NFL profits from violence, so is it liable to brain-injured retirees?

April 25, 2013

On Thursday night, professional football teams will hold their annual draft of college players. For the young men who are selected, the draft will be a dream realized, the culmination of years of hard work and hard knocks. But before they sign their million-dollar contracts, they might want to have a look at a photo taken earlier this month. It’s of Mary Ann Easterling, the widow of former Atlanta Falcons safety Ray Easterling, who shot himself last year after a long struggle with dementia. Easterling’s widow broke down earlier this month, at a press conference following a crucial hearing before the federal judge overseeing consolidated litigation against the National Football League by about 4,500 retired players who claim that the NFL deceived them about the risk of traumatic brain injury. According to the players, their NFL dream ended in the tragedy of depression, dementia, and, for 40 of them, death.

The NFL, as I’ve reported, takes the position that the players’ accusations of negligence and fraud are pre-empted by collective bargaining agreements between the players’ union and NFL teams. Health and safety are addressed in the agreements, the NFL contended last September in a motion to dismiss the players’ cases, so the retirees must arbitrate their claims rather than litigate them in court. The retirees responded last October, arguing in a brief opposing dismissal that their union agreements with NFL teams don’t address the league’s own duty to protect and deal honestly with players. According to the players, the NFL wants to have its cake and eat it too: The league profits from violence, packaging the most shattering on-the-field hits in films it sells to the public, yet it disavows responsibility for the toll of that violence.

It’s a mark of how seriously the NFL takes this litigation that for arguments earlier this month before U.S. District Judge Anita Brody of Philadelphia, the league brought in Paul Clement of Bancroft, the former Bush Administration solicitor general whose typical bailiwick is the U.S. Supreme Court. (The NFL is also represented by Paul, Weiss, Rifkind, Wharton & Garrison and Dechert.) The retired players had Supreme Court counsel of their own: David Frederick of Kellogg, Huber, Hansen, Todd, Evans & Figel was brought in to argue by steering committee lead counsel from Seeger Weiss and Anapol Schwartz.

The resulting hearing before Judge Brody, according to a transcript that just became available, was unusually abstract and theoretical for a district court proceeding. Clement and Frederick offered the judge two different interpretations of how broadly, under precedent from the 3rd Circuit Court of Appeals, she should read the health and safety provisions of the players’ collective bargaining agreements. The future of the retirees’ fraud and negligence claims depends on which interpretation Brody adopts.

Both sides agreed with the judge that operative 3rd Circuit precedent comes from a 2004 decision called Kline v. Security Guards, in which the appeals court held that employees’ claims under the Pennsylvania Wiretap Act were not pre-empted because their collective bargaining agreement didn’t address the secret video surveillance that their employer engaged in. The 3rd Circuit concluded that under the federal Labor Management Relations Act, claims under state law are pre-empted when they derive from or require interpretation of a collective bargaining agreement. But when the agreement is silent on the employees’ claims, the court said, they can be litigated.

NFL counsel Clement argued that Brody should read the Kline precedent to grant broad protection to the league. The health and safety of NFL players has been part of their union agreements with NFL teams since the first collective bargaining deal was signed in 1968, he said. Provisions have evolved over the years, but determining the league’s duty to players under the various collective bargaining agreements will inevitably involve interpreting those agreements. So, according to Clement, any retirees’ allegations about their health must be pre-empted because they are addressed in the union agreements. NFL teams (and not the league itself) reached all of those collective bargaining agreements with the players union, Clement said. And there would be no question that retirees’ claims against their former teams would be pre-empted, he said. Simply adding the NFL as a defendant should not entitle former players to litigate claims they would otherwise have to arbitrate, the league’s lawyer said.

Frederick, arguing on behalf of retired players, told the judge that Clement misinterprets the players’ case. The retirees’ fraud and negligence allegations don’t have anything to do with their union agreements, he said. “Our case is fundamentally different,” Frederick told Judge Brody. “It’s that over a period of decades the NFL should have learned more information about neurological science, and it should have spread the truth so that all the clubs would have been operating on the same page, and the league was in a unique position to get that information and process it and use it. And there’s nothing in the collective bargaining agreements that addresses the league’s duty or its failure to achieve that duty in its interactions with the league as the superintendent of the league.”

According to Frederick, the NFL flat-out deceived players about the risks of recurrent brain trauma, establishing a sham safety committee to provide false reassurances in order to continue profiting from on-the-field violence. “Nothing in the collective bargaining agreements speaks to the marketing of – of violence,” Frederick said. “None of the things in the collective bargaining agreements address giving the proper warnings to retired players. Nothing in the CBAs talks about spreading misinformation about neurological safety. Those are all things that – that where the CBA is completely silent.” And when the agreements are silent, Frederick said, 3rd Circuit precedent holds that claims are not pre-empted.

Judge Brody didn’t give much indication of which way she is leaning, but she did press Clement on how broadly employers are protected simply because an issue is mentioned in a collective bargaining agreement. “The thing that concerns me, Mr. Clement, is that you say it talks about (health and safety) all over,” she said. “That’s a problem to me because I mean I – it seems to me that ‘talking about it all over’ is not what – what Kline says. Kline says it’s got to be relatively specific, and the – the real issue is how specific it has to be. I mean that’s what I’ve been – will have to wrestle with.” (Clement said he could point to lots of references, but cited just a provision in the 1993 agreement that requires teams to obtain written notice before sending an injured player back onto the field with an injury that could be aggravated by playing.)

Judge Brody isn’t expected to rule for a few months, and I can easily imagine a scenario in which she finds that negligence claims are pre-empted but fraud claims are not, since the players’ collective bargaining agreements certainly don’t address accusations that the league could be deliberately deceiving players about their safety. Retirees who played before 1968, when the first collective bargaining agreement took effect, or between 1987 and 1993, when there was no agreement in place, will almost certainly be permitted to proceed with some claims.

More fundamentally, the NFL should consider the cost of continuing to litigate against its former players. When does the damage of images such as a tearful Mary Ann Easterling or headlines about another player’s slide into suicide outweigh the benefit of a technical ruling that retiree claims must be arbitrated? This could be one of those cases that a defendant can win on the merits but not on the optics.

NFL counsel Brad Karp of Paul Weiss declined to comment. In an email message, a representative of the retirees’ executive committee said: “For decades, the NFL actively concealed the risks associated with repetitive head impacts, denied the consensus of medical experts about their devastating effects and ignored public health issues associated with permanent brain damage from repetitive head trauma. The facts in this case and the governing labor law do not support the NFL’s attempt to seek complete immunity from the claims filed by former players and their families.”

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Is it reasonable to compare professional football with, say, riding motorcycles? Each of the activities has known and quantifiable (inherent) risks that the participants must be aware of each time they suit-up?

As players were getting bigger, faster and stronger the collisions can only be more violent. Since each player played in both high school and college, and observed/experienced injuries over the years, one could reasonably assume they understood the risks of injury when participating.

Additionally, at the professional level, the players were compensated for the terms of their service, signed a contract, with the help of a “representative agent” (often a lawyer) which effectively confirms they made a conscious decision to contract their skills, and assume the physical risks, for the compensation.

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