Fate of retired players’ concussion claims against the NFL rests in hands of a judge


Attorney David Frederick, center, speaks during a news conference after a hearing to determine whether the NFL faces years of litigation over concussion-related brain injuries. Listening, from left, widows Eleanor Perfetto and Lisa McHale, former player Kevin Turner, Frederick, widow Mary Ann Easterling and former players Dorsey Levens, and Bill Bergey. (Matt Rourke/Associated Press)
April 9, 2013

For nearly 50 minutes Tuesday, an attorney for the NFL and another representing former professional football players stood side by side, delivering nuanced arguments that centered on the law, not head trauma. Now Judge Anita B. Brody of the Eastern District of Pennsylvania will weigh what she heard and decide whether the claims of about 4,200 former players can proceed in federal court.

At its essence, Tuesday’s hearing, the first in the high-profile concussion litigation against the nation’s most popular sports league, was aimed at determining whether the courtroom is a proper channel for retired players to pursue their claims of negligence and fraud against the NFL.

“This case is at bottom a case about workplace safety in an industry where issues of workplace safety are subject to collective bargaining,” the league’s attorney, Paul Clement, told the judge.

In arguing its motion to dismiss, the NFL contended that collective bargaining agreements between players and team owners prohibit former players from pursuing its cases in court and the claims should be “preempted.” Brody gave no indication in her questions or comments how she might side, but a ruling is not expected for several weeks or even months.

Brody could ultimately dismiss all or none of the players’ claims — or she could decide that only a fraction will move forward. The plaintiffs’ attorney, David Frederick, pointed out that athletes who competed prior to 1968 and a group that played between 1987 and 1992 were not subject to a CBA. Both the NFL lawyers and the judge noted that the plaintiffs who competed during this gap are more difficult to assess.

Clement said that because the league has extended pension and retirement benefits to vested players from that period, they should be viewed similarly to those who played under a formal CBA. Frederick countered by noting that “gratuitous gestures” don’t absolve the league of responsibility.

Six plaintiffs were in the courtroom Tuesday, including Mary Ann Easterling, whose husband, Ray, filed the initial concussion lawsuit against the NFL in August 2011. Eight months later, Ray, who played eight seasons with the Atlanta Falcons in the 1970s, committed suicide.

“I am very thankful,” she said after the hearing. “I know that Judge Brody did not have to have this day to hear the arguments. She could’ve dismissed it. I’m thankful for that. It means a lot to me. . . . I believe she will make the right ruling.”

The hearing amounted to nearly an hour of the judge questioning both attorneys. Brody asked the NFL on multiple occasions to cite specific provisions in the CBA that should warrant preemption of the plaintiffs’ claims, but Clement stuck with a more expansive reasoning.

“We don’t think the rest test is to get it down to a single agreement,” Clement explained later. “We think the broader problem with the claims here [is] you can’t meaningfully assess the scope of the league’s duty without also ascertaining the scope of the club’s duty and the scope of the union’s duty and the scope of the players’ duty.”

Frederick said in the courtroom, “By arguing at such a stratospheric level, the league is avoiding a discussion over whether there’s an actual dispute over the meaning of any collective bargaining provision.”

The plaintiffs contend that their claims, particularly on issues of fraud and duty of care, fall outside the provisions of the CBA. Frederick called the league’s quest for immunity an “absurd proposition.”

“If a league official went up and hit a player — just randomly hit a player — would we have an argument that there was a breach of duty of due care?” he said in court.

“I don’t know the answer to that,” Clement later told the judge. “But the way you answer is, you look at the collective bargaining agreement and see if it had anything relevant to say about the issue.”

Both sides cited a variety of past casework, 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’s why, he said, players are instead taking aim at the league.

“Logically the parties you’d want to sue in a case like this would be the union on the one hand or the clubs on the other,” Clement said following the hearing. “The fact that they haven’t. . . . is because they’ve read some of these labor preemption cases and they realized the best way to try to avoid that is to try to sue somebody other than the union or the employer.”

Regardless of how Brody rules, there will be no quick resolution. While the plaintiffs will try to move to discovery as soon as possible, appeals would likely follow, as well as other motions to dismiss.

“We are talking about one issue we’ve raised in our initial defense in this litigation,” Clement said. “I don’t want people to have the idea, okay, this is it, this is our only line of defense. This is a preliminary issue.”

Rick Maese is a sports features writer for The Washington Post.
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