Debating the NFL’s Argument that the CBA Thwarts Concussion Lawsuits

As the plaintiffs in the NFL Concussion Litigation mull their response to the league’s motion to dismiss, one thing is certain – they will counter the NFL’s position that the Collective Bargaining Agreement (CBA) it has with its players is governed by section 301 of the Labor Management Relations Act.

That section “is substantially dependent upon or inextricably intertwined with the terms of a CBA, or that arise under the CBA,” meaning it would preempt state law claims involving fraud or negligence.

“That is the case here,” wrote the NFL. “The plaintiffs allege that the NFL breached its duties to inform NFL players of the risks associated with concussions and to provide safety regulations governing the health and safety of those same players. To resolve the plaintiffs’ claims, the court would be required to interpret the CBAs – which not only address player safety, but also address the authority and responsibility relating to player safety of the NFL, the Clubs, and the Union – to determine whether the NFL had such duties, the scope of any such duties, and the reasonableness of the NFL’s conduct in light of the CBA provisions.”

Beth Wilkinson, a high-profile Washington attorney serving as the NFL’s outside counsel in the case, told the Washington Post earlier this summer that she “feels confident that these claims are subject to resolution under the collective bargaining agreement.”

Michael McCann, a sports law professor and director of the Sports Law Institute at Vermont Law School, is not quite as optimistic. He told the Pennsylvania Record recently that “it’s a complicated issue of preemption, and it’s not one that’s easily resolvable. It’s not as if there’s an easy answer. I can see arguments on both sides that have a lot of merit.”


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