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.