Players Respond: Let Us Have Our Day in Court
In a scathing 45-page brief, the plaintiffs responded to the NFL’s motion to dismiss, arguing that they deserve to have their day in court.
The plaintiffs used this as another attempt to convince Judge Brody, and the public, that their claims have nothing to do with the collective bargaining agreements.
At the heart of the preemption issue, the plaintiffs have to show that their purported state-law claims are not substantially dependent upon or inextricably intertwined with the terms of the CBAs. (This is legal jargon meaning that Judge Brody can toss aside the CBAs and adjudicate the players’ claims without resort to the players’ contracts.)
The plaintiffs argue that none of their claims require interpretation of the CBA; rather, these are stand-alone claims that can be successfully prosecuted without construing, among others, various health and safety provisions of the CBAs.
According to the plaintiffs, the NFL acted negligently in failing to safeguard the health of the players. The NFL allegedly owed a duty to the players based upon its historical role of “holding itself out as a protector of player well-being,” its “glorification of football violence” and its “voluntary decision to create the MTBI Committee.”
This in turn, created a “special relationship” which required the NFL to act reasonably in discharging its duty. According to the plaintiffs, the court would not need to examine the various provisions of the CBA to determine the scope of this relationship because common law principles would apply.
In other words, Judge Brody will not have to examine the CBA; instead she can base her decision on the same legal principles guiding every-day life (i.e. society as a whole).
Despite being armed with this knowledge — an “institutional repository” on neurological risks — the NFL allegedly “orchestrated a campaign of disinformation” which deceived players about the long-term health risks of concussions. Not only were the players deceived, according to the plaintiffs, but also the NFL deceived the teams’ doctors by marginalizing the risks of concussions.
The players then allege that their fraud claims pierce through the CBA provisions with ease.
The players argue that the NFL voluntarily inserted itself into the concussion discussion when it created the Mild Traumatic Brain Injury Committee in 1994. The NFL then spent 15 years concealing, or affirmatively misrepresenting, the long-term effects of concussions.
Not only did the NFL’s alleged fraudulent conduct impact players that played during this time, but it also prevented retirees from seeking medical treatment because retirees were told that their neurodegenerative diseases were not the cause of concussive and subconcussive blows, according to the plaintiffs.
Again, examining the NFL’s fraudulent actions would require only a factually inquiry, without the necessity of interpreting the CBAs.
Finally, the plaintiffs argue that there are three distinct areas of the players’ claims that the preemption analysis cannot even touch.
First, the players that played during the time the MTBI Committee was in existence. This argument, again, goes to the NFL’s voluntary (or gratuitous) undertaking to study concussions, and its assumed duty to report the finding of the studies accurately.
Second, the retired players who relied on the NFL’s stance that there was no link between brain bashing in football and later-life cognitive decline.
And third, the players that played during the time in which a CBA was not in place (e.g. pre-1967 and between 1987-1993).
Overall, the plaintiffs’ arguments appear to be pretty persuasive. The Third Circuit’s preemption precedent, at the very least, may weigh in favor of the players’ position regarding the fraud claims. Stated differently, I could foresee the plaintiffs’ negligent claims being preempted but the fraud claims surviving. Judge Brody is bound by the 3rd Circuit’s precedent; however, since there isn’t a case directly on point, she may find the reasoning in Stringer v. NFL et al and other NFL cases persuasive and rule the players’ negligence claims are completely preempted.
The NFL will have until December 17th to respond to the players’ arguments. Judge Brody will then consider whether oral arguments should be scheduled – which would likely take place in early 2013. Following oral arguments, Judge Brody will take the matter under consideration and, in due time, make her ruling sometime thereafter – I’d ballpark Spring 2013. (and then the case may be appealed to the Third Circuit.)
If the players prevail, it will merely be a ticket to allow them to stay in court for another day. If the NFL prevails, the courtroom door will effectively be slammed shut on the plaintiffs’ claims for relief, and the saga of the NFL Concussion Litigation will come to an end.
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