At Start of NFL Concussion Case, a Focus On Workplace Safety

April 10, 2013
by Jason M. Breslow Digital Editor

NFL lawyer Paul Clement speaks outside the U.S. Courthouse Tuesday, April 9, 2013, in Philadelphia after a hearing to determine whether the NFL faces years of litigation over concussion-related brain injuries. Thousands of former players have accused league officials of concealing what they knew about the risk of playing after a concussion. The lawsuits allege the league glorified violence as the game became a $9 billion-a-year industry. (AP Photo/Matt Rourke)

Should former NFL players be able to sue the league for brain injuries they suffered on the field?

That question was the focus of a preliminary hearing Tuesday into concussion litigation filed by more than 4,000 NFL veterans. Facing the prospect of billions of dollars in potential liability, attorneys for the league pressed U.S. District Court Judge Anita B. Brody to dismiss the case.

The league’s attorney, former U.S. Solicitor General Paul Clement, argued that under the terms of the collective bargaining agreement between players and the league, any such claims must be settled through arbitration, rather than through the courts.

“This case is at bottom a case about workplace safety in an industry where issues of workplace safety are subject to collective bargaining,” Clement told Judge Brody.

Across the aisle was David Frederick, lead counsel for the players. As early as the 1920s, the NFL established itself as the “guarantor of player safety,” said Frederick. But in recent decades, he argued, the league has actively worked to glorify the violence of the game, despite the knowledge that concussions and other such head injuries caused depression, dementia and a bevy of other neurological problems.

Moreover, he argued, the NFL fraudulently concealed the potential long-term effects of concussive and sub-concussive hits — a claim the league denies.

“When the NFL began to monetize and glorify violence on the field, it breached its duty of due care,” Frederick said. “It can’t claim immunity simply because clubs have a contractual relationship with a players union.”

Much of the 45-minute hearing explored a legal precedent established in Kline v. Security Guards. In the Kline case, unionized security guards at an auto parts manufacturer in Pennsylvania filed a lawsuit against their employer for bringing in audio and video surveillance equipment to illegally record them. The employer, in turn, followed the same legal strategy the NFL is pursuing, claiming that because the guards were covered by a collective bargaining agreement, their claims had no place in court.

In 2004, the U.S. Court of Appeals for the Third Circuit sided in favor of the security guards, ruling that because their union contract did not include language expressly addressing issues such as concealment, fraud or eavesdropping, their suit could not be “preempted” by the arbitration process.

Frederick argued that the collective bargaining pact between players and the league did not address the issue of brain trauma, and as such, the case should be allowed to proceed.

“What the league is trying to do here is get immunity,” said Frederick. “That has nothing to do with the basic breach of duty that we’re asserting here.”

Clement countered by telling the court that provisions about health and safety were “all over” past collective bargaining agreements. He conceded, however, that the league’s argument was harder to sustain for the roughly 300 players in the suit who played without a collective bargaining agreement before 1968, and then again from 1987 to 1993.

Brody could rule to dismiss the case, or allow the entire suit — or even just elements of the litigation — to proceed. A ruling is not expected for several months. Appeals will likely follow, as well as a discovery phase that could stretch for years.

Outside of the court, Kevin Turner, a former fullback for the New England Patriots and the Philadelphia Eagles said he was glad to see the case “at last moving forward.” After spending eight seasons in the league, Turner, 43, is now battling amyotrophic lateral sclerosis, or ALS. “Unfortunately,” he said, “there’s a lot of us that don’t have 10 years to find out what the decision is.”

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