Armando Salguero: NFL Would Love To Institute COVID Vaccine Mandate For Players

The NFL on Thursday proudly announced that "almost 93 percent" of its players have voluntarily been vaccinated and 99 percent of staff have been vaccinated.

"That is a remarkable number," Dr. Allen Sills, the league's chief medical officer said. "I think it is something that gives me the confidence to say that our NFL facilities are the safest places in their community."

But the NFL wants more. It wants to eliminate the seven percent of players who have not been vaccinated by instituting a vaccine mandate across the league.

This according to Larry Ferazani, the league's deputy general counsel of labor, who negotiated the current COVID-19 protocols with the NFL Players Association.

"We’ve been discussing with the Players Association mandatory vaccination from the start," Ferazani said. "In fact, as you’ll recall, we took the lead and required staff and coaches to be vaccinated in order to have access to our players.

"And so beginning at that point, we began banging the drum for what their experts also concede is the single greatest way that we can protect players and staff, which is get to 100 percent vaccination level. So that was our request from then.

"We still would love to see that mandate go into effect tomorrow. There’s players that have done that voluntarily and have been educated. We’re at 93 percent. We still can improve the final seven percent. We’d love to see that.”

The NFLPA has not agreed to a mandate, which is the primary reason the seven percent of players who have not wished to be vaccinated have been able to continue holding jobs on NFL rosters.

And, so far, even coaches who have advocated vaccines have promised to value those unvaccinated players when roster decisions are made in the coming days.

Buffalo Bills coach Sean McDermott, who is vaccinated, said Thursday vaccine status will not be a factor in deciding which players stay or go when one of the AFC's best teams makes its roster decisions. That sentiment was echoed moments later by Miami Dolphins coach Brian Flores.

"That's what's best for the team," Flores said.

If, however, the NFL's desire to impose a vaccine mandate were ever to find traction with the players' union, it would almost certainly face legal action from attorneys representing the league's approximately 154 unvaccinated players.

"First off, it's important to understand that federal law prevents the mandate of the vaccinations that are not yet approved by the FDA," said constitutional attorney KrisAnne Hall, who is chief counsel for Liberty First Legal.

"There's only one vaccination that's approved by the FDA. So to mandate vaccinations would be to say we can only legally mandate the Pfizer vaccination.

"So unless you can get the Pfizer, the other two cannot be legally mandated because the other two are still classified as emergency use authorized drugs, which cannot by federal law be mandated."

The applicable law Hall cites is 21 USC sec 360-bbb-3 Authorization for medical products for use in emergencies subsection (e)(1)(A)(ii) Condition of Authorization. That states that “individuals to whom the product is administered must be informed of the option to accept or refuse administration of the product…”

No mandate of the Moderna or Johnson & Johnson's Janssen vaccines can be instituted under that law because they are still categorized as emergency authorization use drugs.

It should be noted that when the NFL first approached the NFLPA about a possible vaccine mandate, all the vaccines were still emergency use authorization drugs, meaning none of the three drugs could be mandated under federal law.

"The union will not allow a mandate so far, which is really what should happen," Hall said. "It should be a matter of choice."

It's fair to expect at least one and probably both of the remaining emergency authorization use vaccines will get FDA approval. But even then, Hall believes players would have significant grounds to stiff-arm an NFL vaccine mandate.

The attorney said that under Title VII of the Civil Rights Act of 1964, it is unlawful to force (mandate) a person to take a vaccination when that vaccination is contrary to his or her religious beliefs.

Title VII, in fact, prohibits two categories of discrimination.

It is unlawful “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin."

It is also unlawful "to limit, segregate, or classify employees or applicants for employment in
any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.”

"That, in my humble opinion as a constitutional attorney, is the most important aspect against mandates," Hall said. "Because it would be religious discrimination."

It should be noted that some religions regard abortion as the murder of an unborn baby. And fetal cell lines – cells grown in a laboratory from cells harvested from aborted babies in the 1970s and '80s – were used in testing during research and development of the mRNA vaccines, and during production of the Janssen vaccine. 

Other religions prohibit the consumption or interaction with certain animals, while others hold certain animals up to be worshipped. Pfizer spokesmen have said no animal products are in their drug but all drugs are subject to animal trials.

"Firmly held or religious beliefs is the standard," Hall said. "Some try to make the argument that if you've taken a vaccination in the past, you can't make a religious argument now. That's entirely false.

"As a matter of fact, the courts often support the understanding that people's religious beliefs can grow and change. Their education and understanding can grow and change. And so past vaccinations do not negate a present or future conviction against them."

One more thing: If an employer can prove offering a religious exemption presents an undue hardship, meaning it's too difficult to accommodate an individual, then the religious exemption could be denied.

However, the NFL would have a problem making this case, Hall believes, because by pattern and practice, the entire 2020 season showed reasonable accommodations and alternatives to vaccinations do exist.

"The fact you have self-screening, temperature checks, wearing masks, social distancing and complying with other safety protocols, which they did all last year, proves that these alternatives are reasonable accommodations and are not an undo hardship," Hall said.

"The fact the union has negotiated that the players don't have to have a vaccine and the NFL is currently allowing players who are unvaccinated to play also negates a claim of undo hardship."

Twitter: @ArmandoSalguero