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NFL says concussion claims shouldn’t be made in court


The NFL indeed wants to consolidate all pending concussion lawsuits into one action. And then the NFL wants that combined piece of litigation to be rolled up into a ball and kicked out the window.

At today’s hearing in Miami before the U.S. Judicial Panel on Multidistrict Litigation, the league argued that lawsuits filed by former players alleging that the league failed to disclose the risks of concussions and/or failed to take steps to protect the players from concussions should be resolved via the collective bargaining process.

“You don’t get to come to court,” NFL counsel Beth Wilkinson said, via the Associated Press. “They should go through the process that’s laid out in the agreement.”

And that’s where an inherently complex question becomes increasingly convoluted. How will players who played under a variety of version of the labor deal pursue their rights?

The league’s effort comes from an obsession by corporate interests to avoid the jury system, which remains one of the few entities over which the rich and powerful have little or no power to avoid losing a chunk of their riches. And so if there’s an avenue for diverting the process from a group of ordinary citizens, whom many of the one percent regard as too simple or emotional to properly and fairly apply the law when confronted with sympathetic plaintiffs and affluent defendants, it’s worth the extra money to try to position the proceedings to be resolved by an arbitrator, who will be far less inclined to be influenced by the human consequences of concussions and far more inclined to apply the letter of the law when assessing the various rights and responsibilities.

In 18 years of practicing law, I was on both sides of that dynamic from time to time. And the only sure thing is that this issue will delay, perhaps significantly, the ultimate disposition of these claims, wherever and however they are resolved.