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Absence of NFLPA looms over concussion lawsuits

DavePear Card Front

Former NFL lineman Dave Pear, an advocate for former players and one of the many who are suing the league, wants former players to sign a “declaration of independence” from the NFL Players Association, according to the Denver Post.

There’s a better way for former players who are suing the NFL to separate from the NFLPA. They can sue the union, too.

To date, none of the hundreds of players who have sued the NFL have joined the NFLPA as a defendant, even though the NFLPA had a central role in the creation and efforts of the Mild Traumatic Brain Injury Committee in 1994. Indeed, NFLPA executive director DeMaurice Smith confessed to Congress in early 2010 that the union shares blame with the league for the sluggish acknowledgement and reaction to the long-term perils of head injuries.

“There is simply no justification for the NFL to have previously ignored or discredited Dr. [Bennet] Omalu and others with relevant, valid research,” Smith said at the time. “For far too long, our former players were left adrift; as I emphasized at the last hearing, we were complicit in the lack of leadership and accountability but that ends now. I am here again to make it clear that our commitment is unwavering.”

The commitment may be unwavering, but Smith’s confession is also potentially damning. Still, the NFLPA has not landed in the former players’ cross hairs.

The strategic decision to give the Players Association a pass likely arises from several factors. First, the NFL has the deep pockets that the lawyers hope to raid; in comparison, the NFLPA has peanuts. Second, suing the NFLPA would motivate the union to join with the NFL and show that nothing was hidden because no one really understood the consequences of concussions until recently, at which time the parties mobilized to make changes to the game. Third, if the NFLPA were sued, the union would have every reason to broaden the divide between current and former players, recruiting current players to testify about things some of the plaintiffs may have said regarding whether they would have played football even if they had known the risks, whether they don’t really fault the NFL for what happened, whether they’re not actually injured, and/or whether they’re simply in it for the money.

Fourth, and perhaps more importantly, a direct assault against the NFLPA would highlight that the players themselves failed to do enough to protect their own interests, since the union is the players and the players are the union and the union was working directly with the NFL from 1994 on as both parties tried to understand the impact of concussions.

As to the latter point, not suing the NFLPA won’t avoid the problem. The NFL undoubtedly will point to what lawyers call the “empty chair,” claiming that an absent party the plaintiffs chose not to sue is as culpable if not more culpable than the NFL itself.

Moreover, the fact that the plaintiffs were represented by the NFLPA creates a threshold hurdle for the entire litigation, given that the NFL has argued that the former players were subject to a Collective Bargaining Agreement that contained a grievance procedure for claims like the ones currently being made.

So while some former players may now hope to split with the NFLPA, their past connection to the union will be impossible to erase -- and that could make it much harder for the former players who are suing the NFL to prevail.