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Why the Players are on a Path to Arbitration in the NFL Concussion Injury Litigation

(The following is excerpted from an article written by Villanova University Law Student John W. Polonis. The article speculates on what may be the direction that the ongoing concussion litigation takes between former NFL players and the league.)  

“Four thousand plus plaintiffs in the NFL Concussion Injury Litigation face an uphill battle to survive preemption and pursue their state law claims. United States District Court Judge Anita Brody, of the Eastern District of Pennsylvania, recently heard oral argument on the NFL’s Motion to Dismiss. Plaintiffs accuse the NFL of fraud, wrongful death, negligent misrepresentation, negligent conduct, failure to warn, loss of consortium, as well as negligent hiring and retention. They seek money damages, declaratory relief, and an NFL-funded medical monitoring program.

Before any discussion of the merits, Judge Brody must resolve one threshold issue: preemption. Armed with the Collective Bargaining Agreement (“CBA”) between it and the NFL players’ union (“NFLPA”), the NFL will likely prevail in its Motion to Dismiss. If successful, the NFL could litigate this much bally-hooed case before an arbitration panel.

This litigation, so asserts the NFL, centers on workplace injuries governed by federal labor law, not personal injuries, governed by state law. For the NFL to prevail with its preemption affirmative defense, it must show that Plaintiffs’ claims will require the court to interpret the meaning of a specific provision of the CBA. Thus, the NFL must argue that Plaintiffs’ state law claims – whether based on negligence or fraud – are “substantially dependent upon” or “inextricably intertwined” with the terms of the CBA, or that they arise under the CBA.

Although defendants do not generally prevail on motions to dismiss by relying on affirmative defenses, the NFL may succeed here because of the uniform application of federal labor law. Generally, federal courts defer to the parties’ agreed-upon grievance procedures rather than taking on a workplace injury case. To prevail the NFL must convince Judge Brody that Section 301 of the Labor Management Relations Act (LMRA) precludes plaintiffs’ tort claims because player injuries, including traumatic head injuries, amount to nothing more than workplace injuries governed by the CBA and thus federal law.”

To read the full article, go to – http://sportslaw.foxrothschild.com/2013/06/articles/sports-business-and-the-law/preempting-the-players-claims-why-the-plaintiffs-are-on-a-path-to-arbitration-in-the-nfl-concussion-injury-litigation/

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Attorneys Lay Out Case for ‘NFLPA’s Continuing Complicity and Moral Failure’ on the Concussion Issue

(Editor’s note: what follows is a brief intro to a story written by Michael Hausfeld and Swathi Bojedla of Hausfeld LLP, which appears in the July issue of Concussion Litigation Reporter. Each monthly issue will feature six to eight stories on the legal strategies being deployed by practitioners in the concussion litigation space.)

With the recent filing of the master amended complaints in retired players’ concussions litigation against the NFL, a common question concerns whether the NFLPA should be a target of litigation. Thus far, the NFLPA has escaped scrutiny and legal action based on their failure to protect retired players from both the occurrence of concussions during their playing days as well as the short- and long-term effects of traumatic brain injury after their playing careers have terminated.

NFLPA’s Commitment to Provide Detection, Treatment and Care for Traumatic Brain Injury

The link between repeated head injuries and chronic traumatic encephalopathy, or CTE, has long been known in the academic world. For example, a 1962 study showed a heightened incidence of CTE in boxers, and a similar study the following year found that neurological damage stemming from repeated head injuries manifested in the form of dementia and impaired motor function. However, until recently, the NFL ignored established medical evidence, instead choosing to refute or deny the link between repeated head trauma and the myriad symptoms facing retired NFL players. During that same time, the NFLPA was silent despite their knowledge of the mounting evidence of retiree injury and medical causation.

Recently, the NFLPA has acknowledged its own failure to protect retired players and to promote their health and safety. In 2009 and 2010, the United States House of Representatives’ Committee on the Judiciary held hearings to investigate the legal issues relating to football and head injuries. During those hearings, NFLPA Executive Director DeMaurice Smith testified that, “as Executive Director, my number one priority is to protect those who play and have played the game. There is no interest greater than their health and safety.” Smith noted that the NFL had spent years suppressing and denigrating legitimate medical studies that detailed the link between repeated concussions and long-term side effects. He went on to acknowledge that the NFLPA “in its past has not done its best” and that the union was “complicit in the lack of leadership and accountability” in terms of acknowledging and dealing with traumatic brain injury and its effects on retired players.

In his testimony to Congress, Smith made a pledge to retired players: “To men like John Mackey and Brent Boyd and to the families of Mike Webster and Andre Waters, and other players that suffered and continue to suffer daily, I commit and we commit to this as our mission. We will not fail them or their families.” The NFLPA took the stance that they would protect and promote the health, safety, and welfare of retired NFL players. This promise has, to this day, remained unfulfilled.

NFLPA’s Continuing Complicity and Moral Failure

Despite Smith’s testimony that the NFLPA owed an “obligation” to “prevent, treat and manage the long-last effects of these injuries”, the NFLPA continued to block retirees’ efforts to enact meaningful change…

(To view the rest of this story in the July issue and have access to future proprietary articles, subscribe by visitinghttps://concussionpolicyandthelaw.com/subscribe/)

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Will the NFL Players Association Be Sued Too?

The noise is picking up about whether to name the National Football League Players Association as a defendant in the concussion lawsuits.

Of interesting note is NFLPA executive director DeMaurice Smith’s confession to Congress in 2010 that “the union shares blame with the league for the sluggish acknowledgement and reaction to the long-term perils of head injuries.”

With reference to the NFLPA’s role in the creation and efforts of the Mild Traumatic Brain Injury Committee in 1994, Smith went on to say, “There is simply no justification for the NFL to have previously ignored or discredited Dr. [Bennet] Omalu and others with relevant, valid research. For far too long, our former players were left adrift; as I emphasized at the last hearing, we were complicit in the lack of leadership and accountability, but that ends now. I am here again to make it clear that our commitment is unwavering.”

Smith’s confession along with the committee’s unwavering stance has the potential to elevate the NFLPA as a target for former players.

Why hasn’t it happened yet?

Some have theorized that the NFL has deeper pockets, which makes it a better target. Another reason could be that the NFLPA might become an ally of the NFL, creating solidarity around the contention that no one really understood the consequences of concussions until recently. In addition, targeting the union may widen the gap between ex-players and current players. Finally, suing the union may augment the argument that a Collective Bargaining Agreement was in place to govern claims like the ones currently being made.

For all of these reasons, a prudent legal strategy may call for the plaintiffs to spare the NFLPA as a target – for now.

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