A case the NFL didn't want mentioned

As the NFL's battery of lawyers walked into a federal court in Philadelphia on Tuesday morning, there were five words the group did not want to hear: Kline v. Security Guards, Inc.

The five words are the title of a decision made in the higher court that governs the Philadelphia judge who is presiding over a concussion lawsuit filed by more than 4,000 retired NFL players. The Kline v. Security Guards, Inc., decision is nothing but bad news for the NFL.

The players are claiming that the NFL knew that concussions caused depression, dementia and other neurological problems but concealed the information from them while promoting and glorifying the violence of the game. The players and their lawyers use words such as "fraud" and "cover-up" to describe the conduct of the league and its executives, and they seek public jury trials to examine the league's conduct and to determine what the league owes them in monetary damages. If the players are right, their claims could cost the NFL billions of dollars.

Facing an enormous potential liability, the league denies any concealment and insists that any dispute between the players and the league over injuries is covered by the collective bargaining agreements between the players and the owners, and therefore must be resolved in private arbitrations. If the league is right, the dispute will be resolved with severely limited public disclosure and any payments to players will be significantly less than what would be awarded in jury trials.

U.S. District Judge Anita Brody ordered the hearing on Tuesday to test the league's claim that the disputes belonged in arbitration. The league's lawyers were relying on a legal doctrine known as "pre-emption," which provides that disputes between unionized workers and their employers are legally required to be submitted to arbitrators. The idea is that what would normally be a courtroom dispute is pre-empted by the collective bargaining agreement and must be submitted only to arbitration.

It's a legal argument that has worked for the league in past years, but it might not work in the concussion case. The reason for that is the rule of law established in Kline v. Security Guards, Inc.

Like the players in the NFL, the security guards in the Kline case were unionized. The collective bargaining agreement established all of the details of wages, hours and working conditions. And, like NFL players, the security guards accused their employers of fraud and concealment. In the case of the security guards, it was concealment of cameras and microphones that were installed to spy on the guards at their duty stations.

When the security guards sued and demanded money damages, their employer did what the NFL is doing now -- it argued that the dispute was covered in the agreement between the union and employer, was thus pre-empted and should be sent to an arbitrator.

But there was nothing in the security guards' union contract about concealment or fraud or eavesdropping, and the higher court, known as the U.S. Court of Appeals for the Third Circuit, ruled that because the issue was not expressly covered in the collective bargaining agreement, the dispute would not be pre-empted and sent to an arbitrator.

Tuesday morning, the attorneys for the players reprised what the attorneys for the security guards said a few years earlier -- there is nothing about fraud or concealment in the CBA, and the players are, therefore, entitled to jury trials and money damages.

It is always difficult to predict the outcome of a legal argument by parsing the questions the judge asks during a hearing, but Brody's focus on the Kline case was clearly good news for the players. The decision is featured prominently in the players' written briefs, and Brody clearly knew of its importance in the decision she must make.

When the judge does issue her decision in a few months, it likely will be lengthy. But, if you see the words "Kline v. Security Guards, Inc.," on the first or second page, you will know that the players have won the first battle in the concussion war.