The first courtroom appearance in the nationwide case filed by thousands of current and former football players against the National Football League, claiming that the NFL is responsible for the long-term effects of concussions, is set for this morning.

U.S. District Judge Anita Brody of the Eastern District of Pennsylvania, who has been handling the multidistrict litigation case since it was consolidated in the Eastern District of Pennsylvania early last year, is set to hear the NFL’s argument that the case should be dismissed because the issue is governed by the league’s labor agreement with the players.

Brody issued a detailed notice laying out a schedule that provides less than two hours for the closely-watched argument and allowing each side roughly a half-hour to make its case.

Both the NFL and the players have retained formidable counsel — the NFL is represented by former U.S. Solicitor General Paul Clement and the ex-players are represented by David Frederick, who has served as assistant to the solicitor general.

Last June, roughly 2,000 former professional football players filed a long-form complaint in 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. Twice that many plaintiffs are now part of the suit.

The players allege that the league, since its inception in the early half of the 20th century, 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 collective bargaining agreement, 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.

The NFL is urging the court to find that the issue boils down to a labor dispute, which would keep the case from going to trial.

"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’ argument. "Those actions contravened the NFL’s basic duty to take reasonable precautions to safeguard the health of its players," they argue in court papers.

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’ argument.

In its motion to dismiss, the NFL argues that the case is essentially a labor dispute and is therefore pre-empted by Section 301 of the Labor Management Relations Act.

The players, however, responded that the 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, according to memoranda filed with the court.

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, according to the NFL’s memorandum.

"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 say.

The argument is scheduled to start at 10 a.m. and will likely be done by noon.

Saranac Hale Spencer can be contacted at 215-557-2449 or sspencer@alm.com. Follow her on Twitter @SSpencerTLI.