The NFL filed a motion on Thursday in federal court in Philadelphia seeking to dismiss more than 140 consolidated concussion lawsuits that include more than 3,300 former players as plaintiffs.
The NFL wants the suits dismissed "on the basis that the claims are preempted by federal labor law," league spokesman Brian McCarthy said in a statement earlier this week. "The league's preemption argument has already been accepted by two federal judges, who concluded that resolution of plaintiffs' negligence claims would require interpretation of the various collective bargaining agreements under which the plaintiffs played and therefore preempted by federal labor law."
Section 301 of federal labor law says any grievance should be resolved per the terms set forth in the event that there is an existing CBA between parties. The league argues that player safety and how injuries are dealt with are outlined in the CBA and that any dispute belongs in arbitration and not in the courts.
Attorneys for the former players have argued that the case belongs in the legal system because the collective bargaining agreement doesn't protect the league against the players' claim of fraudulently concealing the dangers of concussions, a charge the league denies.
"Filing a motion to dismiss is standard operating procedure," said former NFL player Brad Culpepper, now a lawyer, who is one of the plaintiffs in the case. "They've probably filed a motion to dismiss in every lawsuit they've ever been involved in."
The two sides will have until mid-December to argue their case.
"The judge's job is to determine whether the players' claims arise out of the collective bargaining agreement or if those claims are independent of the agreement itself," said Paul D. Anderson, a legal analyst who runs the website NFLConcussionLitigation.com.
If the players prevail and the lawsuit proceeds, the NFL already has said it would need about six years to determine the viability of each plaintiff in the case before proceeding to trial.
Since 2007, the NFL has offered those players whose head injuries have resulted in dementia to enroll in the 88 Plan, named after John Mackey, a former tight end who suffered from the symptoms. The plan pays for $100,000 a year worth of medical costs if the ex-player is living in a hospital or an assisted living community, and $88,000 a year if he is living at home. Since 2007, the league says it has distributed more than $18.6 million to former players.