Hearings Begin on Motion to Dismiss NFL Brain Injury Lawsuits

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U.S. Federal Judge Anita Brody

“This day was long overdue,” said former Cincinnati Bengals and Philadelphia Eagles linebacker Bill Bergey. Bergey and many other former NFL players had been waiting for Tuesday to come for a long time. It marked the first day in court for the over 4,000 lawsuits related to TBI, as a federal judge listened to arguments by both sides on a league motion to dismiss the suits.

The lawsuits allege that the NFL knowingly failed to protect players from concussion and fraudulently hid evidence of long-term effects like anxiety, depression, and dementia.

The NFL obviously denies these claims, but Tuesday wasn’t very concerned with the content of the actual lawsuits as it was with whether they had legal standing to be heard in court. The NFL claims Section 301 of the Labor Management Relations act prevents lawsuits that would require a judge to interpret provisions of the collective bargaining agreement.

Obviously this was a round about way of preventing lawsuits exactly like this by contractually establishing that the agreement was basically untouchable by courts, but the league also believes “the subject of the dispute – player health and safety issues – is mentioned throughout the agreements,” according to Paul Clement, the former U.S. Solicitor General representing the league.

David Frederick, in charge of representing the collective players, argues that the court is not held by the issues of the CBAs, as they are obviously not above the eyes of the court. “What the league is trying to do here is get immunity. That has nothing to do with the basic breach that we’re asserting here,” said Frederick according to USA Today.

Frederick also asserts that the agreements do not partain to issues such as long-term TBI, but above all the players’ claims state that the league intentionally mislead them about the reality of traumatic brain injury. They allege that even the league’s public attempts to manage the issue of TBI such as a Mild Traumatic Brain Injury committee created in 1994 were “a sham”, as Frederick said it.

“It set up a sham committee designed to get information about neurological risks, but in fact spread misinformation,” asserted Frederick. That claim may have some weight considering the Mild TBI committee was led by a rheumatologist.

Judge Brody’s decision isn’t likely to come for months, and even then there is likely going to be a lengthy appeals process. It isn’t even easy to see how she will decide, as she publicly wrestled with issues of specificity. Clement said provisions about health and safety were “all over” the past CBAs, but the vagueness with which that was said concerned Brody.

After about 50 minutes of arguments, Judge Brody told the court, “I will rule when I sort this whole thing out for myself.” My gut tells me she will side with the players, but I’m naturally biased and question the league’s argument of “we agreed that courts couldn’t interfere in this type of thing.”

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