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First major hurdle comes this week in concussion lawsuits


As thousands of Davids prepare to take on the sports world’s Goliath in the NFL concussion lawsuits, Goliath has a fairly large stone that he’s about to drop on all of them.

Lost in the sympathy and intrigue generated by 4,200 former pro football players suing the caretakers of the game they played is the fact that the NFL, as it usually does, has some strong legal arguments. The first one makes its way to Judge Anita Brody’s court in Philadelphia on Tuesday, after the submission of extensive written materials by the lawyers.

The NFL’s threshold position comes from the labor deal. The league believes that the various Collective Bargaining Agreements negotiated by the players and the league control the situation, and that any claims for failure to protect players from concussions or to disclose to them the risks of concussions should be pursued via the dispute-resolution system created by the CBAs.

“Although the CBAs have changed over time pursuant to the collective bargaining process, every CBA expressly addresses player health and safety and provides grievance procedures for the resolution of disputes,” the league explained in a submission to the court, via the Philadelphia Inquirer.

The former players obviously disagree, but it’s common in situations like this for the employer to argue aggressively and loudly that workers who have banded together to form a union must rely on the less formal system of dispensing justice that the labor agreement creates. The workers don’t prefer that approach because it removes from the process a jury of lay persons who could be inclined to decide the case based on dynamics other than the law and the facts.

A jury is far more likely to feel sorry for the former players than an arbitrator would. Likewise, a jury would be much more inclined to resolve doubt in favor of the players, given the perception that the league has more than enough money to pay a verdict. Throw in the idea that the men who made the game what is it today earned peanuts in comparison to the amounts paid to today’s players and coaches and executives and owners, and it becomes very easy for a jury to sidestep a morass of conflicting scientific contentions and legal arguments and decide to redistribute the wealth based on a visceral notion of fairness.

That’s why the NFL is fighting so hard to push the case from a court of law to arbitration. And that’s why this initial skirmish in the concussion litigation will have a dramatic impact on the ultimate outcome of the case.