Playing Through the Haze: The NFL Concussion Litigation and Section 301 Preemption
Citation: 102 Geo L.J. 1841 (2014)
While the NFL likely welcomes the long wait for the results of these and other studies, not everyone is so patient. By the beginning of 2012, over one thousand former NFL players (Players) had filed individual lawsuits against the League stemming from the concussion-related injuries they sustained playing football. The League moved to consolidate the cases pursuant to 28 U.S.C. § 1407, which allows for the transfer of cases involving common questions of fact to a multidistrict litigation (MDL) in a single district court for the purpose of coordinated or consolidated pretrial proceedings. The United States Judicial Panel on Multidistrict Litigation granted the League’s motion, resulting in the transfer to the District Court for the Eastern District of Pennsylvania every civil action filed by former NFL players against the League dealing with the League’s treatment of concussions.
This Note will address the unanswered preemption issue raised in the League’s motion to dismiss. It will argue that, because adjudication of the Players’ claims would require interpretation of the CBA, the claims would be preempted and the League’s motion to dismiss would be granted.31 Part I discusses Section 301 of the LMRA and the Supreme Court cases addressing Section 301 preemption. Part II argues that the Players’ claims would not be preempted under one prong of the preemption test because the League’s duty to them arises out of the common law rather than out of the CBA. Part III argues that the Players’ claims are nevertheless preempted under the second prong of the preemption test because they require interpretation of the CBA. Part IV rejects the notion that the Players’ fraud claims should survive a preemption chal- lenge even if their other tort claims do not. Part V raises possible alternatives to litigation given the League’s likely success in raising a preemption defense.