Posted on 09 Apr 2013 by Neilson
More than 4,000 former players have filed more than 200 concussion-related suits against the NFL. Years from now, juries might still be weighing those cases. But the focus now is in on federal court in Philadelphia, where a judge will decide whether the suits have the legal merit to go forward.
At this stage, the cases are consolidated in Philadelphia. U.S. District Judge Anita Brody will hear oral arguments Tuesday on the NFL's motion to dismiss a master complaint filed over the summer by a committee of attorneys representing the players.
Neither side expects Brody to make an immediate ruling. And regardless of how she rules in the coming months, there will be appeals.
"Judge Brody has a difficult task on her hands, and it's a potential billion dollars or more stake. She's going to take her time to make sure she has this issue right," says Paul Anderson, a Kansas City, Mo., attorney, who founded NFLConcussionLitigation.com after the earliest suits were filed in 2011.
"This really is the structural ballgame. If the NFL is able to win this motion, and even if they ultimately decide to settle this matter, they'll settle it on much more favorable terms," says Robert Boland, who teaches sports law and management at New York University.
The complaint alleges the NFL for decades "deliberately ignored and actively concealed" risks of repetitive brain injuries and their long-term effects, including depression and dementia. The suit seeks an NFL-funded, court-supervised medical monitoring system for all players and monetary damages.
But the pivotal legal argument right isn't about concussion-specific issues. It's about Section 301 of the Labor Management Relations Act.
The NFL contends the issues raised in the suits involve a labor dispute under the league's collective bargaining agreements.
Therefore, the NFL contends, Section 301 mandates they be settled by grievance procedures and arbitration not in court. The NFL contends the suits are pre-empted by Section301 because it bars legal actions that would require the courts to interpret the terms of the collective bargaining agreements.
The players' attorneys say there is no such immunity. They argue claims made by the players are completely outside CBAs and that there is no pre-emption. "With respect to head injuries, the NFL failed to live up to its responsibilities," the attorneys for the players say in court documents.
Players who have filed suit include members of the Pro Football Hall of Fame such as Eric Dickerson, Tony Dorsett, Bob Lilly, Randy White and the estate of the late Lee Roy Selmon. Two wrongful deaths suits have been filed against the NFL in connection with the suicide last year of 12-time Pro Bowl linebacker Junior Seau.
They also have been moved from state court in California and consolidated with the federal suits in Philadelphia.
In arguments Tuesday, both sides in the case will have stars of the legal profession on their teams, "You're going to have two Supreme Court orators, two of the renowned litigators in the country," Anderson says.
Leading the NFL arguments will be Paul Clement, former U.S. solicitor general. On the players' side will be David Frederick, who as a young attorney clerked for former Supreme Court Justice Byron "Whizzer" White, a former NFL player.
Anderson, whose website has tracked all of the suits, envisions four possible directions Judge Brody could go in her ruling on the motion to dismiss:
*Dismissal of all the players' claims
*Dismiss none of the claims
*Dismiss negligence claims against the NFL but allow fraud claims to proceed. "The ones that allege fraudulent concealment and that the NFL hid the risk of long-term brain damage," Anderson says.
*Or the judge could allow claims to move forward involving players whose careers came before the first collective bargaining agreement in 1968 and during a period from 1988 until 1993 when there was no collective bargaining agreement in place.
"It's all over the map,'' Anderson says.
Should claims such as the fraud claims survive, the NFL would have the legal option to challenge them on grounds including of assumption of risk in playing football, statutes of limitations (that the period of eligibility to sue had passed) and that the "particularity" of the accusations doesn't meet the legal standard.
The master complaint says the NFL spread "disinformation" that was "contrary to the finding of independent scientists" who had studied links between multiple head injuries and mental decline.
Before any trials, there would be pre-trial proceedings involving discovery (requests for documents and data) and depositions (statements from parties involved in the case). "That, in and of itself, could last several years," says Anderson.
The NFL would prefer no trials.
"I think that for the NFL ... winning this pre-emption argument is very, very important because it would change the dynamics of any further proceedings in this case," says NYU's Boland. "It also would allow them, I think, to set up a settlement."
Junior Seau spent most of his NFL career with the San Diego Chargers.