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The NFL, Again, Seeks to Kick the Players’ Claims Out of Court

2012 December 18
by Paul D. Anderson Consulting, LLC

During the past 6 months, the NFL and the former players have been arguing over one, complex issue: whether the players’ claims belong in court. The concept is called preemption. In its simplest form–although it definitely is not simple—parties to a collective bargaining agreement (i.e. players and the NFL management council) are generally barred from running to the courts and filing a lawsuit. Instead, the parties must pursue the specific grievance procedures set forth in the CBAs, which generally requires arbitration.

The NFL has framed the NFL concussion litigation as nothing more than a labor dispute over workplace health and safety. The players, on the other hand, have framed this litigation as a full frontal attack against the NFL for committing wrongs (i.e. fraud and negligence) against the players.

In its 30 page brief—drafted by some of the greatest legal minds in the country—the NFL argues that the court must kick the players’ lawsuits out of court because they are barred by the CBAs. The NFL’s reasoning is primarily based upon Supreme Court precedence, two federal judges’ Orders, and the unique nature of federal labor law.

Due to the uniform nature of federal labor law, an arbitrator – not a judge – is best suited to interpret the CBAs. If resolution of a claim requires the court to interpret various provisions of the CBA, then the claim is completely preempted. In other words, if Judge Brody has to examine all of the past and current CBAs, to determine what duties, if any, were owed to the players, then, according to the NFL, the claims must be dismissed.

The players’ claims are primarily based on two legal theories: negligence and fraud. Both of which require a “duty” element. The scope of this duty depends on the circumstances at play. Under modern tort law, each person in society owes a general duty to act like a reasonable prudent person under the same or similar circumstances. This duty can vary depending on the circumstances, and the analysis of this duty cannot be determined in a vacuum. Rather, this analysis requires a fact-intensive determination of what other factors were involved.

Applying these legal principles, the NFL argues that the scope of the purported duty owed to the players requires interpretation of the CBAs. Specifically those provisions in the CBAs that address duties imposed on team doctors and trainers regarding player health and safety.

The NFL is essentially arguing that Judge Brody will not be able to determine what duty, if any, the NFL owed to the players without analyzing each team’s responsibility it owed to the players. Put differently, the teams have experienced doctors and athletic trainers on the sidelines. To become a team doctor or trainer, the CBAs requires that doctors and trainers be certified. According to the NFL’s logic, and by way of an example, an assessment would have to be made of each team’s medical personnel to determine if they are educated in concussions. If all medical personnel must be certified concussion specialists, then the degree of the duty owed by the NFL may be reduced. On the other hand, if the medical personnel are not educated on concussions, then the NFL’s duty may be greater. This analysis would, according to the NFL, necessarily require interpretation of the CBAs – triggering preemption.

The same line of reasoning applies to the fraud-based theories, according to the NFL, because an essential element in fraudulent concealment is a “duty to disclose.” Moreover, another essential element in a fraud claim is whether the plaintiff justifiably relied on the representations. Again, whether the players were justified in relying upon the NFL’s representations about the link between concussions and long-term cognitive decline would require an interpretation of the aforementioned CBA provisions – again, triggering preemption.

The NFL heavily relies upon two early rulings by federal judges Manuel Real and James Holderman. In fact, the NFL’s brief attempts to make these rulings look like the Holy Grail that Judge Brody must follow. Judge Brody is certainly not bound by these prior rulings, but she may find them persuasive. The NFL’s reliance and broad interpretation of the powerful thrust of federal preemption law may be misplaced.

Taking the NFL’s preemption argument to its logical end would effectively grant the NFL a license to commit fraud against its players and former players. Instead of having to defend any allegations of fraud, the NFL could simply hide behind the shield of the CBA.

As an extreme example, Roger Goodell could tell players at the Rookie Symposium that they will never suffer from neurological disorders if they drink NFLade. Believing that the Commissioner is telling the truth, the players, as instructed, drink NFLade before every game. Thirty years later, the players that heeded Goodell’s advice end up suffering from neurological disorders.

In other settings, except for the NFL apparently, a person harmed by Goodell’s representations could sue Goodell under a theory of fraud. But the mighty NFL, according to its logic, can assert the preemption defense and argue that the lawsuit should never see a jury because, as an initial matter, the resolution would require an interpretation of the CBA. In other words, to determine whether it was reasonable for the players to rely on Goodell’s representations, the court would have to examine the duty owed by Member Clubs to inform players that NFLade may not have been the bee’s knees that Goodell proclaimed it was.

Again, that is an extremely oversimplified example, but you can bet the players will make a policy argument that effectively states, granting the NFL’s preemption argument will turn federal labor law on its head and allow management to shirk their duties and hide behind the Almighty CBA.

To be sure, the preemption issue is one of the most complicated legal issues in American jurisprudence. Both sides have great legal arguments, and Judge Brody will have a very difficult decision to make.

On a final note, the NFL has hired one of the greatest legal minds in the country, Paul Clement. Clement was the former US Solicitor General under the Bush Administration. This all-important hiring of Clement may be an example of the NFL flexing its muscles to show that it is willing to take this preemption issue all the way to the United States Supreme Court – legal nerds rejoice!

The players, however, are not alone. They have hired renowned appellate lawyer David Frederick of  Kellog, Huber. Frederick has numerous Supreme Court victories notched to his belt. The most intriguing thing about Frederick is that he clerked for the late Supreme Court Justice, Byron White. The “Whizzer” was also a former NFL player.

Oh, the beauty of this: just imagine Frederick going toe-to-toe with Clement all the way to the Supreme Court.

The players will have until January 28th to file a surreply brief. Once this has been filed, the preemption issue will be fully briefed, and the decision on whether the players’ claims belong in court will rest with Judge Brody.

Stay tuned, things are heating up!

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