Kevin Turner wasn’t always certain he’d live to see this, but now that it’s here – his day in court -- the former NFL fullback isn’t about to stay home in Alabama.
“There’s no way I’d miss it,” said Turner, who suffers from Amyotrophic lateral sclerosis, the terminal illness more commonly called ALS or Lou Gehrig’s disease.
Turner, who feels his condition is related to his eight-year pro football career, plans to be among the plaintiffs in the courtroom in Philadelphia Tuesday when a high-profile series of concussion lawsuits brought by retired players against the NFL finally goes before a judge. Judge Anita B. Brody of the Eastern District of Pennsylvania will listen to oral arguments on the NFL’s motion to dismiss lawsuits that cover the claims of about 4,200 former NFL players.
The players accuse the NFL of “intentional tortious misconduct, including fraud, intentional misrepresentation, and negligence,” contending the league was aware of risks associated with concussions, “but deliberately ignored and actively concealed the information,” according to a master complaint filed last June.
The merits of the case will not be discussed Tuesday. Instead, Brody will hear procedural arguments that will help her determine whether the federal court has the authority to hear the cases. The NFL contends the players’ claims are pre-empted by terms of the collective bargaining agreements that governed the relationship between players and NFL teams, and that a courtroom is not the proper venue to arbitrate those claims. If Brody agrees, the massive concussion litigation could come to a screeching halt.
“This is a potential multi-billion dollar issue -- this threshold issue of whether it belongs in court,” said Paul D. Anderson, a Kansas City attorney who runs the independent site NFLConcussionLitigation.com. “This could make or break the entire litigation.”
Since he was first diagnosed in May 2010, Turner, 43, has lost much of his upper body strength. He says he’s unable to hold anything heavier than a credit card -- can’t shave, lift a fork or zip his pants. He’ll travel to Philadelphia with the help of Craig Sanderson, a former roommate at the University of Alabama.
Turner, who declared bankruptcy after retiring from the NFL in 1999, said the case isn’t about getting rich. He’s hoping a favorable verdict helps “if I live five more years and I’m not able to provide for my kids,” he said.
Brody isn’t expected to issue a ruling for several weeks, maybe months. The NFL will be represented by Paul Clement, a former U.S. solicitor general who has argued a variety of matters before the Supreme Court, most recently the Defense of Marriage Act last month. The players’ will be represented by David Frederick, a Washington attorney who has argued more than two dozen cases before the Supreme Court.
“You’ll essentially have a Supreme Court-like showdown at the district court level,” Anderson said, “which is pretty unusual -- phenomenal lawyers going toe to toe.”
Brody has a variety of options at her disposal. She could side with the players and put all of the cases on track for the discovery phase, which would likely force the NFL to open its books, share records and make its personnel available for depositions. The judge could also choose to dismiss some of the players’ claims but not all. About 150 of the plaintiffs played in the NFL prior to 1968, when there was no CBA between players and management. Many others competed between 1987-92, another period in which the NFL operated without a formal CBA in place.
The NFL will cite several cases in which judges at all levels found claims that were pre-empted by the CBA. The players will argue that their claims – particularly in the areas of fraud and common law duty of care -- fall outside the boundaries of the CBA and thus the lawsuits should continue.
The NFL in recent years has committed millions of dollars to concussion research and has implemented a variety of measures to address the issue, from new rules governing tackling to adding independent neurologists to sidelines.
The first concussion-related lawsuit against the NFL was filed in August 2011. The number of plaintiffs continues to grow and now includes several Pro Football Hall of Famers, such as former Redskin Art Monk and Dallas’s Tony Dorsett, and many more Pro Bowlers, such as former Redskin Mark Rypien and Baltimore’s Jamal Lewis. More than six dozen former players filed suit against the NFL on the eve on Tuesday’s hearing, though last week, at least one plaintiff opted out.
When he filed his lawsuit last year, quarterback Pat White said he suffered permanent injuries as a result of head trauma he suffered during his NFL career, which appeared to be over in 2009. Last week, White removed his name from the litigation and signed a contract with the Redskins.