Legal Maneuvering: The NFL And Retired Players

This week, the lawyers representing over 2,000 former NFL players who've filed more than 80 suits against the league announced that those lawsuits had been consolidated, and that a senior U.S. district judge in Philadelphia would preside over pretrial issues and discovery.

The suits charge that "the NFL was aware of the health risks associated with repetitive blows" to the head, and that the league "turned a blind eye to the risk" players were facing and failed to inform the players of the dangers in their workplace.

Sports Illustrated legal analyst Michael McCann is also the director of the Sports Law Institute at Vermont Law School. He joined Bill Littlefield on Only A Game to discuss the implications of the news.

Bill Littlefield: Does the consolidation of these lawsuits give an advantage to either side?

Michael McCann: "I don't think it necessarily does, Bill. I think this is really a procedural step that was necessary given that there are approximately 90 lawsuits filed by over 2,200 retired NFL players, but it wouldn't have been possible to separately litigate all these claims. So it was out of necessity that they be brought together. On one level, this does raise the stakes of what's going on because now the NFL has a clear master complaint that it has to respond to, and that gives the retired players some organization in suing the league."

BL: Perhaps it can be argued that the players should have understood some of the risks they faced, but one of the charges against the NFL is that the league "falsified research" and consciously misrepresented the danger of concussions. Do you think the players can establish that?

MM: "I think it will be tough because the league is going to consistently say, 'We provided everything we needed to provide you during collective bargaining discussions. That is part of the collective bargaining agreement. We negotiated what would be the health protocols and policies. You had access to what we had. There were never any complaints about what we were sharing, and we complied with all the related laws and rules.'

For the league to have falsified documents is a pretty serious accusation brought by these retired players. Maybe they do have evidence of this, but I think the league is going to say, 'Look, you've been part of the same process. We haven't unilaterally imposed rules. We've done this together. We've done this collaboratively, so you can't blame us now.'"

BL: What happens next with regard to these lawsuits?

MM: "The next step is that the NFL will seek to dismiss all of them. They will say that all of the claims have been preempted through the collective bargaining agreement, that the CBA contains language that waves away any of these potential claims. That's going to take several months, perhaps six to eight months in terms of the courts resolving that question. If the claims are dismissed, then that ends the story. It can be appealed, but that's most likely the end of it.

If the claims aren't dismissed, then that's a serious problem for the NFL because then, in all likelihood, the judge will command an order requiring discovery of both the league and the players. That would require the NFL to provide information that it probably doesn't want to provide, and it would be a pretty lengthy process. The reality is that this is going to take several years before it's resolved."