NFL May Have Suffered Major Setback As Concussion Lawsuit Settlement Lingers

May 18 2014, 12:51am CDT | by

Thousands of former National Football League players have sued the NFL in hundreds of lawsuits spread across the country to recover damages based on injuries sustained while performing on the field of play.  They maintain that the damages were suffered and intensified due to the league’s intentional covering up of information it possessed concerning head injuries.

In August 2013, the lawyers representing the former players and the NFL in multi-district litigation (combining all pending related cases into one for the purpose of expediting the pre-trial process) agreed to a proposed settlement agreement valued at $765 million.  The potential of the proposed settlement agreement being approved by the court has suffered multiple setbacks, including rumor that multiple players plan to opt-out of the proposed settlement, the potential of plaintiff lawyers seeking to improperly “double-dip” on fees, a denial of preliminary approval based on a concern that not all claimants will have the opportunity to receive relief and a subsequent denial of preliminary approval of the settlement agreement due to an absence of any documentation sufficient to change the judge’s mind.

If the proposed settlement agreement is not entered by the Eastern District of Pennsylvania (the federal jurisdiction overseeing the NFL concussion multi-district litigation), it will cause the pending litigation to resume.  On the table for the court is a motion to dismiss filed by the NFL.  In September 2012, FORBES discussed the text of that document and deemed persuasive the NFL’s argument that the court should dismiss the players’ actions because they are preempted by the Labor Management Relations Act and relevant collective bargaining agreements in place when the players were in the NFL.  If dismissed, the actions would move forward in arbitration as opposed to the judicial system.

A new development may serve as a persuasive secondary source for the players and the largest setback for the NFL if the court rebuffs the pending proposed settlement agreement and reverts to examining the NFL’s motion to dismiss.  On May 14, the Eastern Division of the Eastern District of Missouri issued an order in the case of Roy Green, et al. v. Arizona Cardinals that refused to include the case in the pending multi-district litigation and unequivocally stated that there is no need for the interpretation of the NFL’s prior collective bargaining agreements.

“The Team asks that I stay all proceedings in this matter pending a decision by the Judicial Panel on Multidistrict Litigation as to whether the case should be transferred to the Eastern District of Pennsylvania to become part of In re: National Football League Players Concussion Injury Litigation, No. 12-md-2323,” explained the court.  ”Because the duties owed to the plaintiffs arise independently from the collective bargaining agreements and because the merits of the plaintiffs’ claims can be evaluated without interpreting any of the agreements’ terms, I will remand the case to state court.”

The key language is the court’s determination that the former players’ concussion-related claims may be evaluated without interpreting any of the collective bargaining agreements’ terms.  The final page of the court’s order states, “[T]he plaintiffs’ claims can be determined without interpreting the CBAs.”

Thus, if the order remains uninterrupted, then the players in the Roy Green case may move forward with discovery.  It is believed that the NFL has long feared the institution of any formal discovery process in the concussion-based litigation.  If the court reached the same conclusion in the massive multi-district litigation, the NFL may be forced to settle for much more than the $765 million currently on the table.

Such a ruling, if extended to the hundreds of pending cases filed against the NFL, could mean that the disputes shall not be deemed to be exclusively reviewed through arbitration.  Thus, the NFL would have to rely on new grounds in seeking dismissal of the lawsuits.  Importantly, the NFL has already stated (but not thoroughly argued) that it may intend “to argue at a later date that such claims should be dismissed for failure to state a claim . . . and also because they are time-barred.”  Even if the Eastern District of Missouri order is adopted, it will not signal the end of the NFL’s fight to remove the thousands of players’ claims from the courts.

This is all a moot point if the Eastern District of Pennsylvania simply accepts the parties’ proposed settlement terms.  Although, as time ticks on, the potential of same seems much less likely to occur.

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