Tuesday, December 30, 2014
Will Preemption Cause NFL Concussion Opt-outs to Opt-in Settlement?
The NFL maintains the appropriate forum for dealing with player injuries and concussions should be the Collective Bargaining Agreement grievance process, not litigation. For players that opted out of the NFL Concussion Settlement and are continuing their concussion litigation, a motion to dismiss based on preemption may be back on the table when just last week, a federal judge dismissed the prescription drug lawsuit filed by 1,300 former players (Richard Dent et al. v. NFL) on preemption grounds. In that case, the judge decided that the league addressed serious concerns in a serious way-- by imposing duties on the clubs via collective bargaining and placing a long line of health-and-safety duties on the team owners themselves. He went on to state that these benefits may not have been perfect, but they have been uniform across all clubs and not left to the vagaries of state common law. They are backed up by the enforcement power of the union itself and the players' right to enforce these benefits. This does not bode well for the former players that opted out of the settlement thousands of former players made with the National Football League (NFL) over concussion-related suits last summer. The league is reportedly paying $765 million for medical benefits and injury compensation to retired players, as well as funding medical exams, research and litigation expenses. The settlement has been characterized as avoiding litigating thousands of complex individual claims over many years and providing immediate relief and support. NFL Commissioner Roger Goodell and team owners reportedly wanted to "do the right thing" for former players with neurological conditions who believe their problems stem from on-field concussions. The lawsuits accused the league of hiding known risks of concussions for decades to return players to games and protect its image. For the lawyers who negotiated the proposed settlement of the NFL's massive concussion litigation, the agreement was groundbreaking. For the lawyers whose clients objected to the settlement, it fails to compensate players suffering from the "industrial disease of football," and it allows the league to escape any determination of whether the league concealed the effects of head injuries from its players. Defending the deal, NFL and the players' attorneys insisted they wanted to help suffering players now, emphasizing difficulty in litigating causation between blows to the head and brain damage known as chronic traumatic encephalopathy (CTE) in these football concussion cases. See more here-- http://bit.ly/1x1uRxX and settlement info here-- https://www.nflconcussionsettlement.com