United States: Preempting The Players' Claims: Why The Plaintiffs Are On A Path To Arbitration In The NFL Concussion Injury Litigation

Four thousand plus plaintiffs in the NFL Concussion Injury Litigation face an uphill battle to survive preemption and pursue their state law claims. See Amended Master Complaint at ¶¶54-57, In re National Football Players' Concussion Injury Litigation. United States District Court Judge Anita Brody, of the Eastern District of Pennsylvania, recently heard oral argument on the NFL's Motion to Dismiss. Plaintiffs accuse the NFL of fraud, wrongful death, negligent misrepresentation, negligent conduct, failure to warn, loss of consortium, as well as negligent hiring and retention. They seek money damages, declaratory relief, and an NFL-funded medical monitoring program.  See id. at ¶53.

Before any discussion of the merits, Judge Brody must resolve one threshold issue: preemption. Armed with the Collective Bargaining Agreement ("CBA") between it and the NFL players' union ("NFLPA"), the NFL will likely prevail in its Motion to Dismiss. If successful, the NFL could litigate this much bally-hooed case before an arbitration panel. See Givens v. Tennessee Football, Inc., 684 F. Supp. 2d 985, 991 (M.D. Tenn. 2010).

This litigation, so asserts the NFL, centers on workplace injuries governed by federal labor law, not personal injuries, governed by state law. For the NFL to prevail with its preemption affirmative defense, it must show that Plaintiffs' claims will require the court to interpret the meaning of a specific provision of the CBA. Thus, the NFL must argue that Plaintiffs' state law claims – whether based on negligence or fraud – are "substantially dependent upon" or "inextricably intertwined" with the terms of the CBA, or that they arise under the CBA.

Although defendants do not generally prevail on motions to dismiss by relying on affirmative defenses, the NFL may succeed here because of the uniform application of federal labor law. Generally, federal courts defer to the parties' agreed-upon grievance procedures rather than taking on a workplace injury case. To prevail the NFL must convince Judge Brody that Section 301 of the Labor Management Relations Act (LMRA) precludes plaintiffs' tort claims because player injuries, including traumatic head injuries, amount to nothing more than workplace injuries governed by the CBA and thus federal law.

The CBA explicitly obligates the NFL to promulgate and enforce health and safety rules, and therefore, Plaintiffs' claims that the NFL had a "duty to provide players with rules and information" likely arises under Articles 39 and 50 of the CBA.

Plaintiffs' best chance to avoid preemption is through their fraud claim. They argue that the NFL committed common law fraud by intentionally lying about independent empirical facts; "namely, the known neurological risks associated with football-related head trauma" that the NFL had a "duty to disclose." Additionally, Plaintiffs make the case that the NFL intended to cause Plaintiffs to rely on the NFL's inaccurate information. And, Plaintiffs allege, as they must, that they did in fact reasonably rely on the NFL's alleged misinformation during and after their careers. Plaintiffs, therefore, seek to avoid the bar of federal law and the CBA by claiming that the fraud caused their serious physical injuries.

The NFL counters that Plaintiffs' fraud claims rest on the NFL's duty to advise players of a heightened risk of neurodegenerative diseases. This duty, according to the NFL, cannot be measured without first assessing and interpreting "the preexisting obligations regarding player health and safety in the CBAs."

Thus, because the court would have to interpret CBA provisions when assessing the NFL's duties, the NFL argues that the federally-enacted LMRA should preempt Plaintiffs' state law claims. Specifically, the CBA addresses issues related to the assessment, diagnosis, and treatment of player injuries. Numerous CBA clauses instruct team physicians to follow certain procedures and protocols when assessing whether a player can resume on-field activity.

In the end, this dispute is most likely headed to arbitration where damage awards are nominal as compared to the potential jury award available to each plaintiff on their tort claims. Even if the NFL's Motion to Dismiss fails, one attorney stated that "it will still be years before any kind of trial or resolution occurs due to the magnitude of discovery." Some fear that granting preemption could "turn federal labor law on its head and allow [NFL] management to shirk their duties and hide behind the Almighty CBA."

Plaintiffs warn that contract law could swallow tort law if Plaintiffs' state common law fraud claims are preempted by federal law simply because of their status as an employee. While this fear may persist, it does not strike the health and safety provisions from the CBA or precedent preempting state law claims against the NFL for former player injuries.   

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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