Leave it to lawyers to turn the heart-wrenching brain injury claims of thousands of retired pro football players into an abstract jurisprudential symposium.
Beneath the esoteric legal arguments in federal court in Philadelphia today lurked a practical question: What is it going to cost the National Football League to settle the litigation mess?
More than 4,000 retired players and some of their relatives are demanding compensation from the NFL for brain injuries linked to on-field collisions. The players, represented by a flying wedge of plaintiffs’ attorneys who have previously filed suit against such foes as the tobacco and asbestos-products industries, allege that the league acted negligently in failing to protect against serious head injuries. The players also claim that, at least since 1994, the NFL fraudulently misled athletes about the risks. (You can read Bloomberg Businessweek’s pre-Super Bowl cover story here.)
The NFL denies all the accusations. Medicine, according to the league, has only gradually recognized the severity of sports-related brain injury, and the NFL has done the best it could to protect players.
Since the league now concedes the danger of brain injury and is moving aggressively to fund scientific research and adjust on-field rules, the lawsuit will almost certainly result in a settlement of some sort. But how much money are we talking about?
Today’s argument addressing the intersection of injury law and federal labor law represented an attempt to put a price range on a resolution.
Paul Clement, fresh off his U.S. Supreme Court argument in defense of a federal statute that denies benefits to gay spouses, represented the NFL. He told U.S. District Judge Anita Brody that the consolidated concussion litigation ought to be broken up into individual claims and arbitrated under federal labor law.
David Frederick, a lawyer for the players, urged Judge Brody to keep the case in her courtroom and allow the plaintiffs to seek the more expansive damages available under tort, or injury, law. Brody, who praised the lawyers’ skill and fortitude in the face of a power outage that left her crowded courtroom uncomfortably warm, did not tip her hand about when or how she would rule.
Brody clarified that one of the main dilemmas she faces is whether she would need to interpret a series of pro football collective bargaining agreements going back to 1968. The league maintains that to resolve the players’ claims, she would have to examine the agreements and therefore the claims should be subject to arbitration under labor law. If Brody accepts that position, the potential settlement value would decline drastically, as the damages available in arbitration are far lower than in a full-dress lawsuit. If Brody rules that the bargaining agreements do not “preempt” the negligence and fraud claims, as Frederick argued, the settlement value of the case could rise well into the billions.
“I will rule when I sort this whole thing out for myself,” Brody told the attorneys. Beyond the legal technicalities, she acknowledged a personal interest in the sport. “I have to reveal,” she said at one point, “my grandson plays football.”