Preemption is the Focus, by Paul D. Anderson Consulting, LLC, NFL Concussion Litigation
It was a busy week in the sports-injury-litigation arena. The NFL Prescription Drug case (Richard Dent et al. v. NFL) continues to heat up as the NFL, NFLPA and retirees duke it out in court filings. And, in a different venue, the NFLPA received a favorable ruling in a concussion lawsuit (Smith et al. v. NFLPA). Both matters focus on the doctrine of preemption.
Ruling Imminent in Prescription Drug Litigation
This case is taking a very unorthodox route to a decision. Judge Alsup has taken a very aggressive and active role in seeking to flesh out the NFL’s position that the retirees’ claims are barred by the collective bargaining agreements (CBAs). This argument hinges on the NFL’s ballistic weapon of choice – preemption.
Judge Alsup posed several questions to the NFLPA – despite the NFLPA not being a party to the lawsuit. In response, the NFLPA contends that the players would be unable to grieve the specific claims alleged in the lawsuit. In other words, there is no provision in the CBAs that would require a court’s interpretation. The NFLPA’s responses triggered reactions from both sides.
The retirees interpret the NFLPA’s position as a resounding victory: the claims are not preempted by any provision of the CBAs.
The NFL, on the other hand, rejects the NFLPA’s position. . . .