{"id":1423,"date":"2013-04-10T08:26:12","date_gmt":"2013-04-10T13:26:12","guid":{"rendered":"http:\/\/nflconcussionlitigation.com\/?p=1423"},"modified":"2013-05-17T08:13:57","modified_gmt":"2013-05-17T13:13:57","slug":"exclusive-concussion-kickoff-oral-arguments-held-in-nfl-concussion-litigation","status":"publish","type":"post","link":"https:\/\/nflconcussionlitigation.com\/?p=1423","title":{"rendered":"Exclusive: Concussion Kickoff — Oral Arguments held in NFL Concussion Litigation"},"content":{"rendered":"

Exclusive Contribution by Eric M. Sable, Esq.\u00a0<\/a><\/strong><\/p>\n

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.\u00a0 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.\u00a0 (For background reading on preemption, click here<\/a>.)\u00a0 Let’s examine yesterday’s events:<\/p>\n

All Star Cast<\/b><\/p>\n

Yesterday’s oral arguments featured two legal heavyweights.\u00a0 Paul Clement, a former U.S. Solicitor General, argued on behalf of the NFL.\u00a0 David Frederick, a former Assistant Solicitor General and law clerk to Justice Byron White, represented the former players.\u00a0 Both have argued countless cases before the U.S. Supreme Court and are universally regarded as two of the nation’s preeminent appellate orators.\u00a0 As a result, the routine district court hearing definitely had a high-stakes feel to it.<\/p>\n

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.\u00a0 Frederick obliged; Clement did not.<\/p>\n

Framing the Issues and the Kline<\/i> Doctrine<\/b><\/p>\n

According to Frederick, during its existence the NFL had assumed the role of “guarantor of player safety” by enacting rules and equipment standards.\u00a0 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.<\/p>\n

Clement preferred to classify this case as one about workplace safety in an industry where conditions were subject to collective bargaining.\u00a0 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.<\/p>\n

However, the majority of the discussion yesterday focused on binding precedent from the Court of Appeals for the Third Circuit \u2014 Kline v. Security Guards, Inc.<\/i>, 386 F.3d 246 (3d Cir. 2004).<\/p>\n

In Kline<\/i>, unionized employees brought a lawsuit against their employer for using video and audio surveillance equipment to illegally record them.\u00a0 The employer argued that the employees’ state law claims were preempted due to the collective bargaining agreement.\u00a0 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.\u00a0 Thus, complete preemption was unwarranted.<\/p>\n

Similar to Kline<\/i>, the retired players argue that the NFL’s duty to its players \u2013 and failure to achieve that duty \u2013 is not specifically described in the CBA.\u00a0 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.\u00a0 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.<\/p>\n

The NFL attempts to distinguish Kline<\/i> 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.\u00a0 Whereas the subject of the dispute in Kline<\/i> was not mentioned in the CBA, in this case the CBA features health and safety provisions.\u00a0 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.”<\/p>\n

Judge Brody, however, interjected by asking whether the CBA was specific enough to cover the players’ claims.\u00a0 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.\u00a0 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.<\/p>\n

Gap Years<\/b><\/p>\n

Judge Brody was also particularly interested in hearing about the NFL’s position on those who played during the periods where no CBA existed \u2014 i.e., pre-1968 and 1987-1993 players.\u00a0 Without a CBA the argument for preemption becomes weaker.<\/p>\n

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.\u00a0 Clement also asserted that those players still receive benefits under the most recent CBA.\u00a0 Meanwhile, Frederick emphasized the fact that these gratuitous remedies are offered to the players do not divest them of a duty owed.<\/p>\n

Outlook<\/b><\/p>\n

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.\u00a0 Nevertheless, the players must be feeling confident considering the amount of focus on Kline<\/i>.<\/p>\n

While there are many ways in which Judge Brody can rule, one thing is certain:\u00a0 she will take her time crafting a careful, reasoned decision.\u00a0 Perhaps we will see some segment of the case \u2014 the fraud claims and the “gap” players \u2014 survive preemption.<\/p>\n

And let’s not forget about the NFLPA, who thus far have escaped culpability.\u00a0 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.\u00a0 Reading between the lines, if this case gets past the motion to dismiss stage, expect the NFLPA to be impleaded.<\/p>\n

Judge Brody concluded the hearing by stating that she “will rule when I sort these things out for myself.”\u00a0 There certainly are many issues at play and the motion to dismiss hinges on her interpretation of the preemption doctrine as enumerated in Kline<\/i> and the line of cases coming before it.\u00a0 While a ruling is not expected for several months, the entire trajectory of this case \u2014 and potentially billions of dollars \u2014 hangs in the balance.<\/p>\n

The views expressed in this article are solely attributable to the author<\/i>.\u00a0Eric M. Sable, Esq. is admitted to practice law in Pennsylvania and New Jersey.\u00a0 He is in the process of establishing his law practice.\u00a0 In May 2012, he graduated with magna cum laude honors from Widener University School of Law in Wilmington, Delaware.\u00a0 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.\u00a0 Follow him on twitter <\/i>@EricSable<\/i><\/a>.<\/i><\/p>\n

\u00a0Audio of Oral Arguments<\/strong><\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

Exclusive Contribution by Eric M. Sable, Esq.\u00a0 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.\u00a0 Judge Brody of the U.S. District Court for the Eastern District of Pennsylvania held oral arguments regarding the NFL’s […]<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"ngg_post_thumbnail":0},"categories":[1],"tags":[244,80,29,16,175,243,242,11,4,21,241,155,78],"jetpack_sharing_enabled":true,"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/nflconcussionlitigation.com\/index.php?rest_route=\/wp\/v2\/posts\/1423"}],"collection":[{"href":"https:\/\/nflconcussionlitigation.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/nflconcussionlitigation.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/nflconcussionlitigation.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/nflconcussionlitigation.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1423"}],"version-history":[{"count":2,"href":"https:\/\/nflconcussionlitigation.com\/index.php?rest_route=\/wp\/v2\/posts\/1423\/revisions"}],"predecessor-version":[{"id":1455,"href":"https:\/\/nflconcussionlitigation.com\/index.php?rest_route=\/wp\/v2\/posts\/1423\/revisions\/1455"}],"wp:attachment":[{"href":"https:\/\/nflconcussionlitigation.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1423"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/nflconcussionlitigation.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1423"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/nflconcussionlitigation.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1423"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}