Pennsylvania Record

Thursday, November 14, 2019

First oral arguments held in NFL players' injury case

By Jon Campisi | Apr 10, 2013

Paul clement

Attorneys representing both sides in the massive multidistrict football players’ injury

litigation playing out at the federal courthouse in Philadelphia sparred face-to-face for the first time on Tuesday, addressing the National Football League’s motion to dismiss the case.

The NFL is looking to have the District Court throw out the consolidated lawsuit on procedural grounds, contending that the claims are preempted by the collective bargaining agreement between the league and the players’ union.

On Tuesday, both sides argued before U.S. District Judge Anita Brody, who is overseeing the case, with regard to their respective positions.

“The NFL held itself out to be the guarantor of safety,” Washington, D.C. attorney David C. Frederick, who practices with Kellogg, Huber, Hansen, Todd, Evans & Figel, and represents the plaintiffs in the case, said during oral arguments.

The defense team, which is led by attorney Paul Clement, a former U.S. Solicitor General, maintains that the players’ injury claims are preempted by the CBA, and that they should be before a labor arbitrator and not in the tort system.

“You can’t think of the league’s responsibilities here in a vacuum,” Clement said, noting that the league, teams and individual players themselves have some share of the responsibility when it comes to health and safety.

The plaintiffs argue that throughout the years, the NFL has intentionally withheld information and misrepresented the dangers with regard to long-term health risks associated with concussions and other injuries that players sustained during professional play.

The number of plaintiffs is now 4,000-plus and counting. They comprise more than 200 individual suits that have been consolidated and transferred to the Eastern District of Pennsylvania.

Officially known as the National Football League Players’ Concussion Injury Litigation, the case has drawn widespread interest in both sports and legal circles.

So much interest has been garnered, in fact, that Brody closed off her courtroom even before Tuesday’s proceedings began, sending the overflow crowd to a first-floor courtroom where the hearing was shown on a projection screen.

Observing attorneys, local and national news media and members of the public turned out to catch a glimpse of the oral arguments.

The question before Brody is whether or not the case should be dismissed at this stage of the game due to defense contentions that the injury claims are preempted by the collective bargaining agreement.

Clement said that if there is any element to the claims that is preempted by the CBA, then the plaintiffs’ entire argument is preempted.

At the same time, however, Clement conceded that case law with regard to preemption arguments has varied over the years.

As for the master complaint itself, the plaintiffs assert both claims of negligence and fraud against the NFL, with the latter alleging the league didn’t give truthful information with regard to the long-term risks of concussions, and the latter alleging that the league intentionally spread misinformation with regard to said risks.

In court, Clement argued that under the CBA, the individual football clubs, or teams, and not the NFL, are responsible for player health and safety, a central theme that has been touched on in defense filings.

The defense argues that if anyone is going to be sued, it should be the clubs, which are the players’ employers, not the league.

Frederick countered by arguing that the NFL, as the overseer of professional play, still has a basic duty of care to the players, and that the league breached that duty when it committed alleged acts of negligence and fraud.

Frederick said the NFL is basically seeking immunity through its preemption argument.

Clement, however, said, “preemption and immunity are not the same thing.”

Clement contends that preemption is the case here because the CBA is not silent on issues regarding player health and safety.

Following the hearing, Clement spoke to members of the media outside the courthouse, during which he reiterated his assertion that the suit is deficient on procedural grounds.

Under the CBA, the attorney said, players get “extraordinary rights,” but with that comes things players give up, such as the ability to sue in civil court under certain circumstances.

Clement wouldn’t offer up specific defense strategies, saying only if, and after, the litigation proceeds would the NFL address the merits of the plaintiffs’ claims.

Brody said from the bench that she would soon rule on the dismissal motion, but she didn’t signal when exactly a ruling might come down.

Meanwhile, the plaintiffs’ side held a news conference in the basement of the Hotel Monaco just blocks from the courthouse following the hearing, during which Frederick and his team addressed the media alongside former players and players’ spouses.

Among those in attendance was Kevin Turner, a former NFL fullback who played for both the Philadelphia Eagles and the New England Patriots.

Turner has since been diagnosed with Amyotrophic Lateral Sclerosis, more commonly known as Lou Gehrig’s Disease.

“I’m really glad we’re moving forward with this,” said Turner, who has since gone on to form the Kevin Turner Foundation, which raises awareness about sports-related brain trauma.

Turner joked that while the legal stuff is “over my head,” it sounded like “we won” following the procedural arguments before Brody.

“It seems by actions today that this is something that will move on, I think, at a reasonable pace,” Turner said.

Also addressing the media was Mary Ann Easterling, widow of the late Ray Easterling, who committed suicide in April of last year, after which it was discovered that he had suffered from chronic traumatic encephalopathy, a degenerative brain disease linked to repeated concussive blows to the head.

Easterling could barely compose herself, breaking down in tears immediately upon taking the microphone.

“I was really pleased with the judge’s questions and her treatment of the subject,” Easterling said. “I feel really good about the case."

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