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NFL Debrief: Will the concussions case get another day in court?

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A federal judge is now weighing the merits of moving forward with a lawsuit on behalf of more than 4,000 former NFL players.

Brian Bahr

As far as courtroom proceedings go, Tuesday's face off between the NFL and attorneys for more than 4,000 retired players would not have made for compelling television.

This was a procedural matter: oral arguments before Federal District Judge Anita Brody over the league's motion to dismiss the case of former players suing the league over fraud and negligence related to the long-term health impact of head injuries. Theatrics and thin red lines were left for the show put on the for the press following the hour worth of court proceedings.

At issue is whether or not the case can go forward in the federal courts. Preemption is the five-dollar word the NFL's attorneys are using; the matter is preempted by the labor agreement between players and owners that dictates matters like workplace safety.

Tuesday's proceedings did not change the scope of the arguments that both sides have made through various briefings filed in the months leading up to this point. This was simply the football world's first opportunity to actually hear both sides lay out their reasoning in the case, as well as a look at the judge who could change the course of America's most popular and profitable professional sport.

A look at some of the issues that came up on Tuesday that will be pivotal in the case:

Duty to players

Where the responsibility rests for players suffering from the long-term effects of head injuries was at the heart of this hearing. The NFL stood by its assertion that teams, the union and even the players themselves share in the duty to assess and determine injuries of all kinds, putting the matter into the context of workplace safety and thus under the CBA.

Plaintiffs claim otherwise, citing case law that says the CBA does not cover the long-term health questions. This is where the fraud and negligence claims factor in, too. The former players point to the creation of the Mild Traumatic Brain Injury committee in 1994, a group headed by a rheumatologist with ties to a team, as covering up the risks of these injuries as well as the league's very culture, which glorifies the violence of the game.

Trying to figure out where a case is going based on just the judge's questioning is folly. However, it was notable that Brody pointedly questioned the league's attorneys on the specifics of the CBA as related to head injuries.

Gap players

Another issue that came up in Tuesday's hearing was the so-called gap years in the league's collective bargaining agreements with players. Before 1968 and during a span from 1987 to 1992, players were not subject to a labor agreement.

The league countered that those players were covered by other contracts, and pointed to the fact that retirement benefits are paid out to vested players whose career spanned those periods. Both sides acknowledged that it was a "difficult" issue. Court watchers should probably pay particular attention here, because this could be grounds to advance at least some of the plaintiffs' case to an actual trial.

The union's role

The role and responsibility of the union was one of the more notable developments Tuesday. The league's case has mentioned the NFLPA from the start because its motion to dismiss hinges on the labor agreements between the players and owners negotiated through the union and the league as part of its preemption case.

On Tuesday, Clement mentioned multiple times the idea that suing the league also made the union culpable in the matter.

The NFLPA has largely been on the sidelines of the concussion lawsuit so far. That could change depending on what Brody decides. If the case moves forward, part of the discovery phase will most certainly probe what the NFLPA knew about the risks and impact of head injuries and what it shared with its members. Remember, the NFLPA was part of the retirement board that awarded long term disability benefits to players suffering from the effects of head injuries. It is not out of the question that it could open the possibility for a suit against the players union itself.


If Brody rules that this suit can go forward, the trial would start with an extensive discovery phase. That would call for the league to open up a wealth of records, ranging from CBA negotiations to the interworkings of Mild Traumatic Brain Injury committee. The NFL is eager to avoid that.

I can't think of a multi-billion dollar business as free from regulation as the NFL. It's unsettling, especially when you consider how much the league depends on public support for everything from its monopoly protection to taxpayer financed stadiums.

What happens next?

Brody will take the hour's worth of oral arguments under consideration along with the endless reams of briefs filed by both sides. A decision about whether or not the case goes to trial probably will not come until the summer. If the judge allows the case to proceed, it may wind up looking different than the one before the court now, depending on what issues or claims the judge keeps and dismisses.

Predictions are difficult to make. Court insiders describe Brody as a thoughtful, considerate judge that does not fit into any easy category, which is part of the reason the case landed at her feet. The professionals who took in Tuesday's proceedings seemed to think that at least some part of the case will go forward. If it does continue, don't look for quick resolution. Factor in the appeals process and this case could go on for years.

Here's the audio from Tuesday's hearings, via Eric Sable.

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