Lawyers square off in NFL concussion case

Former Eagles running back Dorsey Levens comforts Mary Ann Easterling, widow of Ray Easterling, during a press conference after oral arguments in the NFL concussion litigation, April 9, 2013. ( DAVID SWANSON / Staff Photographer )
Former Eagles running back Dorsey Levens comforts Mary Ann Easterling, widow of Ray Easterling, during a press conference after oral arguments in the NFL concussion litigation, April 9, 2013. ( DAVID SWANSON / Staff Photographer ) (DAVID SWANSON / Staff Photographer)
Posted: April 10, 2013

Lawyers for the NFL urged a federal judge in Philadelphia on Tuesday to dismiss hundreds of lawsuits by former professional football players, contending players' claims that the league hid the risks of concussions belong before a labor arbitrator, not in civil court.

"This case is at bottom a case about workplace safety in an industry where issues about workplace safety were addressed in collective bargaining agreements" negotiated by the players union and clubs, Paul Clement, a former U.S. Solicitor General who is representing the league, told U.S. District Judge Anita B. Brody.

An attorney for the players countered that the contracts between players and clubs over the decades never contemplated fraud and misrepresentation by the league.

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"The NFL had held itself out to be the guarantor of safety," said the lawyer, David C. Frederick. "So when the NFL began to glorify and monetize violence on the field, its breached its duty of due care."

Brody, a judge for 30 years, offered no obvious clues as she listened to almost an hour's worth of arguments. She is not likely to rule for weeks or months, and that decision is almost certain to be appealed.

Still, the proceeding marked the first courtroom clash since the concussion lawsuits, filed across the country by onetime NFL players, were consolidated last year under one judge in Philadelphia. Hundreds of lawyers, players, reporters and other observers packed her courtroom and an overflow room at the federal courthouse to watch the hearing.

The players accuse the league of fraud and a cover-up, contending that NFL executives knew the dangers of head traumas but concealed the danger while promoting and glorifying the inherent violence of the sport. They are seeking damages for injured players, as well as medical monitoring for veterans who have not yet shown signs of any brain damage.

The NFL has denied any coverup regarding concussions. In briefs to the judge, its lawyers maintained that decisions on players health and fitness to play rested solely with the individual teams and their medical staffs. And they argue that years of negotiated union contracts with the players dictated that complaints over players medical treatment are resolved through close-door arbitration, not in open court.

If it fails on that so-called pre-emption argument, the NFL has said it will move to throw out the suits on other grounds, including arguing that many are beyond the civil statute of limitations for such injury claims.


Contact John P. Martin at 215-925-2649, at jmartin@phillynews.com, or @JPMartinInky on Twitter.

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