Tag Archives: CBA

NHL Attempts to Leverage Recent Ruling in Dent Case

(Editor’s Note: What follows is a brief excerpt from an article that appeared in the January Concussion Litigation Reporter. To read the full story, please subscribe.)

In late December, the National Hockey League claimed in court papers that the recent decision by a federal judge from the Northern District of California (Dent et al. v. NFL), which is summarized in this issue, supports its argument that a claim made by several former players that the NHL was negligent for failing to warn them about the damaging effects of concussion should be dismissed.file000180735812

In Dent, the court dismissed a lawsuit brought by former NFL Hall of Famer Richard Dent and other players, who claimed that the NFL was negligent for failing the insure that prescription drugs were appropriately administered at the club level by athletic trainers and physicians. That court found that the Collective Bargaining Agreement (CBA) between the NFL and its players’ union was controlling. In short, the players union had agreed that such a responsibility rested with the teams, not the league.


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Arbitrator Rules in Favor of Ben Utecht

by Paul D. Anderson Consulting, LLC

The NFLPA announced that Ben Utecht won his injury grievance against the Cincinnati Bengals. The arbitrator ruled that Utecht was returned to play too soon after suffering a concussion.

The language used by the arbitrator is intriguing. According to the NFLPA, the arbitrator held that Utecht “had not been sufficiently tested, both in his aerobic and strength reconditioning program, nor had he been tested in sport specific activities which would be a more accurate means of determining whether the damage caused by the concussion had ‘cleared.’”

Though I’m not privy to the facts, I wonder if the “testing” included ImPACT. Could there have been a false positive that caused the team to allow Utecht to return too soon? Based on the ruling, it appears that the medical staff failed to ensure that Utecht was fully asymptomatic.

It’s disheartening that a staff of medically-trained professionals would overlook and/or disregard certain tests that are so fundamental to a proper return-to-play evaluation.

Despite the loss, the NFL quickly seized upon the ruling to make a statement that the NFL Concussion Litigation should be decided by an arbitrator as opposed to a jury.

“The decision demonstrates that our collective bargaining agreements provide players with comprehensive remedies for football-related injuries, including injuries related to concussions,” NFL spokesman Greg Aiello said in a statement to Pro Football Talk.

I think the ruling is probably a win for both sides, although it tips more in favor of the players.

The grievance procedure – which was collectively bargained for – worked well in Utecht’s case, and it looks like a fair result was reached.

It could set a player-friendly precedent for future concussion-injury grievances. Any player that is released may now try to point to a prior concussion and argue that he was “returned to play too soon” or his concussion was “mistreated.” Of course, there will have to be some type of causal connection, but it at least creates a colorable argument.

This, in turn, will require teams–if they aren’t already doing so–to meticulously document any concussion, the players’ concussion history and his various treatments. Which, in the long run, will hopefully increase the health and safety of the players.

The NFL will use this case in future civil litigation to argue that the CBA and its grievance procedures are perfectly suited to handle concussion issues, and therefore the court should dismiss the claims for failing to exhaust the grievance procedures.

This may carry some weight for mere negligence claims, but allegations of gross negligence, fraud and/or concealment (i.e. the NFL Concussion Litigation) should overcome the preemption/arbitration argument.

Notwithstanding the arbitrator’s decision in Utecht’s case, the Bengals’ medical staff and the NFL do not deserve a free pass.

The wrongful conduct occurred in 2009, at a time in which the NFL was still not taking concussions seriously.

Indeed, the “standard of practice” applied in Utecht’s case was endorsed by the Mild Traumatic Brain Injury Committee.

Specifically, two conclusion made by the MTBI Committee may have been applied in Utecht’s case:

Returning to play after a concussion “does not involve significant risk of a second injury either in the same game or during the season.”

“Many NFL players can be safely allowed to return to play on the day of injury” and that “the current decision making of NFL team physicians seems appropriate for return to the game after a concussion.”

This same “current decision making of NFL team physicians” was ruled to, arguably, fall below the standard of care.

The arbitrator rejected the team’s contention that a less rigorous testing procedure-which was endorsed by the MTBI Committee-should have been applied.

Taking a logical leap, the arbitrator effectively discredited the MTBI Committee’s conclusions and team decision making.

The plaintiffs’ lawyers would be wise to point to Utecht’s case as yet another example of the NFL failing to protect the players – placing its business interests above the players’ health and safety. It also sheds light on why players are so reluctant to place their medical decisions in the hands of team physicians.

Whose interests are they looking out for? Apparently not the players.

In any event, hats off to Utecht and the NFLPA for vindicating a player’s rights.

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Attorney Analyzes Oral Arguments held in NFL Concussion Litigation

Eric M. Sable, a recent graduate with magna cum laude honors from Widener University School of Law in Wilmington, Delaware and contributor to Sports Litigation Report, recently provided analysis to NFLconcussionlitigation.com about the arguments put forward in the NFL concussion litigation in Philadelphia.

He noted that event featured “two legal heavyweights”—Paul Clement (a former U.S. Solicitor General, who argued on behalf of the NFL) and David Frederick (a former Assistant Solicitor General and law clerk to Justice Byron White, who represented the former players). “Both have argued countless cases before the U.S. Supreme Court and are universally regarded as two of the nation’s preeminent appellate orators,” he wrote.

Ultimately, Sable suggested that “the players must be feeling confident considering the amount of focus” on Kline v. Security Guards, Inc., 386 F.3d 246 (3d Cir. 2004).

“In Kline, unionized employees brought a lawsuit against their employer for using video and audio surveillance equipment to illegally record them. The employer argued that the employees’ state law claims were preempted due to the collective bargaining agreement. However, the court found that the dispositive question was whether the claims required any interpretation of the collective bargaining agreement (“CBA”), and in this case it concluded that because the employer did not cite to any specific provisions requiring interpretation, resolution of the employees’ state claims were not dependent upon analysis of the CBA. Thus, complete preemption was unwarranted.

“Similar to Kline, the retired players argue that the NFL’s duty to its players – and failure to achieve that duty – is not specifically described in the CBA. Rather, it arises in the context of the NFL acting as the “superintendent” for the sport of football, and being in the unique position of having access to information on the neurological risks of concussions. According to Frederick, the NFL breached its duty to the players when it concealed this information, failed to warn its players, spread misinformation, and set up a “sham” Mild Traumatic Brain Injury Committee in 1994.”

Sable added that “the NFL attempts to distinguish Kline by arguing that here it is impossible to determine the scope of the NFL’s duty (as well as the union’s, the NFL member clubs’, or its players’ duties) without interpreting the CBA. Whereas the subject of the dispute in Kline was not mentioned in the CBA, in this case the CBA features health and safety provisions. Here, the NFL asserts that ‘the CBAs, in comprehensively assigning roles and responsibilities for regulating player safety, create a scheme in which the duties of any single actor, including the NFL, can be defined only by assessing the overall allocation of duties.’

“Judge Brody, however, interjected by asking whether the CBA was specific enough to cover the players’ claims. While Clement preferred to speak in broader terms, he did mention return-to-play rules and certain notification mechanisms specified in the CBA as provisions that require interpretation in determining the scope of the NFL’s duty to its players. Clement also mentioned several times that the CBA allocates the responsibility of player health and safety to the individual member clubs and argued the players cannot just sidestep the preemption issue by reaching over the clubs to the sue the league.”

To see the complete, and very thorough, article, visit: www.nflconcussionlitigation.com

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