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.