The multidistrict litigation brought by thousands of current and former football players who have suffered from the effects of repeated concussions should be dismissed because the responsibility for players’ health rested with the individual teams, not the league, the National Football League argued in its motion to dismiss.
The NFL argued that the case is essentially a labor dispute and is therefore pre-empted by Section 301 of the Labor Management Relations Act.
In their response filed this week, the players argue that section comes into play when a claim turns on the interpretation of a provision in a collective bargaining agreement, but their claims turn on the NFL’s actions and relationship to the players with no implication of the CBA.
The claims of both negligence and fraud depend on how the court reads the CBA’s designation of team physicians as the ones with the responsibility of treating injuries and deciding when players could go back on the field, the NFL argued.
"Indeed, numerous courts, consistent with settled labor pre-emption precedent, have held that player tort claims against the NFL and/or its clubs — including certain of the concussion-related claims asserted in this action — are pre-empted under Section 301," according to the NFL’s motion to dismiss, which went on to cite several district and circuit court opinions.
However, the players’ reply argues that the NFL has ignored the precedent of the U.S. Court of Appeals for the Third Circuit, the circuit in which the case is being heard.
Starting with congressional intent in passing Section 301, the players’ motion explains that it was meant to have the limited purpose of applying uniform law to CBAs by pre-empting state-law claims that require substantial analysis of a labor contract. The U.S. Supreme Court has reinforced that narrow scope by holding that pre-emption requires more than "tangential" or "parallel" relation to a CBA, according to the motion, which cited the high court’s 1985 opinion in Allis-Chalmers v. Lueck and its 1988 opinion in Lingle v. Norge Division of Magic Chef.
"The Third Circuit strictly observes those requirements and limits Section 301 pre-emption to claims that force a court to resolve a concrete interpretive dispute over a specific CBA provision," the players’ motion says.
None exists in this case, they argue.
"At this early stage of litigation, neither players nor the NFL have had occasion to take a position on the proper meaning of any CBA provision," according to the players’ motion.
In June, roughly 2,000 former professional football players filed a long-form complaint in the U.S. District Court for the Eastern District of Pennsylvania, claiming that the NFL is responsible for the debilitating health problems that athletes developed after getting concussions while playing the sport.
The players allege that the league, since its inception in the 1930s, assumed the role of arbiter for the sport and issued rules and regulations that "directly affected the short- and long-term health of NFL players," according to the complaint. It cites decades of research about the effects of mild traumatic brain injuries, called MTBI.
The NFL argues in its motion to dismiss that the terms and conditions of the players’ employment were defined by the CBA, which also "expressly addresses player health and safety and provides grievance procedures for the resolution of disputes," according to the motion.
Each version of the CBA, initially entered into in 1968, addresses "in detail issues relating to assessment, diagnosis, and treatment of player injuries," including the charge to team physicians with making "return to play" decisions for players, according to the motion to dismiss.
"Players allege that the NFL acted negligently by spreading misinformation (or withholding information) about the risks of neurological injury associated with professional football; by failing to advocate helmet standards capable of reducing players’ exposure to head injuries; by glorifying the type of violent hits that led to brain damage; by encouraging players to return to play prematurely; and by failing to advocate rule changes to protect them from concussive injury," according to the players’ response. "Those actions contravened the NFL’s basic duty to take reasonable precautions to safeguard the health of its players," they argued.
The fact that team doctors had a similar duty to protect players doesn’t reduce the NFL’s responsibility, they argued, and the league was in a unique position to implement systemic regulations across all of its teams to ensure player safety.
"Indeed, the NFL’s role as overseer and protector of the game of football has a long history, much of which predates the creation of the first CBA in 1968," according to the players’ motion.
In the event that the court doesn’t find the players’ claims to be pre-empted, the NFL plans to argue that they should be dismissed for "failure to state a claim and failure to follow the agreed-upon grievance procedures, and because they are time-barred," according to a footnote in the NFL’s motion to dismiss.
The league has 45 days to respond to the players’ motion.
"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. We hope the court will reject the NFL’s arguments so these former players can finally hold the league accountable for its misconduct and receive the care and support they urgently need," the players’ executive committee said in a prepared statement.