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.