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The NFL’s Preemption Trap and How Concussion Settlement Opt-Outs Plan to Avoid It

Junior Seau

December 9, 2017
Sheilla Dingus

As concussion settlement class members struggle to overcome delays and denials in the much heralded and massively disappointing NFL Concussion Settlement, opt-out claims are quietly moving forward.

By 2012 hundreds of brain injury cases were filed against the NFL, and in some instances helmet maker Riddell, and these, and many others which were filed later were consolidated into a multi-district litigation (MDL) in the Eastern District of Pennsylvania.  Negotiations between plaintiffs and the NFL ensued through 2014 when a preliminary agreement was reached between a majority of plaintiffs and the NFL. This went through a few revisions and appeals, but became final after the Supreme Court refused to grant certiorari on December 12, 2016. Registration for the “uncapped” settlement began early this year and ran through August 7, 2017.

Numerous class members disagreed with the terms of the settlement and opted out, preferring to pursue litigation on their own. but since settlement terms allowed for opt outs to opt back in to the class through the end of the registration period (which many did) all opt-out cases were frozen in a holding pattern, still a part of the massive MDL. Many of these plaintiffs wish to have their cases remanded back to the state courts they originated in – and this is a move the NFL is vigorously trying to block.

As those who follow NFL litigation are aware, LMRA § 301 preemption has been a bulwark defense for the NFL in past lawsuits and as such the NFL seeks to keep these remaining cases under the MDL umbrella and also subject to preemption under § 301 under the guise that these cases require CBA interpretation which requires federal jurisdiction.

This excerpt from an American Bar Association publication demonstrates why this has been such a powerful liability avoidance tool for the NFL:

II. Section 301 Pre-emption of Claims Involving Collective Bargaining Agreements

Q. Can I Bring Suit on Behalf of an Employee Covered by a CBA?

A. Not if the claim requires the interpretation or application of terms of the CBA. Congress adopted Section 301 of the Labor Management Relations Act [“LMRA”] in 1947 (29 USC Section 185) authorizing unions and employers to bring suit in federal court for breach of collective bargaining agreements. The USSC decided, in Textile Workers v. Lincoln Mills, 353 U.S. 448 (1957), that a federal labor law would be recognized for breach of these CBAs, rather than subject union and management to disparate state contract laws. As a corollary to this principle, the USSC has recognized that this federal law preempts state law claims that rely upon language in a CBA or would require an interpretation of the CBA. As such, employees may not sue for breach of a CBA, or bring state law claims that rely on a CBA clause or require an interpretation of a CBA clause. For example, a discharged employee may not sue for breach of a “just cause for discharge” provision in the CBA, but must rely upon the union to enforce that promise. Moreover, Section 301 preemption bars an “implied contract” claim based on a manager’s promise to a unionized employee that he has a guaranteed job. Such a promise would be subsumed within the terms of the CBA, if actionable at all. As such, plaintiff’s counsel should carefully consider the sweep of Section 301 preemption when considering a contract or quasi-contract claim against the employer. Many tort claims relying on CBA terms will also be considered preempted, for example some defamation and negligent infliction of emotional distress claims. (See, e.g., Hadley v. Pacific Gas and Electric, Inc., 933 F.2d 1014 (9th Cir. 1991) )


The NFLPA is quick to point out that it represents active and not retired players, and therefore does not pursue litigation on behalf of former players.  Whenever the NFL is able to convince the courts that a claim brought by a retiree or group of retirees requires interpretation of some provision of the CBA the case is almost always summarily disposed of in quick order through § 301 preemption regardless of the severity of allegations or other merits of the case.

In light of this it is imperative for the injured players and families of those deceased to convince the court that their pleadings have no basis in any CBA provision.  As such, some creative and promising legal strategies are emerging which may finally thwart the NFL’s bid to make quick riddance of their accusations.  Briefs on behalf of several plaintiffs show promise in overcoming the NFL’s efforts to stonewall their cases.  Part I of this series takes a look at arguments presented by the late Junior Seau’s children.

Junior Seau

Seau children

Junior Seau’s children at his posthumous Hall of Fame induction

Junior Seau, over the course of his 20-year NFL career played more downs than any linebacker in the league’s history.  He began his career with the San Diego Chargers in 1990 and retired from professional football at the end of the 2009 season.  During this time he sustained countless concussive and sub-concussive head impacts which began to manifest in mental deterioration toward the end of his career and into retirement.  As a result of the rapidly accelerating and debilitating brain damage he sustained during his career, Junior shot himself in the chest on May 2, 2012, at age 43, sending a message to the NFL and the world to study his brain.  “He literally gave is life for the game” says his family.  His pathology revealed advanced chronic traumatic encephalopathy (CTE), now known as the industrial disease of football.

The NFL’s callous reliance on legal technicalities is most evident in a pair of briefs (here & here) from the Seau family which counter the NFL’s preemption arguments.

For every wrong, there is a remedy. Unless, according to the National Football League and NFL Properties, LLC (collectively, the “NFL Defendants” or “NFL”), your father played in the NFL. Then, they argue, tort claims are preempted under § 301 of the Labor Management Relations Act (“LMRA”), should have been brought as a grievance under the collective bargaining agreement (“CBA”) and must be dismissed. The NFL does not care – or contest – that the four children of Junior Seau (“Junior”), one of the league’s greatest and best-loved players, could not bring such grievances under the express terms of the CBA. The NFL insists it may nonetheless silence their voices, despite the NFL’s own status as a non-signatory to the CBA, and dismiss the claims related to Junior’s wrongful death. In reality, the NFL is trying to use § 301 preemption to immunize their past efforts to intentionally and negligently conceal and misrepresent the dangers of latent head injury and chronic traumatic encephalopathy (“CTE”) from players and the football public. But LMRA preemption does not apply to the Seau Family’s claims and does not allow the NFL to avoid the consequences of its actions.

The Seau children are not nor have they ever been party to a CBA. “If their claims are preempted, they will be left without any forum to address the NFL’s wrongs, writes Steven Strauss, who represents the Seau children.  “LMRA precedent prohibits this result as a matter of law and basic fairness prohibits the extension of § 301 preemption to two non-signatories like the Seau Children and the NFL.” (Note: The NFL defendants in this case are NFL Properties and NFL Charities which are not subject to collective bargaining which is handled exclusively by NFL Management Council.)

In order for the NFL to successfully claim LMRA preemption, they must identify a provision within the CBA while allegedly governs the claims against it and Strauss declares they have failed to do this.

Additionally, the Seau family’s claims were initially filed in San Diego Superior Court, where according to the brief, “California wrongful death claims are independent non-waivable and non-derivative statutory rights,” which would preclude LMRA preemption.  The brief also points out that dismissal of the Seau Children’s claims would be improper because it does not serve the limited goals of LMRA preemption, which are “ensuring enforcement of private grievance in industrial labor” and “ensuring application of uniform federal labor law.”

The NFL’s Motion to Dismiss these claims is improper as a matter of law. Were it otherwise, preemption would offer defendants absolute immunity – keeping the plaintiff from accessing any forum for relief. The NFL cannot use preemption to erase the Seau Children’s only available remedy for the death of their father


The brief cites a number of examples of case law supporting this assertion, including one in which a wife unsuccessfully tried to sue a husband’s employer as a beneficiary of her husband’s interests in the CBA.  In this case the court ruled that she had no standing as she, herself was not a party to the CBA.  Likewise, the Seau children are not parties to any NFL collective bargaining.  Also cited among many other examples where plaintiffs have no access to collectively bargained grievance procedure, was a ruling In re National Hockey League Players Concussion Injury Litigation holding preemption improper where NHL retirees could not seek arbitration under CBA and did not have any other forum for relief.

The NFL paints the Seau children’s claims as derviatory of their father, and therefore in line with claims made by former players but as attorney Steven Strauss points out, “The Seau Children bring these claims on their own behalf, for the loss of their father’s love, guidance, and support due to the NFL’s wrongful actions. They do not assert these claims on behalf of their father or his estate. Further, the claims were not negotiable or waivable by their father prior to his death.”

The brief states the NFL’s strongest argument for preemption is that the CBA may need to be referenced in order to define the NFL’s responsibilities to Seau and if those responsibilities were breached.  Strauss rebuts this argument:

The only connection to the CBA is the one manufactured by the NFL. . . Even if the NFL were correct, because the CBAs are silent on the subject of latent head injury or the NFL’s duty generally, the NFL has only raised the possibility that the Court would need to reference the CBA to understand the NFL’s duties. This does not require preemption of independent state statutory protections. . . Preemption of these claims, on the thin reed offered by the NFL, would directly contradict the Supreme Court’s limiting language, that “§ 301 cannot be read broadly to preempt nonnegotiable rights conferred on individual[s] as a matter of state law. . . Rather than address the Supreme Court precedent requiring a limited application of preemption to independent statutory claims like the Seau Children’s, the NFL’s Motion simply ignores it.


The brief also points out that no where in the NFL’s opposition is an argument that negates its common law duty to act reasonably not to harm players and the football public generally, which the Seau children contend occurred when the NFL engaged in “undertaking to study latent head injury and truthfully report on the same,” but instead perpetuated pseudo-science and propagated misinformation that deceived the public, including Junior Seau, and led to the decisions which hastened his untimely death.

“Because neither Junior’s nor the Seau Children’s claims are subject to preemption under § 301, the Court does not and never had subject matter jurisdiction over their state law causes of action,” writes Strauss, who also emphasizes in addition to no preemption jurisdiction the fact that there is no diversity claim which would grant federal jurisdiction, since California was the state in which Seau played the majority of his career, and the place he maintained a residence even when playing elsewhere.  It was his residence at the time of his death and is the current residence of his children.

The brief maintains that the case is governed solely on the laws of the State of California, which meets a choice of law test and establishes California’s substantial interest in securing the rights of resident plaintiffs and deterring wrongful conduct by defendants within its borders.

Under California law, the Seau Children may recover substantial compensation for the “loss of love, companionship, comfort, affection, society, solace, or moral support” that they were deprived of as a result of the NFL’s actions. . . The NFL’s wrongdoing robbed the Seau Children of their father’s love, affection and guidance – both during his life, as CTE deteriorated his mental capacity and increased his social isolation – and after his untimely death, at only 43 years of age. Each of the Seau Children, who at the time of their father’s death ranged in ages from 11 to 22, have missed their father’s incredible warmth, humor and love every day since his death. Yet, the NFL insists that the Seau Children’s loss of comfort claims are limited and that one cited authority, Rufo v. Simpson, is “an extreme outlier” because it concerned “the $8.5 million recovery by the parents of Ron Goldman following the O.J. Simpson ‘trial of the century.’” . . . After the Seau Children testify regarding the devastating loss of Junior’s love and support in their lives, a jury selected from his hometown of San Diego, where he lived and played for most of his career and was widely loved and respected for his contributions on and off the field, will decide any award. And because of his role in professional football’s concussion crisis and untimely death, Junior is a constant reminder of the changing tide of professional football and the NFL’s wrongdoing. . . The trial will chronicle the NFL’s betrayal of one of its greatest heroes. Furthermore, this trial will involve four children who lost their charismatic and loving father in a public and shocking manner. . . The Seau Children are ready to provide compelling evidence of the losses they suffered and hold the NFL to account.


Perhaps the excerpt above is the real reason for the NFL’s urgency in keeping this case out of state court.  As implied above, a trial of this nature will invoke similar media attention to that of the Simpson trial, and shine a spotlight on an ugly picture of the league that touts the mantra “football is family,” while simultaneously exhibiting callous disregard to the devastation of the Seau family, who once believed in them and took them at their word.

Part 2 of this series will detail other opt-out cases, the compelling and tragic stories behind them and the legal arguments which hope to overcome the NFL’s favorite defense.