In the first courtroom appearance in the multidistrict litigation brought by former football players against the National Football League over their concussive injuries, the judge heard arguments on a threshold issue that will determine whether or not the case will head toward trial.

The NFL argues that collective bargaining agreements govern the dispute and the case is pre-empted under Section 301 of the Labor Management Relations Act. The players disagree.

There was no collective bargaining agreement before 1964 and there was a six-year gap when players had no CBA between 1987 and 1993, so the NFL’s contention that the case is pre-empted due to the CBA is hard to maintain for those years.

Ex-players who were active during those periods are the most difficult for the NFL, Paul Clement told a federal judge in Philadelphia on Tuesday as he argued on behalf of the league in its effort to have the case dismissed.

"No question," he said to U.S. District Judge Anita Brody of the Eastern District of Pennsylvania.

Clement characterized the case as one that boils down to a workplace safety issue.

Thousands of professional football players across the country have alleged that the NFL acted negligently in its role as the administrating body for the sport by failing to manage the safety of players while profiting from it for decades.

Brody looked for specificity from Clement about what provision in the CBA would address the issue and trigger pre-emption, which requires there to be a provision in the CBA that the court is called upon to interpret.

The "collective bargaining agreements are silent with respect to latent injuries," said David Frederick, who represented the players, to the court.

Clement noted that his briefs had pointed the court to several cases that found a widespread discussion of player health and safety in CBAs to be sufficient.

"The thing that concerns me, Mr. Clement, is that you say, ‘It talks about it all over,’" Brody said, referring to the way Clement described the football CBAs as addressing player health.

"That’s the problem," she said. "It seems to me that talking about it all over is not what Kline says," Brody said, referring to the U.S. Court of Appeals for the Third Circuit’s 2004 case in Kline v. Security Guards, which held that a claim made by employees against their employer for electronic surveillance of them was not pre-empted under Section 301 because that behavior wasn’t specifically addressed in the CBA. At the start of the argument, Brody confirmed that each lawyer agreed that Third Circuit law would apply to the case.

"Kline says it’s got to be relatively specific and the real issue is how specific it has to be … and that’s what I will have to wrestle with," Brody said.

For most of the roughly 40 minutes that Brody presided, Clement and Frederick stood side-by-side in blue ties, each behind a wooden lectern.

"This is a somewhat unconventional argument," Frederick said.

"This is not the Supreme Court," Brody said.

Both Frederick, who has served as the assistant to the solicitor general, and Clement, a former solicitor general, appear frequently before the high court.

In what was, by all accounts, a very hot room, Brody requested that anyone wearing a jacket to remove it.

"I don’t want anyone to have problems," Brody said. "Please take off your ties and jackets. I don’t want anyone to faint."

Frederick shed his coat; Clement kept his on. He did not faint.

Clement argued that the players’ suit against the NFL was a way to reach beyond the individual teams, where, he implied, the actual responsibility for ordering players to return to a game after sustaining an injury lay. If the suit had been brought against the teams, they would have certainly been pre-empted by Section 301.

The individual teams have nothing to do with it, Frederick answered. The NFL was in the unique position of acting as superintendent of the game and had access to information about injuries across all of the teams, but chose not to distribute that information or amend its rules, thereby breaching its duty of care.

"I will rule when I sort this whole thing out for myself," Brody said.

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