major life activities” such as standing, breathing, walking, etc.
Even if Thurman can meet the ADA definition, he is still a long way from strapping on the pads. He would have to prove that the collective bargaining agreement itself discriminates against “disabled ” NFLers who are able to play (an oxymoron if there ever was one!). Many employers simply terminate individuals who violate substance abuse policies; such terminations do not violate the ADA, even if the individual is an alcoholic. Thurman certainly violated “company” policy, twice. He was suspended according to the league’s rules. He now claims his suspension must end because he has “recovered.” I don’t think so. His suspension is simply policy, bargained by his union and enforced equally on all players, whether technically “disabled” or not. The EEOC is unlikely to invalidate the players’s agreement (unless, of course, the judge is a Cincinnati Bengals fan).
I’m not without sympathy for Thurman. His mom died in an auto accident in 1993. His dad died in 2003 of liver and kidney failure (substance abuse involved?). He grew up in rural Georgia in his paternal grandmother’s household with 17 other people. He has had a tough life, which in turn has made him a very tough man. He is surely disadvantaged, but that does not mean he is disabled.