The NBA Needs to Stay out of Its Players’ Mental Health Records
If the NBA really wants to provide their players with support, they’ll let them seek it confidentially.
Mental health became a hot topic around the NBA this season, as players like DeMar DeRozan, Kevin Love, and Kelly Oubre Jr. came forward and spoke openly about their struggles with it. In response, the NBA and NBAPA announced that they’d be taking steps to address concerns about the kind of support players receive, which included the introduction of a “mental wellness program.” This new program would (among other things) allow players to seek treatment and counseling outside of the support provided by their individual teams.
While the league was applauded for this initial response, the enthusiasm was short-lived, as last week it was reported that some NBA owners have been lobbying to get the mental health histories of players included in their medical records. These owners argue they have the right to know everything about a player before making a multi-million dollar investment in them. The players (and the union) responded as expected, arguing that a release of this information would be a violation of privacy, and would deter players from coming forward and seeking help.
Which party is in the right here, the players or owners, and why?
Al Neal, Grandstand Central Staff Writer
In this case, the players and union are in the right, no question.
Privacy and confidentiality are crucial when addressing mental health issues, given the stigma that continues to exist — it’s unfortunate that players are suffering in silence; fearing public embarrassment.
For over a year, the league and players association (NBPA) negotiated and created the NBPA Mental Health and Wellness program to serve as a resource for players dealing with any issues or challenges. If the league had any issues regarding disclosure of players’ mental health issues, it should have been raised during negotiations.
The NBA, during those discussions, agreed the program would be managed and developed solely by the players association. So why the change of tune? That’s the question I would ask if I was in place as their union rep.
Owners need to remember those “investments” are human beings, with a right to seek treatment without being subjected to “oversight,” which could lead to forms of employment discrimination that would not fall under any Title VII protections against discrimination based on race, color, religion, sex and national origin.
Unions in any industry have a moral obligation and responsibility to address all issues affecting the workplace. In this case, the ability to support and remedy such a widespread issue as mental health would be best handled by the union, not the owners — who only cares about players’ dollar worth.
Ken Duckworth, Medical Director at National Alliance on Mental Illness (NAMI)
Although we are gratified that a number of NBA players have recently bravely come forward to talk about their mental health and the current or past impact of these mental health issues on their lives, the fact is that revealing one’s mental health history still carries significant risks for people, and particularly for athletes. As revealed in the recent ESPN series on mental health, teams like the Boston Celtics and others are taking steps to create more supportive environments for athletes struggling with depression, anxiety, obsessive-compulsive disorder and other mental health conditions. However, this is not true across the board for all teams and revealing one’s past mental health treatment may still have adverse consequences for athletes, including not being drafted, being cut or being socially ostracized.
At the same time, we recognize the importance of teams having a full picture of their athletes health — both physical and mental health — so they can provide supportive environments for these athletes.
We believe that it would be premature to require prospective or current athletes to report past mental health treatment to teams at this time. Mental health conditions vary in severity and duration and frequently do not impact negatively on athletic performance, in the workplace, socially or otherwise. Additionally, it is very important to create supportive environments to encourage people to seek help when they need it. Establishing hard and fast rules requiring reporting of current or past mental health treatment may not be the best way to achieve these supportive environments.
We believe a better approach would be to continue current educational efforts about mental health and mental health care and to encourage athletes to step forward about their need for mental health care without fear of negative repercussions. The fact that this process is underway is gratifying and indicative of progress, but we have a long way to go to achieve a level playing field in the way we view mental health care as a society. Negative stereotypes, stigma and prejudice towards people with mental health conditions are still very pervasive in our society. Until these barriers are overcome, mandated mental health reporting will not have the positive impact intended. Rather, it will encourage more athletes to go underground and resist seeking help when they most need it.
Dr. Rajpal Brar, Grandstand Central Staff Writer
This one is really tough because each side has valid arguments, on the surface.
As an owner (and therefore your GM, staff, etc.) you want as much information as possible in order to make an informed decision on these huge investments. Fair point.
As a player and the players’ union, this information can be held against you, especially by individuals who may not understand how it does or doesn’t influence the player’s prospects. Fair point.
Currently, my opinion leans strongly towards the players’ and union’s viewpoint. Yes, mental health is being talked about more in the open, and the stigma is changing, but that stigma still exists.
Until NBA owners and personnel evaluators truly understand mental health issues and what indicators actually matter, it’s natural they will be held against the player more than in their favor. That’s a natural reaction towards something you don’t understand — fear of the unknown.
Additionally, mental health issues are still a hot topic amongst players themselves, let alone owners. Sports culture — at its base— hasn’t ever embraced mental health issues as holding the same weight as more tangible issues. Yes, that’s changing but the mentality still exists in locker rooms across the league.
For example, when Coach Brett Brown of the 76ers mentioned Markelle Fultz was dealing with psychosomatic issues, Markelle did not deal with it well and tweeted about being betrayed.
In reality, there’s nothing wrong with having psychosomatic issues. In fact, every single part of our existence lives in our head, but the instant reaction with Markelle was not positive (Coach Brown had to apologize and say that he used the wrong words), and many fans I talked to were saying “OMG, Markelle’s crazy.”
I do believe the time and place will come where mental health issues can be shared with teams and owners without it resulting in significant bias. The tides are currently changing but that time and place isn’t now.
Dr. Carla Edwards, MD — Sport Psychiatrist, Synergy Sport + Mental Health
Personal health information is protected by legislation in many nations globally. For the most part, an individual has a right to access their personal health information, and must provide specific, informed consent for this information to be shared with other individuals. In high level athletics, athletes either sign a waiver allowing the medical and training staff to inform the organization (collegiate, national, professional) of physical ailments, injuries, and health status; or have a clause in their collective bargaining agreements to that extent. I have had an established practice in Sport Psychiatry since 2012 and have always made it clear to both athletes and organizations that consent to share information regarding mental health and illness cannot (and should not) be implied within other consents.
Although society has made strides within the last decade regarding acknowledgement of mental illness and reduction of stigma, mental illness remains highly stigmatized in society and within the sport world. Numerous high-level athletes have shared their personal stories about mental illness, but still more hide in the shadows and are reluctant to seek help when they need it. Some of this reluctance is rooted in stigma, as well as fear that they will be viewed as “weak” and penalized from a performance opportunity perspective. In addition, cases of locker room bullying, harassment and intimidation have been widely publicized.
I work with athletes and organizations at the collegiate, elite, national team, Olympic and professional levels. Sometimes the athletes connect directly with me for support, while other times it is the national sport organization or team that seek my assistance with the athletes. Regardless of level of competition, it is understood that any information that will be shared with the team (coaches/administrators) or organization will be highly discretionary and pertinent for purposes of suitability to train and compete. Treating mental illness in athletes should optimally be done in coordination with the athlete’s interdisciplinary support team to ensure that the health of the whole athlete is comprehensively addressed. This can be done without the athlete’s full history of mental health and illness being disclosed to the organization or coaching staff.
It is important to recognize what information is pertinent to be shared with the organization or coaching staff. Diagnoses, medications, safety concerns and precautionary issues should absolutely be shared with the athlete’s medical team in order for the athlete to receive safe, comprehensive and timely medical care. Some diagnoses (i.e. bipolar disorder) may require consideration for travel and sleep schedules in order to prevent relapse. It is important for organizations and coaching staff to know the athlete is able to manage travel, competition and high levels of stress. When mental illness jeopardizes the athlete’s ability to manage those elements safely, that information is deemed pertinent to be communicated to the organization and coaching staff.
The concept of safety is extremely important and requires further discussion. Having a mental illness diagnosis (current or past) does not deem someone unsafe, unsuitable to work or somehow devalue their performance. In 2018, depression prevalence in American adults over the age of 20 was reported at 8.1 percent (NCHS, 2018), and the lifetime prevalence for American adults having any anxiety disorder at some time in their lives was reported at 31.1 percent (NCS-R). Research has suggested that mental illness occurs at the same rate in athletes as it does in the general population. This does not mean that everyone who experiences mental illness at some point in their lives cannot function or manage stress (although many who have moderate to severe disease experience functional impairment and disability). Even individuals who have experienced severe episodes of illness can achieve full remission and functional recovery. Very often athletes who are in the midst of an illness episode can still find a way to perform in their sport.
In addition to legislation for protection of personal health information, workers in the United States are also protected by the Equal Employment Opportunity Commission. In this case, individuals are protected from discrimination from their employer if they are believed to have a mental impairment that is not “transitory” (lasting or expected to be six months or less) and minor (even if they do not have such an impairment).
When professional sport teams want to be informed about history of mental illness in their athletes, we have to ask why. With application of medical ethics under current consent laws, pertinent information could (and should) be shared by the treating medical team, as necessary. It is unnecessary for the organization to have complete disclosure of the individual’s mental health history. Professional athletes should be protected by the same laws that protect the rest of the working public. Certain professions should require more complete disclosure of mental health history (including those who drive or pilot commercial or passenger vessels); however, this is unnecessary for professional athletes. In sport, athletes would be at significant risk for discrimination based on history of mental illness, as this could translate into lower draft value, less favorable contracts, reduced performance opportunities or even being released from teams.
The NBPA should be commended for protecting the rights and privacy of their players. Instead of pushing to get full disclosure of mental health histories from their athletes, sport organizations should be ensuring that they have appropriate staffing on the medical team to address mental illness and health in their players. Some would argue that mental health is at least as important, if not more important, than physical health, however, very few organizations have a sport psychiatrist available for their athletes.
The fact, that mental illness in athletes is being discussed is a very positive thing. Let’s steer the conversation to enhance support for the individuals who need it and continue to create environments in which they can seek help and achieve wellness. Collection of health information can be done ethically for medical purposes, but should not be attached to an athlete’s worth, potential or opportunities.
Paul E. Starkman, Labor & Employment Practice Group, CLARK HILL PLC
The NBA says it needs the records to protect teams’ investments in high-priced plays, but, significantly, almost no other employers request mental health records for their highly-paid employees, such as CEOs and other key executives. This is because such a request faces labor relations hurdles, raises privacy issues and implicates federal laws protecting health records and prohibiting disability discrimination.
Initially, the NBA must bargain with the Players’ Association before it could obtain players’ mental health records. The players’ union has already rejected the NBA’s request. It is questionable whether the NBA could unilaterally impose such an intrusive condition of employment, even after bargaining to impasse with the union.
Even if it overcomes this labor law hurdle, the league would have to comply with the extensive medical record protections imposed by the Health Insurance Portability and Accountability Act (HIPAA). Moreover, any employment decision not to draft a player or to release him based on information of an actual or perceived disability found in the player’s mental health records might violate the Americans with Disabilities Act’s prohibition against disability discrimination.
Last, but not least, mental health records will not help NBA teams better predict player performance on and off the field. NBA teams already extensively interview and psychologically test players, but these batteries of tests show little correlation to which players become stars or busts, model citizens or repeat offenders. It is doubtful that additional mental health records will provide any better predictability. If mental health records provided a crystal ball into future job performance, every employer would be clamoring for them, and they are not.
