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NFL filing motion to dismiss concussion lawsuits

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In a long-expected move that will underscore one of the fundamental flaws in the concussion lawsuits, the NFL will file a motion to dismiss more than 140 consolidated concussion lawsuits on Thursday, according to Darren Rovell of ESPN.

The league will argue that the claims “are preempted by federal labor law,” NFL spokesman Brian McCarthy said.  “The league’s preemption argument has already been accepted by two federal judges, who concluded that resolution of plaintiffs’ negligence claims would require interpretation of the various collective bargaining agreements under which the plaintiffs played and therefore preempted by federal labor law.”

It’s a common defense advanced by employers with a unionized workforce who face lawsuits from individual employees.  Being in a union necessarily results in the sacrifice of certain rights that a worker would pursue in court.

A case management order issued in May required the motion to be filed by August 9.  Deadlines of this nature commonly are extended, especially where the lawyers involved have other commitments.

The plaintiffs likely face an uphill climb; most labor agreements cast a broad net, compelling players to pursue any claims through the arbitration procedures established by the terms of the contract.  In this case, the fact that the 3,000-plus plaintiffs played under various versions of a Collective Bargaining Agreement will require the court to take the language of multiple deals into account.  The reality, however, is that the language will be the same or similar in all agreements.

For the former players who have sued, the challenge will be to reconcile the language of the various labor deals with existing federal precedent regarding loopholes that allow individual employees who are represented by a union to nevertheless sue on their own.

If the NFL loses the motion to dismiss, a separate but related dynamic will make if difficult for the plaintiffs to ultimately win the case.  To the extent that any of the concussion lawsuits focus on the failures of the Mild Traumatic Brain Injury committee to share truthful information with players about concussion risks, the union was directly involved in that committee from its inception in 1994.  But the NFLPA hasn’t been sued, and the league will be able at trial to argue that the union (and thus the players) are equally responsible for any actual or perceived failures from 1994 forward to protect the players from chronic head injuries.

So while it’s intriguing to consider the fact that so many former players are suing the game they once played and that the outcome cripple the league financially, this ultimately remains a hotly contested issue of law, and the NFL has some fairly strong arguments in its arsenal.

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20 Responses to “NFL filing motion to dismiss concussion lawsuits”
  1. eaglebobby says: Aug 30, 2012 10:24 AM

    1. The players knew the risk of playing football, from pee wee, through high school, college and pros. Yet, they still continued to play, despite the risks to their health. No doubt, most of their doctors probably imparted the same information–why should they profit when they probably had common sense information to begin with.

    2. My second point is something you’ve put in this article that can go back to the judge who’s sitting on the bounty case in New Orleans. If two federal judges, plus the judges last week in the DJ Williams case are saying that they are bound to follow grievance procedures set by the collective bargaining agreements between the players and the league, why then is this judge in New Orleans wanting so badly, are as you, to issue an order suspending the suspensions of the players involved in that case. Surely, all of these rulings should tell her–plus you–something. The players and the league AGREED to certain disciplinary procedures, plus knowing the commisioner is the all seeing authority in doling out discipline in multiple CBAs. So now why are they hoping a judge tries to set a precedent?

  2. sandiegosportswire says: Aug 30, 2012 10:26 AM

    The NFL has a great product, but they are terrible when it comes to negative PR regarding concussions, NOLA, referees…

    The NFL is issuing talking points and fining men with integrity for being honest about people who govern their safety in games…

    What does the NFL shield stand for? Politics and BS?

  3. rmdz7 says: Aug 30, 2012 10:56 AM

    The players knew there was risk, sure. The problem is, the players are not doctors. If you go to a doctor and the doctor tells you concussions will not present any issues to your brain in the future, and the doctor knows this is not the case based on scientific research, if the doctor doesn’t tell you, he’s negligent. And therein lies the ex-players arguments. That the NFL doctors lied to them.

    As for what one agrees under a contract, I’ll say it again: while a contract is a legal document, it is not the US Constitution. If anything under a contract is interpreted by a judge to not be in accordance with the US Constitution, guess what happens?

    And again, I reiterate: the judge in the Vilma case is NOT a New Orleans judge. She is a FEDERAL judge, born and raised in New York.

  4. rhodeislandpatriotsfan says: Aug 30, 2012 11:24 AM

    I think the NFL’s federal labor law preemption argument here is compelling. Hopefully, the federal district court will grant the league’s motion to dismiss these concussion lawsuits.

  5. bigperm33 says: Aug 30, 2012 11:27 AM

    Oh, I thought Goodell and the NFL really cared about player safety? I thought it was a top priority? The commissioner is just a liar. He does not care about player safety. He cares about making money.

  6. malgorthewarrior says: Aug 30, 2012 11:28 AM

    The nfl knew about the danger. They stacked the committee with doctors they knew would be in their favor. They were dishonest about it for years. And many fans dont remember that lots of these plaintiffs played before free agency when salaries were MUCH lower.

    I predict most of the media etc side with owners. The public has been convinced to demonize labor for years now just like with the lockout ppl will ironically call the players rich and greedy while ignoring that the owners make more money than god and they did it by stiffing these players for years without letting them know the depth of risks.

  7. thelastpieceofcheese says: Aug 30, 2012 11:51 AM

    If these concussion lawsuits win you better get used to watching infomercials on Sunday afternoon because the NFL will go bankrupt and close shop.

  8. jrbdmb says: Aug 30, 2012 12:20 PM

    “The players knew the risk of playing football, from pee wee, through high school, college and pros. ”

    That’s funny, when I was younger (and not *that* much younger) concussions were a non-issue in football. If you gut your bell rung, you shook it off and got back into the game. IMHO it’s only been the last ten years or so where the real long term effects of brain trauma are becoming known.

  9. bengalsfan513 says: Aug 30, 2012 12:27 PM

    If the NFL had a program in place that took care of its veterans after retirement, there wouldnt be lawsuits, but instead the NFL disregards its former players.

    All players love the game and NFL, but when they dont get the love back from the NFL it makes these players decision much easier to sue what i call there crappy father

  10. mylionsroaring says: Aug 30, 2012 12:48 PM

    If the players had come to the sidelines and told the coach, Doctor, or even the trainer they thought they may have a concussion they wouldn’t be having these problems now.

    They decided to stay quiet and keep on playing because they thought it would cost them their position. Sorry but you don’t get it both ways.

  11. mylionsroaring says: Aug 30, 2012 12:54 PM

    bengalsfan513
    ———————————-

    The average player plays three years there are 1696 players in the league that means every twenty one years that come out to about 11872 players they would have to give continued medical care to.

    Where did you work when you were between 22- 28 years old? Are they still giving you medical care from the days you worked for them. Yes it’s sad what they put their bodies through, but they get paid well to do it. Lets face it they get some of the best medical care while they are on a team.

  12. moth25 says: Aug 30, 2012 1:00 PM

    bengalsfan513,

    If the union thought it was important to have better retirement health benefits they would have fought for it. See the thing about having a union is that the company will not give anything extra, nor should they. They bargained for their compensation, including retirement benefits, and have no one to blame but themselves.

  13. eagleswin says: Aug 30, 2012 1:03 PM

    bengalsfan513 says:
    Aug 30, 2012 12:27 PM
    If the NFL had a program in place that took care of its veterans after retirement, there wouldnt be lawsuits, but instead the NFL disregards its former players.

    All players love the game and NFL, but when they dont get the love back from the NFL it makes these players decision much easier to sue what i call there crappy father

    ——————————–

    The players have had retirement benefits for quite sometime which are quite generous. They also recently expanded the retired players medical benefits significantly in the last CBA.

    This isn’t about the ex-players standing up for what’s right. This is about the ex-players being broke because they couldn’t manage their money. Perhaps they should be suing the colleges for allowing them to graduate without attending the classes?

  14. mylionsroaring says: Aug 30, 2012 1:24 PM

    eagleswin says: Aug 30, 2012 1:03 PM

    bengalsfan513 says:
    Aug 30, 2012 12:27 PM
    If the NFL had a program in place that took care of its veterans after retirement, there wouldnt be lawsuits, but instead the NFL disregards its former players.

    All players love the game and NFL, but when they dont get the love back from the NFL it makes these players decision much easier to sue what i call there crappy father

    ——————————–

    The players have had retirement benefits for quite sometime which are quite generous. They also recently expanded the retired players medical benefits significantly in the last CBA.

    This isn’t about the ex-players standing up for what’s right. This is about the ex-players being broke because they couldn’t manage their money. Perhaps they should be suing the colleges for allowing them to graduate without attending the classes?
    ——————————————————–
    AMEN Brother AMEN

    Don’t give a man a fish teach him how to fish

  15. prmpft says: Aug 30, 2012 1:25 PM

    I hammered the league regularly for bountygate. But the guy to sue for the concussions is the guy who held the gun to the players’ heads when they signed that contract. I am 100% with the league on this one for sure.

  16. vetdana says: Aug 30, 2012 1:56 PM

    This is all about one thing only…..using a legal loophole to rob a ” Cash Cow “[ NFL]..a 9 billion dollar “treasure chest”….just “ripe for the picking” !

  17. larryjames836 says: Aug 30, 2012 2:01 PM

    Just like on a job in the world you get hurt on the job you get compensation these players didn’t get concussions off the job so its don’t matter what they get paid. The NFL suppose to have these players insured so Roger Goodell pay these players for injuries on the job. All you people’s that are agreeing with the NFL you are wrong what if you fall down on your job and broke a arm you will want to be paid. There is know different with the NFL that is a job Roger Goodell want to compare the NFL to the military the military pays they soldiers for their injuries as long as its service – connected. If the NFL not going to cover these players injuries on the job they need to stop playing until they get a better health plan no its not right for players to suffer after making money for the NFL and the owners. We need to be in support of the players they are the one getting these concussions on the job this is called on the job injuries know way the NFL suppose to get by with filing a motion to dismiss concussions lawsuits this is on the job injuries that’s the law maybe the NFL has they own law if so the players need to protest the NFL law this means the is not fully covered medical wise.

  18. dretwann says: Aug 30, 2012 5:40 PM

    There appears to be a lot of hate on the players’ old, not so old and recent. It is impossible to understand how anyone can say these men knew what the long-term outcome would be for repeat concussions. The most they knew about it was it was a bad headache. leg injuries, body injuries, sure they knew about those. But whether you will be able to wipe your tail in 20 years or not? ! No, they did not know that. I don’t know how true it is, but the players seem to think the NFL knew more earlier than they are letting on. If that is true, the players deserve recompense.

  19. packhawk04 says: Aug 30, 2012 5:52 PM

    I think some big problems for the players are that the main effects of concussions have only been known for the last 15-20 years. In those years, the NFL began with no helmet to helmet hits, to defensless receivers, to where and you can hit quarterbacks, to new helmets protecting players from concussions. The NFL has a long history of implementing rules for player safety. Meanwhile, players have been complaining about those rules, complaining about how you cant hit players anymore. Another major problem is players coming out and saying they have or would lie in order to get back in the game.

  20. packhawk04 says: Aug 30, 2012 5:54 PM

    And rmdz, cute story about the constitution.

    I reiterate… the judge has said multiple times she wants to rule in favor of vilma. Shes had a long time to do it, but hasnt. I wonder why that is?

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