PHOENIX - Concussions are dominating the conversation at the NFL owners meetings this week.
The owners are expected to vote Tuesday or Wednesday on yet another rule-change aimed at reducing concussions and convincing people that they really, really care about player safety. This one would make it illegal for both offensive and defensive players to deliver a blow with the crown of the helmet outside the tackle box.
The owners also will be updated Tuesday on the status of the concussion-injury litigation filed by more than 4,200 former NFL players against the league.
The league has filed a motion to dismiss the suit on preemption grounds. Oral argument is scheduled for April 9 in federal court in Philadelphia.
The 4,200 names on the class-action suit represent more than a third of the league's former players. They allege in the suit that the league spent decades "engaging in a campaign of deceit and deception, actively concealing the risks players faced" from repetitive head impact.
"This case is about making the NFL accountable for not being truthful and not protecting its players," said Sol Weiss, a Philadelphia attorney who is the co-lead counsel for the plaintiffs in the massive class-action complaint.
If the NFL were to lose this suit, it could cost the owners billions of dollars and bring America's most popular sports league to its knees. But at the moment, that's still a very big if.
In its dismissal motion, the NFL essentially claims that the players picked the wrong battleground for their fight. It will argue that because the league has a collective bargaining agreement with its players, the dispute should be dealt with in arbitration rather the court system.
If U.S. District Judge Anita Brody, who has been assigned the case, sides with the league, the players' suit effectively will be dead in the water, though they still could appeal. It could take up to 2 months for her to make her ruling.
J. Gordon Cooney Jr., an attorney for the Philadelphia law firm Morgan Lewis, and an expert on the defense of class-action suits, thinks the players will be hard-pressed to convince Brody that the suit belongs in court and not arbritration.
"The NFL is not saying the parties shouldn't have an opportunity to present their side of the story to a fact-finder," he said. "What they're saying is a collective bargaining agreement represented a whole host of compromises of consideration flowing in both directions.
"And part of that was to address safety issues, return-to-play issues, medical-care issues and those types of things. And part of that was that grievances about those things would be resolved through arbitration.
"And the players received a lot of other benefits in the form of the CBA. So the league's position essentially is, you can't strip that piece out now and say let's not pay attention to the grievance procedure and have this fight in federal court. The solution is to air the grievances out in arbitration."
Weiss participated in a concussion symposium last week at Villanova Law School.
"I can't find a single word in a single CBA agreement about fraud," he said during the panel discussion. "About the consequences of hiding safety information from the players. I can't find a single decision in the legal system that says fraud should be pre-emptive."
While Cooney said he believes the league's dismissal motion is very strong, he acknowledged that often, multidistrict litigation judges see their job as finding a way to resolve the entire controversy.
"Here, a dismissal by Judge Brody would not resolve the entire controversy," he said. "It would send the case off to be resolved in arbitration."
Even if Brody rejects the league's motion, the players still will have an uphill battle ahead of them; a battle that could take as long as 5 years before it ever goes to trial. If it ever goes to trial.
The next major legal hurdle for them if they survive the dismissal motion would be getting class certification. They would have to convince Brody that the suit should be tried as a class action rather than on a player-by-player basis.
Cooney said that, too, will be difficult. "I think the players are going to have an extremely tough time with class certification," he said. "There are so many different individual factual issues and legal issues that a class [suit] really isn't appropriate for this type of dispute."
If Brody ultimately decides to certify the suit as a class action and her decision survives a likely appeal, pretrial discovery could take as long as 4 years, according to Cooney and other legal experts.
"The concept of this being a multiyear process before any class action would ever go to trial is very real," Cooney said.
Ultimately, if it makes it to trial, this suit will come down to the question of what did the NFL know about the long-term effects of concussions and when did it know it.
"As a player, you understand that there's an inherent risk playing football," said former Eagles running back Brian Westbrook, who has not joined the lawsuit. "I understand that.
"But I also can see the view from the players' side that, hey, if this is true, you had the studies [about the link between repetitive head trauma and long-term brain damage]. You had the information about concussions that you should have passed on to the players and you chose not to.
"It's like the tobacco industry. If they knew their product caused cancer, they had an obligation to tell people."
For now, the NFL is doing its best to convince the American public, and the potential jury pool for this suit, that it is doing everything possible to make the game as safe as possible.
In an interesting bit of timing, the NFL announced Monday the settlement of another class-action suit by retired players. This one involved the use of retired players' images in NFL Films footage.
As part of the settlement, the league will contribute $42 million over an 8-year period to a newly established common good fund. The fund will be used to support organizations that provide benefits to retired players.
The league also will establish an independent licensing agency dedicated to the use of publicity rights for retired players.
Fourteen of the retired players who were plaintiffs in the licensing suit were in attendance at Monday's settlement announcement.
Nine of the 14, including Hall of Famers Lem Barney, Mike Haynes and Paul Krause, also are plaintiffs in the concussion lawsuit.
"We are here to talk about the great work that the NFL and the retired players have done because that is what means something to us right now," said Reggie Rucker, a former wide receiver with the Browns and four other teams who is a plaintiff in the concussion suit. "So we can help our fellow players who are in need."
According to a league source, the plaintiffs in the licensing suit were not asked to remove their names from the concussion suit as a settlement stipulation.
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