Fate of retired players’ concussion claims against the NFL rests inhands of a judge
file:///C:/DOCUME~1/ADMINI~1/LOCALS~1/Temp/msohtml1/01/clip_image001.jpg
Matt Rourke/Associated Press - Attorney David Frederick,center, speaks during a news conference after a hearing to determine whetherthe NFL faces years of litigation over concussion-related brain injuries.Listening, from left, widows Eleanor Perfetto and Lisa McHale, former playerKevin Turner, Frederick, widow Mary Ann Easterling and former players DorseyLevens, and Bill Bergey.
PHILADELPHIA — For nearly 50 minutesTuesday, an attorney for the NFLand another representing formerprofessional football players stood side by side, delivering nuanced argumentsthat centered on the law, not head trauma. Now Judge Anita B. Brody of theEastern District of Pennsylvania will weigh what she heard and decide whetherthe claims of about 4,200 former players can proceed in federal court. At its essence, Tuesday’s hearing, thefirst in the high-profile concussion litigation against the nation’s mostpopular sports league, was aimed at determining whether the courtroom is aproper channel for retired players to pursue their claims of negligence andfraud against the NFL.
“This case is at bottom a case aboutworkplace safety in an industry where issues of workplace safety are subject tocollective bargaining,” the league’s attorney, Paul Clement, told the judge.
In arguing its motion to dismiss, theNFL contended that collective bargaining agreements between players and teamowners prohibit former players from pursuing its cases in court and the claimsshould be “preempted.” Brody gave no indication in her questions or commentshow she might side, but a ruling is not expected for several weeks or evenmonths.
Brody could ultimately dismiss all ornone of the players’ claims — or she could decide that only a fraction willmove forward. The plaintiffs’ attorney, David Frederick, pointed out thatathletes who competed prior to 1968 and a group that played between 1987 and1992 were not subject to a CBA. Both the NFL lawyers and the judge noted thatthe plaintiffs who competed during this gap are more difficult to assess.
Clement said that because the leaguehas extended pension and retirement benefits to vested players from thatperiod, they should be viewed similarly to those who played under a formal CBA.Frederick countered by noting that “gratuitous gestures” don’t absolve theleague of responsibility.
Six plaintiffs were in the courtroom Tuesday,including Mary Ann Easterling, whose husband, Ray, filed the initial concussionlawsuit against the NFL in August 2011. Eight months later, Ray, who playedeight seasons with the Atlanta Falcons in the 1970s, committed suicide.
“I am very thankful,” she said afterthe hearing. “I know that Judge Brody did not have to have this day to hear thearguments. She could’ve dismissed it. I’m thankful for that. It means a lot tome. . . . I believe she will make the right ruling.”
The hearing amounted to nearly an hourof the judge questioning both attorneys. Brody asked the NFL on multipleoccasions to cite specific provisions in the CBA that should warrant preemptionof the plaintiffs’ claims, but Clement stuck with a more expansive reasoning.
“We don’t think the rest test is to getit down to a single agreement,” Clement explained later. “We think the broaderproblem with the claims here [is] you can’t meaningfully assess the scope ofthe league’s duty without also ascertaining the scope of the club’s duty andthe scope of the union’s duty and the scope of the players’ duty.”
Frederick said in the courtroom, “Byarguing at such a stratospheric level, the league is avoiding a discussion overwhether there’s an actual dispute over the meaning of any collective bargainingprovision.”
The plaintiffs contend that theirclaims, particularly on issues of fraud and duty of care, fall outside theprovisions of the CBA. Frederick called the league’s quest for immunity an“absurd proposition.”
“If a league official went up and hit aplayer — just randomly hit a player — would we have an argument that there wasa breach of duty of due care?” he said in court.
“I don’t know the answer to that,” Clementlater told the judge. “But the way you answer is, you look at the collectivebargaining agreement and see if it had anything relevant to say about theissue.”
Both sides cited a variety of pastcasework, and Clement said that had the plaintiffs sued the individual clubs,he feels the court would find “a clear-cut case ripe for preemption.” That’swhy, he said, players are instead taking aim at the league.
“Logically the parties you’d want tosue in a case like this would be the union on the one hand or the clubs on theother,” Clement said following the hearing. “The fact that they haven’t. . . . is because they’ve read some of these labor preemption cases and theyrealized the best way to try to avoid that is to try to sue somebody other than the union or theemployer.”
Regardless of how Brody rules, therewill be no quick resolution. While the plaintiffs will try to move to discoveryas soon as possible, appeals would likely follow, as well as other motions todismiss.
“We are talking about one issue we’veraised in our initial defense in this litigation,” Clement said. “I don’t wantpeople to have the idea, okay, this is it, this is our only line of defense.This is a preliminary issue.”