Failed 1987 strike could keep plenty of concussion cases in court


On Tuesday, the first real skirmish in the concussion litigation occurred in Philadelphia, where Judge Anita Brody entertained arguments regarding the question of whether the 4,000-plus former players may pursue justice in court and, ultimately, before a jury of lay persons.  The league predictably wants the cases to be forced into arbitration, a less formal and typically more favorable (for the employer) venue.

Typically, employees want juries to hear their claims, because juries tend to fashion justice based on emotions like sympathy and a gut-level sense of fairness.  Employers prefer to have an arbitrator resolve these matters, since the arbitrator (typically a retired judge or a practicing lawyer) will make dispassionate decisions based on the facts and the law.  Also, much of the proceedings before an arbitrator remain out of the view of the media.

Union contracts typically contain broad dispute-resolution procedures that require employees to pursue any claims via arbitration.  It’s a common trade off for employers who have to deal with a labor union; the workers are collectively represented, so they can’t run to court for any and all gripes they may have.

As noted by the Associated Press, the concussion cases feature an important loophole.  After the 1987 strike, the players shut down the union and attacked the league’s limited free agency rules as antitrust violations.  In 1993, a new labor deal finally was negotiated.

During the years without a union, there also was no labor deal.  Which means there also was no obligation to submit employee claims to arbitration.

“I certainly admit that the gap-year players . . . are the most difficult cases,” NFL counsel Paul Clement said at Tuesday’s hearing, via the Associated Press.

That’s quite an understatement.  The NFL threshold argument for forcing the concussion cases to arbitration relies on the existence of a Collective Bargaining Agreement.  For the period of time within which there was no CBA, arbitration isn’t an option.

Thus, regardless of what happens to the players whose claims could have been made at a time when a valid labor deal was in place, those falling within the seasons without a labor deal necessarily have a stronger case for a jury trial.

21 responses to “Failed 1987 strike could keep plenty of concussion cases in court

  1. The gap year players are the only ones that have a good legal argument. To this day the players have been against safety rules and those quotes will be used against them in court. The union has also been against a steroid agreement which will also come back to haunt them.

  2. Just means that more moneygrabbers from the gap years will suddenly remember symptoms they have had for decades and add their names to the suits.

  3. “Failed 1987 strike could keep plenty of concussion cases in court”

    Attorneys and their minions keep these cases in court.

    If two people agree, one of them is not needed.

  4. Just offer each of the plaintiffs a spot on an NFL roster.

    Watch them ditch the lawsuit in order to play the game that “damaged them irreparably”.

  5. Unless the players can show the league knew about the long term consequences of chronic brain trauma and tried to hide it, I don’t see how they can expect to get anything from these suits. Most of the advances in this area have come in the last 10 years, since the start of the Afghan and Iraqi Wars (and the research that accompanied IED injuries). The players knew as much as the league knew, and now that the league is trying to take some reasonable measures to reduce the trauma, the players are the first to complain. I respect the risks they are taking and would love to see the league minimum be upped to 2 million/ year to counteract some of that risk, but right now all the extra money from the new rookie pay scale is being eaten up by one position-QB’s, who arguably take less damage than most other positions and are protected more by the rules.

  6. The nfl has gotten too full of itself taking advantage of their blindly loyal fans by overcharging them right out of the stadium. It’s time they have their comeuppance. Hopefully these concussion suits will bankrupt the league and up from the ashes rises that 80s brand of tough hitting football that real fans know and love which will replace this garbage no contact drivel they dump on us now and call football!

  7. Most of these guys played for 14+ years before going into the NFL. Then a guy spends 3-4 years in the league, and somehow his memory loss is the NFLs fault. This is all a money grab.

    So why aren’t they suing their old high school where they played for 4 years?

  8. Another reason employers prefer arbitrators over juries is that arbitrators have a built-in incentive for bias in favor of the employer: employees are one-shot litigants, but employers are potential repeat clients.

    If an arbitrator rules against an employer, that employer won’t (and will warn other employers) to avoid taking their cases before him. To the detriment of the arbitrator’s pockets.

  9. While I can sympathize with the players suffering effects from concussions, no one forced them to play in the NFL so I don’t think they deserve to get any money for their present conditions. This is all about them being mad they didn’t get the big bucks current players get when they played.

  10. It is interesting to ponder the notion that today’s juries may not be as sympathetic as most juries in similar situations in the past. They might look at the difficult financial straits in their own world, and not be as inclined to find sympathy for workers vs. management in the traditional sense.

    It can be difficult for a regular guy to sympathize with a guy who made high 6-figures and 7-figures who now complains about the “Oppressive Management Practices” they suffered under……..

  11. That’s a big problem with juries if they base things on emotion. Decisions in court should be about facts and facts only. If you feel sorry for someone, donate money to their cause, don’t vote money from a company that isn’t yours and force them to “donate” it based only on emotion.

  12. As an NFL fan who has season tickets and watches on TV, regardless of the outcome of these suits, they will increase what we pay and those dollars will be transferred to the lawyers.

    Its the American (Bar Association) way!

  13. My amateur legal take: if the argument to defeat the players’ case is that the NFLPA was involved and so the players should have known. But with no NFLPA from 1987-1993 the players can’t be aware of the consequences the way that they would be under a traditional labor deal.

  14. Then again the players were probably not warned about AstroTurf on concrete. How did that happen for the ex-players needing 2 new hips.

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