Jon Campisi Oct. 16, 2012, 3:34pm

PHILADELPHIA (Legal Newsline) - In late August, the National Football League sought to dismiss litigation initiated by former players who allege it intentionally failed to inform them about the long-term risks of concussions.

The 30-plus-page motion, filed at the federal courthouse in Philadelphia, came more than a half-year after the first concussion suit was filed against the NFL.
What started out in late January with a single injury suit comprising of a handful of plaintiffs has since grown into a massive multi-district case docket consisting of nearly 3,700 former professional football players.

That figure doesn't include spouses. With players' wives, the number of plaintiffs is closer to 5,200, according to Paul Anderson, who runs the website

And new cases are filed on a near-weekly basis, with the tally of individual suits now hovering at 164.

By the end of this month, the players will most likely have responded to the NFL's motion to dismiss, since the plaintiffs' response must be filed by Oct. 31.
Some legal observers are comparing the multi-district, class action litigation - most newly filed suits are being consolidated at the U.S. District Court for the Eastern District of Pennsylvania in what's being called the National Football League Players' Concussion Injury Litigation - to the "Big Tobacco" litigation of the 1990s, in both scope and projected dollar figures, be they settlement fees or possible jury awards.

Not everyone, however, shares that outlook.

In an Aug. 15 article for Thomson Reuters News & Insight, attorney Joseph M. Hanna, a partner at Goldberg Segalla LLP, wrote that not everyone is convinced that comparisons to Big Tobacco are appropriate.

"For one thing, unlike tobacco use, the effect of individual concussions on a football player remains unclear," Hanna wrote. "Further, the NFL retains medical personnel who are employed specifically to detect and prevent player injuries, whereas smoker plaintiffs were given no such attention. Lastly, because NFL players could have sustained permanent mental injuries at any point in their career (high school, college, etc.), proving the causal chain - i.e., that the NFL's failure to warn resulted in injury - is difficult at best."

Where the current litigation may be similar to Big Tobacco, however, is in the realm of dollar figures, considering the NFL rakes in about $9 billion in annual revenue.

As for defending itself against the claims, the NFL has already hinted at what it plans to use to shield itself from potential liability: the concept of preemption.

Hanna touched on this in his article as well, predicting that the sports organization would most likely argue that the litigation should be dismissed because it is preempted by the NFL players' collective bargaining agreement and the NFL Constitution and Bylaws under the Labor Management Relations Act.

Hanna ended up predicting right, with the NFL's attorneys, in their Aug. 30 motion to dismiss, writing that, "Plaintiffs' action - contending that the NFL failed to fulfill a duty to ensure the safety of NFL players - is a labor dispute the resolution of which depends upon an interpretation of the terms of the applicable CBAs," the motion reads. "Accordingly, these claims should be dismissed."

The motion to dismiss states that the CBAs, like all collective bargaining agreements affecting interstate commerce, are governed by section 301 of the Labor Management Relations Act.

That section, the motion says, provides for preemption of all state-law claims, whether based in negligence or fraud, "whose resolution is substantially dependent upon or inextricably intertwined with the terms of a CBA, or that arise under the CBA."

"That is the case here," the NFL's motion states. "Plaintiffs allege that the NFL breached its duties to inform NFL players of the risks associated with concussions and to provide safety regulations governing the health and safety of those same players. To resolve Plaintiffs' claims, the Court would be required to interpret the CBAs - which not only address player safety, but also address the authority and responsibility relating to player safety of the NFL, the Clubs, and the Union - to determine whether the NFL had such duties, the scope of any such duties, and the reasonableness of the NFL's conduct in light of the CBA provisions."

In a June 6 Washington Post article, Beth Wilkinson, a prominent Washington attorney serving as the NFL's outside counsel in the case, was quoted as saying, "I think we feel confident that these claims are subject to resolution under the collective bargaining agreement."

Law professor Michael McCann, director of the Sports Law Institute at Vermont Law School, agreed that the concept of preemption is clearly the key issue at this stage of the litigation.

"Preemption is the most powerful [defense]," since that would be an argument made prior to any discovery taking place, McCann said. "That's a total victory for the NFL if the NFL wins on that."

McCann, who recently spoke with the Pennsylvania Record by phone, warned, however, that it most likely won't be a cut-and-dry resolution.

"It's a complicated issue of preemption, and it's not one that's easily resolvable," he said. "It's not as if there's an easy answer. I can see arguments on both side that have a lot of merit."

The plaintiffs are likely to argue that the collective bargaining agreement doesn't cover claims by certain former players, especially those who played football when no CBA was in place, the Washington Post article stated.

In his own article, attorney Hanna also suggested that the NFL might argue that, absent some special relationship, mere awareness of certain independent studies did not by itself impose a legal duty to warn players about the cognitive consequences of concussions.

"Courts have suggested that NFL players are employees of their respective teams, not the league," Hanna wrote. "Consequently, the NFL might argue that there is no special relationship stemming from employment that would trigger an affirmative duty to warn NFL players about the long-term risks associated with concussions."

Hanna also suggested that the NFL could raise the defense of contributory negligence, arguing that there can be no recovery for negligence in this case because the injured person, by his own negligence, "proximately contributed to the injury."

The NFL could argue that the players contributed to their own injuries by failing to report their concussive conditions, and returning to play before their symptoms disappeared, Hanna wrote.

Hanna further suggested that the NFL could pursue other tactics such as apportioning the blame via comparative negligence, or arguing that the statute of limitations had run on individual plaintiffs' claims.

For now, it will be up to U.S. District Judge Anita Brody, sitting in the Eastern District of Pennsylvania, to determine whether or not the litigation moves forward.

She has not yet ruled on the NFL's motion to dismiss, and is still waiting for the players to submit their response to the motion by the end of this month.
Whatever Brody - who has been assigned by the Judicial Panel on Multi-District Litigation to oversee the consolidated NFL concussion litigation in Philadelphia - decides, legal observers expect her ruling to be grounded in solid legal precedent.

"She's a great judge ... and I think she's going to be fair to both sides," said Anderson, who runs the website about the NFL case.

On his website, Missouri-based Anderson, a recent law school graduate who focuses his interest in the area of sports law, keeps a running tally of the lawsuits that are filed against the NFL, both within and outside of the MDL.

Some plaintiffs have filed in state courts, with the NFL almost always removing the actions to the federal court in Philadelphia, which is where the MDL has been set up.

Anderson said the reason why filing in state court appeals to plaintiffs is because there's more of a chance for a decent jury award, while in federal court, civil cases don't often end in "huge verdicts."

The idea of filing in state court also stems from trying to avoid being "bunched up with the litigation in Philadelphia, but everybody who has tried that so far has failed," Anderson said by phone.

If a plaintiff does, however, actually succeeds in having his claims move forward in state court, discovery could begin immediately, even before Brody issues any preliminary rulings in Philadelphia.

There is one case in particular that stands out, Anderson said, and that is the case involving Michael Pyle, which was filed in New York Superior Court back on July 12.

Pyle played nine seasons for the Chicago Bears from 1961 to 1969.

Pyle's lawyers have argued that his case should remain in state court because there are not common questions of facts and law to the other lawsuits, which is what is needed in order for a case to be consolidated in the MDL in Philadelphia.

Essentially, Pyle's attorneys are arguing that his case is different because he only played one year of professional football under the collective bargaining agreement, and therefore his claims shouldn't be preempted like those in the other suits in the MDL docket.

Anderson said while unique, the Pyle case is still going to be "an uphill battle" for the plaintiff to attempt to persuade the Judicial Panel on Multi-District Litigation that this case should not be consolidated and transferred to Philadelphia.

If, by some stroke of luck, however, the Pyle case does get remanded to New York state court, it would be the first case to go to discovery prior to Brody issuing her ruling, Anderson said.

Most of the new suits that are being filed, however, are being filed at the federal court in Philadelphia.

Aside from the procedural issues, some involved with the litigation are trying to predict what the potential outcome could look like.

In a June 6 Washington Post article, plaintiffs' attorney Von DuBose is quoted as saying that, ironically, one of the worst outcomes of the litigation for the NFL would be for the sports organization to beat the cases in court, since, "From a legal standpoint and monetary standpoint, that's good for them. But the public perception is going to be that the NFL escaped on a technicality and they're unwilling to do anything to help these guys long-term.

"It's going to further influence people," DuBose continued. "The sentiment is going to bleed down to the high school and youth football ranks. Parents are going to look at the sport and say, 'Why would I let my son play?'"

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