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The Anxious Athlete: Mental Health and Sports’

Duty and Advantage to Protect

Maureen A. Weston*

Table of Contents

I. Introduction ....................................... 3

II. Anxiety, Depression, and Mental Health Concerns

in Society and Sport ................................. 8

A. Defining Mental Health ............................. 9

B. Athlete Mental Health Concerns and Prevalence ......... 11

1. Youth Sports ................................. 12

2. U.S. College Athletes ......................... 12

3. Elite Athletes................................. 14

C. Sport-Related Factors Impacting Athlete Mental Health ... 15

1. Physical Risks and Concussions’ Impact on Mental

Health ....................................... 16

2. Trauma, Sexual Abuse and Misconduct in Sport . 18

3. “Hard Coaching” or Verbal Abuse and Bullying. 20

4. Substance Abuse and Addiction ................ 22

5. Sports Addiction .............................. 23

6. Sports Gambling & Esports .................... 23

7. Sex, Sexual Orientation, and Gender

Discrimination in Sport ....................... 25

8. Societal Factors ............................... 26

9. Media, Public Pressure and Over-Exposure ...... 27

* Maureen A. Weston is a Professor of Law and Director of the Entertainment,

Media & Sports Law Program at Pepperdine Caruso School of Law. The author

thanks Professor Kris Knaplund for comments on an earlier draft of this paper and

gratefully acknowledges Pepperdine Law student research assistants Nicole Geiser,

Angelica Varona, and Ryan Whittier. This project is dedicated to the loving

memory of my son, Cedric Halloran.

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2 Harvard Journal of Sports & Entertainment Law / Vol. 13

D. Sport Culture Impact on Athlete Mental Health ......... 28

1. Athletes Opening Up ......................... 28

a. Kevin Love ............................... 29

b. Michael Phelps ........................... 30

c. Even LeBron, and More ................... 30

2. Overcoming Stigma ........................... 32

III. Legal Considerations Regarding Athlete Mental

Health ............................................. 33

A. Federal Disability Law ............................. 34

1. U.S. Sport Organizations Are “Covered Entities”

Under the ADA .............................. 35

2. When Do Mental Health Conditions Constitute a

“Disability”? ................................. 35

3. Reasonable Accommodation or Fundamental

Program Alteration? .......................... 36

a. Royce White and the NBA ................ 37

b. Naomi Osaka and Press Conferences ........ 38

4. Duties to Disclose and Request

Accommodations .............................. 39

B. Athlete Privacy and Confidentiality ................... 41

C. Contractual Implications ............................. 45

D. Duties of Care ..................................... 47

IV. Sport Programs on Athlete Mental Health ........ 47

A. College – NCAA ................................... 47

B. U.S. Major Professional League Sports ................. 50

1. National Basketball Association ................ 50

2. National Football League ...................... 51

3. Major League Baseball ......................... 52

4. National Hockey League ....................... 54

C. International and Olympic Sports ...................... 55

D. Athlete Partnerships with Mindfulness Apps ............ 57

V. The Need for Sport to Respond: What More Can

Sport Do? ........................................... 59

A. A Culture of Care .................................. 59

B. Access to Sport Mental Health Experts ................. 60

C. Post-Play Transition Programs ........................ 61

D. Athlete Mental Health Bill of Rights .................. 62

VI. Conclusion – Sport Can Do More .................... 63

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I. Introduction

Sports are undoubtedly a major force in our economy, culture, and soci-

ety. The public intrigue and global audience for sports are seemingly insati-

able.

Unlike other industries, sports have a unique, multi-faceted character

of entertainment, physicality, business, regulation, and public exposure. The

sports industry consists of a vast and varied range of sports, leagues, team

franchise and ownership structures, private and quasi-public regulatory and

governance schemes, federations, committees, councils, and extensive com-

mercial ventures. The multibillion-dollar sport market is fueled by lucrative

deals for broadcast, print, digital, and social media; corporate sponsorships;

marketing; ticketing; merchandise; events; and the many attendant busi-

nesses, agents, and opportunists seeking to associate their brand with sports.

Emerging electronic sports competitions and sports gambling ventures are

compounding the dollars and viewers in the sports market.

While sports

leagues generally provide the forum and infrastructure for competition, the

athletes certainly are the face, key, and heartbeat that power this vast

machine.

Athletes span all levels, from local youth, recreational, inter-scholastic

and amateur play to elite inter-collegiate, professional, Olympic and inter-

national sport competition. Particularly at the elite competition levels, ath-

letes garner significant attention not only because of their athletic ability

and prowess, but also their personalities, distinctive moves, tattoos, tweets,

overall images, influence, and brand marketability

—

and their apparent re-

silience. Few industries have dedicated beat reporters, or a voracious print

and social media following, who track the individual athletes so closely

—

their statistics, personal and professional moves, and moods

—

not only team

Sporting events are the most watched broadcasts, and in the era of binge-

watching and cord-cutting, are one of the few broadcasts people watch live, which

benefits network programming and corporate sponsorship. See Ken Fang, Report

Shows Americans Love to Watch Their Sports Live, Awful Announcing (Apr. 7,

2016), https://awfulannouncing.com/2016/report-shows-americans-love-to-watch-

their-sports-live.html [https://perma.cc/W6BE-HMEG]; see also Tamzin Barroilhet,

Brand Integration and Sports Sponsorship: Benefits and Pitfalls 2 (Spring 2016) (M.A.

Essay, John Carroll University), https://collected.jcu.edu/cgi/viewcon-

tent.cgi?article=1045&context=MAstersessays [https://perma.cc/Q5TK-UUGF];

see also Total Number of Viewers of the Most Watched Television Shows in the United States

in the 2020/2021 Season, Statista, https://www.statista.com/statistics/804812/top-

tv-series-usa-2015/ [https://perma.cc/6JWK-6G34] (last visited Dec. 23, 2021).

See QARA, Sports Industry Insights, Medium (Oct. 17, 2019), https://me-

dium.com/qara/sports-industry-report-3244bd253b8 [https://perma.cc/V6ZH-

8SAH].

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4 Harvard Journal of Sports & Entertainment Law / Vol. 13

scores. Legal aspects of sports have largely focused on athletes’ eligibility,

disciplinary measures, rights to compensation, endorsement and commercial

opportunities, publicity, speech, and physical safety, but focus is rarely on

responsibilities related to athlete mental health.

Recent instances of high-profile athletes speaking out on mental health

has triggered an essential shift in the mental health narrative in sports. Anx-

iety, depression, and mental health are a concern for all of society, but youth

in their late teens and early twenties are at particular risk. Young adults at

this developmental stage are navigating the social, cultural, and biological

challenges of emerging adulthood, along with pressures for identity, status,

and acceptance.

Today’s youth is also subject to the surreal experience of an

ongoing pandemic and barrage of 24/7 online content and social media.

Moreover, elite athletes are under significant pressure and public scrutiny, as

well as demanding training and competition schedules, and are squarely part

of this demographic in which issues of mental illness, depression, and anxi-

ety begin to manifest.

The athletic culture of sport

—

with its expectations that elite athletes

perform, win, be media personalities, influencers, and physical sensations

—

can compound the risk to an athlete’s emotional and mental health. Individ-

uals of all ages revere elite athletes as role models and heroes.

Yet what

Traditional sports law casebooks, for example, cover topics involving contract,

tort, crime, labor, antitrust, gender equity, agent regulation, intellectual property,

and sport governing body regulation. Chapters relating to the application of disabil-

ity law focus on physical access and eligibility rules concerning physical competi-

tion. See generally Ray Yasser et al., Sports Law: Cases and Materials (Carolina

Academic Press 9th ed. 2020).

See Sachiko A. Kuwabara et al., A Qualitative Exploration of Depression in Emerg-

ing Adulthood: Disorder, Development, and Social Context, 29 Gen. Hospital Psychia-

try 317, 318 (2007).

See Jean M. Twenge, Have Smartphones Destroyed a Generation?, The Atlantic

(Sept. 2017), https://www.theatlantic.com/magazine/archive/2017/09/has-the-

smartphone-destroyed-a-generation/534198/ [https://perma.cc/2L2Z-GLH4]

(“[T]he impact of these devices has not been fully appreciated, and goes far beyond

the usual concerns about curtailed attention spans. The arrival of the smartphone

has radically changed every aspect of teenagers’ lives, from the nature of their social

interactions to their mental health.”). Twenge also wrote that “[i]t’s not an exag-

geration to describe iGen [or Generation Z] as being on the brink of the worst

mental health crisis in decades.” Id.; see also Wendell Barnhouse, NCAA Faces Uphill

Battle Getting Mental Health Care to Student-Athletes, Glob. Sport Matters (Aug.

21, 2019), https://globalsportmatters.com/health/2019/08/21/ncaa-faces-uphill-bat-

tle-getting-mental-health-care-to-student-athletes/ [https://perma.cc/GTM8-

RTLY].

See TEDx Talks, Toxicity of Sport Culture on Athletes’ Mental Health — Hillary

Cauthen — TEDxTexasStateUniversity, YouTube (Jan. 23, 2019), https://

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2022 / The Anxious Athlete 5

most do not see is that many of the greatest athletes are dealing, or have

dealt, with some form of mental illness or mental health challenge. A Na-

tional Collegiate Athletic Association (“NCAA”) study found that

“[a]nxiety disorders are the most common mental health issues in the

United States. Data from national surveys show that more than 30 percent

of student-athletes have experienced overwhelming anxiety.”

Mental health

certainly improves sports performance, but elite sports performance is not

evidence of mental health.

Sports participation does provide opportunities

for improved physical and mental health, skill development, socialization,

and personal growth; however, for some athletes, the experience can be

stressful and emotionally debilitating and create or compound mental health

concerns.

The culture and governance of sport has failed to adequately address

athlete mental health. Athletes dealing with depression or anxiety are reluc-

tant to acknowledge, report, or seek help. From a young age, athletes are

taught to strive for perfection. Elite athletes are under unrelenting public

scrutiny. From the pressure not to disappoint adoring parents “cheering” on

the sidelines to having one’s professional career on the line, athletes are re-

luctant to show the slightest appearance of weakness. An athlete who dis-

closes that these pressures detrimentally impact their own mental health

www.youtube.com/watch?v=UZTP3f_6coA.zTP3f_6coA [https://perma.cc/4CSH-

3LXS] [hereinafter Cauthen].

Anxiety Disorders, NCAA Sport Sci. Inst., https://ncaaorg.s3.amazonaws.com/

ssi/mental/SSI_AnxietyDisordersFactSheetpdf.pdf [https://perma.cc/MWF4-Q2N3]

(last visited Oct. 29, 2021). The study advised that “[b]y understanding that anxi-

ety is common and by addressing it, student-athletes can better manage anxiety and

its impact on their health and performance.” Id.

See Kristoffer Henriksen et al., Consensus Statement on Improving the Mental Health

of High Performance Athletes, 18 Int’l J. Sport & Exercise Psych., 553, 556

(2020); 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/C9VL-MKLJ].

See Claudia L. Reardon et al., Mental Health in Elite Athletes: International

Olympic Committee Consensus Statement (2019), 53 Brit. J. Sports Med. 667, 670-77

(2019) (examining the athletic culture and environmental factors that commonly

impact mental health, including sexuality and gender issues, hazing, bullying, sex-

ual misconduct and transition from sport); see also Cindy J. Chang et al., Mental

Health Issues and Psychological Factors in Athletes: Detection, Management, Effect on Per-

formance and Prevention: American Medical Society for Sports Medicine Position Statement

—

Executive Summary, 30 Clin. J. Sport Med. 91, 91 (2020) (“[T]he very nature of

competition can provoke, augment, or expose specific psychological issues in

athletes.”).

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6 Harvard Journal of Sports & Entertainment Law / Vol. 13

fears stigma, skepticism, disappointing others, and career jeopardy.

The

“no-pain, no-gain” and “win at all costs” messages, more often than not,

deter athletes from addressing potential debilitating mental health

concerns.

The perceived stigma and inadequate education regarding mental

health prevent many athletes from acknowledging or seeking help with in-

ternal struggles and issues such as depression and anxiety. Indeed, many

elite athletes quit playing at a young age due to the stress of competition,

burnout, and impact on their mental health.

Few studies track statistics on

athletes who left sports due to a lack of mental health resources at schools,

universities, and the professional level. Much of these internal struggles are

simply neither reported nor disclosed.

While many suffer in silence, some athletes have begun candidly dis-

cussing their own mental health struggles and the consequent impacts on

their careers and lives. Over the past few years, NBA stars and players Kevin

Love, LeBron James, Royce White and Keyon Dooling, NFL player Brandon

Brooks, Olympians Michael Phelps, Liz Cambage, Simone Biles and Justin

Gatlin, NCAA athletes, and numerous others have begun speaking out, ad-

vocating for awareness of, treatment for, and attention to athlete mental

health. Tennis star Naomi Osaka refused to submit to post-match press con-

ferences at the 2021 French Open tournament, citing mental health and her

anxiety in having to field the barrage of intense media questions.

In re-

sponse, the Grand Slam tournament organizers cited her breach of contrac-

tual obligations to speak to the media and threatened penalties, including

See Parham, supra note 8.

See id. (“Athletes can resist professional help due to beliefs that, if effective,

therapy might blunt their ‘edge’ and thus compromise their drive and determina-

tion. This fear, fuelled 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.”).

See Emily Pluhar et al., Team Sport Athletes May Be Less Likely To Suffer Anxiety

or Depression than Individual Sport Athletes, 18 J. Sports Sci. & Med. 490, 490

(2019) (noting a study finding that those who do not participate in or drop out of organ-

ized sports have greater social and emotional difficulties than those who continue to

play); see also Pricilla Tallman, Is Sports Culture Toxic to Athlete Mental Health?,

SpikeDr.com (May 15, 2020), https://spikedr.com/2020/05/15/is-sports-culture-

toxic-to-athlete-mental-health/ [https://perma.cc/NS83-V74K] (noting that approx-

imately 70% of youth athletes stop playing sports by their junior year, citing

burnout, financial considerations, and other reasons).

See Alan Blinder, With Her Candor, Osaka Adds to the Conversation on Mental

Health, N.Y. Times (July 30, 2021), https://www.nytimes.com/2021/06/01/sports/

tennis/mental-health-osaka.html [https://perma.cc/CK98-E53N].

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disqualification.

Some considered it a competitive advantage to allow a

player to avoid media conferences. Osaka agreed to pay the imposed

$15,000 monetary fine, then withdrew from competition and Wimbledon,

saying she did not want to be a distraction for the tournament.

Osaka later

wrote in It’s O.K. Not to Be O.K. that “[p]erhaps we should give athletes the

right to take a mental break from media scrutiny on a rare occasion without

being subject to strict sanctions. . . . I also do not want to have to engage in

a scrutiny of my personal medical history ever again.”

Former NBA player Royce White suffered from severe generalized anx-

iety disorder and panic attacks and requested certain permission to drive

rather than fly to NBA games and to determine his own mental health treat-

ment through the use of an independent physician.

Are these types of ac-

commodations “reasonable” to require of the tournament organizers, teams,

or sport leagues? Is participating in press conferences an essential function of

a professional athlete’s job, such as that requested of Naomi Osaka? Does

mental health constitute a “disability” for purposes of legal rights to non-

discrimination and accommodation? Notwithstanding “legal” rights or ob-

ligations to mental health, what is the right thing to do with respect to

athlete mental health?

These athletes and others have set in motion a global conversation

across sports regarding the responsibilities that leagues, teams, and sport

governing bodies have to address and to accommodate players with mental

See Bryan Robinson, 7 Things Naomi Osaka Taught Us About Mental Health and

Career Success, Forbes (June 4, 2021), https://www.forbes.com/sites/bryanrobinson/

2021/06/04/7-things-naomi-osaka-taught-us-about-mental-health-and-career-suc-

cess/?sh=734579c440c7 [https://perma.cc/4AT9-XSS2].

See Christopher Clarey, A Shocking Exit and Sad Day for Tennis, N.Y. Times

(Sept. 5, 2021), https://www.nytimes.com/2021/05/31/sports/tennis/french-open-

naomi-osaka-quits.html [https://perma.cc/FCP6-WQTU]. In a May 31, 2021 Twit-

ter posting, Osaka revealed that “[t]he truth is that I have suffered long bouts of

depression since the US Open in 2018 and I have had a really hard time coping with

that. Anyone that knows me knows that I’m introverted, and anyone that has seen

me at tournaments will notice that I’m often wearing headphones as that helps dull

my social anxiety.” NaomiOsaka , (@naomiosaka), Twitter (May 31,

2021, 1:47 PM), https://twitter.com/naomiosaka/status/1399422304854188037.

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/W4LD-9VK4] (suggesting sport organizers “allow a small number of

‘sick days’ per year where you are excused from your press commitments without

having to disclose your personal reasons”).

See Michael A. McCann, Do You Believe He Can Fly? Royce White and Reasonable

Accommodations Under the Americans with Disabilities Act for NBA Players with Anxiety

Disorder and Fear of Flying, 41 Pepp. L. Rev. 397, 401, 406 (2014).

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health issues. The emergence of this dialogue compels the inquiry into the

legal, contractual, and ethical obligations of sport governing bodies, as well

as the practical competitive benefits to addressing athlete mental health

concerns.

This paper examines issues concerning athlete mental health, along

with sports’ role, potential complicity, and responsibility.

Part II considers

the scope and accounts of anxiety, depression, and overall mental health con-

cerns among athletes in youth, elite, amateur, and professional sport. Part II

also explores the prospect that competitive sport may foster increased risks

to mental health, noting athlete accounts of mental distress and recognizing

athletes who have come forward to raise awareness of and to destigmatize

mental health needs. Part III examines legal issues raised regarding athlete

mental health, including application of the Americans with Disabilities Act

(“ADA”); duties to report, identify, and accommodate athlete mental

health; confidentiality in reporting and identifying athlete mental health

concerns; impact on contractual obligations; player discipline; and

recruiting.

Part IV surveys initiatives that major leagues and governing organiza-

tions have recently implemented in addressing player mental health and

proposes areas where these programs can be improved. Part V concludes

with the submission that all constituents in the sport network (i.e., gov-

erning bodies, teams, coaches, athletic support personnel, parents, peers,

media, and fans) have an obligation to consider athletes’ full wellness, both

physical and emotional. The time is now for sport leadership and stakehold-

ers to attune to athlete mental health conscientiously and compassionately

and to provide programs and access to resources that help athletes achieve

their highest performance; awareness of athlete mental health is as impor-

tant as, if not more important than, what it truly means to win.

II. Anxiety, Depression, and Mental Health Concerns in Society

and Sport

Mental illness has a rippling effect throughout society. According to

the National Alliance on Mental Illness (“NAMI”), tens of millions of peo-

ple, or one in five adults, experience some form of mental illness each year,

See infra Section II.A. (discussing definition of “mental health” to encompass

the spectrum of mental health conditions); see also Mental Health Conditions, Nat’l

All. on Mental Illness, https://www.nami.org/About-Mental-Illness/Mental-

Health-Conditions [https://perma.cc/V5X9-RR97] (last visited June 26, 2021).

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but only half receive treatment.

With respect to youth, NAMI also reports

that “1 in 6 U.S. youth aged 6-17 experience a mental health disorder each

year,” and “50% of all lifetime mental illness begins by age 14 and 75%

begin by age 24.”

Sadly,“[s]uicide is the 2nd leading cause of death

among people aged 10-34.”

Mental health disorders impact not only the individual, but also family

members, communities, and the world.

According to the World Health

Organization (“WHO”), “[t]he burden of mental disorders continues to

grow with significant impacts on health and major social, human rights and

economic consequences in all countries of the world.”

The economic im-

pact of mental health disorders on the global economy is estimated to cost

“$1 trillion each year in lost productivity.”

A. Defining Mental Health

Mental health is a complex medico-socio-legal topic. The terms

“mental health,” “mental illness,” and “mental disorder” are often used

interchangeably to encompass a range of emotional, psychological, and be-

havioral conditions.

Both mental health conditions and mental illness im-

pact “[a] person’s thinking, feeling, mood or behavior.”

The distinction

between mental health and mental illness can be relevant for specific diag-

See Mental Health by the Numbers, Nat’l All. on Mental Illness, https://

nami.org/mhstats [https://perma.cc/QH34-PDWG] (last visited Oct. 29, 2021).

Id.

Mental Health Conditions, supra note 18.

See The Ripple Effect of Mental Illness, Nat’l All. on Mental Illness, https://

www.nami.org/NAMI/media/NAMI-Media/Infographics/NAMI-Impact-Ripple-Ef-

fect-FINAL.pdf [https://perma.cc/UTY6-4AKU] (last visited Dec. 24, 2021)

(claiming that mental illness can also have serious implications on the community,

including homelessness and incarcerations) (“At least 8.4 million Americans pro-

vide care to an adult with an emotion or mental illness.”).

See Mental Disorders, World Health Org. (Nov. 28, 2019), https://

www.who.int/news-room/fact-sheets/detail/mental-disorders [https://perma.cc/

3X4X-AYYK].

See Mental Health in the Workplace, World Health Org., https://

www.who.int/teams/mental-health-and-substance-use/promotion-prevention/

mental-health-in-the-workplace [https://perma.cc/2WXX-W89P] (last visited Nov.

15, 2021).

See Mental Health by the Numbers, supra note 19; see also Yaron Covo, Gambling

on Disability Rights, 43 Colum. J.L. & Arts 237, 258 (2020) (noting that no

single term can define or accurately encompass all aspects of what constitutes a

psychiatric or “mental disorder” and that the term “psychosocial disability” is a

more progressive term preferred over mental illness or disorder).

Mental Health Conditions, supra note 18.

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10 Harvard Journal of Sports & Entertainment Law / Vol. 13

nosis, treatment protocol, legal protection, and societal acceptance pur-

poses.

“Mental health” is defined as “effective functioning in daily

activities,” and as reflecting a person’s “emotional, psychological, and social

well-being. It affects how we think, feel, and act. It also helps determine

how we handle stress, relate to others, and make healthy choices.”

In com-

parison, “mental illness” refers to diagnosable mental disorders,

such as

anxiety, Attention Deficit Hyperactivity Disorder (“ADHD”), depression,

bipolar disorder, post-traumatic stress disorder (“PTSD”), obsessive-com-

pulsive disorder (“OCD”), psychosis, and schizophrenia.

Studies report va-

ried statistics on the prevalence of mental health disorders.

Mental health

disorders can rarely be traced to a single cause.

Research suggests contrib-

uting factors to mental illness include genetics, environment and lifestyle,

stress, trauma, abuse, chronic medical conditions, alcohol and drug use, and

chemical imbalances in the brain.

Part of the confusion or stigma regarding mental health may be attrib-

uted to conflating the terms “mental health” and “mental illness.” Not

everyone suffers from a diagnosable mental disorder, yet everyone has mental

health needs. NAMI reminds people with mental health conditions:

[n]one of this means that you’re broken or that you, or your family, did

something ‘wrong.’ Mental illness is no one’s fault. And for many people,

recovery

—

including meaningful roles in social life, school and work

—

See infra Section IV.

Ranna Parekh, What is Mental Illness?, Am. Psychiatric Ass’n, https://

www.psychiatry.org/patients-families/what-is-mental-illness [https://perma.cc/

W94U-QNMA] (last visited Dec. 24, 2021); About Mental Health, Ctrs. for Dis-

ease Control & Prevention, https://www.cdc.gov/mentalhealth/learn/index.htm

[https://perma.cc/BEP5-QRX8] (last visited June 26, 2021).

See Parekh, supra note 28. The World Health Organization (“WHO”) defines

mental health as “a state of well-being in which an individual realizes his or her

own potential, can cope with the normal stresses of life, can work productively and

fruitfully, and is able to make a contribution to her or his community.” Mental

Health: Strengthening Our Response, World Health Org. (Mar. 30, 2018), https://

www.who.int/news-room/fact-sheets/detail/mental-health-strengthening-our-re-

sponse [https://perma.cc/W2KT-8R9K]; see also Covo, supra note 25.

Mental Health Conditions, supra note 18.

Covo, supra note 25, at 258 (noting varied results, such as one study reporting

that 18.9 percent of adults (age eighteen or older) in the United States experience

“mental illness” within any one-year period, while other studies report mental ill-

ness among adults ranges from 26.2 percent to 32.4 percent in a given year, and

explaining that “[e]stimates may vary depending on how the relevant study defines

‘mental illness.’”).

Id.

See Mental Health by the Numbers, supra note 25.

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is possible, especially when you start treatment early and play a strong role

in your own recovery process.

As noted by members of the international Think Tank on Athlete Mental

Health, “[a]thletes do not need to have a clinical mental disorder to need

help to manage their mental health.”

As defining mental health is nuanced, data collected on mental health

conditions is similarly complicated. While recognizing the technical dis-

tinction between “mental health conditions” as opposed to “mental ill-

nesses,” NAMI “intentionally use[s] the terms ‘mental health conditions’

and ‘mental illness/es’ interchangeably.”

Like NAMI, many of the sport

surveys, reports, and other pieces of sport-related literature on the topic tend

to use the term “mental health” to broadly encompass a range of mental or

psychosocial disorders. This paper likewise broadly uses the term athlete

“mental health,” unless noted otherwise, for purposes of focusing on the

policy aspects specific to sport.

B. Athlete Mental Health Concerns and Prevalence

While not everyone deals with mental illness, anxiety, depression, or

panic attacks, as with physical health, everyone deals with mental health.

Exact data on the prevalence of athlete mental health conditions can vary

based on the study methodologies and definitions. Athletes for Hope reports

that up to 35% of professional athletes “[s]uffer from a mental health crisis

which may manifest as stress, eating disorders, burnout, or depression and

anxiety.”

The study also reports “startling” statistics that “33% of all

college students experience significant symptoms of depression, anxiety or

Id.

Henriksen, supra note 8, at 55.

Mental Health Conditions, supra note 18; see also Timothy L. Neal et al., Inter-

Association Recommendations in Developing a Plan for Recognition and Referral of Student-

Athletes with Psychological Concerns at the Collegiate Level: A Consensus Statement, Nat’l

Athletic Trainers’ Ass’n, https://www.nata.org/sites/default/files/psychologi-

calreferral.pdf [https://perma.cc/C9QX-3H9V] (last visited Oct. 16, 2021) (using

the term “Psychological Concern” is used instead of “Mental Illness” because only

credentialed mental health care professionals have the legal authority to diagnose a

mental illness).

Robin Kuik & Suzanne Potts, Mental Health and Athletes, Athletes for

Hope, http://www.athletesforhope.org/2019/05/mental-health-and-athletes/ [https:/

/perma.cc/R2FF-A2U2] (last visited Oct. 16, 2021) (“Approximately 46.6 million

people are living with mental illness in the US. That’s 1 in 5 adults who will be

living with a mental health condition at some point in their lives.”).

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other mental health conditions. Among that group, 30% seek help. But of

college athletes with mental health conditions, only 10% do.”

1. Youth Sports

A study of youth recreational sports found that individual sport ath-

letes may be at a higher risk of mental health issues than team sport athletes

are.

Participation in team sports (e.g., basketball, soccer, etc.) seems to be

associated with improved social and psychological outcomes when compared

to individual sports (e.g., golf, tennis, etc.).

An individual sport increases

an athlete’s sense of accountability

—

due to their success completely depend-

ing on their own performance

—

and may lead to stronger experiences of

emotions, both positive and negative, after performance, and, thus, increased

feelings of guilt or shame after losing.

The internalized anxiety and

stronger experiences of emotions may be significant factors in why individ-

ual sport athletes report suffering more from depression and anxiety than

team sport athletes.

There is no one to help carry the weight of expecta-

tions or the burden of a loss. Individual sport athletes also tend to set high

personal goals for themselves when compared to team sport athletes.

The

foregoing relied on studies related to youth sports; however, mental health

concerns persist at higher levels of sport.

2. U.S. College Athletes

An NCAA report found that approximately one in four U.S. college

athletes will suffer from depression

—

the same rate as the general popula-

tion.

The study also reported that 31% of male and 48% of female athletes

Id.

Pluhar, supra note 12 (“[A]mong young athletes, anxiety and depression are

more common in those who play individual sports than those who play team sports);

see also Rochelle M. Eime et al., A Systematic Review of the Psychological and Social

Benefits of Participation in Sport for Children and Adolescents: Informing Development of a

Conceptual Model of Health Through Sport, 10 Int’l J. Behav. Nutrition & Physi-

cal Activity 98 (2013).

See Pluhar, supra note 12, at 495.

See Insa Nixdorf et al., Comparison of Athletes’ Proneness to Depressive Symptoms in

Individual and Team Sports: Research on Psychological Mediators in Junior Elite Athletes, 7

Frontiers in Psychol. 893 (2016).

See Pluhar, supra note 12, at 491.

Id.

See Mental Health Best Practices: Inter-Association Consensus Document: Best Prac-

tices for Understanding and Supporting Student-Athlete Mental Wellness, NCAA Sports

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2022 / The Anxious Athlete 13

reported feeling “overwhelming anxiety” within the last twelve months,

compared to 40% of male and 56% of female non-athletes.

In response to

questions regarding depression, 21% of male and 28% female student-ath-

letes self-reported feeling difficulty to function within the prior twelve

months, compared to 27% of male and 33% of female non-athletes.

The

NCAA study also found that male student-athletes were more likely to en-

gage in aggressive behavior within the last twelve months, with 24% of

male student-athletes reporting being in a physical fight, compared to only

12% of male non-athletes.

The pandemic wrought even more pressure on athlete mental health.

Over 37,000 student-athletes responded to the NCAA’s Student-Athlete

COVID-19 Well-being Survey conducted between April and May 2020.

The report states that the “rates of mental health concerns were 150% to

250% higher than those historically reported by NCAA student-athletes in

the American College Health Association’s National College Health Assess-

ment.”

The impacts of remote learning, canceled sports, isolation, closed

sport facilities, and barriers to athletic training heightened mental distress

among student-athletes.

Although the reported levels of anxiety and de-

pression among collegiate student-athletes are not significantly higher than

those of their non-athlete peers, many college athletes do experience serious

Sci. Inst. (2016) https://ncaaorg.s3.amazonaws.com/ssi/mental/SSI_MentalHealth

BestPractices.pdf [https://perma.cc/UN5F-25JX] (last visited Oct. 16, 2021).

See Simon M. Rice et al., Determinants of Anxiety in Elite Athletes: A Sys-

tematic Review and Meta-Analysis, 53 Brit. J. Sports Med. 722, 726 (2019).

Robert J. Schinke et al., International Society of Sport Psychology Position Stand:

Athletes’ Mental Health, Performance, and Development, Int’l J. Sport & Exercise

Psychol. at 3 (2017).

Id.

Student-Athlete COVID-19 Well-being Survey, NCAA Rsch. (2020), https://

ncaaorg.s3.amazonaws.com/research/other/2020/2020RES_NCAASACOVID-19

SurveyReport.pdf [https://perma.cc/F345-DN2T]; see also Survey Shows Student-Ath-

letes Grappling with Mental Health Issues, NCAA (May 22, 2020), https://

www.ncaa.org/about/resources/media-center/news/survey-shows-student-athletes-

grappling-mental-health-issues [https://perma.cc/4BEA-2RB5].

Michelle Gardner, Suicides in College Sports Put Focus on Mental Health, Ariz.

Republic (May 17, 2021), https://www.azcentral.com/story/sports/college/asu/

2021/05/17/suicides-college-sports-put-focus-mental-health-those-trying-make-dif-

ference/7128392002/ [https://perma.cc/V6XJ-3GRA].

Timothy Neal, Understand Mental Health Impact of Pandemic on Student-Athletes,

Sports Medicine Staff, 18 Coll. Athletics & L. 6, 7 (May 2021); see also JoAnne

Barbieri Bullard, The Impact of COVID-19 on the Well-Being of Division III Student-

Athletes, Sport J. (Oct. 7, 2020), at 3-6.

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14 Harvard Journal of Sports & Entertainment Law / Vol. 13

mental health issues, must navigate the demands of both academic and ath-

letic competition, and yet have been less likely to report these issues.

3. Elite Athletes

The International Olympic Committee (“IOC”) convened a group of

medical experts and IOC leadership to study and address mental health in

elite athletes.

The IOC Consensus Group evaluated various aspects of ath-

lete mental health, publishing their findings and recommendations in the

Mental Health in Elite Athletes: IOC Consensus Statement (2019). The IOC Re-

port notes that studies on athlete mental health have increased, but that

statistics on the prevalence of mental health disorders in sport, and as com-

pared with the general population, are difficult to discern as definitions of

athlete mental health can encompass both self-reported and clinically-diag-

nosed conditions, and studies report varied statistics.

For example, the IOC

study on athlete mental health reports a broad range that 5–35% of elite

athletes (i.e., those competing at professional, Olympic, or collegiate levels)

are affected with mental health disorders.

The study noted anxiety and

depression rates of nearly 45% among male athletes in team sports (cricket,

See Jennifer Moreland et al., College Athletes’ Mental Health Services Utilization:

A Systematic Review of Conceptualizations, Operationalizations, Facilitators, and Barriers,

7 J. Sports & Health Sci. 58, 59-67 (2018); (“NCAA athletes not only face

difficulties surrounding the transition to adulthood and college studies, but the

pressure to remain in peak physical and mental condition to their athletic perform-

ance . . . Both the athlete and the culture surrounding the athlete could facilitate or

hamper an athlete’s use of sport psychology and related mental health services.”); see

also Ann Kearns Devoren & Seunghyun Hwang, Mind, Body and Sport: Depression and

Anxiety Prevalence in Student-Athletes, NCAA, https://www.ncaa.org/sport-science-in-

stitute/mind-body-and-sport-depression-and-anxiety-prevalence-student-athletes

[https://perma.cc/9GDV-VUHB] (last visited Dec. 24, 2021); NCAA, Mind Body &

Sport: Understanding and Supporting Student-Athlete Mental Wellness 38-39 (2014),

https://www.naspa.org/images/uploads/events/Mind_Body_and_Sport.pdf [https://

perma.cc/AA7Z-MGC7]; Jayce Born, National Protection of Student-Athlete Mental

Health: The Case for Federal Regulation over the National Collegiate Athletic Association,

92 Ind. L.J. 1221, 1222 (2017) (noting push for NCAA to implement mental

health programs in addition to concussion protocols after two high-profile athlete

suicide deaths).

Reardon, supra note 9, at 686.

Id. at 668 (noting that most studies on athlete mental health have lacked

reference to general population or to account for cross-cultural differences and that

“[s]tudies vary in whether they describe self-reported specific mental health symp-

toms or physician diagnosed disorders”).

Id.

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football, handball, ice hockey and rugby), with 10-25% of collegiate ath-

letes reporting depression and eating disorders.

The IOC study reports that elite athletes experience generalized anxi-

ety disorders (“GAD”) in a range from 6.0% for clinician-confirmed diag-

noses to 14.6% self-reported.

This range is similar to the general

population, in which 10.6–12% are affected by an anxiety disorder or self-

report anxiety issues.

Individual aesthetic sports like gymnastics, figure

skating, and dance, in which subjective judgment determines success, also

correlate with the highest rates of GAD among elite athletes.

C. Sport-Related Factors Impacting Athlete Mental Health

Sports and exercise can certainly benefit both physical and mental

health.

Yet athletes suffer from mental health issues at the same rate as

non-athletes, suggesting that aspects of the sports experience may influence

the severity of a person’s mental health issues.

Athletes’ mental health

symptoms and disorders can be attributed to both generic and sport-specific

reasons.

The risk of mental health disorders in elite athletes is heightened,

for example, when an athlete suffers a physical injury, decreased perform-

ance, or tends to maladaptive perfectionism.

Certain aspects of sports can

exacerbate mental health risks.

Elite athletes often travel across time zones,

have rigorous training and study schedules, and face sleep disruption and

Id.

Id. at 672.

Rice, supra note 45, at 722.

Karine Schaal et al., Psychological Balance in High Level Athletes: Gender-Based

Differences and Sport-Specific Patterns, 6 PLoS One e19007 (2011), available at https:/

/pubmed.ncbi.nlm.nih.gov/21573222/ [https://perma.cc/5JNB-R3UF].

See Simon Rice et al., The Mental Health of Elite Athletes: A Narrative Systematic

Review, 46 Sports Med. 1333, 1344 (2016) (reporting findings suggested that elite

athletes experience a broadly comparable risk of high-prevalence mental disorders,

such as anxiety and depression, relative to the general population).

Athletes seek treatments at lower rates or after a longer period from onset than

the general population. Since the rates of mental health issues are relatively equal,

lower rates of treatment may show that athletes are dissuaded from seeking early

treatment because of their status as athletes. See Reardon, supra note 9, at 668.

Id.

See Born, supra note 51, at 1223; Rice, supra note 45, at 726 (2019); see also

Marnae Mawdsley, A Losing Mentality: An Analysis of the Duty Owed by Universities to

Provide Their Student-Athletes with Mental Health Services, 31 Marq. Sports L. Rev.

243, 247 (2021) (citing research and asserting that student-athletes have a poten-

tially higher risk of experiencing mental health issues and requiring treatment).

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16 Harvard Journal of Sports & Entertainment Law / Vol. 13

disorders that can impair mental health.

The emphasis on body physicality

in some elite sports poses higher risks for eating disorders and “exercise

addiction.”

The IOC study noted that specific factors in sport associated with elite

athlete depression include: “genetic factors (e.g., family history); environ-

mental factors (e.g., poor quality relationships, lack of social support); in-

jury, competitive failure, retirement from sport; pain, and concussion.”

Mental health symptoms such as depression, anxiety, and higher risk of sui-

cide may also follow sports-related concussions

and impact athletes who

are ending their careers due to injury or retirement as well as athletes whose

time and self-identity are changed. In addition to these conditions, athletes

are vulnerable to eating disorders, anxiety and stress, overtraining, and sleep

disorders.

Aspects of sport that involve physical injuries, verbal abuse, sex-

ual misconduct, racial and gender discrimination, addictive behaviors, and

intense public scrutiny heighten risks for athlete mental health struggles.

1. Physical Risks and Concussions’ Impact on Mental Health

The physical health pressures and risks in sport can translate to a

higher risk of mental health disorders, particularly in sports that commonly

involve blows to the head that result in concussions.

Dr. Bennet Omalu, a

forensic neuropathologist, has been credited with discovering Chronic Trau-

matic Encephalopathy (“CTE”) in the brains of deceased NFL football play-

ers.

CTE is a degenerative disease that is associated with repeated blows to

the head.

Symptoms of CTE include memory loss, confusion, depression,

Reardon, supra note 9, at 669-70.

Other sport-specific risk factors for eating disorders include body shaming and

body image pressures; weight-sensitive sports or aesthetic-judged sports such as

gymnastics; and team weigh-ins. See id. at 674.

Id. at 671.

Id. at 678.

Chang, supra note 9, at 216-20 (examining the athletic culture and environ-

mental factors that commonly impact mental health, including sexuality and gender

issues, hazing, bullying, sexual misconduct and transition from sport).

David Lester, Mind, Body and Sport: Suicidal Tendencies, NCAA, https://

www.ncaa.org/sport-science-institute/mind-body-and-sport-suicidal-tendencies

[https://perma.cc/J6GH-ADN9] (last visited Oct. 16, 2021).

Jenny Vrentas, The NFL’s ‘Concussion’ Problem, Sports Illustrated (Dec. 23,

2015), https://www.si.com/nfl/2015/12/23/nfl-reaction-concussion-movie-will-

smith-bennet-omalu [https://perma.cc/EL73-SLNK].

Joe Ward et al., 110 N.F.L. Brains, N.Y. Times (July 25, 2017), https://

www.nytimes.com/interactive/2017/07/25/sports/football/nfl-cte.html [https://

perma.cc/L96Y-BLES].

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and dementia.

A study in the Journal of the American Medical Association

found that 110 out of 111 brains of deceased football players showed signs

of CTE.

The disease has reportedly been linked to athlete suicide, evi-

denced by the cases of former NFL Hall of Fame linebacker Junior Seau

and NFL player Dave Duerson.

Both Seau and Duerson’s brain examina-

tions showed evidence of CTE.

CTE “[h]as been linked to serious psychiatric symptoms, including

depression, aggression, and suicidal behavior.”

CTE is a serious issue in

the world of sports and highlights the culture of competitive sport in which

the desire and drive to be the best can often blind athletes to serious mental

and physical injuries. As with mental illness, athletes often hide their physi-

cal injuries out of fear that they will be seen as weak, cut from the team,

taken out of the starting rotation, or replaced by a teammate. The director of

Brain Injury Research at UCLA, Dr. David Hovda, stated that “[a]thletes

are like military personnel in that they don’t tell the truth[.] They want to

go back to play, or they want to go back and be with their unit, so they’re

less likely to be straightforward with a physician or trainer or coach.”

For

decades, when athletes sustained a serious blow to the head, they were often

told to “walk it off.” As Gary Plummer, a former NFL linebacker, stated:

Your entire life, that is probably your most revered characteristic as a

player – your toughness, your ability to handle pain, your ability to over-

come adversity. . . . And you take that to a mental level as well. You’ve

got to be mentally tough, you’ve got to overcome. Just block out this pain.

It’s taught from coaches from the time you’re in Pop Warner. I’ve done it

myself as a coach, coaching my kids through high school.

See id.

Jesse Mez et al., Clinicopathological Evaluation of Chronic Trauma Encephalopathy

in Players of American Football, 318 J. Am. Med. Ass’n 360, 360 (2017).

Sam Farmer, Junior Seau Had Brain Disease When He Committed Suicide, L.A.

Times (Jan. 10, 2013), https://www.latimes.com/sports/la-xpm-2013-jan-10-la-sp-

sn-junior-seau-brain-20130110-story.html [https://perma.cc/JTM7-2G5G].

Id.

Daniel Antonius et al., Behavioral Health Symptoms Associated with Chronic Trau-

matic Encephalopathy: A Critical Review of the Literature and Recommendations for Treat-

ment and Research, 26 J. Neuropsychiatry & Clinical Neurosciences 313, 313

(2014); Matthew Hofkens, Concussions, Other Brain Injuries and ‘CTE’: How Are They

Different? And Is There Any Link to Mental Illness, Health Partners, https://

www.healthpartners.com/blog/concussions-other-brain-injuries-and-cte/ [https://

perma.cc/R3XX-M4D6] (last visited Oct. 16, 2021).

Farmer, supra note 74.

Id.

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Similar to mental health disorders, concussions are not always visible,

and an athlete who does not feel like they can express how they are feeling to

their coach or medical staff is often sent back on the field.

By necessity and

in response to litigation and ridicule, sport is attempting to address CTE

risks and enact protocols, including changes to rules of play to enhance

player safety.

2. Trauma, Sexual Abuse and Misconduct in Sport

Survivors of sexual abuse experience lasting mental health trauma.

Athletes who compete at elite levels of sport, particularly in individual

sports that involve extensive travel and close contact with a coach, may be at

high risk of sexual abuse.

The personal and trusting relationship that can

develop between an athlete and coach, athletic personnel, or peer can enable

an abuser to gain the trust of the victim and then use that trust to exploit

them.

The abhorrent problem of sexual abuse in sport has come to the fore-

front with shocking cases of serial abuse of athletes, such as the horrific

crimes committed by former USA Gymnastics team doctor, Larry Nassar.

Nassar was sentenced to up to 175 years in prison after admitting to sexu-

ally assaulting his patients over the course of several decades.

Although

Individuals with repetitive head injuries can function but slowly the brain

injury makes the individual more aggressive, irritable, angry, etc. The symptoms

come on slowly and athletes may not recognize the onset of this chronic brain

injury.

Health and Safety-Related Changes for the 2017 Season, NFL Player Health &

Safety (May 29, 2018), https://www.playsmartplaysafe.com/focus-on-safety/pro-

tecting-players/health-safety-related-changes-2017-season/ [https://perma.cc/S9AZ-

KBTU].

Maureen A. Weston, Tackling Abuse in Sport Through Dispute System Design, 13

St. Thomas L.J. 434, 440 (2017).

See IOC Adopts Consensus Statement on Sexual Harassment and Abuse in Sport (Feb.

8, 2007), Int’l Olympic Comm., https://www.olympic.org/news/ioc-adopts-con-

sensus-statement-on-sexual-harassment-and-abuse-in-sport [https://perma.cc/8Q95-

65A4] (stating that the prevalence of sexual abuse is higher in elite sport).

See Darlene Lancer, How to Know If You’re a Victim of Gaslighting, Psychol.

Today (Jan. 13, 2018), https://www.psychologytoday.com/us/blog/toxic-relation-

ships/201801/how-know-if-youre-victim-gaslighting [https://perma.cc/2355-

F6YR].

Hadley Freeman, How Was Larry Nassar Able to Abuse So Many Gymnasts for So

Long?, The Guardian (Jan. 26, 2018), https://www.theguardian.com/sport/2018/

jan/26/larry-nassar-abuse-gymnasts-scandal-culture [https://perma.cc/2CMR-

YKH6].

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complaints had been lodged against Nassar dating back to 1998, nothing

was done. During Nassar’s trial, an investigation revealed a history of cover-

ing up and downplaying complaints to USA Gymnastics about sexual

abuse.

Unfortunately, gymnastics coaches and personnel were protected at

the expense of their athletes, resulting in numerous survivor victims includ-

ing Simone Biles, Aly Raisman, McKayla Maroney, and many others.

Male athletes have also been preyed upon. Conrad Mainwaring, a for-

mer Olympian and track coach with USA Track & Field, allegedly sexually

abused forty-one men over four decades.

Several athletes came forward

about the abuse and how it changed their lives. David O’Boyle, a former

member of the UCLA track and field team, recalls the impact of the abuse

by his former coach, stating, “I trusted this guy, I thought it was OK, but

what he did to me f

—

-ed me up for the next 10 years.”

Mainwaring used

his status as a former Olympian to convince these athletes that what he was

doing to them was all part of the training.

The desire to make it on a

college team or earn a spot at the Olympics blinded these men to the abuse

they were enduring by the man they trusted to get them there. Following

the abuse by Mainwaring, some of the athletes turned to alcohol and drugs

and even contemplated taking their own lives.

Reports from the USA Gymnastics scandal demonstrate that, for many

years, athletes had little recourse to report and, even then, to be believed.

Even with increased awareness and efforts to educate and facilitate reporting

through the U.S. Center for Safe Sport,

an athlete who places trust in their

Id.

In her 1995 book, Little Girls in Pretty Boxes, Joan Ryan discusses the physical

and psychological demand that is required by gymnasts and how it takes its toll on

the girls and young women. In her statement about the sexual abuse by Nassar she

states, “These girls are groomed from an incredibly young age to deny their own

experience. Your knee hurts? You’re being lazy. You’re hungry? No, you’re fat and

greedy. They are trained to doubt their own feelings, and that’s why this could

happen to over 150 of them.” See Hadley Freeman, How Was Larry Nassar Able to

Abuse so Many Gymnasts for so Long?, The Guardian (Jan. 26, 2018), https://

www.theguardian.com/sport/2018/jan/26/larry-nassar-abuse-gymnasts-scandal-cul-

ture [https://perma.cc/FVZ7-H8GS].

Mike Kessler, 44 Years, 41 Allegations. Now the Past is Catching Up., ESPN

(Aug. 1, 2019), http://www.espn.com/espn/feature/story/_/id/27244072/44-years-

41-allegations-how-caught-former-olympian [https://perma.cc/AD9D-GG47].

Id.

See id.

See Report a Concern, U.S. Ctr. for SafeSport, https://uscenterfor-

safesport.org/report-a-concern/ [https://perma.cc/WG2H-7JSQ] (last visited Oct.

16, 2021).

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abuser may have difficulty, given the grooming and gaslighting in effect,

discerning the abuse and taking the significant step of reporting that indi-

vidual for legal discipline. Perhaps, had these athletes had access to confi-

dential mental health counseling assistance, the abuse could have been

readily identified, named, and stopped.

3. “Hard Coaching” or Verbal Abuse and Bullying

“Hard Coaching” has been described as “coaching with passion and

instilling a great work ethic, integrity and character in the kids through

discipline and hard work. Teaching them to go and dig-in even when they

mentally don’t feel they can.”

This may be a laudable and effective coach-

ing technique, but, in some cases, “hard coaching” can become harassment

and verbal abuse that could mentally and physically harm the athlete.

sports psychologist Dr. Hillary Cauthen asked, “[h]ave you ever really lis-

tened to how coaches speak to their athletes? Sometimes, more often than

not, in any other profession these words would get us fired. I surely would

lose my job over this. Why do we think it’s OK for a coach to yell in a

child’s face or call an adolescent out of their name or shame them in front of

their teammates? I ask you, does this culture really build champions?”

Opening up about mental health issues can be challenging, especially

when the source of stress comes from someone in a position of trust or au-

thority. University students are fighting back against abuse from an athletic

director and coach.

Softball players at the University of Nebraska reported

Abuse is part of destigmatizing the issue. Survivors carry this burden through-

out their lives. Part of the healing process is in the counseling and availability of for

resources for mental health.

What’s the Difference Between Hard Coaching and Abusive Treatment?, BCP Na-

tion (Apr. 7, 2015) https://bigcountypreps.com/whats-the-difference-between-

hard-coaching-and-abusive-treatment [https://perma.cc/AXX4-ZPFA] (quoting

Zephyrhills Christian Head Coach Mike Smith).

See Chase Williams, College Athletes Beginning to Rebel Against Abusive Coaches,

Glob. Sport Matters (Oct. 8, 2019), https://globalsportmatters.com/health/2019/

10/08/college-athletes-beginning-to-rebel-against-abusive-coaches/ [https://

perma.cc/6EUX-AKDP] (quoting Scott Brooks, Director of Research for the Global

Sport Institute, “When you make comments that are personal to someone or a social

group, whether it’s their sexual or racial identity, it crosses the line.”).

See Cauthen, supra note 6.

See Liam Quinn, MU Tennis Players Say Coaches Told Them to Play Through Inju-

ries, Ignore NCAA Rules, Columbia Missourian (Nov. 15, 2020) https://

www.columbiamissourian.com/sports/mizzou_sports/mu-tennis-players-say-

coaches-told-them-to-play-through-injuries-ignore-ncaa-rules/article_a816a1f8-

10c7-11eb-8343-d39be6be3763.html [https://perma.cc/FY6G-CSJ2]; see also Mark

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numerous occasions of verbal abuse by their head coach Rhonda Revelle.

This abuse consisted of fat-shaming, excessive practice times, name-calling,

harassment, and a reckless disregard for injuries.

Michael Grabowski, a former University of Arizona track athlete, sued

the University for alleged bullying and assault by head coach Fred Harvey

and fellow teammates.

100

Grabowski claimed he was subjected to repeated

bullying, such as being the only player not to receive a bed at training camp

and that his complaints were met the responses that Grabowski just didn’t

“know the culture yet”

101

and that “you can’t single out the two top run-

ners on the team[.]”

102

Grabowski claimed that after being forced to run a

race while sick, Coach Harvey dismissed him from the team, stating that

“[t]here’s a certain atmosphere we are trying to establish on this team, and

you do not fit in it.”

103

According to the lawsuit, after Grabowski asked for

a more detailed explanation, Harvey assaulted him by pinning him to a

chair and calling him a “racist and [a] liar.”

104

Grabowski passed out and

Long, Report: Ex-Florida Coach Newbauer Abused Players, Assistants, Ocala Gazette

(Sept. 28, 2021), https://www.ocalagazette.com/report-ex-florida-coach-newbauer-

abused-players-assistants/ [https://perma.cc/X22B-GC6F].

Ben Strauss, Complaints Against Nebraska Softball Coach Show College Athletes’

Limited Options, Wash. Post (Aug. 30, 2019), https://www.washingtonpost.com/

sports/2019/08/30/complaints-against-nebraska-softball-coach-show-college-ath-

letes-limited-options/ [https://perma.cc/U6MK-RGAU].

Id.

100

Andrew Howard, Former University of Arizona Track Athlete Files $3M Suit over

Bullying Allegations, AZ Cent. (Sept. 17, 2019), https://www.azcentral.com/story/

news/local/arizona-education/2019/09/17/university-arizona-track-athlete-michael-

grabowski-sues-bullying-assault-claims/2354782001/ [https://perma.cc/XVD6-

3UAL] (“The lawsuit . . . also lists the Arizona Board of Regents and students and

coaches from the track and field team as defendants. The former athlete makes mul-

tiple claims against the school, including defamation, Title IX violations and

assault.”).

101

Id.

102

See B. Poole, Student-athlete Accuses UA Cross-Country Team of Assault, Defama-

tion, Tucson Sentinel (Sept. 17, 2019), http://www.tucsonsentinel.com/local/re-

port/091719_ua_runner_suit/student-athlete-accuses-ua-cross-country-team-

assault-defamation/ [https://perma.cc/9EWG-7YZZ].

103

Id.

104

Id.

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22 Harvard Journal of Sports & Entertainment Law / Vol. 13

was taken to the hospital.

105

The case remains pending as of November

2021.

106

Words and tone matter. Ostensible “hard” coaching can cross a line

into verbal or emotional abuse where athletes are harmed and discouraged

from reporting or seeking help. Coaches are on the front line to notice and

impact athlete mental health. Both coaches and sports leadership fail ath-

letes when abusive coaching or training tactics are tolerated.

107

4. Substance Abuse and Addiction

Elite athletes engage in intense physical training and competition that

involves wear and tear on the body, exhaustion, focus on physical appear-

ance, dieting, strengthening, and risks to physical and mental health. In

some cases, athletes’ desires to recover from or to treat an injury for fear of

losing one’s career has led them to cheat by using prohibited doping sub-

stances.

108

While sport has instituted anti-doping policies for prohibited

substances, some sporting organizations proudly partner with alcohol or to-

bacco sponsors, and some athletes reach for substances that may be consid-

ered performance enhancing or impairing. The “pain management culture”

of NFL doctors over-prescribing painkillers is at the center of class actions

by NFL players who became addicted to opioids.

109

Former New York

Yankees player CC Sabathia cites the “culture of baseball” as one of the

reasons for his alcoholism, noting the custom of being on the road, playing

games, then having champagne in the locker room, and drinking into the

night.

110

105

The University claimed that its personnel review of the athletic department

found a disparity between the allegations made in the lawsuit and the concerns that

were raised to coaches. The University is contesting any lawsuits based on what it

claims are unsubstantiated allegations.

106

Grabowski v. Ariz. Bd. of Regents, No. 4:19-cv-00460-JAS, 2020 U.S. Dist.

LEXIS 121666 (D. Ariz. July 7, 2020).

107

See Daniel Abroms, Lived Experiences of Psychological Safety: A Phenomenological

Study of Interdisciplinary Work Team for Sport Programs at a NCAA Division I University

(June 24, 2021) (Ed.D. Dissertation in Practice, Creighton University) (reporting

on the impact of leadership in fostering employee and work teams’ psychological

safety to voice ethical concerns and report rule and conduct violations).

108

Claudia L. Reardon & Shane Creado, Drug Abuse in Athletes, 5 Substance

Abuse Rehabilitation 95, 95 (2014).

109

See Dylan McGowan, Pain Mismanagement: The Opioid Problem in the NFL, 31

Fordham Intell. Prop., Media & Ent. L.J. 223, 226 (2020).

110

Jackson Thompson, Baseball’s Alcohol Culture Pushed Former Yankees Pitcher CC

Sabathia to Rock Bottom. Now He Has a Message for Players Dealing with Addiction.,

Insider (June 27, 2021, 12:13 PM), https://www.insider.com/baseballs-alcohol-

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2022 / The Anxious Athlete 23

5. Sports Addiction

Addiction is a symptom of mental health issues. While “addiction” is

usually associated with alcoholism, drug use, or smoking nicotine, an ath-

lete’s extreme regime and quest for perfection could also become detrimental

and diagnosed as exercise or sport addiction. Athletes may ignore injuries

because it means they would have to stop training, which can severely harm

their body as well as cause psychological damage.

111

“Sport becomes so

much an obsession that such people don’t take time to recover from injuries.

Incidence of heart attacks and osteoporosis increase at high levels of exertion,

so sports addicts can put themselves at serious risk of harm.”

112

A psycho-

logical danger of exercise addiction results where athletes continue to push

themselves in order to obtain the “high.”

113

Athletes can become addicted

to reaching that “high,” and when their bodies become tolerant, they exer-

cise even more in search of the same or an even better “high.”

114

When

these athletes are not exercising, “they experience withdrawal effects, de-

pression and anxiety.”

115

6. Sports Gambling & Esports

Sports gambling and esports can also carry significant risks for sport

addiction.

116

Sports gambling has become legal in over thirty states and

D.C

117

since the 2018 Supreme Court decision in Murphy v. NCAA struck

down the Professional and Amateur Sports Protection Act (“PASPA”) that

culture-pushed-cc-sabathia-to-rock-bottom-2021-6 [https://perma.cc/Z6XK-

Y2TB].

111

Nigel Warburton, How People with Sports Addiction Are Like Drug Addicts,

AEON (Aug. 4, 2016), https://aeon.co/ideas/how-people-with-sports-addiction-are-

like-drug-addicts [https://perma.cc/M55N-NS86].

112

Id.

113

Id.

114

Id.

115

Id. This addiction can also put a strain on a person’s social life, such as plac-

ing training before friends and family.

116

Reardon, supra note 9, at 681 (stating that gambling disorder is regarded as a

hidden disorder, and mental health professionals have reported relative lack of

awareness and concern about gambling as a potential problem and elite athletes may

be particularly at risk for gambling disorder, given high risk demographic of young

males, desires for competition, risk taking behaviors, and impulsivity).

117

See Interactive Map: Sports Betting in the U.S., Am. Gaming Ass’n, https://

www.americangaming.org/research/state-gaming-map/ [https://perma.cc/495Z-

GPTV] (last visited Nov. 22, 2021).

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24 Harvard Journal of Sports & Entertainment Law / Vol. 13

had restricted sports betting to Nevada and a few other states.

118

The expan-

sion and ease of legalized sports gambling across the United States portends

an increased risk for gambling addiction.

119

Sport gambling sites such as

FanDuel and DraftKings have rooted themselves into the sports gambling

market and enabled online and mobile betting as well.

120

Athletes are part

of the demographic vulnerable to sports gambling; and even though athletes

are not necessarily gambling on sports, knowing millions of fans/users have

placed financial bets on their game compounds the pressure to perform.

Esports fans have become one of the fastest-growing fan bases in profes-

sional sports.

121

Media rights are one of the main revenue streams for es-

ports, such as landmark media rights deals including Overwatch

122

and

League of Legends,

123

with revenue set to reach $3 billion by 2022. Individ-

ual player earnings are another incentive to join the esports movement. For

example, a player named Ninja, who live-streams his gameplay, has a

monthly income of around $1M.

124

Esports gamers span a variety of profes-

sional, collegiate, and very young players.

Addiction specialists from the National Centre for Mental Health in

Seoul, Korea, have observed that “the top-ranked addiction among young

people is game addiction and 90% of the addicts are male teenagers.”

125

118

See Murphy v. NCAA, 138 S. Ct. 1461, 1467 (2018) (“Congress may not

simply commandee[r] the legislative processes of the States by directly compelling

them to enact and enforce a federal regulatory program”) (internal quotation marks

omitted) (citation omitted).

119

Brett Smiley, Gambling Rehabilitation ‘Legend’ on Sports Betting Expansion: More

People ‘Will End Up Destroying Their Lives’, SportsHandle (Dec. 21, 2018), https://

sportshandle.com/gambling-addiction-arnie-wexler-sports-betting/ [https://

perma.cc/P4D4-E63M] (detailing how, in response to a question about legalizing

sports gambling, Arnie Wexler, former sport gabling addict, stated, “Well, when

you open up the door to Internet gambling like they just did recently in New

Jersey, or when you open up the door to sports betting, you get people that would

never try to do something illegal bet with a bookmaker, and now it’s legal so they

try it. Some of those people are going to get addicted and some of those people are

going to become compulsive gamblers and will end up destroying their lives”).

120

See id.

121

eSports Joins the Big Leagues, Goldman Sachs, https://www.goldmansachs.

com/insights/pages/infographics/e-sports/index.html [https://perma.cc/Q8CN-

CWZK] (last visited Oct. 16, 2021) (stating the audience for esports in 2018 was at

167 million people, and it is set to increase to 276 million by the year 2022).

122

Id. (stating Activision signed a two-year, $90M deal with Twitch to dis-

tribute Overwatch League in North America).

123

Id.

124

Id.

125

Simon Hattenstone, The Rise of e-Sports: Are Addiction and Corruption the Price of

its Success?, The Guardian (June 16, 2017), https://www.theguardian.com/sport/

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They warn that signs of addiction begin to emerge when children enter into

middle school, and “[t]hey lose interest in academic work, friends and fam-

ily; they stop sleeping; they eat poorly or hardly at all.”

126

Both the World

Health Organization (“WHO”)

127

and IOC have noted addiction risks of

esports gamers.

128

7. Sex, Sexual Orientation, and Gender Discrimination in Sport

An American Psychological Association study on the general popula-

tion reports that “[w]omen are more likely to be diagnosed with anxiety or

depression, while men tend toward substance abuse or antisocial disor-

ders[.]”

129

Sport has similar outcomes. Researchers at Drexel University and

Kean University reported that female athletes are “two times more likely to

experience [depression] symptoms than their male peers.”

130

The study

spanned several sports including “baseball/softball, basketball, cheerleading,

crew, field hockey, lacrosse, track and field, soccer and tennis.”

131

Overall,

2017/jun/16/top-addiction-young-people-gaming-esports [https://perma.cc/V2VK-

QHVA].

126

Dr. Lee Tae Kyung recalls a young man who didn’t eat or sleep because he

was constantly playing and ended up dying after finishing his game. Another young

man named Choi recalled his experience with esports and how it “alienated him

from the real world.” He would play for six hours every day and stopped eating

properly, which led him to lose sleep, focus, and even his own identity. Choi said

that “he began to confuse his own identity with characters in the games he played.

He stopped relating to people.” The games made him focus on killing rather than

his family and friends. As Dr. Lee said, many of his patients are children, which

means that if they do not become free from their addiction, they could become

permanently damaged. Id.

127

See Addictive Behaviour, World Health Org., https://www.who.int/health-

topics/addictive-behaviours#tab=tab_1 [https://perma.cc/2UNU-MNZL] (last vis-

ited Oct. 16, 2021) (noting rise of addiction and risk due to excessive video gaming

and gambling).

128

See Reardon, supra note 9, at 681 (questioning also whether professional es-

ports gamers who spend ten or more hours a day are addicted).

129

See Study Finds Sex Differences in Mental Illness, Am. Psychol. Ass’n (2011),

https://www.apa.org/news/press/releases/2011/08/mental-illness [https://perma.cc/

X423-AR92] (finding that women tend to internalize their emotions which can

result in depression, while men tend to externalize their emotions through aggres-

sive, non-compliant behavior).

130

Lauren Ingeno, Depressive Symptoms Prevalent Among Division I College Athletes,

Drexel Now (Jan. 27, 2016), https://drexel.edu/now/archive/2016/January/Depres-

sion-College-Athletes/ [https://perma.cc/H6H4-5YUX].

131

Id.

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28% of the females reported depressive symptoms compared to 18% of

males.

132

At all levels of sport, LGBTQ, trans, and intersex athletes face discrim-

ination or fear disclosing their sexual orientation.

133

In certain sports, ath-

letes are subjected to “gender verification” sex testing, and female athletes

with naturally high levels of testosterone, such as Caster Semenya, have been

disqualified from competition.

134

Still fighting to have this decision over-

turned at the European Human Rights Commission, Semenya spoke of the

toll of this on her mental health and human dignity.

135

In 2021, Carl Nassib

became the first and only active player in the NFL’s history to reveal that he

is gay.

136

8. Societal Factors

The disruption to both training schedules and plans to compete at the

Tokyo 2020 Olympic Games, as well as the financial impacts of the pan-

demic, posed additional mental health pressures for Olympic athletes.

137

The police brutality that caused the murder of George Floyd and Breonna

Taylor and the shooting of Jacob Blake in Summer 2020 ignited a #Black-

LivesMatter movement and had a profound impact on Black athletes in par-

ticular.

138

Both the WNBA and NBA players led a boycott of play, followed

132

Id.

133

See Nikole Tower, LGBTQ Students Risk Mental Health When Joining a Sport,

Glob. Sport Matters (Nov. 27, 2018), https://globalsportmatters.com/youth/2018/

11/27/lgbtq-student-athletes-risk-mental-health-when-joining-a-sport/ [https://

perma.cc/DMY3-MRZD].

134

Nana Adom-Aboagye, Olympics: Namibia’s Sprinters Highlight a Flawed Testos-

terone Testing System, The Conversation (Aug. 6, 2021, 10:17 AM), https://thecon-

versation.com/olympics-namibias-sprinters-highlight-a-flawed-testosterone-testing-

system-165676 [https://perma.cc/T4SS-DCSN].

135

Laine Higgins, Blocked from Her Signature Race, Caster Semenya Won’t Run in

Tokyo, Wall St. J. (July 1, 2021, 1:09 PM), https://www.wsj.com/articles/caster-

semenya-tokyo-olympics-11625159284 [https://perma.cc/3V6K-3X33].

136

Britni de la Cretaz, Carl Nassib, the First Openly Gay Active NFL Player, Could

Be Turning Point for Male Sports, NBC News: Think (June 22, 2021, 2:50 PM),

https://www.nbcnews.com/think/opinion/first-openly-gay-nfl-player-carl-nassib-

could-be-turning-ncna1271896 [https://perma.cc/JR7E-MLEH].

137

Jay Cohen, Olympic Athletes Confront Mental Health Challenges, Associated

Press, (July 12, 2021) https://apnews.com/article/2020-tokyo-olympics-health-

coronavirus-pandemic-olympic-games-mental-health-

48d535fdb093ebbb1c5907a1dc301312 [https://perma.cc/8FZ7-AH6M].

138

See Jemele Hill, Athletes Will Never Be Quiet Again, The Atlantic (May 29,

2021), https://www.theatlantic.com/ideas/archive/2021/05/george-floyd-murder-

athletes-sports-public-life/619043/ [https://perma.cc/ABR4-SGQY].

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by Major League Baseball players. Tennis star Naomi Osaka also refused to

play, saying, “Watching the continued genocide of Black people at the hand

of the police is honestly making me sick to my stomach.“

139

Osaka and

Kyrie Irving spoke out about the death of George Floyd and the emotional

toll it was taking on them, and have since spoke about their mental health

struggles.

140

9. Media, Public Pressure and Over-Exposure

Athlete mental health became front and center in Summer 2021 when

Osaka refused to participate in post-match press conferences, citing the im-

pact of the unrelenting press and media on her mental health. Media por-

trayals building up excitement for the Tokyo Olympics games, postponed to

2021, focused heavily on decorated Olympian medal winner gymnast Si-

mone Biles. Biles is regarded as “quite possibly the greatest athlete of all

time” (“GOAT”), is known for her signature flips and moves, and was a

presumed medal contender for Team USA.

141

Biles felt the weight of being

the media’s face for Team USA and shocked the sporting world when she

withdrew from the competition mid-Games, citing the need to protect her

mental health.

142

As journalist Juliet Macur observed, “When [Biles] an-

nounced that she would withdraw from the competition to spare her mental

and physical well-being, many people embraced her as a brave advocate for

mental health, while others labeled her a quitter.”

143

While social media

139

Jill Martin et al., These Teams and Athletes Refused to Play in Protest of the Jacob

Blake Shooting, CNN (Aug. 27, 2020), https://www.cnn.com/2020/08/27/us/nba-

mlb-wnba-strike-sports/index.html [https://perma.cc/ZE4N-7W62].

140

Amulya Shekhar, “When Kyrie Irving Talks About Mental Health Issues, Our Tone

is Aggressive”: NBA Analyst Points out Difference in Treatment for Eccentric Nets Star,

Sports Rush (Jan. 21, 2021), https://thesportsrush.com/nba-news-when-kyrie-ir-

ving-talks-about-mental-health-issues-our-tone-is-aggressive-nba-analyst-points-

out-difference-in-treatment-for-eccentric-nets-star/ [https://perma.cc/3L87-MMTC]

(referencing a podcast where Tom Ziller talks about our tone changing when we

talk about Kyrie Irving and his mental health issues).

141

Juliet Macur, Simone Biles Dials Up the Difficulty, ‘Because I Can’, N.Y. Times

(May 24, 2021), https://www.nytimes.com/2021/05/24/sports/olympics/simone-

biles-yurchenko-double-pike.html [https://perma.cc/Z3WS-T9GR] (“The

Yurchenko double pike is considered so perilous and challenging that no other wo-

man has attempted it in competition, and it is unlikely that any woman in the

world is even training to give it a try.”).

142

Juliet Macur, As Biles Rests After Tokyo, Gymnastics Glimpses What Could Be,

N.Y. Times (Aug. 7, 2021), https://www.nytimes.com/2021/08/04/sports/olympics/

biles-tokyo-gymnastics-future.html [https://perma.cc/7KZJ-HX65].

143

Id.

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28 Harvard Journal of Sports & Entertainment Law / Vol. 13

affords athletes a platform for voicing their views, social media’s vast public

reach, forum for comments and criticism, and incessant access present their

own risks to mental health.

144

D. Sport Culture Impact on Athlete Mental Health

Sport, by definition, lauds winners. To excel in sport, an athlete must

commit to the demands of both extensive physical exertion and mental dis-

cipline.

145

The “win at all costs” message in sports can foster deleterious

impacts, such as pressures that can lead to not only cheating, doping, toxic

or lost relationships, obsessive behavior, addiction, and self-sabotage, but

also a cost to the mind.

146

The sport culture, intense media exposure, and

expectations even for extraordinary athletes can provoke or exacerbate ath-

lete mental health issues. The stigma often associated with mental illness

may cause many affected people to refuse to seek treatment.

147

Athletes too

are “especially prone to remaining silent about their personal and emotional

struggles.”

148

1. Athletes Opening Up

While many suffer in silence, athletes are increasingly speaking out to

raise awareness, destigmatize, and promote institutional change regarding

mental health in their respective sports.

144

See Christopher Labos, Cell Phones, Teens, and Mental Health, Montreal Gazette

(Oct. 15, 2019), https://montrealgazette.com/opinion/columnists/christo-

pher-labos-cell-phones-teens-and-mental-health [https://perma.cc/

9EN4-FQDM]; see also Kira E. Riehm et al., Associations Between Time Spent Using Social

Media and Internalizing and Externalizing Problems Among US Youth, 76 JAMA Psy-

chiatry 1266, 1266 (2019) (finding social media use a risk factor for

mental health problems in adolescents),

145

See Chang, supra note 9.

146

Id. at 91 (“While participation in athletics has many benefits, the very nature

of competition can provoke, augment or expose psychological issues in athletes.

Certain personality traits can aid in athletic success, yet these same traits can also be

associated with MH disorders. Importantly, the athletic culture may have an impact

on performance and psychological health through its effect on existing personality

traits and MH disorders.”).

147

Id.

148

Parham, supra note 8.

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2022 / The Anxious Athlete 29

a. Kevin Love

Five-time NBA All-Star, Kevin Love, played an important part in the

Cleveland Cavaliers’ 2016 NBA title run led by LeBron James and Kyrie

Irving. In November 2017, only ten games into the 2017-18 NBA season,

Love had an on-court panic attack, causing him to leave the game.

149

began therapy and, in March 2018, authored Everyone is Going Through Some-

thing for The Players’ Tribune, discussing the panic attack and his personal

battle with anxiety.

150

Love was one of the first NBA players to speak openly

about his mental health challenges. In this compelling story, Love relates

that:

I’ve never been comfortable sharing much about myself. . . . [F]or pretty

much 29 years of my life I have been protective about anything and every-

thing in my inner life. I was comfortable talking about basketball

—

but

that came natural. It was much harder to share personal stuff, and looking

back now I know I could have really benefited from having someone to

talk to over the years. But I didn’t share

—

not to my family, not to my

best friends, not in public. Today, I’ve realized I need to change that. I

want to share some of my thoughts about my panic attack and what’s

happened since. If you’re suffering silently like I was, then you know how

it can feel like nobody really gets it. Partly, I want to do it for me, but

mostly, I want to do it because people don’t talk about mental health

enough. And men and boys are probably the farthest behind.

151

Love adds that “[m]ental health is an invisible thing, but it touches all of us

at some point or another.”

152

149

Kevin Love, Everyone Is Going Through Something, Players’ Trib. (Mar. 6,

2018), https://www.theplayerstribune.com/en-us/articles/kevin-love-everyone-is-go-

ing-through-something [https://perma.cc/DLJ6-U2ZQ].

150

Id.

151

Id. (noting that Love chose to tell his story “because people don’t talk about

mental health enough. And men and boys are probably the farthest behind.”).

152

The Kevin Love Fund was established in September 2018 “[t]o inspire people

to live their healthiest lives while providing the tools to achieve physical and emo-

tional well-being.” The trust contributes to foundations and programs promoting

mental wellness for high school and college students and student-athletes. See The

Kevin Love Fund, EIF, https://www.eifoundation.org/partners/the-kevin-love-fund/

[https://perma.cc/NN4V-UQBP] (last visited Oct. 29, 2021).

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b. Michael Phelps

Michael Phelps is the most decorated Olympian of all time, totaling

twenty-eight medals over four Summer Games.

153

At the 2008 Beijing

Summer Games, he won eight gold medals, breaking the record for the most

gold medals at any single Olympic Games.

154

In September 2014, a DUI

arrest led to a six-month suspension from USA Swimming.

155

Phelps later

said, “I can tell you I’ve probably had at least a half dozen depression spells

that I’ve gone through. And the one in 2014, I didn’t want to be alive.”

156

c. Even LeBron, and More

More athletes, including NBA star LeBron James, are sharing their

stories, inspiring and promoting the importance of valuing mental fitness as

well as physical health.

157

Liz Cambage, Australian Olympic bronze medal-

ist and center for the Las Vegas Aces in the Women’s National Basketball

Association (WNBA), suffered a severe post-game anxiety attack in July

2019. She later revealed that she had been on suicide watch in 2016 after

battling severe depression and anxiety.

158

She equated dealing with mental

illness as a current “dragging you out into the ocean.”

159

NFL player Bran-

don Brooks, who was officially diagnosed with an anxiety disorder, missed

153

Rory Jiwani, The Most Decorated Summer Olympians of All Time, Through Time,

Olympic Channel (Nov. 14, 2019), https://www.olympicchannel.com/en/stories/

features/detail/most-decorated-summer-olympians-all-time-phelps/ [https://

perma.cc/XY4V-AGJJ].

154

Paul Newberry, AP Was There: 2008 Beijing Olympics

—

Phelps Wins 8 Golds,

Associated Press (Aug. 16, 2020), https://apnews.com/article/beijing-tokyo-2020-

tokyo-olympics-jason-lezak-olympic-games-ab5fce1bc5ad1dc462772a9d931e00c7

[https://perma.cc/2VKG-MK4F].

155

Joseph Zucker, Michael Phelps Details Struggles with Anxiety and Depression on

Twitter, Bleacher Report (May 26, 2019), https://bleacherreport.com/articles/

2838142-michael-phelps-details-struggles-with-anxiety-and-depression-on-twitter

[https://perma.cc/QX2S-D6BZ].

156

Id.

157

See Tim Daniels, LeBron James Talks Mental Health, Says He Lost ‘Love for the

Game’ in 2011, Bleacher Report (Dec. 10, 2019), https://bleacherreport.com/

articles/2866319-lebron-james-talks-mental-health-says-he-lost-love-for-the-game-

in-2011 [https://perma.cc/NZ36-HMPH].

158

David Mark, Liz Cambage Reveals Full Extent of Mental Health Struggle in Emo-

tional Players’ Tribune Article, ABC News Australian Broadcast (Aug. 12, 2019),

https://www.abc.net.au/news/2019-08-12/liz-cambage-details-mental-health-strug-

gles/11404818 [https://perma.cc/8LGP-SKVZ].

159

Id.

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two games during the 2016 NFL season due to anxiety attacks.

160

In 2019,

he again missed a game due to anxiety attacks and took to Twitter to share

his experience in a brief post. He detailed the nausea and vomiting which

kept him off the field but made a point to note that he was not ashamed or

embarrassed by his struggles with anxiety.

161

Brooks suffered some physical

injuries in 2020 but has been able to continue his over ten-year NFL ca-

reer.

162

Former NBA player Keyon Dooling suppressed for over twenty-five

years that he had been sexually assaulted as a child and consequently suffered

severe paranoia and anxiety throughout his adult life, despite his athletic

success.

163

Keyon credits the Celtics organization, saying that Doc Rivers

arranged for him to receive help from top specialists. Following his recovery,

Keyon became the director of a new NBA Players Association mental health

program.

164

A 2020 HBO documentary “The Weight of Gold” explored athlete

depression and suicide and features Olympians including Phelps, Apollo

Ohno, Jeremy Bloom, and Lolo Jones, as well as the story of Jeret Peterson,

who committed suicide nearly a year after having won the silver medal in

2011.

165

As journalist Amanda Lee Myers notes:

160

Tim McManus, Eagles’ Brandon Brooks Brings Recognition of Battle with Anxiety,

ESPN (Nov. 25, 2019), https://www.espn.com/blog/philadelphia-eagles/post/_/id/

24284/eagles-brandon-brooks-brings-winning-battle-against-anxiety [https://

perma.cc/VHM3-CK4R].

161

Tyler Conway, Eagles’ Brandon Brooks Explains Anxiety Kept Him from Playing

vs. Seahawks, Bleacher Report (Nov. 25, 2019), https://bleacherreport.com/arti-

cles/2864203-eagles-brandon-brooks-explains-anxiety-kept-him-from-playing-vs-

seahawks [https://perma.cc/K332-6HSN].

162

Dave Spadaro, Brandon Brooks: ‘There Isn’t any Doubt in my Mind’, (May 27,

2021), https://www.philadelphiaeagles.com/news/brandon-brooks-there-isnt-any-

doubt-in-my-mind [https://perma.cc/F5BM-LM7J].

163

Keyon Dooling, Running from a Ghost, Players’ Trib. (May 1, 2018), https://

www.theplayerstribune.com/en-us/articles/keyon-dooling-the-ghost [https://

perma.cc/UQ4S-3AB4].

164

See David MacKay, Keyon Dooling Director of New NBPA Mental Health Pro-

gram, Celtics Wire (May 25, 2018, 2:36 PM), https://celticswire.usatoday.com/

2018/05/25/keyon-dooling-mental-health-program-nbpa/ [https://perma.cc/5GUE-

WFJP]; see also Garen Staglin, Mental Health in the Locker Room, Forbes (Dec. 13,

2019, 1:12 PM), https://www.forbes.com/sites/onemind/2019/12/13/mental-health-

in-the-locker-room/#56e348f06d11 [https://perma.cc/4TQF-HE9R] (discussing

NBA Mental Health Program).

165

Amanda Lee Myers, Michael Phelps Opens Up About Mental Health in New Doc,

Detroit News (Aug. 11, 2020, 10:15 AM), https://www.detroitnews.com/story/en-

tertainment/television/2020/08/10/michael-phelps-apolo-ohno-open-suicide-docu-

mentary-hbo/112875854/ [https://perma.cc/7GU5-YLHB].

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The vast majority of Olympians spend most of their childhoods competing

in their given sport. As they progress, competition becomes the main focus

of their lives before family, friends, school or fun. For years they work

toward that goal for what amounts to a competition that lasts minutes or

mere seconds. The difference between winning and losing can be a fraction

of a second, and millions are watching.”

166

These compounding pressures can be the source of mental health struggles

for athletes. While some athletes deal with mental health challenges, ex-

pressly or silently, all have in common a desire to control the narrative, tell

their own story, and raise awareness to destigmatize mental health

challenges.

167

2. Overcoming Stigma

In her TED Talk Toxicity of Sport Culture on Athletes’ Mental Health,

168

Dr. Hillary Cauthen states that “[w]e currently romanticize our athletes, our

Olympians and professional athletes we think are superhuman and superher-

oes. And yes, they do pretty amazing things with their bodies, but we don’t

allow them to be breakable. This environment makes them be stoic and can

be toxic with the bracketed morality.”

169

Victoria Garrick spoke of her struggle to balance the academic rigors as

a student with life as a Division I athlete on the USC Women’s Volleyball

Team.

170

Victoria experienced depression, anxiety, and a binge-eating disor-

der.

171

She described this time, saying that “I had this dark cloud over my

head and it followed me everywhere . . . when I woke up, it was there when

I went to sleep, it was there in practice every day passing balls.”

172

In Gar-

rick’s view, “[t]he culture of athletics preaches, where there’s a will there’s a

way, the best don’t rest, unless you puke, faint or die, keep going. Mental

166

Id. (quoting Phelps saying that “we’re just products. . . [i]t’s frightening. It’s

scary. And it breaks my heart. Because there are so many people who care so much

about our physical well-being, but I never saw caring about our mental well-

being.”).

167

See Tell Your Story, Athletes Against Anxiety & Depression, https://

www.aaadf.org/tell-your-story [https://perma.cc/F5TB-HHGN] (last visited Oct.

16, 2021).

168

See Cauthen, supra note 6.

169

Id.

170

Id.

171

Id.

172

Id.

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illness is associated with weakness. To appear weak is the last thing an ath-

lete wants.”

173

After getting help from an on-campus sports psychologist, Garrick

wanted to tell her story to help others in the same situation. She explained

that it took a long time to accept her mental health issues because of the

stigma society places on mental illness. She quotes Dr. Jeffery Liberman,

who defined stigma as “dishonor” or “disgrace,” and that it is “like the

scarlet A that Hester Prynne is forced to wear or the mark on Cain in the

Bible. It’s this label that outcasts you from everyone else.”

174

She felt the

same concerns associated with mental health.

Many athletes are afraid to talk about mental illness or to admit that

they are dealing with it because they might be labeled as weak. Victoria

woke up every morning with fear and anxiety, constantly worried about

getting through the day.

175

Game days were worse. She stated that during

games “[t]here were times I would feel this knot in my stomach and my

skin start to crawl and my hands start to shake and eyes well with tears

because I was so afraid to play and make a mistake because at an elite level

mistakes are costly.”

176

As Dr. Parham has noted, “[a]thletes are as vulnera-

ble to mental-health challenges as the general public, and their battles with

stigma remain a powerful force stopping them from seeking help and

support.”

177

III. Legal Considerations Regarding Athlete Mental Health

The foregoing discussion identified aspects of sport that pose risks for

athlete mental health, as well as the fact that many athletes, like the general

population, experience mental health struggles and disorders. The following

section explores legal considerations regarding athlete mental health. For

example, do athletes with mental health disorders qualify for protection

under federal law, such as the Americans with Disabilities Act? If so, what

accommodations are reasonable in competitive sport? Do sport governing

bodies and teams have duties to identify, provide access to treatment, and

accommodate athlete mental health issues? What privacy and confidentiality

173

TEDx Talks, Athletes and Mental Health: The Hidden Opponent — Victoria Gar-

rick — TEDxUSC, YouTube (June 2, 2017), https://www.youtube.com/watch

?v=sdk7pLpbIls [https://perma.cc/4DWN-RTEF].

174

Id.

175

Id.

176

Id.

177

Parham, supra note 8.

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34 Harvard Journal of Sports & Entertainment Law / Vol. 13

issues are raised by such reporting and data collection programs? How does

player mental health issues impact contractual obligations and discipline?

A. Federal Disability Law

Federal legislation, through the Rehabilitation Act of 1973, which ap-

plies to federally funded programs (such as universities), and the Americans

with Disabilities Act of 1990 (“ADA”),

178

whose broader coverage reaches

most private employer

179

and private entities constituting places of public

accommodations,

180

prohibits discrimination on the basis of disability. Dis-

crimination is defined to include, inter alia, “the imposition or application

of eligibility criteria that screen out or tend to screen out an individual with

a disability . . . [and] a failure to make reasonable modifications in policies,

practices, or procedures, when such modifications are necessary to afford

such goods, services, facilities, privileges, advantages, or accommodations to

individuals with disabilities.”

181

These laws obligate covered entities to pro-

vide reasonable accommodations that will enable qualified individuals with

disabilities to access and to participate in the program or activity. A goal of

these laws, which apply to virtually all sports teams and organizations, is to

assure the equality of opportunity and full participation for individuals with

disabilities. An exception to this obligation exists if such accommodation

causes undue hardship or requires a fundamental alteration of the program

involved.

182

To invoke the ADA, an individual has to establish that (1) the person

is “disabled” within the meaning of the statute; (2) the person is “otherwise

qualified” to participate in the sports program with or without reasonable

accommodations; (3) the person was discriminated against or excluded “be-

cause of” the person’s disability; and (4) the requested accommodation

178

29 U.S.C. § 794(a) (“No otherwise qualified individual with a disability . . .

shall, solely by reason of his or her disability, be excluded from the participation in,

be denied the benefits of, or be subjected to discrimination under any program or

activity receiving Federal financial assistance.”).

179

42 U.S.C. § 12112(a) (“No covered entity shall discriminate against a quali-

fied individual on the basis of disability in regard to job application procedures, the

hiring, advancement, or discharge of employees, employee compensation, job train-

ing, and other terms, conditions, and privileges of employment.”).

180

42 U.S.C. § 12182.

181

42 U.S.C. § 12182(b) (emphasis added); see also 42 U.S.C. § 12102(1) (defin-

ing disability to mean (a) a physical or mental impairment that substantially limits

one or more of the major life activities of such individual; (b) a record of such

impairment; or (c) regarded as having such an impairment).

182

42 U.S.C. § 12182(b).

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would not fundamentally alter the nature of the program or, as here, the

sport or competition.

183

As a prerequisite, the defendant must be subject to

the law as either a recipient of federal funds (Rehabilitation Act);

184

a “cov-

ered entity” under the ADA, such as a public entity (ADA Title II); a place

of public accommodation (ADA Title III); or an employer of the individual

claimant (ADA Title I) .

185

1. U.S. Sport Organizations Are “Covered Entities” Under the ADA

Professional sports teams which “employ” players are subject to com-

pliance with Title I of the ADA. Educational institutions and other sport

organizations, including the NCAA, are “places of public accommodation”

subject to Title III of the ADA.

186

In PGA Tour, Inc. v. Martin, the Supreme

Court held that the Professional Golf Association (“PGA”), which sponsors

golf tournaments, was a “place of public accommodation” under the

ADA.

187

International sporting organizations and events (such as the French

Open) may be covered by the non-discrimination mandates of their respec-

tive governing body charters and applicable laws.

188

2. When Do Mental Health Conditions Constitute a “Disability”?

Not all mental health situations qualify for statutory protection. The

ADA defines “disability” as: (a) a physical or mental impairment that sub-

stantially limits one or more of the major life activities of the individual.

189

183

See Woolf v. Strada, 949 F.3d 89, 93 (2d Cir. 2020) (identifying elements of

an ADA prima facie case); Martin v. PGA, 532 U.S. 661, 676 (2001).

184

29 U.S.C. § 794(a) (Rehabilitation Act),

185

The ADA is codified under five titles. Title I applies to employment, Title II

applies to public programs and services, and Title III to private entities constituting

places of public accommodation. 42 U.S.C. § 12112, 12132, 12182.

186

See Tatum v. NCAA, 992 F. Supp. 1114, 1121 (E.D. Mo. 1998) (finding that

the NCAA “operates” a place of public accommodations in terms of the entity’s

power to control, manage, or regulate the place and conditions causing the alleged

discrimination); Shultz by & Through Schultz v. Hemet Youth Pony League, 943 F.

Supp. 1222, 1225 (C.D. Cal. 1996) (holding that a youth baseball league and its

organizing body were covered by the ADA and that “Title III’s definition of ‘place

of public accommodation’ is not limited to actual physical structures with definite

physical boundaries”).

187

532 U.S. 661, 666-667 (2001).

188

Article 30 of the U.N. Convention on the Rights of Persons with Disabilities

(CRPD) provides a similar nondiscrimination mandate and right to sport and has

been adopted by over 187 countries.

189

42 U.S.C. § 12102(1) (defining disability).

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“Mental impairment” includes “[a]ny mental or psychological disorder,

such as . . . emotional or mental illness.”

190

The Equal Employment Oppor-

tunity Commission guidance on psychiatric disabilities cites the following

conditions as examples: “major depression, bipolar disorder, anxiety disor-

ders (which include panic disorder, obsessive compulsive disorder, and post-

traumatic stress disorder), schizophrenia, and personality disorders.”

191

The

regulations clarify that “[e]ven if a condition is an impairment, it is not

automatically a ‘disability.’ To rise to the level of a ‘disability,’ an impair-

ment must ‘substantially limit’ one or more major life activities of the indi-

vidual.”

192

This determination considers the severity of the limitation and

the length of time it restricts a major life activity, and “[s]hould be based on

information about how the impairment affects that individual and not on

generalizations about the condition.”

193

Thus, whether a mental impairment

qualifies under the ADA requires an individualized assessment of its severity

and impact on the individual.

194

3. Reasonable Accommodation or Fundamental Program Alteration?

An athlete with a recognized mental impairment is legally entitled to a

reasonable accommodation of program requirements,

195

unless such accom-

modation requires a fundamental alteration of the program.

196

In Martin, the

190

Enforcement Guidance on the ADA and Psychiatric Disabilities, U.S. Equal

Emp. Opportunity Comm’n (Mar. 25, 1997), http://www.eeoc.gov/policy/docs/

psych.html [https://perma.cc/4BRQ-6KXD].

191

Id.

192

Id.

193

Id.

194

See Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your

Legal Rights, U.S. Equal Emp. Opportunity Comm’n (Dec. 12, 2016),

www.eeoc.gov/laws/guidance/depression-ptsd-other-mental-health-conditions-

workplace-your-legal-rights [https://perma.cc/DSG9-CZL9].

195

Enforcement Guidance, supra note 190, at Questions 23, 29 (noting that accom-

modations for individuals with mental impairments may involve changes to work-

place policies, procedures, or practices, time off from work or a modified work

schedule, physical changes to the workplace or equipment, modifications to a work-

place policy, adjustments to supervisory methods, providing a job coach, or job

reassignment.); see also Sharing the Dream: Is the ADA Accommodating All?, U.S.

Comm’n on Civil Rights (Oct. 2000), https://www.usccr.gov/pubs/ada/ch5.htm

[https://perma.cc/S7JY-G55M] (discussing critiques of EEOC Psychiatric Guidance

regulations).

196

42 U.S.C. § 12113(b) (“[T]he term ‘qualification standards’ may include a

requirement that an individual shall not pose a direct threat to the health and safety

of other individuals in the workplace”).

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Supreme Court posited the central issue as “whether allowing the plaintiff,

given his individual circumstances, the requested modification of using a

cart in tournament competition would fundamentally alter PGA . . . golf

competitions.”

197

Golfer Casey Martin, due to a progressive degenerative

circulatory disorder, requested a waiver of the PGA’s “no cart” rule.

198

deciding whether the accommodation must be granted, the Court consid-

ered the two ways Martin’s use of the golf carts might “fundamentally alter

the nature” of the sporting event: either the modification would alter an

essential element of the game or the modification may give the disabled

player an advantage over others.

199

The Court found that using golf carts is

not “inconsistent with the fundamental character of the game of golf,” that

the “essence of the game has been shot-making,” and ultimately that the

walking rule is “not an essential attribute of the game itself.”

200

The ADA

also requires that a disabled individual’s need be evaluated on an individual

basis, and in Martin’s case, the walking rule was in place to subject players

to fatigue, something Martin was already experiencing at a greater level than

his competitors.

201

a. Royce White and the NBA

Former NBA Houston Rockets player Royce White, due to his diag-

nosed generalized anxiety disorder, panic attacks, and obsessive-compulsive

disorder, has a fear of flying.

202

White made a formal request for accommo-

dations, including permission to drive rather than fly to games and to deter-

mine his own mental health treatment through the use of an independent

physician.

203

White asserted that “Rockets management is ‘unqualified’ to

make determinations about his health because they are not mental health

professionals[.]” He sought for the Rockets to implement new mental

health protocols including a mental health professional who would treat him

and decide if he was fit to play. The Rockets claimed that they tried to

accommodate his fear of flying but indicated that White did not show up to

practice. In response, White said, “[s]ome player doesn’t show up for prac-

197

PGA Tour, Inc. v. Martin, 532 U.S. 661, 668, 677 (2001).

198

Id. at 669.

199

Id. at 682.

200

Id. at 683-85.

201

Id. at 690.

202

Ben Golliver, Royce White: I Would Be ‘Risking My Life’ by Playing Without

Health Protocol, Sports Illustrated (Jan. 19, 2013), https://www.si.com/nba/

2013/01/19/rockets-royce-white-mental-health-protocol-hbo [https://perma.cc/

6APV-EWX5].

203

Id.

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38 Harvard Journal of Sports & Entertainment Law / Vol. 13

tice because of his knee, they say he didn’t show up to practice because of his

knee. [In my case,] they just say he didn’t show up for practice [and it

sounds like] it’s your fault.”

204

Does the law provide protection for White? Does his condition consti-

tute a “disability”? Are these accommodations “reasonable” to require of

the NBA?

205

White did not file a formal lawsuit and has since not been able

to find work in the NBA.

206

White spent some time playing in the NBL,

the Canadian professional basketball league.

207

In 2018, White decided to

train for MMA (Mixed Martial Arts).

208

White believes his fear of flying will

not take a toll on his MMA career because MMA is primarily an individual

sport in which he can make travel decisions on his own.

b. Naomi Osaka and Press Conferences

Had a court analyzed Royce White’s request to drive rather than fly to

NBA games, or Naomi Osaka’s request to modify press conference obliga-

tions due to mental health concerns, the central questions to be addressed

would be (a) whether the athlete’s mental health constituted a “disability”;

and (b) whether the requested accommodations to drive rather than fly to

games, or to forgo press conferences, respectively, impacted essential ele-

ments of their professional sporting competitions. Although the French

Open event is not subject to the ADA, similar nondiscrimination rights

under international law can apply. The U.S. Open, like the PGA, would be

considered a “place of public accommodation.”

Osaka has been open about her struggle with depression.

209

To invoke

ADA protection, for example to waive press conference obligations, Osaka’s

204

Id.

205

See McCann, supra note 17 (noting that the Rockets attempted to provide

special travel arrangements for White but, after he refused to show up at practice,

the Rockets suspended him).

206

See McCann, supra note 17; Robert Silverman, How the NBA Finally Learned to

Start Taking Mental Health Seriously, Daily Beast (Mar. 19, 2018, 1:07 AM),

https://www.thedailybeast.com/how-the-nba-finally-learned-to-start-taking-mental-

health-seriously [https://perma.cc/8T5T-RPRY].

207

See Mary Pilon, “I’m F***ing Weird”: How Royce White Became the Most Impor-

tant Basketball Player Alive, Esquire (May 7, 2017), https://www.esquire.com/

sports/a54756/royce-white-im-fucking-weird/ [https://perma.cc/AVB5-2472].

208

Jon Wertheim, Royce White Takes on MMA, Sports Illustrated (Apr. 13,

2020), https://www.si.com/mma/2020/04/13/royce-white-takes-on-mma [https://

perma.cc/3UJA-G2K6].

209

Matthew Futterman, Naomi Osaka Quits the French Open After News Conference

Dispute, N.Y. Times (May 31, 2021), www.nytimes.com/2021/05/31/sports/tennis/

naomi-osaka-quits-french-open-depression.html [https://perma.cc/7HBX-KTG7].

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condition would need to be evaluated on an individual basis. Depression is

recognized as a disability, although the ADA protection does not extend to

generalized mental health issues that do not restrict major life activities.

210

An individual seeking ADA accommodation would need to provide request

or notice of reason, although the program or employer should otherwise

honor confidentiality.

211

Osaka’s Twitter announcement did not constitute

the formal notice and request for ADA accommodations, and she admits she

could have presented her request differently.

Regarding whether allowing Osaka to skip press conferences would

“fundamentally alter” the nature of tennis tournaments, either by altering

the game or giving her an unfair advantage, press conferences can help pro-

mote the sport and event but are hardly essential to the game of tennis. This

is a more obvious case than the walking rule deemed peripheral in Martin.

4. Duties to Disclose and Request Accommodations

Treatments for mental health disorders may involve psychiatric medi-

cation.

212

Athletes are subject to the strict anti-doping restrictions of the

World Anti-Doping Code (“WADC”), which prohibits certain medications.

The decision to take psychiatric medications involves consultation with a

medical doctor and consideration of potential negative impact on athletic

performance, potential therapeutic performance-enhancing effects, ergogenic

effects, and safety risks.

213

Sports’ governing bodies are most concerned with

ergogenic effects and the possible advantages an athlete may gain over their

competitors. For example, stimulants are the only class of psychiatric drugs

classified as prohibited substances because they can enhance performance be-

yond a therapeutic effect.

214

Bupropion, a medication used to treat depres-

sion, is currently on the World Anti-Doping Agency’s monitoring program

because it may allow athletes to improve performance by pushing them-

selves to higher core body temperatures.

215

U.S. Olympian Justin Gatlin sued the U.S. Olympic Committee, the

U.S. Anti-Doping Agency, USA Track & Field, and the International Asso-

ciation of Athletics Federations (“IAAF”), claiming his rights under the

210

Enforcement Guidance, supra note 190, at Question 5; see also supra Sec. III.A.2.

211

Depression, PTSD, supra note 194.

212

Reardon, supra note 9, at 669.

213

Id.

214

Id.

215

Id. at 672.

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ADA were violated.

216

Gatlin argued that he was discriminated against for

taking prescribed medication to treat his Attention Deficit Disorder

(“ADD”), which led to his first two doping violations.

217

His second viola-

tion resulted in suspension that kept him from competing in the 2004 Beij-

ing Olympic Games to defend his gold medal.

218

A federal judge dismissed

Gatlin’s request for injunctive relief to compete in the 2008 Olympics on

jurisdictional grounds, as the case was subject to international arbitration;

the judge wrote that “[n]onetheless, the result of this determination is quite

troubling because Mr. Gatlin is being wronged, and the United States

Courts have no power to right the wrong perpetrated upon one of its citi-

zens.”

219

The Court of Arbitration for Sport rejected Gatlin’s appeal and

argument that his use of medication that resulted in a positive doping test

was protected under the ADA.

220

Should Justin Gatlin have been suspended

for taking prescribed medication? The CAS found that the violation was

clearly unintentional, but it also determined that he should have sought an

exemption for his medication before competing.

221

After serving the suspen-

sion, Gatlin returned to track and field in 2010, competed at the 2012

Olympics, and won a silver medal.

Athletes may request a Therapeutic Use Exemption (“TUE”) which is

“a process that allows athletes to request permission to take a medication

that is on the WADA prohibited list,” as a possible accommodation when

medication may help with mental health.

222

An athlete can apply for a TUE

through their national anti-doping agency or international federation, and

the TUEs are only granted if no unfair advantage is given to the athlete.

223

Although the TUE process is intended to be confidential to protect the ath-

lete’s privacy, in 2016 a hack revealed that Simone Biles and Venus and

Serena Williams, among others, obtained TUEs in order to take prescribed

216

Gatlin Finalizing Lawsuit with Officials, ESPN (Apr. 15, 2009), https://

www.espn.com/olympics/trackandfield/news/story?id=4071037 [https://perma.cc/

88C3-8CKB].

217

Id.

218

Id.

219

Gatlin v. United States Anti-Doping Agency, Inc., No. 3:08-cv-241/LAC/

EMT, 2008 U.S. Dist. LEXIS 112850 (N.D. Fla. June 24, 2008)

220

Justin Gatlin v. United States Anti-Doping Agency, Court of Arbitration for

Sport, 2008/A/1462 at 9 (award of June 6, 2008) (Hober, Arb.).

221

Id.

222

Reardon, supra note 9, at 672.

223

James Masters, When Athletes Can Take Drugs. What Are Therapeutic Use Exemp-

tions?, CNN (Sept. 14, 2016, 11:44 AM), www.cnn.com/2016/09/14/sport/thera-

peutic-use-exemptions-explainer/index.html [https://perma.cc/F9GT-U5M2].

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medication.

224

Biles sought medication to treat her ADHD.

225

Biles was

granted a TUE, but in 2002, Justin Gatlin was not because the IAAF indi-

cated it would not grant “applications for athletes with [ADD] who seek an

exemption on medical grounds to use amphetamines during competi-

tion.”

226

Gatlin, who still tested positive though he had stopped taking the

medication before the competition as required by the IAAF, could have

avoided any suspension had he received a TUE. Was Biles granted an ex-

emption because the culture and conversation surrounding mental health

has changed since Gatlin’s 2002 suspension? Did decisions like PGA v.

Martin emphasize the need for reasonable accommodations in sport?

B. Athlete Privacy and Confidentiality

The obligation to disclose a need for mental health accommodation or

to screen athletes for mental health risks must also be considered in light of

athlete privacy and confidentiality concerns. A prerequisite to sports partici-

pation generally involves physical examinations and disclosure of physical

injuries to the team. In certain sports, player physical injuries are also dis-

closed to the public.

227

Should athlete mental health be treated similarly?

Do teams and potential employers have a right to know an athlete’s mental

health history or condition or to disclose publicly such conditions? Athlete

privacy rights must also be considered with programs that have procedures

to identify and refer at-risk athletes for mental health treatment and other

data collection and tracking systems.

228

Athletes are often required to waive

privacy rights regarding health status by contractual waiver or under a col-

lective bargaining agreement as a condition of playing the sport. What does

224

Rebecca R. Ruiz, Simone Biles and Williams Sisters Latest Target of Russian

Hackers, N.Y. Times (Sept. 14, 2016), https://www.nytimes.com/2016/09/14/

sports/simone-biles-serena-venus-williams-russian-hackers-doping.html [https://

perma.cc/NHU4-6BPH].

225

Id.

226

Zaheer Clarke, Gatlin Is Not a Two-Time Drug Cheat, Jamaica Observer

(Aug. 13, 2017), https://www.jamaicaobserver.com/the-agenda/gatlin-is-not-a-two-

time-drug-cheat_107565 [https://perma.cc/U2W4-B6DJ].

227

Christopher R. Deubert et al., Comparing Health-Related Policies and Practices in

Sports: The NFL and Other Professional Leagues, 8 Harv. J. Sports & Ent. L. (Special

Issue) 1, 18-19 (2017) (noting injury reporting policies in major professional

sports).

228

See infra Section III.A. (discussing NCAA Mental Health Best Practices to

determine student-athlete informed consent to authorize clinician communication

with sports staff and college administration regarding athlete participation in

counseling).

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42 Harvard Journal of Sports & Entertainment Law / Vol. 13

this mean in terms of an athlete’s privacy and confidentiality and willing-

ness to seek treatment?

Team owners may assert their need to know the complete physical and

mental health of their teams’ players in order to protect their financial in-

vestments and team safety.

229

Elite athletes’ medical histories are vital

sources of information when it comes time for recruiting, contract negotia-

tions, free agency, or playing time. For example, coaches and teams are

aware of player’s injuries; in the NFL an offseason injury can cost a player

salary money or even get them cut.

230

Most athletes must submit to prepar-

ticipation physical evaluations to ensure medical eligibility for sports partic-

ipation.

231

Some of these questionnaires include screening for mental health

concerns. Without policies in place for athlete mental health privacy, these

athletes will have more than their physical injuries shared with their em-

ployers, the media, and fans.

Federal laws provide only limited protection for athlete health informa-

tion in the sports context.

232

The Health Insurance Portability and Account-

ability Act of 1996 (“HIPAA”)

233

regulates the privacy, security, and

disclosure of an individual’s “protected health information” (“PHI”), which

includes the “past, present or future physical or mental health or condition

of an individual.”

234

But HIPAA only applies to “covered entities,” such as

healthcare providers, health plans, healthcare clearinghouses, and related

business associates.

235

Thus, healthcare providers and health insurance plans

are precluded from disclosing an athlete’s PHI to employers, such as a sports

229

See Alfi Ahmed, The NBA Needs to Stay Out of Its Players’ Mental Health Records,

Medium (Aug. 27, 2018), https://medium.com/grandstandcentral/the-nba-needs-

to-stay-out-of-its-players-mental-health-records-kevin-love-demar-derozan-

94b9d6736ea0 [https://perma.cc/UUS8-242Q].

230

See Travis Walker, The Price of Health Privacy in Sports, Univ. of Utah: S.J.

Quinney Coll. L., (Nov. 15, 2015), https://law.utah.edu/the-price-of-health-privacy-

in-sports/ [https://perma.cc/6KKH-4LS5].

231

See Chris G. Koutures, How to Screen Athletes for Mental Health Risk While

Protecting Confidentiality

AAP News

(Mar. 19, 2020), https://

www.aappublications.org/news/2020/03/19/focus031920 [https://perma.cc/WQT8-

MMZB] (recommending provider separate medical eligibility form from confiden-

tial medical history information).

232

See James B. Hike, An Athlete’s Right to Privacy Regarding Sport-Related Injuries:

HIPAA and the Creation of the Mysterious Injury, 6 Ind. Health L. Rev. 47, 64

(2009).

233

See Health Insurance Portability and Accountability Act of 1996, 42 U.S.C

§ 201.

234

Id. (requiring Health and Human Services to issue privacy and security

regulations).

235

Id.

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2022 / The Anxious Athlete 43

team, or to the public.

236

Doctors and therapists are also ethically and legally

bound to respect patient confidentiality.

237

Employers and educational institutions are exempt from HIPAA. Pro-

fessional sports organizations generally are not “covered entities” under

HIPAA, and team physicians and trainers employed by the organization fall

under the employer exemption as they are providing care to the athletes

within an employment context.

238

Team trainers can reveal an athlete’s

health information to coaches, managers, and owners without violating

HIPAA, as these are also traditional operations.

239

Teams may be partially

subject to HIPAA when they act as “health care providers” such as if a team

outside-doctor bills, charges, or transmits PHI to an insurance plan.

240

Thus,

when an athlete goes to a medical provider not employed by a sports organi-

zation, HIPAA applies to that medical provider because they are a covered

entity.

241

Intercollegiate athletic programs, as part of educational entities, are

regulated by the Family Education Rights and Privacy Act (“FERPA”),

which protects student educational records.

242

FERPA exemptions to

HIPAA do not apply when a university is participating in non-traditional

236

Neal, supra note 36, at 42 (“The guiding philosophy behind legal and ethical

safeguards for confidentiality is that clients have the right to determine who will

have access to information about them and their treatment. If the client does not

trust that the information they provide to their therapist will be kept private, they

may be reluctant to share relevant information with their treatment provider, thus

negatively impacting the potential treatment success.”).

237

See id.

238

See Donovan Dooley, Do HIPAA Laws Apply to Athletes?, Deadspin (June 28,

2020, 12:44 PM), https://www.deadspin.com/do-hipaa-laws-apply-to-athletes-

1844195531 [https://perma.cc/J53F-DQQN].

239

Hike, supra note 232, at 54.

240

Barbara Osborne & Jennie L. Cunningham, Legal and Ethical Implications of

Athletes’ Biometric Data Collection in Professional Sports, 28 Marq. Sports L. Rev. 37,

52-53 (2017) (concluding that federal regulations authorize professional sport team

waivers from HIPAA and player health records thus part of the employment record

that can be disclosed).

241

Dooley, supra note 238.

242

See Family Educational Rights and Privacy Act (FERPA), 20 U.S.C.

§ 1232(g); see also Understanding FERPA, Nata News (Dec. 5, 2017), https://cpb-

us-w2.wpmucdn.com/sites.udel.edu/dist/d/3615/files/2017/07/Understanding-

FERPA-1dxvgb6.pdf [https://perma.cc/W5YM-PDF6] (“FERPA allows school

records to be shared in certain cases. Medical information kept by an athletic trainer

employed by the school is considered part of the student’s educational records,

therefore subject to FERPA standards. . . . [FERPA] is a complex Federal law that

protects the privacy interests of parents and students with regard to education

records.”).

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44 Harvard Journal of Sports & Entertainment Law / Vol. 13

operations (those falling outside the traditional realm of treatment).

243

example of non-traditional operations is when an athletic trainer gives medi-

cal information to the media; if the trainer only reported the information to

an athlete’s coaches, this would be a traditional operation and HIPAA would

not apply, but because the report is made to the media, FERPA does not

exempt the university from HIPAA.

244

Mental health information is included within HIPAA’s protected per-

sonal health information, meaning the current system in place would allow

teams and organizations to reveal a player’s mental health information simi-

larly to how they can make public sports-related injuries. Whether or not

HIPAA applies (and there is ambiguity about its application to sports orga-

nizations), professional sport contracts typically require athletes to submit to

medical examinations, to disclose medical records, and to provide notice of

injury or medical illness.

245

These waivers and attendant medical records

become part of the employment record. Once the sports organization is

aware of the athlete’s health information, because of these contractual waiv-

ers, the organization can reveal the information to the media, unless other-

wise contracted. HIPAA does not apply to the media as they are not covered

entities.

246

Confidentiality may be bargained for, such as the major professional

sports league substance abuse policies.

247

Historically NFL teams have cho-

sen not to reveal the nature of physical injuries that were not sustained in

relation to sports.

248

For example, the Indianapolis Colts offered no insight

into the nature of Corey Simon’s non-sport related 2006 injury.

249

The Colts

cited Simon’s privacy and federal medical privacy laws in making this deci-

sion.

250

Mental health issues are not always sports-related. Sports organiza-

tions could follow this example and choose not to make public the mental

health reasons an athlete might take time off or miss a game or practice

when these struggles are not sports-related. The NBA Players Association

has negotiated for restrictions on disclosure of athlete mental health

history.

251

243

Hike, supra note 232, at 53.

244

Id. at 54.

245

Id. at 59.

246

Id.

247

See Deubert, supra note 227, at 41.

248

Hike, supra note 232, at 64.

249

Id.

250

Id.

251

See Mental Health & Wellness Department, Nat’l Basketball Players Ass’n,

https://nbpa.com/mentalwellness [https://perma.cc/92SF-TGFP] (last visited Oct.

16, 2021).

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2022 / The Anxious Athlete 45

Public disclosure of athlete mental health issues carries a significant

risk for athletes to be subjected to stigma, discrimination, career jeopardy,

and public opinion. Respect for athlete privacy and promotion of treatment

justify the confidentiality of athlete mental health, regardless of legal rights

to disclose otherwise.

252

Limits on contractual waivers of physical and

mental health should be provided by contract or proposed legislation.

C. Contractual Implications

Showing up for practice and competition is express if not implicit in

athletic contracts at any level. An athlete’s abrupt refusal to compete on

“mental health” grounds, absent seeking coverage under disability discrimi-

nation law, may be grounds for a claim of breach of contract, termination,

disciplinary violations, or sending the athlete home from the Olympics. The

Grand Slam event organizers issued such a warning to Naomi Osaka for her

refusal to participate in press conferences per her contract at the French

Open. At the Tokyo 2020 Olympics, Simone Biles withdrew from multiple

events, including the all-around competition. Osaka’s sponsor Nike, as per-

haps the USOPC’s response to Biles, could have cited these contractual

rights and obligations. Nike chose not to do so. The USOPC also supported

Biles who was able to recompose and compete in her final Olympic event,

winning a bronze medal. The public was largely in support of both Osaka

and Biles and applauded the courage of these athletes to prioritize their

mental health. The optics demanded that these athletes be listened to and

given time, to say nothing of the fact that it was the sheer right thing to do.

As the issue of athlete mental health becomes more prominent, sport

entities and commercial sponsors may consider legal remedies when an ath-

lete decides not to compete or participate in press conferences, appearances,

or the like. For example, a sport entity may consider drafting or invoking

contractual rights to recoup, suspend, or terminate payment or eligibility

where an athlete withdraws from competition due to mental health.

253

Yet,

an athlete may not be similarly penalized for withdrawing due to physical

injury. Even if a sport authority has legal recourse against an athlete for not

252

See Ahmed, supra note 229 and accompanying text (citing experts in agree-

ment that the “NBA Needs to Stay Out of its Players’ Mental Health Records”).

253

See Edgardo Mu ˜noz & Otavio Delavi, The Impact of Athlete Mental Health on

Sponsorship Contracts, LinkedIn (Aug. 24, 2021) https://www.linkedin.com/pulse/

impact-athletes-mental-health-sponsorship-agreements-edgardo-mu%C3%B1oz/

[https://perma.cc/R296-F8EJ] (noting that most sponsorship contracts have provi-

sions and stipulated remedies addressing when athletes withdraw due to injury,

ineligibility, and suggesting that mental health grounds could be treated similarly).

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46 Harvard Journal of Sports & Entertainment Law / Vol. 13

competing on mental health grounds, a better approach not only from a

brand optics and image perspective would be to support the athlete, guide

them to professional resources, and negotiate a strategy to welcome them

back once ready.

In an extensive study on NFL Football Player Health, Comparing

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

Leagues,

254

researchers cited the impact compensation systems can have on

players’ physical or mental health decisions, such as when to retire and

whether to disclose or play through physical and mental struggles.

255

Players

are concerned that disclosures about their mental health issues could affect

their playing time and compensation. Guaranteed salary player contracts

may also correlate with player health.

256

Players should be assured that ac-

commodations or breaks needed due to mental health concerns will not

jeopardize their compensation or contracts, including the excusing of play-

ers, such as the NFL’s “Beast Mode” Marshawn Lynch, who reluctantly par-

ticipated in post-game press conferences, repeatedly answering questions

with the statement “I’m just here so I don’t get fined.”

257

Negotiation power and collective bargaining agreements (“CBA(s)”)

are one method elite athletes can use to ensure mental health protections in

their respective sports.

258

In professional team leagues, player associations

protect their members by ensuring mental health accommodations through

the CBA.

259

Few individual athletes have substantial bargaining power to

negotiate alternatives or accommodations for mental health. Notably, Osaka

felt bound to withdraw due to the specter of sanction, while Biles chose

when to return to competition. Individual sports organizations should pro-

vide assurances and set forth a process to help athletes in a mental health

crisis.

254

See Deubert, supra note 227, at 22 (“In their efforts to maximize their earn-

ings (and sometimes, eligibility for various benefits), some players might sacrifice

their short- and/or long-term physical and mental health. The compensation struc-

tures dictate when or if a player faces such a trade-off.”).

255

Id.

256

See Dom Cosentino, Why Only the NFL Doesn’t Guarantee Contracts, Deadspin

(Aug. 1, 2017, 11:38 AM), deadspin.com/why-only-the-nfl-doesnt-guarantee-con-

tracts-1797020799 [https://perma.cc/P2ZM-7UXR].

257

Kyle Newport, Marshawn Lynch at Super Bowl Media Day: “I’m Here So I Won’t

Get Fined”, Bleacher Report (Jan. 27, 2015), https://bleacherreport.com/articles/

2344416-marshawn-lynch-at-super-bowl-media-day-im-here-so-i-wont-get-fined

[https://perma.cc/E8T6-358H].

258

See id.

259

Deubert, supra note 227, at 19.

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Many athletes savor the limelight and media attention, while the same

can cause trauma for others. Sport rules and contracts should provide accom-

modation in these circumstances, perhaps similar to a TUE process with fair

notice to sport organizers to modify non-essential obligations such as press

conferences; allocating “sick days”, as Osaka proposed; or negotiating an

alternative press contract in which sick days and schedule commitments can

be individualized based on each individual’s health history. Negotiation

power and collective bargaining agreements are one way that elite athletes

and their players’ unions can protect themselves and work mental health

protections into their respective sports.

D. Duties of Care

Inherent in running a sport program is a duty of care to the athletes.

Safety includes physical and mental health.

260

Commentators have argued

that a university’s special relationship with a student-athlete may create a

duty to provide them with mental health services.

261

The following section

analyzes what sport organizations are doing with respect to this duty.

IV. Sport Programs on Athlete Mental Health

Sports organizations have only recently begun to acknowledge and ad-

dress athlete mental health concerns through various programs. Individual

elite athletes have also been coming forward with new initiatives and part-

nerships that work to destigmatize and to promote the importance of mental

health.

A. College – NCAA

The NCAA Sports Science Institute convened a taskforce to identify

and advance mental health best practices.

262

Its 2016 publication, Mental

Health Best Practices, set forth a set of recommended guidelines “designed to

provide athletics and sports medicine departments . . . with recommenda-

tions for supporting and promoting student-athlete mental health.”

263

The

260

Mawdsley, supra note 63, at 244.

261

Id.

262

Id. at 250.

263

See Mental Health Best Practices: Inter-Association Consensus Document: Best Prac-

tices for Understanding and Supporting Student-Athlete Mental Wellness, NCAA Sports

Sci. Inst. 4 (2016), https://sites.tntech.edu/athleticscompliance/wp-content/uploads/

sites/89/2018/08/MentalHealthBestPractices.pdf [https://perma.cc/4UK5-UHCT].

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48 Harvard Journal of Sports & Entertainment Law / Vol. 13

report identified four “key components” for understanding and supporting

student-athlete mental health. The first guideline, Clinical Licensure of Prac-

titioners Providing Mental Health Care, recommends that student-athlete

mental health concerns be coordinated and managed by athletic trainers and

team physicians, licensed practitioners qualified to provide mental health

services who are easily accessible to student-athletes, including through the

establishment of a self-referral process.

264

The second recommends the im-

plementation of Procedures for Identification and Referral of Student-Athletes to

Qualified Practitioners, which includes role-specific training and a referral

process for stakeholders to help support the identification and referral for

emergency and routine mental health referrals.

265

This report notes, but does

not define, how to address considerations regarding student confidentiality

and informed consent.

266

The third guideline provides that student-athletes

be provided a Pre-Participation Mental Health Screening.

267

The fourth guide-

line, Health Promoting Environments That Support Mental Well Being and Resili-

ence, recognizes the athletics environment at a university can help support

positive mental health among student-athletes by “normalizing care seeking

and fostering experiences and interactions that promote personal growth,

self-acceptance, autonomy and positive relations with others.”

268

The report

recommends that the primary athletics health care providers and licensed

mental health practitioners meet on an annual basis to discuss the institu-

tional protocols regarding mental health. Additionally, coaches, faculty ath-

letics personnel, and fellow student-athletes (among others), should have

educational mental health information communicated to them regarding

topics such as stress management practices, signs and symptoms of mental

health disorders, and financial support.

269

The NCAA has taken additional steps. In 2019, NCAA member

schools of the Power 5 autonomous conferences agreed to provide access to

mental health care for their student-athletes.

270

Mental health was also a

264

Id. at 7.

265

Id. at 10.

266

Id. at 11.

267

The National Athletic Trainers’ Association recommends a series of nine

questions, which serves as a starting point for the screening. An answer of “yes” to

any of the nine questions leads to a follow up discussion with the student-athlete

and relevant personnel to determine whether the student-athlete should be referred

to a licensed practitioner. Id. at 13.

268

Id. at 14.

269

Id.

270

Michelle Brutlag Hosick, Access to Mental Health Services Guaranteed by Auton-

omy Conferences, NCAA (Jan. 24, 2019), https://www.ncaa.org/about/resources/me-

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focus of the NCAA’s 2020 Convention,

271

where NCAA Chief Medical Of-

ficer Dr. Brian Hainline stated that “the NCAA is emphasizing mental

health among its top priorities . . . We’re doing a lot, including generating

awareness, programming and other educational resources for members and

students, and we understand that we must continue to build on these efforts

going forward.”

272

Following the tragic suicides of two high-profile student

athletes

273

in 2018, the NCAA implemented a formal policy and guidebook

entitled Mind, Body & Sport–Understanding and Supporting Student-Athlete

Mental Wellness (2021), in which Dr. Hainline notes the urgency of address-

ing student mental health.

274

This handbook has chapters including personal

narratives of student-athletes and explanations of stressors on student-athlete

mental health.

275

The handbook is a significant resource for addressing stu-

dent-athlete mental health for institutions, although, these guidelines are

not requirements, and a school’s decision to implement them is voluntary.

The NCAA’s Sports Science Institute website includes Mental Health Educa-

tional Resources and Implementation Tools with links to various resources and

implementation tools to assist conference offices, schools, and campus stake-

holders.

276

At the time of this writing, the links led to pages that no longer

exist.

277

While these guidelines identify best practices, evidence of their im-

plementation and effectiveness warrants further study.

278

dia-center/news/access-mental-health-services-guaranteed-autonomy-conferences

[https://perma.cc/D9P3-38WB].

271

Id.

272

Mental Health Is Key Focus at NCAA Convention, NCAA, https://www.ncaa.org/

about/resources/media-center/news/mental-health-key-focus-ncaa-convention

[https://perma.cc/49LJ-RFK5] (last visited Dec. 2, 2021).

273

Born, supra note 51, at 1221.

274

Id. at 1242-43.

275

Id. (citing examples such as “transition, performance, injury, academic stress

and coach relations; experts on student-athlete depression, anxiety, eating disorders,

substance abuse and gambling”).

276

Mental Health Educational Resources, NCAA, https://www.ncaa.org/sport-sci-

ence-institute/mental-health-educational-resources [https://perma.cc/UJ66-MT44]

(last visited Oct. 29, 2021).

277

Id.

278

Andrea Stamatis et al., Can Athletes Be Tough Yet Compassionate to Themselves?,

PLoS One (Dec. 31, 2020), https://journals.plos.org/plosone/article?id=10.1371/

journal.pone.0244579 [https://perma.cc/JLH3-9CLB] (stating that the NCAA’s

“best practices provide general goals, but they do not clarify the specific skills and

education needed for their realization”).

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50 Harvard Journal of Sports & Entertainment Law / Vol. 13

B. U.S. Major Professional League Sports

In recent years, U.S. professional sports leagues have begun to recog-

nize the need for formal athlete mental health programs.

1. National Basketball Association

Although NBA players garner fame and average $7 million dollar sala-

ries, NBA Commissioner Adam Silver addressed athlete mental health ac-

knowledging that “[a] lot of these young men are genuinely unhappy.”

279

2018, the National Basketball Players Association (“NBPA”) announced its

own mental health and wellness program and named Dr. William D.

Parham as its first Director for Mental Health.

280

The NBPA program con-

nects players in each city with independent mental health professionals.

281

In 2019, the NBA held a mandatory health and wellness meeting for team

executives and mental health providers in Chicago, where new formal re-

quirements were set for all 30 NBA teams.

282

All NBA teams are required

to have a full-time mental health professional

—

a psychologist or behavioral

therapist on staff, and a psychiatrist retained to assist as needed.

283

Addi-

tionally, teams must draft a “written action plan,” outlining the steps to be

taken in the event of mental health emergencies. The plan must inform

team and staff members of the measures taken to ensure the privacy and

confidentiality of all mental health matters.

284

The goal of this new program

is to change the narrative surrounding mental health and provide resources,

including mental health professionals in every NBA city, for players.

285

279

Sean Ingle, Elite Sport is Gradually Waking Up to Widespread Mental Health

Issues, The Guardian (Mar. 4, 2019), https://www.theguardian.com/sport/blog/

2019/mar/04/elite-sport-mental-health [https://perma.cc/KS76-HWVF].

280

Mary Pilon, The NBPA’s First Mental Health Director Has an Ambitious Plan for

the Future, Bleacher Report (June 27, 2018), https://bleacherreport.com/articles/

2783189-the-nbpas-first-mental-health-director-has-an-ambitious-plan-for-the-fu-

ture [https://perma.cc/ME7K-3XA2].

281

Id.

282

Elijah Shama, NBA Adopts New Rules Requiring Teams to Add Full-Time Mental

Health Staff for 2019-2020 Season, CNBC (Sept. 19, 2019), https://www.cnbc.com/

2019/09/19/nba-now-requires-teams-to-add-full-time-mental-health-staff.html

[https://perma.cc/3VRF-L92Q].

283

Id.

284

Id.

285

New NBPA Program Focuses on Mental Health, NIH Medline Plus Mag.

(Nov. 6, 2019), https://magazine.medlineplus.gov/article/new-nba-program-fo-

cuses-on-mental-health [https://perma.cc/8WV2-2VUF].

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2022 / The Anxious Athlete 51

As part of the NBA Together campaign, the “NBA Mind Health”

program “supports [NBA] fans, families and communities by promoting

healthy minds and bodies and increasing awareness around emotional well-

being.”

286

The program has free resources on its website for youth players,

coaches, and parents, including a helpline for free and confidential support,

and partnerships with companies like Kaiser Permanente, Headspace, and

the Child Mind Institute.

287

Overall, the basketball community’s goal is to

get people thinking about mental health the same way they think about

physical health.

288

2. National Football League

The NFL started its NFL Total Wellness initiative to promote wellness

and to “assis[t] players, legends, and their families before, during and after

their playing experiences.”

289

The program’s objective is to have players

think about their mental health from day one in the NFL.

290

The program’s

website includes information related to resource provision, education, sup-

port systems, and governance. Rookie orientation includes a three-day

mandatory program for all drafted and undrafted rookies, with eight

psychoeducational modules on mental health topics like stress management

and maintaining healthy relationships.

291

The initiative also connects players

to outside resources such as free counseling sessions for players and any

member of their household.

292

Training is also provided to team staffers,

including athletic trainers, security personnel, and administrative staff, to

teach them how to connect with people in crises and address the situation.

293

In 2019, the NFL and NFL Players Association instituted a Mental

Health and Wellness Committee to develop educational programs on

mental health for teams, players, and players’ family members.

294

Each team

286

Mind Health, NBA Cares, https://cares.nba.com/mind-health/ [https://

perma.cc/5BHB-R8JT] (last visited Dec. 1, 2021).

287

Id.

288

Shama, supra note 282.

289

See NFL Total Wellness, NFL Football Operations, https://opera-

tions.nfl.com/the-players/nfl-total-wellness/ [https://perma.cc/ESL8-5HU5] (last

visited Oct. 29, 2021).

290

Id.

291

Id.

292

Id.

293

Id.

294

Dan Graziano, NFL, NFLPA Announce Mental Health Initiative, ESPN (May

20, 2019), https://www.espn.com/nfl/story/_/id/26788730/nfl-nflpa-announce-

mental-health-initiative [https://perma.cc/5C7H-R4HV].

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is required to have a behavioral health clinician onsite at the team facility for

a minimum of eight hours a week to coordinate player mental health.

295

The

goal is to help players with issues both on and off the field.

296

After the high-profile deaths of several former NFL players such as

Junior Seau and other reports concerning the long-term effects of concus-

sions and CTE,

297

the NFL instituted its Life Line program to address sui-

cide prevention for both current players who can be under significant

pressure and former players who can struggle with transitioning from super-

star status.

298

NFL Life Line is a free, confidential hotline for current and

former players, coaches, team and league staff members, and family mem-

bers to connect with licensed mental health providers who have received

specialized training on NFL culture and resources.

299

The NFL has also en-

acted a strict policy regarding the safety rules and treatment of head trauma

in an effort to prevent and lessen the long-term effects of CTE and

concussions.

300

3. Major League Baseball

Major League Baseball (“MLB”) has several programs to address play-

ers’ mental health. Like many other employers, the MLB has an Employee

Assistance Program (“EAP”) to help players and their family members man-

age personal problems.

301

EAP consultations can include medical evalua-

tions, counseling, or referrals to other programs.

295

Id.

296

Id.

297

See Mark Fainaru-Wada & Steven Fainaru, Seaus to Opt out of Concussion Deal,

ESPN (Sept. 3, 2014), https://www.espn.com/espn/otl/story/_/id/11457306/junior-

seau-relatives-reject-proposed-settlement-nfl-former-players [https://perma.cc/

GK42-P9GK]; see also Parham, supra note 8 (noting other NFL players who died by

suicide).

298

Rebecca A. Clay, A New NFL Playbook: Enhancing Mental Health, 48(1) Moni-

tor on Psychol. 22 (2017).

299

Id.

300

See Legal Issues Relating to Football Head Injuries (Part I and II): Hearing Before

the H. Comm. on the Judiciary, 111th Cong. 31-37 (2009) (statement of Roger Good-

ell, Commissioner, National Football League); see also Daniel J. Kain, “It’s Just a

Concussion:” The National Football League’s Denial of a Causal Link Between Multiple

Concussions and Later-Life Cognitive Decline, 40 Rutgers L.J. 697, 731 (2009) (dis-

cussing the history of the NFL’s “concussion problem” and suggesting that players

may file a lawsuit alleging the NFL wrongfully concealed studies about the effects

of multiple concussions and failed to warn players of the risks).

301

Christine Armstrong, Athletes and Mental Illness: Major League Baseball Steps

Up to the Plate, Nat’l All. on Mental Illness (Nov. 1, 2010), https://

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In 2010, MLB added an injury list designation (then called the “dis-

abled list”) for emotional disorders.

302

This was a rare move amongst the

professional sports leagues as any missed time for mental health issues was

usually considered a “Did Not Play

—

Coaches Decision” or something simi-

lar.

303

To qualify for the designation, the player must be “evaluated and

diagnosed by a qualified mental health professional as suffering from a

mental disability that prevents a player from rendering services.”

304

In 2018, twenty-seven of the thirty MLB teams employed “mental

skills coaches” to help players with mental issues.

305

At least one MLB

player, however, took issue with this program’s effectiveness. In 2019, for-

mer Mariners pitcher Rob Whalen decided to retire from the MLB to focus

on his battle with mental health and accused the Mariners of not doing

enough to get him the help he needed.

306

Whalen had previously struggled

to get out of bed and go to workouts and would wake up with cold sweats

and his mind running through everything that could go wrong when he hit

the mound. The Mariners “mental skills coach” recommended that Whalen

seek professional treatment.

307

Whelan stated however, that the Mariners

head of player development, Andy McKay, initially offered to give him a

week off to deal with his anxiety but then texted Whalen a few days later

that he would be replaced if he didn’t return immediately.

308

After strug-

gling through several starts and following a disappointing performance,

Whalen packed up his things and booked a flight home.

309

He was placed

on the restricted list and received contact information for a professional but

was never contacted by his coach or other players.

310

During the offseason,

www.nami.org/Blogs/NAMI-Blog/November-2010/Athletes-and-Mental-Illness-

Major-League-Baseball [https://perma.cc/E7BE-5DS3].

302

Id.

303

See id.

304

Id.

305

Kristen Weir, A Growing Demand for Sport Psychologists, 49(10) Am. Psychol.

Ass’n 50 (2018).

306

Hannah Keyser, Rob Whalen’s Retirement an Example of How Some MLB Teams

Are Failing to Address Mental Health Issues, Yahoo! Sports (Apr. 15, 2019), https://

sports.yahoo.com/rob-whalens-retirement-an-example-of-how-some-mlb-teams-are-

failing-to-address-mental-health-issues-170601773.html [https://perma.cc/PLH9-

843Q].

307

Id.

308

Id.

309

The Mariners claim that a staff member contacted Whalen and talked with

him for four hours to ensure he was safe and connect him with a professional.

Whalen, however, claims the call was much shorter than that and he told the team

that he needed to get help and that he was “not in a good place mentally.” Id.

310

Id.

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54 Harvard Journal of Sports & Entertainment Law / Vol. 13

he worked with a therapist and started to feel better, ultimately returning

and making a great first appearance,

311

after which Mariners manager Scott

Servais told reporters, “[y]ou gotta tip your cap to everybody in our player

development system. A player goes through what he went through last year,

hitting the lows, the things he went through off the field, our organization

wrapped our arms around him and really allowed him to turn it around.”

312

Whalen certainly did not feel that the Mariners had “wrapped their arms

around him” and said he felt very much alone during the process.

313

The

game ended up being Whalen’s last in the major leagues as he was sent back

to Triple-A and then Double-A after another issue with anxiety. Soon after,

he retired.

314

4. National Hockey League

National Hockey League (“NHL”) teams sponsor #HockeyTalks an-

nual initiative to raise awareness about mental health, including fans and

players in the discussion through social media.

315

Currently, fifteen of the

thirty-one NHL teams host “Hockey Talks” nights during which fans can

receive mental health information through public service announcements,

information tables, and social media posts.

316

The initiative started in 2013,

and is dedicated to the legacy of Rick Rypien, an “enforcer” (the bruising,

tough guy of each NHL team who often gets into fights and lays big hits) of

the Vancouver Canucks, who struggled with depression while on the team,

and ultimately died by suicide.

317

Since Rypien’s death, the Canucks organi-

zation has been a leader in raising mental health awareness around the

league and in Canada.

318

311

Whalen decided not to take anti-anxiety medication because of MLB’s restric-

tions on prescription drugs and the long process to get an exemption. Id.

312

Id.

313

Id.

314

Id.

315

See Hockey Talks: Mental Health Awareness, Foundry, https://foundrybc.ca/sto-

ries/what-is-hockey-talks/ [https://perma.cc/DZ8K-HN6S] (last visited Oct. 16,

2021); Bob Condor, Break the Stigma, NHL.com: Seattle Kraken (Jan. 28, 2021),

https://www.nhl.com/kraken/news/break-the-stigma/c-320797134 [https://

perma.cc/F3Q8-Y9BA].

316

Derek Jory, Hockey Talks, NHL.com: Vancouver Canucks (Jan. 31, 2013),

https://www.nhl.com/canucks/news/hockey-talks/c-653292 [https://perma.cc/

8H5V-3K37].

317

Id.

318

See Hockey Talks: Mental Health Awareness, supra note 315; see also Stephen

Whyno, Blades of Steel: Johns Spotlights Mental Health in Hockey, AP News (June 27,

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The NHL also has a confidential substance abuse and behavioral health

program. Players may use this voluntarily, although the League can reach

out and suggest it. A former NHL player relayed on a podcast called “Drop-

ping the Gloves” that the League will usually do so after a drug test returns

a positive for a substance that is harmful yet not prohibited by the rules.

The League suggests the program directly to players, not the organizations,

so that teams cannot use it against players in contract negotiations.

An NHL-supported program at The Meadows that helps with trauma

and addiction aided Robin Lehner, the goalie for the New York Islanders,

after he suffered from a severe panic attack during a game due to his sub-

stance abuse. Lehner revealed his battle with addiction, bipolar disorder, and

thoughts of committing suicide while on stage accepting the Bill Masterton

Memorial Trophy at the NHL Awards. “I’m not ashamed to say I’m men-

tally ill, but that doesn’t mean mentally weak,” Lehner said after dealing

with depression beginning in 2018. He turned to “self-medicating by

‘drinking a case of beer’ and taking pills.” Lehner revealed that “[t]he battle

playing hockey was nothing compared to the battle inside my brain.” After

several weeks of treatment, Lehner returned to the NHL, and now he is

speaking out to end the stigma surrounding mental illness.

319

C. International and Olympic Sports

Each year, the International Olympic Committee Medical and Scien-

tific Commission adopts a consensus statement on a “prominent issue that

affects the well-being of athletes.”

320

In 2019, the topic was the mental

health of elite international athletes.

321

The report makes several suggestions

to reduce the barriers of entry for elite athletes to treat their mental health,

including destigmatizing mental health issues, continuing to educate ath-

letic stakeholders and research athletic subculture, and even designing

Olympic and Paralympic villages with sleep hygiene in mind.

322

2021), https://apnews.com/article/dallas-stars-mental-health-hockey-nhl-health-

3bdb5086fb2d60387da3f664637c924b [https://perma.cc/2HHV-WNXN].

319

Robin Lehner, I Could Not Stand Being Alone in My Brain: Islanders Goalie

Robin Lehner Opens up About His Addiction and Bipolar Diagnosis, The Athletic

(Sept. 13, 2018), https://theathletic.com/522117/2018/09/13/islanders-goalie-

robin-lehner-opens-up-about-his-addiction-and-bipolar-diagnosis-i-could-not-

stand-being-alone-in-my-brain/ [https://perma.cc/74L7-Z9H9].

320

Tackling Mental Health in Olympic Health, Int’l Olympic Comm. (Apr. 14,

2019), https://olympics.com/ioc/news/tackling-mental-health-in-olympic-sport/

[https://perma.cc/3MTZ-2ZHT].

321

See Reardon, supra note 9, at 667.

322

Id. at 671-85.

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56 Harvard Journal of Sports & Entertainment Law / Vol. 13

In the United States, the U.S. Olympic & Paralympic Committee

(“USOPC”) created an Athlete Service Division in February of 2019 and

organized a Mental Health Taskforce in February of 2020 to develop best

practices for athlete mental health, along with three Mental Health Officers.

The Team USA Mental Health Resource Guide includes access to a mental

health support line, Safesport Helpline, and a registry of mental health prov-

iders. Eligible athletes have access to year-round confidential counseling.

323

Athletes and their dependents have access to unlimited phone counseling

and up to six in-person sessions with a local provider at no cost.

324

The

USOPC also offers all Team USA athletes and coaches access to sport psy-

chologists.

325

Team USA sport psychologists travel with the athletes to in-

ternational competitions, often practicing mindfulness

—

in individual and

group settings

—

before competition.

326

Team USA also has a training space

dedicated to psychophysiology at the Olympic & Paralympic Training

Center in Colorado Springs to help athletes better understand the mental

aspect of competition.

While the program is seemingly helpful, former USOPC Vice Presi-

dent of Sports Medicine Dr. Bill Moreau filed a whistleblower retaliation

lawsuit against the USOPC alleging he was fired in retaliation for urging

better responses to athlete safety, sexual abuse, and mental health, and citing

the slow response to an Olympic athlete on medical leave who later took her

own life, saying their response to mental health is more like sports injury,

using staff trained in sports injuries, not psychiatry.

327

323

See Athlete Services: Mental Health, Team USA, https://www.teamusa.org/

MentalHealth [https://perma.cc/L44K-G4JY] (last visited Oct. 29, 2021).

324

Id.

325

Id.

326

Joshua Schultz, CPJ Spotlight: Sport Psychology Allows Team USA Athletes to

Achieve Peak Performance, Soc’y of Consulting Psychol. (July 16, 2020), https://

www.societyofconsultingpsychology.org/index.php?option=com_dailyplanet

blog&view=entry&year=2019&month=07&day=15&id=28:cpj-spotlight-sport-

psychology-allows-team-usa-athletes-to-achieve-peak-performance [https://

perma.cc/4X35-6B4M].

327

Jon Lapook, “This is an Emergency”: Whistleblower Says Olympic Committee Needs

to Do More to Address Mental Health, CBS News (Feb. 13, 2020, 7:43 PM), https://

www.cbsnews.com/news/whistleblower-says-olympic-committee-needs-to-do-more-

to-address-mental-health/ [https://perma.cc/X92P-HZGU]; see also Sam Tabachnik,

Top U.S. Olympic Doctor Says He Was Fired for Trying to Protect Athletes from Sexual

Abuse, Lawsuit Says, Denver Post (Feb. 5, 2020), https://www.denverpost.com/

2020/02/05/usa-olympics-abuse-lawsuit-william-moreau/ [https://perma.cc/QHX2-

7622].

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D. Athlete Partnerships with Mindfulness Apps

As prominent athletes have come forward to advocate for mental health

awareness, tech companies with mindfulness app products have seen the op-

portunity to promote their services to a wider audience. Among athletes

who have partnered with mindfulness apps are Kevin Love, Michael Phelps,

and LeBron James.

In December 2019, James announced a new partnership with Calm, a

meditation and sleep app, hoping to bring attention to mental fitness and

its importance in an athlete’s career.

328

His “Train Your Mind” series fea-

tures segments on mental fitness and managing emotions. James is helping

make the Calm app available to youth organizations across the country.

329

James commented that it “[i]s all about mental fitness. It’s something I’ve

always prioritized, and it’s just as important to my game, my career, and my

life than anything I can do physically.”

330

In 2018, Phelps partnered with online therapy and counseling platform

Talkspace to increase access to professional therapy for the people who need

it and to encourage people to discuss openly about mental health.

331

Phelps

also sits on the Growth & Advocacy Board of Medibio, a mental health

technology company.

332

In 2020, during the trying time of the COVID-19

pandemic, Michael Phelps teamed up with Talkspace to help the company

provide free therapy to frontline medical workers.

333

Kevin Love’s Fund donated 850 Headspace mindfulness app subscrip-

tions and team mental training sessions to UCLA Athletics for all student-

athletes and coaches. Love chose UCLA, his alma mater, with the hopes of

sending the message that mental health is just as important as physical

328

See Daniels, supra note 157.

329

Id.

330

Simon Ogus, LeBron James Partners with Unicorn App Calm That Focuses on Your

Mental Fitness, Forbes (Dec. 25, 2019, 10:00 AM), https://www.forbes.com/sites/

simonogus/2019/12/25/lebron-james-partners-with-unicorn-app-calm-that-focuses-

on-your-mental-fitness/?sh=6927836f37d3 [https://perma.cc/7T99-3FRW].

331

Michael’s Mental Health Story, Talkspace, https://www.talkspace.com/michael

[https://perma.cc/26ED-KKFK] (last visited Oct. 29, 2021).

332

Medibio Announces New Board Members and Establishes Growth & Advocacy Advi-

sory Board, Medical Alley, https://medicalalley.org/2019/09/medibio-announces-

new-board-members-and-establishes-growth-advocacy-advisory-board/ [https://

perma.cc/D5BB-G7BT] (last visited Nov. 14, 2021).

333

Michael Phelps Donation Adds to Talkspace Program Providing Free Mental Health

Services to Frontline Medical Workers, Bus. Wire (Apr. 6, 2020, 10:46 AM), https://

www.businesswire.com/news/home/20200406005545/en/Michael-Phelps-Dona-

tion-Adds-Talkspace-Program-Providing [https://perma.cc/7AAN-6RFR].

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58 Harvard Journal of Sports & Entertainment Law / Vol. 13

health and that schools should provide access to programs and tools to help

students and athletes improve mental health.

334

Headspace is a leading med-

itation and mindfulness company with over thirty-two million users in 190

countries and is known for its meditation app and suite of online features.

335

Love stated, “I am really excited to partner with Headspace to bring an

invaluable tool to the Bruin family. It is incredibly important to the mind as

well as the body to be at peak performance in all aspects of life, and Head-

space makes it so easy for student-athletes to integrate mental training into

their everyday regimens.”

336

Team USA has offered athletes access to sports psychologists who use

various methods, including mindfulness, competitive simulation, and vir-

tual reality to help athletes prepare for big events.

337

At the 2016 Summer

Games in Rio de Janeiro, Team USA used mindfulness through guided

meditation and imagery.

338

Team USA athletes are “coached to take a mind-

ful approach to their sport, to be in the present moment, with the motto

‘one point (or jump, or dive, etc.) at a time.’”

339

One might question athletes’ corporate partnerships with the app tech

companies and whether these companies are using the vulnerabilities of the

athletes to promote their businesses to a desirable demographic. The apps

can track users and their data and should be protected. Evidence that these

apps are effective is in nascent stage, but certainly practices and tools that

help promote mental health, such as meditation and mindfulness can be

helpful.

340

The apps provide a helpful resource but should not be regarded as

a substitute for mental health disorder treatment.

341

334

The Kevin Love Fund Donates Headspace Meditation + Mindfulness Training to

UCLA Student-Athletes and Coaches, Bus. Wire (Oct. 10, 2018, 9:08 AM), https://

www.businesswire.com/news/home/20181010005549/en/The-Kevin-Love-Fund-

Donates-Headspace-Meditation-Mindfulness-Training-to-UCLA-Student-Athletes-

and-Coaches [https://perma.cc/6U9K-BVSE].

335

Id.

336

Id.

337

Schultz, supra note 326.

338

Id.

339

Id.

340

Id.

341

Robin Scholefield et al., Athlete Mindfulness: The Development and Evaluation of

a Mindfulness Based Training Program for Promoting Mental Health and Wellbeing,

NCAA, https://www.ncaa.org/about/resources/research/athlete-mindfulness-develop-

ment-and-evaluation-mindfulness-based-training-program-promoting-mental

[https://perma.cc/N34F-NABZ] (last visited Dec. 1, 2021).

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V. The Need for Sport To Respond: What More Can Sport Do?

Mental health is a part of, not apart from, athlete health.

342

Mental

health exists on a continuum, with resilience and thriving on one end of the

spectrum and mental health disorders that disrupt an athlete’s functioning

and performance at the other. Whether similar to or more than the general

population, athletes are experiencing mental health issues. Mental health is a

vital concern for sports/athletics. Although the culture of sport has long

inhibited disclosure, players have begun speaking out, and the sports world

needs to respond.

343

A. A Culture of Care

Dr. Hillary Cauthen is a clinical sport psychologist and certified

mental performance consultant specializing in mental health treatment for

athletes, coaches, and parents.

344

She was a competitive youth and Division I

collegiate athlete, and remembers the struggle she went through having to

deal with the stress and anxiety of being a top Division I athlete.

345

Cauthen

explains that in her experience, “[c]hampions are strong not weak, and feel-

ings of being lost and scared are not champion qualities.”

346

Dr. Cauthen

created a process she calls a “culture of care for a culture of champions”

347

with three steps that parents and coaches should consider to help their ath-

letes with mental illness.

348

Step one is to create a culture of care.

349

Create a

friendly and inviting environment for athletes to feel comfortable sharing

their fears, concerns, and anxieties, and “[t]each them that it’s ok to fail and

ask for help.”

350

Second, educate the coaches.

351

Coaches, for the most part,

do not intend to overwhelm their athletes, but it’s the “culture of winning

342

Id.

343

Chang, supra note 9, at 65.

344

See Cauthen, supra note 6.

345

Id.

346

Id.

347

Id.

348

Id.

349

Id.

350

Id. (“It’s time to re-examine our culture of sport, we can no longer blame,

punish or shame our adolescence for having emotional outbursts or having difficulty

struggling with their athletic endeavors and balancing life. Instead, we should be

curious to examine and explore how we can help them express their emotions and

help them learn to live within this culture.”).

351

Id.

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60 Harvard Journal of Sports & Entertainment Law / Vol. 13

and winning all costs that becomes problematic.”

352

Coaches need to be

trained and educated on how to address the issue of mental illness.

353

Dr.

Cauthen provides six life skills that have been proven to help reduce mental

illness and increase wellness.

354

The six life skills are “goal setting, coping,

communication, time management, leadership, and problem solving.”

355

Coaches are in a position to help implement these life skills and provide a

healthy environment for their athletes.

356

Lastly, teach athletes how to feel

and express their emotions and learn how to use them to better

performance.

357

B. Access to Sport Mental Health Experts

Sport psychologists have been used to help athletes overcome mental

blocks and improve performance, increase focus, enhance team communica-

tion, and return from injuries.

358

Sport psychologists’ role has expanded to

include treating athletes’ interpersonal issues and personal mental health

problems such as anxiety, depression, and eating disorders.

359

They address

other pressures common among athletes, such as violence and anger is-

sues.

360

Among male athletes, factors such as adoption of traditional male

roles, groupthink, and “locker room talk” can lead to increased risks of vio-

lent behavior and sexual misconduct.

361

Sport psychologists can help assist

in the prevention and assessment of risk of these behaviors.

362

Importantly,

sport psychologists also serve as a resource to identify and help navigate the

range of emotional traumas athletes can experience.

363

Sport psychology’s increasing impact is evident at various levels of

sport. For example, in 2018, twenty-seven of the thirty MLB teams em-

ployed a “mental skills coach” to help players.

364

At the collegiate level,

352

Id.

353

Id.

354

Id.

355

Id.

356

Id.

357

Id.

358

Weir, supra note 305; see also Sport Psychologists Help Professional and Amateur

Athletes, Am. Psychol. Ass’n, https://www.apa.org/topics/sport-psychologists

[https://perma.cc/RH6D-7MS8] (last visited Oct. 16, 2021).

359

Weir, supra note 305.

360

Id.

361

Id.

362

Id.

363

Id.

364

Id.

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sport psychology is an “ideal resource” to support student-athlete mental

health.

365

The NCAA recommends that colleges either employ a full-time

sport psychologist on staff, retain an external consultant or counseling

center, or use a referral model to help athletes address psychological is-

sues.

366

Even at the high-school and junior levels, athletes are beginning to

train their minds, with mental skills coaches like Graham Betchart becom-

ing increasingly sought after.

367

Betchart has coached a number of NBA

stars (e.g., Aaron Gordon, Zach LaVine, Andrew Wiggins, etc.) before they

were drafted, using his “Play Present” program to teach athletes to stay

focused on the task at hand and to move onto the next play immediately.

368

C. Post-Play Transition Programs

Although programs and initiatives have been implemented in the last

few years, many players continue to deal with mental health issues after

retirement. Combined studies show that athletes are particularly likely to

suffer from mental health issues during career transitions. Lack of athlete

identity can be a cause of psychological disorders. Depression, stress, and

anxiety are all likely to be highest within six months of retiring. The study

also shows athletes experience better cognitive and emotional results when

planning ahead for transitions.

369

A poll of 800 retired players revealed that

50% “did not feel in control of their lives within two years of finishing their

careers.”

370

Three reasons identified include: a loss of control, loss of iden-

tity, and the struggle to find a new purpose outside of their sport.

371

Fear of

losing control can be a sign of the onset of mental health issues such as

anxiety and depression. During their time as elite athletes their life is

365

Chris Carr & Jamie Davidson, Mind, Body and Sport: The Psychologist Perspective,

NCAA, http://www.ncaa.org/sport-science-institute/mind-body-and-sport-psychol-

ogist-perspective [https://perma.cc/34VY-HTNM] (last visited Oct. 16, 2021).

366

Id.

367

Matthew Giles, Meet the Sports Psychologist Training the Minds of the NBA’s Top

Draft Prospects, Vice (June 23, 2016, 10:10 AM), https://www.vice.com/en_us/arti-

cle/z4a4ay/meet-the-sports-psychologist-training-the-minds-of-the-nbas-top-draft-

prospects [https://perma.cc/5BFL-DJ4C].

368

Id.

369

Athlete Transition and Mental Health Research, Crossing the Line (June 19,

2017), https://crossingthelinesport.com/story/athlete-transition-and-mental-health-

research/ [https://perma.cc/65KZ-6428].

370

Joe Davis, How Can We Prevent Rather Than Fix the Athlete Mental Health Epi-

demic?, RocheMartin (June 26, 2018), https://www.rochemartin.com/blog/can-

prevent-rather-fix-athlete-mental-health-epidemic/ [https://perma.cc/623T-SAUZ].

371

Id.

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62 Harvard Journal of Sports & Entertainment Law / Vol. 13

planned down to the minute including when to train, eat, and sleep, in

order to perform at a high level. However, this degree of certainty disappears

in the life of retirement.

Also, leaving their sport behind can cause them to question who they

are without their team, or the sport that they have been so involved in for

such a long time. They are no longer elite athletes. So, who are they? What

do they do now? All these unknowns can cause severe anxiety and depression

at a time they no longer have the resources they had as an elite athlete.

Programs need to be put in place so that mental health resources can be

accessed by not only current players but also retired players.

372

D. Athlete Mental Health Bill of Rights

The legal protections for mental health (as broadly defined, as opposed

to a narrower condition for a diagnosed mental illness) are inadequate. The

ADA standard for “disability” requires that the impairment “substantially

limits a major life activity.” Not all mental health situations fit that stan-

dard, nor should they have to be at that level of severity to receive accommo-

dation and guarantees against discrimination. Sports organizations are

paying more attention to the importance of athlete mental health and well-

ness. As noted above, the NCAA, professional sports leagues, and Olympic

Movement are making strides in providing resources and education towards

athlete mental health. One critique is that the programs currently in place

lack uniformity; mental health treatment options can be buried in tradi-

tional health insurance or EAP programs, and finding appropriate treatment

and counseling can be bureaucratically challenging. One commentator has

proposed federal regulation of student-athlete mental health.

373

State legisla-

tures can also pass laws creating programs that focus on mental health in

youth and collegiate sports.

The basic elements of a mental health program should be to establish

the “culture of care” that prioritizes athlete mental and physical wellness.

This message has to start from the top, with leadership, coaches, athletic

personnel, and stakeholders (including parents) establishing an environment

conducive to athletes feeling comfortable asking for and seeking help, dem-

onstrating respect and assurances of safety, confidentiality, and non-retalia-

tion for an individual athlete in need. This culture and education must start

in youth sports and throughout. Coaches are pivotal to notice when athletes

372

Id.

373

Born, supra note 51, at 1234-35; 1241 (arguing federal regulation is prefera-

ble and would provide more effective and uniform policy than state or institutional

regulation).

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2022 / The Anxious Athlete 63

may be struggling and should be trained accordingly for mental health

screenings, such as ones required as part of the compliance paperwork stu-

dents fill out before trying out for sports.

374

Athletes should be provided

with easy access to mental health education, resources, confidentiality, and a

process for requesting accommodation due to mental health protection. Ath-

letes should have access to professional help, at no cost, that is confidential

and accessible, and they should be allowed a break or accommodation that

does not intrude upon the essential aspects of the team or sport.

Rather than Simone Biles being sent home, she was able to stay and

cheer on her teammates, including Sunisa Lee, who rose up with one another

to win a gold medal. When she was ready, Biles went on to perform and

won a bronze medal on the beam, modeling fortitude and demonstrating she

may very well deserve the GOAT distinction in gymnastics.

VI. Conclusion – Sport Can Do More

The past few years have evidenced a dramatic shift towards athlete em-

powerment. College athletes have challenged entrenched institutional rules

on eligibility and limitations on athlete’s publicity and endorsement rights.

Athletes are demanding attention to mental health. The prevalence of

mental health struggles at all levels of athletics shows just how important it

is to ensure athletes have access to resources and support from their respec-

tive sport organizations and the community. The issue is front and center.

It is time for a cultural shift and awakening to the importance of

mental health in sports and in society. Reframe, no shame, no stigma, tools

and resources to identify and get help. What players, fans, and the media

love about sports, the gritty “win at all costs,” “push through the pressure”

culture, needs revamping. Sports culture needs to give athletes space to be

human, to realize it is okay to not be okay and to know help is available.

Kevin Love’s biggest break-through when it came to his mental health was

feeling like it was okay to just be himself, not the NBA star Kevin Love, not

the NBA Champion Kevin Love, just Kevin. He noted there was no achiev-

ing your way out of depression, a concept sport culture needs to recognize

and validate if it wants to ensure the health and wellbeing of its players.

375

Sports organizations are already taking steps towards making mental

health a priority, but more can be done. Athletes should be taught the value

374

Neal, supra note 36, at 8.

375

Kevin Love, To Anybody Going Through It, Players’ Trib. (Sept. 17, 2020),

https://www.theplayerstribune.com/en-us/articles/kevin-love-mental-health [https://

perma.cc/7TYM-NYB7].

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64 Harvard Journal of Sports & Entertainment Law / Vol. 13

of prioritizing mental health from an early age, with the message of support

and resources available throughout and after an athlete’s career. Athletes

should grow up in a “culture of care,” with access to mental health provid-

ers, and learning from coaches and support personnel who check in and give

their players the information and the support they need. And when athletes

retire, they should be taught how to transition out of their career and how to

adjust mentally to a new lifestyle, and they should be reminded that they

still matter, even if they are no longer active players.

Beyond changing the culture, sport’s governing bodies need to con-

tinue providing and expanding concussion and safety protocols. They need

to ensure athletes can access and use their mental health medications. Ath-

lete confidentiality needs to become a priority, especially when the informa-

tion relates to non-sport related mental health concerns. Teams or

professional tournaments should have sports psychologists and certified

mental health providers on staff. These are all active, tangible steps that

leagues and athletic bodies can easily instate.