SBD/April 9, 2013/Leagues and Governing Bodies

NFL Attorney Claims CBAs Cover Disputes Brought By Retirees In Concussion Lawsuit

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The NFL’s lead attorney repeatedly argued this morning during oral arguments in the league’s effort to dismiss a lawsuit brought by more than 4,000 retirees for concussions suffered in their playing days that the NFLPA is also a party to the system that the players are now attacking. The NFL’s core argument is that CBA deals cover the disputes brought by the retirees, and thus the disagreements should be brought under the dispute-resolution mechanisms of those deals. Because the CBAs were agreed on with the union, the players have a role, the NFL lawyer said. "The union also has certain rights and responsibilities under the CBA,” said Paul Clement, the former U.S. Solicitor General who spoke as the league’s counsel this morning. “The league can’t unilaterally change the roles.” U.S. District Court Judge Anita Brody questioned each side at even length, though she sounded skeptical of NFL claims that players who competed when there was no CBA should have their claims pre-empted. When Clement conceded that this was his hardest argument, Brody quickly agreed with him. She also seemed to have some trouble with the league’s contention that just because the CBA mentions player health and safety it would negate any claim being brought into a court rather than through the CBA process. “The thing that concerns me, Mr. Clement: You say [the CBA] talks about it all [regarding player health and safety],” Brody said. “That is the problem for me.” Brody said she would wrestle with how specific the language of the CBA needed to be to pre-empt the retirees’ charges the NFL misled them about the risks of playing football. The retirees’ lawyer, David Frederick, said the CBA should not immunize the NFL. “Just because there is a CBA does not mean the NFL can harm players,” he said. Brody wrapped up saying, “I will rule when I sort this whole thing out for myself.”
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