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Football May Be Over But The Hits Will Keep Coming

2013 February 10

Are you ready for some football? Some courtroom-concussion football, that is. Now that the season is over, things are going to start heating up in court.

The lawyers have spent the last several months arguing whether the players’ claims are barred by the collective bargaining agreements (CBAs). The parties have submitted their respective briefs to the court, and the ball is now in Judge Brody’s hands.

In order to further flesh out the issues, Judge Brody ordered oral arguments to take place on Tuesday, April 9 at 10:00 am in Philadelphia.

Get your popcorn ready because it is going to be a star-studded event, at this Supreme-Court-like showdown. Hall of famers will be there; prominent lawyers will flex their legal brilliance, and Roger Goodell, well, he probably won’t be there – he’ll be out kissing babies and trying to save football.

The NFL knows that this could be a make or break moment — for football, as we know it. Billions of dollars are at stake.

The NFL is trying to slam the courtroom door shut, and prevent the plaintiffs’ lawyers from digging deep into the NFL’s dirty laundry. The discovery of 81 documents in the tobacco litigation cost Big Tobacco 365 billion dollars. The same could be true here.

Both sides have invested hundreds of thousands of dollars (probably closer to millions) on the litigation already. Neither the NFL nor the plaintiffs’ lawyers are working on the cheap when it comes to tackling the preemption issue.

In the NFL’s corner, Paul Clement will likely present the NFL’s argument for why the players’ claims should be dismissed.

In the players’ corner, David Frederick will attempt to persuade Judge Brody that this case is much more than a mere “labor dispute.” As I noted previously, Frederick was a Supreme Court Clerk to Justice Byron “Whizzer” White – who also played in the NFL for three very successful seasons.

This may be the most dramatic litigation battle in sports history, and the legal hits are just starting. If Judge Brody rules in the players’ favor, it could be the beginning of a long and dark story of how the NFL allegedly profited from the destruction of the brains of thousands of players. On the other hand, if Judge Brody rules in the NFL’s favor, we may never learn what, if at all, the NFL knew about the long-term damage of repetitive hits to the head.

After the April arguments, Judge Brody will be tasked with writing a well-reasoned decision on whether the players’ lawsuits can move forward. Simply put, the health of former players and the NFL’s pocketbook are in Judge Brody’s hands. Of course, there will be appeals, but Judge Brody’s decision will steer the direction of the NFL Players’ Concussion Injury Litigationperhaps into settlement.

The NFL is not the only organization trying to fend off concussion lawsuits.

In a courtroom in Chicago, arguments are set to begin to determine if the plaintiffs can certify a nationwide class of all former student athletes that suffered a concussion while playing sports at an NCAA school. Although the plaintiffs have several legal hurdles ahead, this litigation could determine whether student athletes should be monitored for the warning signs of CTE.

The gridiron of courtroom-concussion football is set to take some hits.

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