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Volume 21 No. 1
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Ex-players take case to court of public opinion

A purposefully grim scene played out last week in the basement conference room of the swanky Hotel Monaco in Philadelphia. Around a dozen reporters, recorders and cameras humming, converged on former Philadelphia Eagle and New England Patriot Kevin Turner, who is suffering from ALS and who said he may not have enough time to live to see the end of the concussion lawsuit brought by more than 4,200 retirees against the NFL.

Former player Kevin Turner, who has ALS, speaks at a news conference.
Appearing downcast and slurring his words, Turner, looking far different than his happy and healthy headshot on, said he needed help brushing his teeth and going to the bathroom, snippets the reporters quickly harvested for publication. This ensured the anecdotes were in stories about the more arcane legal dispute between the NFL and the retirees that had just occurred in a nearby courtroom, the first oral arguments in the case that has consolidated hundreds of lawsuits filed since 2011 by retirees.

The scene, orchestrated by the retirees’ law firms complete with a press release distributed beforehand, underscores how the NFL’s image is as much on trial as are the legal questions of whether the players’ charges against the league are covered by past collective-bargaining agreements.

And it’s why the league almost surely will do whatever it can to ensure that something like the Monaco basement scene does not play out in a courtroom.

“If this case is heard by a jury, I think you would see the potential for astronomical figures, especially if you are talking about a sympathetic case like Kevin Turner or a wrongful death case like Dave Duerson’s,” said Paul Anderson, an attorney who has closely tracked the concussion case through his website, Duerson, a pro bowl player for the Chicago Bears, committed suicide in 2011, and Boston University, after studying his brain, said that he suffered from a neurodegenerative disease linked to concussions.

The scene at the Monaco last week also featured three players’ widows, one of whom openly wept, images broadcast and written about later that day.

“I don’t want to believe that they could have been so callous,” said Lisa McHale, the widow of Tom McHale, who died in 2008 and later was found to have chronic traumatic encephalopathy. The lawsuit alleges the NFL knowingly hid the risks of concussions.

The league sent two PR executives — Brian McCarthy and his boss, Paul Hicks — to the courtroom in Philadelphia, which featured a largely procedural argument about whether the case should proceed or, instead, fall under the dispute-resolution processes outlined in previous CBAs. No owners and only one of the league’s six executive vice presidents — Hicks — the highest rank other than commissioner, attended. McCarthy also attended the retirees’ press conference.

After the hearing, when the NFL’s lead attorney, former U.S. Solicitor General Paul Clement, began to answer a question from reporters on whether the league misled players about the dangers of playing the game, he got bogged down replying that the league did not legally have to answer that question yet, which is true. Another league counsel, Beth Wilkinson of Paul Weiss, quickly stepped before the cameras to respond that, of course, the league forcefully rejected that idea.

But it was plaintiffs’ counsel David Frederick who captured the in-court headlines with his argument that the league had glorified and monetized violence, knowing full well that the matter before the court was a complicated question of labor law. No such pithy sound bites came from Clement during the 50 minutes of oral arguments.

It’s not as if the NFL is standing still. The league under Commissioner Roger Goodell is acting aggressively to change the culture of the game to emphasize player safety. The league also has directed hundreds of millions of dollars to retirees and grants to research areas like concussions. In fact, Bill Bergey, a former Philadelphia Eagles player and a plaintiff in the lawsuit who spoke at the Monaco, said the NFL had finally, now, got it just right on player health and safety. It’s the past he is more concerned with, saying the NFL needed to make sure players no longer die suffering from dementia, homeless in the back seat of their cars, the fate suffered by hall of famer Mike Webster.

“That should never happen again,” he said.

Judge Anita Brody is expected to decide this summer whether to allow the case to proceed. She ultimately could allow select parts of the case to go forward, especially for the few hundred players in the class who never competed with a CBA in effect. Because the NFL’s core argument is that unionized workers cannot sue their employers on matters covered in CBAs, the hundreds of players in the complaint who competed when there was no CBA (before 1968, and between 1987 and 1993) conceivably could see their charges proceed while Brody strikes down the claims from those who were covered by a CBA.

Whatever her decision, one side, if not both, is likely to appeal. That means the case is likely to go on for years, with some projecting 2017 as the earliest year a trial could occur — a prospect that alarms many of the retirees, like Turner.