Several thousand retired NFL players, some of them represented posthumously, are asking a federal court to decide whether or not the league was negligent and is liable for the long-term health issues associated with concussions and head trauma sustained as a result of playing football. However, before their case can be heard, Judge Anita Brody must decide whether or not the matter belongs in court or in front of an arbitrator.
This week, the NFL filed a reply brief countering the plaintiffs' claim that the issue belongs court. The league stood firm on the matter of preemption, arguing that the labor law restricts the matter of on-field injuries to the grievance system set forth in the collective bargaining agreement.
Attorneys for the NFL cited dozens of prior decisions in the area of labor and employment law going all the way to the Supreme Court. The crux of the argument is outlined in the brief's opening statement:
Section 301 of the Labor Management Relations Act (the "LMRA") requires that this Court dismiss Plaintiffs‟ claims against the NFL. Plaintiffs‟ arguments to the contrary are based on a misunderstanding of labor preemption law, binding precedents, and the Collective Bargaining Agreements (the "CBAs") to which they agreed. Try as they might, Plaintiffs simply cannot wish away the reality that they are not ordinary plaintiffs bringing claims against unrelated parties. Nor are they even ordinary employees suing their employer. The claims here are fundamentally about workplace safety in a unionized setting in which workplace safety issues loom large and have long been the subject of bargaining. In that context, Plaintiffs‟ remedies lie in the uniform federal labor law and its unique procedural scheme, not in the disparate common law of fifty different States.
The role of individual teams looms large in the league's preemption argument. Under the rules of the current and past labor agreements between the league and players, individual clubs and the certified physicians teams are required to employ are responsible for making the determination of whether or not a player is injured and when that player can return to action. The NFL says that the court would need to examine the role played by individual teams in making determinations in assessing the duty owed to players. The NFL argues that these determinations implicate the CBA, the former players' case is preempted by labor law and the lawsuit should be thrown out of court.
Plaintiffs disagree with the league's argument. On Tuesday, the Plaintiffs' Executive Committee for the former NFL players provided the following statement to SB Nation:
"For decades, the NFL actively concealed the risks associated with repetitive head impacts, denied the consensus of medical experts about their devastating effects, and ignored public health issues associated with permanent brain damage from repetitive head trauma. The facts in this case and the governing labor law do not support the NFL's attempt to seek complete immunity from the claims filed by former players and their families. We hope the Court will reject the NFL's arguments so these former players can finally hold the League accountable for its misconduct and receive the care and support they urgently need."
The plaintiffs will expand on that argument in another reply brief due to the court by Jan. 28. That will be the final brief arguing the matter of preemption.
Brody could take the step of asking for oral arguments on the matter. If that happens, attorneys from each side would get anywhere from an hour to three hours in front of the judge to argue over jurisdiction on the matter.
The question then becomes how Brody will decide on the matter.
"It's a toss up," Paul Anderson, a Missouri attorney who chronicles the case at his website NFL Concussion Litigation, told SB Nation. "This has been going on for a year and a half, and we're just now to the point where we're figuring out if it belongs in court."
Brody's decision on preemption could be appealed.
Briefs filed so far in the case are available at nflconcussionmdl.org.