[SOUND] Welcome back to Representing the Professional Athlete. An important part of being able to represent a professional athlete is being able to guide him through career ending injuries. We've heard from Chris Nowinski who is an expert, The Concussion Legacy Foundation co-founder. Today, in this module, we're going to update you on the concussion litigation, and the injury litigation that has been brought by the NFL players. We're going to take you through some of the relevant legal authority. And we're going to bring you up to date on the settlement that is now on appeal, being objected to by certain other retired players who initiated the causes of action. This litigation was big on many years ago. The factual allegations are pretty straight forward. The complaint itself, you can read it and understand completely what the NFL's arguments are, what the players' arguments are and what the legal underpinnings are for each side's arguments. What I want to start with is Section 301 of the Labor Management Relations Act. It goes all the way back to Deflategate, it goes all the way back to Bountygate, some of the things we've talked about, Ray Rice, Adrian Peterson. By virtue of Section 301 of the Labor Management Relations Act, not to get too legal about this, but for those of you who want to practice in this area, you have to understand that the final binding arbitration that the unions have agreed to on behalf of their players prevents in their waiver of recourse of the parts of the collective agreements in each of the major leagues. Final binding arbitration is different in the NFL as we've explained because the commissioner has final appeals. In the others, it's independent arbitrators but the essence of this complaint really goes to fraud and gross negligence, and it tries to get outside the final binding arbitration that would otherwise have precluded them from going to court. And the waiver of recourse saying here I agree, through my union, to pursue the grievance injury process which leads to final binding arbitration within this hermetically sealed cocoon, if you will. So we're not going to go to court. We all agree through your union that we will abide by this final binding arbitration. As we move forward, we see how these various arguments have developed. We see how settlements have been proposed. There have been various hearings, fairness hearings. You can follow this in the local and national press. But how does the collective agreement and the Labor Management Relations Act relate to really the rest of this course? We talked about certainly class action treatment. It's a very tricky process. That part has been approved. Think about the tobacco litigation. Think about the asbestos litigation. Similarly situated, similarly harm. How to establish which approximate costs established this particular injury in this particular retiree. But again, if you're representing the post-professional athlete who's had to retire due to post traumatic brain injury, these are the kinds of things you're going to be talking about. Was my client defrauded? Did he play at a time where there was no collective agreement? Prior to 1968, there were no agreements whatsoever no collective agreements. There was a donut hole, 87 through 93, when due to strikes and lockouts, there was no collective agreement. So it wend their way across these various loopholes to try to get beyond a motion to dismiss. This is the theme that runs through this entire course. It is highly represented all the way from pre-professional to post-professional athlete. How do you get past that which the union has arguably waived in terms of your professional football player's rights to go to court and sue? As supposed to his rights to within this system, seek recourse through the injury grievance process, which has time deadlines and arbitration procedures that are separate and apart from the personal conduct policy? Which is where we left off with Roger Goodell, and Bountygate, and Deflategate, and Ray Rice, and Adrian Peterson. When we get to the settlement objections, the criticisms that you're reading about in the paper, why does is it on appeal, why have people opted out? CTE, as you heard from Chris Nowinski, this is really the beginning and end of the discussion of chronic traumatic encephalopathy, this is the tile protein on a brain that you've heard Chris talk about. This is the one that is not compensable, because it's not diagnosable per this settlement until there's a post-mortem analysis of the brain. This is very difficult to prove but currently now under the proposed settlement, this was one of the major objections. Unless you can prove you have CTE, which you can't do until you're deceased, you can't recover. So that's one of the major objections. The other is, there's various categories of if you have Alzheimer's, if you have provable brain damage through different ways of proceeding, different ways of demonstrating to what will be an arbitration panel, ultimately, that you have Lou Gehrig's disease, ALS. There's different caps and that's the other challenge is there's no cap on the total amounts payable. The total amounts payable probably amount to $900 million, maybe $1 billion. There's a 65 year period through which this will continue. There's deducts for if you didn't play in the league for very long. There's variations on the theme depending on how old you are and these are some of the objections. Really, the other major problem with the objectors here, which I tend to agree with is, look, if you just have symptoms. If you can't prove the traumatic brain injury, there's really nowhere to go. I understand the NFL's point of view there, look, we can't just pay claims when somebody walks in and says, I have memory loss, I have early onset dementia. Unless you can prove it, you can't recover. These are the things, when we go all the way back to the beginning of this litigation, there was a famous oral argument. Paul Clement was on the NFL side, David Frederick was on the side of the players and I think they broke through, why did they break through to get the settlement. Which ultimately was approved by Judge Brody. It is on appeal. There are some objectors who won't let it go forward. How did they break through? They said, look, the likelihood of discovery being allowed here, that being pretrial discovery on the other side of a motion to dismiss on the pleadings just be quite legal about it. That's really the NFL's greatest fear here was on the other side of all this legalese that we've been talking about, the fact that they could get into the files, the fact that if the motions were not granted. Otherwise, we have final binding arbitration, there's non-injury and injury grievances, it's all collectively bargained. But the idea of fraud, the idea of essentially fraud in the inducement, and getting into the discovery, understanding the files in the NFL, was it the league of denial as Frontline has said? Lots of back studies would indicate that they were in denial. Roger Goodell testified before Congress, however. He did admit there was a common law duty, which could arguably transcend the collective agreement that would otherwise confine these claims to the final binding arbitration. these are the kinds of really clever lawyering skills that were employed by David Frederik in his briefing and in his oral argument that lead i believe to this settlement. We will provide you with a chart, you'll see it is so many dollars but capped per demonstrable traumatic brain injury, so many dollars, so many years depending on how many years in the league and what your current age is. There is a time limit of 65 years, but the total valuation is approximately $900 million to $1 billion. At the end of the day, I'd be interested to hear your views through discussion posts and otherwise, because this is not all that much money when you spread it out over time. For a multi-billion dollar industry, the NFL some would say are getting off fairly cheap here in the grand scheme of things and that's another reason I think why you see some of the objections. We just wanted to update you on this concussion litigation, the settlement's still pending, perhaps by the time this will run and we'll back to you if there is an update as to whether the objections on appeal from the fairness hearing that otherwise approve the proposed settlement. We'll be back to you if there's an update. But right here, right now, nobody's being paid anything because of these objectors to the proposed settlement and I can't believe that's in the best interest of the vast majority of these provably disabled veterans, retirees. So, representing some of them as I do, I wish we could move on, I wish they could collect that which they need to get on with their lives and to live as full a life as they can. Those who have demonstrable brain injury but right now, it's all held up in the court system and from representing a post-professional athlete, that's a hard message to convey back to your client who very much want to participate in the settlement. Thanks for listening to this update and we'll be back here soon with our next lesson. [SOUND]
