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NFL and retired players state their cases in federal court

By By John P. Martin

The Philadelphia Inquirer (MCT)

Published: Tuesday, April 9 2013 11:28 p.m. MDT

Indianapolis Colts wide receiver Austin Collie lies motionless on the ground after being hit in the second quarter of an NFL football game against the Jacksonville Jaguars in Indianapolis, Sunday, Dec. 19, 2010. Collie later walked off the field. (AP Photo/AJ Mast)

AJ Mast, AP

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PHILADELPHIA — The NFL’s dispute with retired players over the risks and impact of concussions unfolded Tuesday in Philadelphia on two distinct, but perhaps equally important, battlegrounds.

The first was a seventh-floor courtroom at the federal courthouse, where lawyers for the league and players sparred over if, when, and how the NFL bears responsibility for head trauma that players may have suffered during years of violent collisions.

The second emerged in a hotel conference room several blocks away. There, cameras swarmed as Mary Ann Easterling cried while mentioning her husband Ray, a defensive back who had dementia and killed himself at 62 last year, and as Kevin Turner, a former Eagles fullback, struggled to talk and said he might not live to see the case’s end.

“Unfortunately there’s a lot of us that don’t have 10 years to find out what the decision is,” said Turner, 43, who suffers from amyotrophic lateral sclerosis, or Lou Gehrig’s disease, that he blames on the on-field poundings he took.

Turner and Easterling have become two faces of the movement, and represent the public-relations challenge for the NFL as it fends off lawsuits from 4,200 former players and their relatives, who contend the league knew, but hid, the long-term impact of concussions to protect its billion-dollar enterprise.

They want the NFL to pay fraud and negligence damages and to establish medical monitoring for past and present players.

The league has denied hiding any risks and insists player safety has always been a top priority.

In the first hearing since the cases were consolidated under one judge in Philadelphia last year, a league lawyer urged U.S. District Judge Anita Brody to dismiss the claims.

The lawyer, former U.S. Solicitor General Paul Clement, argued that player injuries and treatment are covered by players’ union contracts with team owners, and that well-established labor law says disagreements over contract interpretations must be resolved in confidential arbitration, not in open court.

“This case is, at bottom, a case about workplace safety in an industry in which issues of workplace safety were a recurring subject of collective bargaining,” he told Brody.

He also said decisions on players’ injuries and their ability to return to the field rested primarily with the clubs and their medical staffs, but the players can’t sue the clubs because those complaints would indisputably be shifted to arbitration.

David Frederick, a lawyer for the retired players, contended that the alleged fraud and negligence by league officials — including a deliberate campaign of misinformation — aren’t addressed by the collective bargaining agreements. And as the effective “guardian” of football, he said, the league had a broader duty to players than one team, coach, or doctor ever could.

“The NFL had held itself out to be the guarantor of player safety,” said Frederick, “so when the NFL began to publicly monetize and glorify violence on the field, it breached its duty of due care because it was attempting to speak, in effect, out of both sides of its mouth.”

Clement countered that the judge couldn’t rule on the league’s duty to players without interpreting the contracts, which is the arbitrator’s job.

“I don’t think it’s possible to ascertain the scope of that duty, without determining the scope of the collective bargaining agreements,” he said.

Hundreds of lawyers, players, reporters, and other observers packed the judge’s courtroom and an overflow room to watch the hearing.

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