Preemption is the Focus | NFL Concussion Litigation

Preemption is the Focus | NFL Concussion Litigation:

by Paul D. Anderson, Esq.

It was a busy week in the sports-injury-litigation arena. The NFL Prescription Drug case (Richard Dent et al. v. NFL) continues to heat up as the NFL, NFLPA and retirees duke it out in court filings. And, in a different venue, the NFLPA received a favorable ruling in a concussion lawsuit (Smith et al. v. NFLPA). Both matters focus on the doctrine of preemption.

Ruling Imminent in Prescription Drug Litigation

This case is taking a very unorthodox route to a decision. Judge Alsup has taken a very aggressive and active role in seeking to flesh out the NFL’s position that the retirees’ claims are barred by the collective bargaining agreements (CBAs). This argument hinges on the NFL’s ballistic weapon of choice – preemption.

Judge Alsup posed several questions to the NFLPA – despite the NFLPA not being a party to the lawsuit. In response, the NFLPA contends that the players would be unable to grieve the specific claims alleged in the lawsuit. In other words, there is no provision in the CBAs that would require a court’s interpretation. The NFLPA’s responses triggered reactions from both sides.

The retirees interpret the NFLPA’s position as a resounding victory: the claims are not preempted by any provision of the CBAs.

The NFL, on the other hand, rejects the NFLPA’s position. First, it argues that the NFLPA is wrong, and in fact it has taken the opposite position in a pending concussion lawsuit (see infra) where it is seeking dismissal based on preemption. Second, the NFL argues that this case presents a classic example as to why these claims should be heard, if at all, by an arbitrator – there are interpretative disputes over the meaning of the CBAs, lending itself to the foundational purposes of preemption. Third, and perhaps most convincingly, the NFL cites to several examples where players grieved the “same types of allegations” alleged in the present lawsuit.

As an aside, the NFL attached a treasure trove of exhibits to its briefs. The exhibits (some can be found here and here) involve grievances filed by various players, decision issued by arbitrators and, notably, the Toradol Grievance – NFLPA v. the NFL Clubs. This provides a glimpse of the inner workings of the grievance process.

The retirees must submit their response to the NFL’s brief by Monday, December 8. And Judge Alsup, if satisfied, will issue a decision shortly thereafter.

Although these recent submissions are informative, they arguably distract from the main issue. It matters not whether the claims can be grieved, or even if certain remedies would be foreclosed. At issue is whether the resolution of the claims is dependent upon or requires interpretation of the CBAs. If the answer is no, then the claims are not preempted. If the answer is yes, then the claims are preempted.

At bottom, these are clearly common-law claims that allegedly involve numerous violations of federal and state drug laws. Collective bargaining cannot, in any event, negotiate away fundamental rights. Nor can parties negotiate for things that are illegal. Simply put, this not a labor dispute. The court should reject the NFL’s preemption argument.

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