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First major hurdle comes this week in concussion lawsuits

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As thousands of Davids prepare to take on the sports world’s Goliath in the NFL concussion lawsuits, Goliath has a fairly large stone that he’s about to drop on all of them.

Lost in the sympathy and intrigue generated by 4,200 former pro football players suing the caretakers of the game they played is the fact that the NFL, as it usually does, has some strong legal arguments.  The first one makes its way to Judge Anita Brody’s court in Philadelphia on Tuesday, after the submission of extensive written materials by the lawyers.

The NFL’s threshold position comes from the labor deal.  The league believes that the various Collective Bargaining Agreements negotiated by the players and the league control the situation, and that any claims for failure to protect players from concussions or to disclose to them the risks of concussions should be pursued via the dispute-resolution system created by the CBAs.

“Although the CBAs have changed over time pursuant to the collective bargaining process, every CBA expressly addresses player health and safety and provides grievance procedures for the resolution of disputes,” the league explained in a submission to the court, via the Philadelphia Inquirer.

The former players obviously disagree, but it’s common in situations like this for the employer to argue aggressively and loudly that workers who have banded together to form a union must rely on the less formal system of dispensing justice that the labor agreement creates.  The workers don’t prefer that approach because it removes from the process a jury of lay persons who could be inclined to decide the case based on dynamics other than the law and the facts.

A jury is far more likely to feel sorry for the former players than an arbitrator would.  Likewise, a jury would be much more inclined to resolve doubt in favor of the players, given the perception that the league has more than enough money to pay a verdict.  Throw in the idea that the men who made the game what is it today earned peanuts in comparison to the amounts paid to today’s players and coaches and executives and owners, and it becomes very easy for a jury to sidestep a morass of conflicting scientific contentions and legal arguments and decide to redistribute the wealth based on a visceral notion of fairness.

That’s why the NFL is fighting so hard to push the case from a court of law to arbitration.  And that’s why this initial skirmish in the concussion litigation will have a dramatic impact on the ultimate outcome of the case.

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11 Responses to “First major hurdle comes this week in concussion lawsuits”
  1. esracerx46 says: Apr 7, 2013 8:41 AM

    Im on the leagues side but the argument that the multiple CBA’s protects them is the wrong one to be making. That makes it seem like they knew more than they did. Should have world renown neurosurgeons and head trauma doctors testify as to what was known about concussions and repeated blows to the head a up until last ten years.

  2. 13forgbp says: Apr 7, 2013 9:24 AM

    This suit makes no sense to me. Especially for scrubs who played about 14 snaps in the NFL. How does a guy like Tim Couch sue the NFL for concussions when he barely played in the NFL?

    All these guys played full contact football for many, many years before they got to the NFL. How in the world can you not account for the head trauma they had prior to the NFL? Some of these guys may have issues…but there is no way to rule out their years of playing football prior to the NFL as the cause. Garbage suit.

  3. wryly1 says: Apr 7, 2013 9:24 AM

    At least two parts of the human body are not meant to withstand repeated high impact collision: the head and the knee. Football and it’s equipment suppliers have yet to figure out how best to minimize those inherent risks players have been willing to take.

  4. bearclaw69 says: Apr 7, 2013 10:27 AM

    “the men who made the game what is it today earned peanuts in comparison to the amounts paid to today’s players and coaches and executives and owners, and it becomes very easy for a jury to sidestep a morass of conflicting scientific contentions and legal arguments and decide to redistribute the wealth based on a visceral notion of fairness.” And that concept of a redistribution of wealth to achieve a greater fairness, ladies and gentlemen of the profootballtalk.com peanut gallery, is the key argument of every player butt-kissing liberal journalist in America.

  5. FinFan68 says: Apr 7, 2013 10:38 AM

    Toss the suit completely. Players were represented by the NFLPA and there is documentation the NFLPA had access to all data the league did. The NFLPA is not a “defendant”. If the players themselves were not informed (completely bogus assertion but it is what they are claiming) the logical target of the lawsuit would be the NFLPA. They do not have the money that the NFL does so they are not named in the suit–and neither are the NCAA/individual colleges, high schools or “pop warner” leagues. It is nothing more than a large scale money grab hoping for a few bleeding hearts to want to spread the wealth

  6. kerryc21realty says: Apr 7, 2013 1:33 PM

    This is all about retired players trying to cash I . I wouldn’t pay them a dime

  7. drcja says: Apr 7, 2013 2:11 PM

    The lawsuit, in my opinion, is utter nonsense. There is no helmet in the world, in any sport, that can prevent a concussion. All of the protective helmets significantly reduce the impact force by absorbing and dissipating those forces. Nothing else.

    Throughout the high school and college years, all of the players in the suit had received a large number of subconcussive brain injuries which are asymptomatic but cumulative. The majority of the players also received more that one concussions over the years. In most instances, those injuries were hidden from the coach and management of the teams because they all enjoyed the glory and the large salaries and bonuses they were receiving.

    They all had every opportunity to seek medica advice and treatment before they were permanetly disabled with neurological deficits. They all chose to continue with their brain injuries rather than retire when they could have enjoyed a quality of life that was still left before they was no way to treat their problems.

    Also, we all know that one does not have to get hit in their head to receive a concussion or subconcussive brain injury. Any part of their body could be hit that could have also jolted the brain. No helmet would be involved with those injuries.

    During all of that time, all of the players were on notice that they were injured, they had headaches, couldn’t sleep, couldn’t concentrate, couldn’t remeber, etc.

    After collecting all of the millions in salaries knowing that they were injures (and hiding the problems) the players want us to feel sorry for them while they all try to get on another gravy train?

    Their lawyers better pick jurors that are all football fans and not parents whose children received a permanent brain injury playing contact schools sports and have lost their quality of life at an early age without collecting any big salary.

  8. gregmorris78 says: Apr 7, 2013 7:23 PM

    And years of being a carpenter has affected my body negatively, starting with wood shop in high school…

  9. brigdsouza says: Apr 7, 2013 8:15 PM

    The science is on the nfl’s side…there is no proven causal link between concussions and CTE.

  10. iansmith559 says: Apr 7, 2013 8:53 PM

    NFL has no responsibility to retired/injuried players?? Do you honestly believe that every player was told the truth about head trauma back then?? How many lawsuits in the US alone have the jury found the companies liable for NOT telling there employees FACTS about the danger of there job or what the long term affects of there jobs will have our there lives???? I can’t believe how many people believe the NFL is HONEST ABE!!! Retired players can not even get medicAl care for the injuries they suffered while they were in the NFL and that’s ridiculous !!!!

  11. bobby1980 says: Apr 9, 2013 3:05 AM

    They all knew it was dangerous. They played anyways.

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