On April 9, 2013, U.S. District Judge Anita Brody heard oral arguments in the ongoing NFL concussion litigation venued in the Eastern District of Pennsylvania. The suit essentially accuses the League of downplaying the risks of concussions and other playing-related head injuries and their effect on later-life cognitive decline. Multiple pending suits were condensed into a single multi-district litigation earlier last year and now includes over 4,200 former NFL players as plaintiffs. The outcome of today’s hearing could decide whether the lawsuit will continue in federal court or if the parties will be forced to arbitrate instead.
During today’s hearing, the NFL argued that, according to the terms of the players’ collective bargaining agreement, the individual teams bear the chief responsibility for the health and safety of the players. Paul Clement, an attorney for the league, noted “The one thing constant throughout is these agreements put the primary role and responsibility on some combination of the players themselves, the unions and the clubs.” Accordingly, the nature of the dispute makes it a matter for arbitration, not open court.
Plaintiffs, however, obviously disagree. They asserted that, because the contract is silent with regard to latent head injuries, the lawsuits were properly brought in court and should stay there. Plaintiffs’ attorney David Frederick blasted the NFL’s behavior, characterizing it as fraudulent and noting, “[The league] set up a sham committee designed to get information about neurological risks, but in fact spread misinformation.”
Judge Brody expressed uncertainty over the issue, and appeared unsure as to whether the contract was sufficiently specific as to require the arbitration. Her ruling is not expected for several months. Whatever way she rules, appeals are expected to follow.