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Exclusive: Concussion Kickoff — Oral Arguments held in NFL Concussion Litigation

2013 April 10

Exclusive Contribution by Eric M. Sable, Esq. 

Yesterday, after approximately a year and a half since the earliest federal lawsuit was filed, the first live court action in the NFL Concussion Litigation kicked off in Philadelphia.  Judge Brody of the U.S. District Court for the Eastern District of Pennsylvania held oral arguments regarding the NFL’s motion to dismiss the tort claims of roughly 4,000 former players.  (For background reading on preemption, click here.)  Let’s examine yesterday’s events:

All Star Cast

Yesterday’s oral arguments featured two legal heavyweights.  Paul Clement, a former U.S. Solicitor General, argued on behalf of the NFL.  David Frederick, a former Assistant Solicitor General and law clerk to Justice Byron White, represented the former players.  Both have argued countless cases before the U.S. Supreme Court and are universally regarded as two of the nation’s preeminent appellate orators.  As a result, the routine district court hearing definitely had a high-stakes feel to it.

Despite the professional legal talent, Judge Brody did her best to cultivate a laid-back environment, joking with the attorneys at the outset of the hearing that they should feel free to remove their ties and jackets due to the heat.  Frederick obliged; Clement did not.

Framing the Issues and the Kline Doctrine

According to Frederick, during its existence the NFL had assumed the role of “guarantor of player safety” by enacting rules and equipment standards.  Contrary to its role as steward of the sport of football, the players criticize the league for publicly monetizing and glorifying violence in its NFL Films productions.

Clement preferred to classify this case as one about workplace safety in an industry where conditions were subject to collective bargaining.  Clement also countered the accusations of the NFL monetizing violence by emphasizing that the players union receives a portion of the profits from NFL Films.

However, the majority of the discussion yesterday focused on binding precedent from the Court of Appeals for the Third Circuit — Kline v. Security Guards, Inc., 386 F.3d 246 (3d Cir. 2004).

In Kline, unionized employees brought a lawsuit against their employer for using video and audio surveillance equipment to illegally record them.  The employer argued that the employees’ state law claims were preempted due to the collective bargaining agreement.  However, the court found that the dispositive question was whether the claims required any interpretation of the collective bargaining agreement (“CBA”), and in this case it concluded that because the employer did not cite to any specific provisions requiring interpretation, resolution of the employees’ state claims were not dependent upon analysis of the CBA.  Thus, complete preemption was unwarranted.

Similar to Kline, the retired players argue that the NFL’s duty to its players – and failure to achieve that duty – is not specifically described in the CBA.  Rather, it arises in the context of the NFL acting as the “superintendent” for the sport of football, and being in the unique position of having access to information on the neurological risks of concussions.  According to Frederick, the NFL breached its duty to the players when it concealed this information, failed to warn its players, spread misinformation, and set up a “sham” Mild Traumatic Brain Injury Committee in 1994.

The NFL attempts to distinguish Kline by arguing that here it is impossible to determine the scope of the NFL’s duty (as well as the union’s, the NFL member clubs’, or its players’ duties) without interpreting the CBA.  Whereas the subject of the dispute in Kline was not mentioned in the CBA, in this case the CBA features health and safety provisions.  Here, the NFL asserts that “the CBAs, in comprehensively assigning roles and responsibilities for regulating player safety, create a scheme in which the duties of any single actor, including the NFL, can be defined only by assessing the overall allocation of duties.”

Judge Brody, however, interjected by asking whether the CBA was specific enough to cover the players’ claims.  While Clement preferred to speak in broader terms, he did mention return-to-play rules and certain notification mechanisms specified in the CBA as provisions that require interpretation in determining the scope of the NFL’s duty to its players.  Clement also mentioned several times that the CBA allocates the responsibility of player health and safety to the individual member clubs and argued the players cannot just sidestep the preemption issue by reaching over the clubs to the sue the league.

Gap Years

Judge Brody was also particularly interested in hearing about the NFL’s position on those who played during the periods where no CBA existed — i.e., pre-1968 and 1987-1993 players.  Without a CBA the argument for preemption becomes weaker.

While Clement acknowledged that this is a difficult issue for the NFL, he stressed a “fundamental difference” between those players who played solely during the gap years, and other players, like the late Dave Duerson, who were in the league before, during, or after these gap years.  Clement also asserted that those players still receive benefits under the most recent CBA.  Meanwhile, Frederick emphasized the fact that these gratuitous remedies are offered to the players do not divest them of a duty owed.


From my time spent working in three different courts, I learned that it is futile to forecast a ruling based upon judge’s questioning at oral argument.  Nevertheless, the players must be feeling confident considering the amount of focus on Kline.

While there are many ways in which Judge Brody can rule, one thing is certain:  she will take her time crafting a careful, reasoned decision.  Perhaps we will see some segment of the case — the fraud claims and the “gap” players — survive preemption.

And let’s not forget about the NFLPA, who thus far have escaped culpability.  When asked multiple times about the NFL’s responsibilities for player safety, Clement strategically put it in the context of a shared role with the players, the NFLPA, and the NFL member clubs.  Reading between the lines, if this case gets past the motion to dismiss stage, expect the NFLPA to be impleaded.

Judge Brody concluded the hearing by stating that she “will rule when I sort these things out for myself.”  There certainly are many issues at play and the motion to dismiss hinges on her interpretation of the preemption doctrine as enumerated in Kline and the line of cases coming before it.  While a ruling is not expected for several months, the entire trajectory of this case — and potentially billions of dollars — hangs in the balance.

The views expressed in this article are solely attributable to the author. Eric M. Sable, Esq. is admitted to practice law in Pennsylvania and New Jersey.  He is in the process of establishing his law practice.  In May 2012, he graduated with magna cum laude honors from Widener University School of Law in Wilmington, Delaware.  While at Widener, Eric served as the Editor-in-Chief of the Delaware Journal of Corporate Law and clerked for Justice Henry duPont Ridgely at the Delaware Supreme Court.  Follow him on twitter @EricSable.

 Audio of Oral Arguments

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