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NFL, ex-players present concussion case arguments

Former NFL player Kevin Turner, left, speaks as

Former NFL player Kevin Turner, left, speaks as former players Dorsey Levens, center, and Bill Bergey listen during a a news conference in Philadelphia. (April 9, 2013) Credit: AP

PHILADELPHIA -- Attorneys for the NFL and the more than 4,000 retired players suing the league over concussion-related issues made arguments for nearly an hour Tuesday before a federal judge who will decide whether the case will go to trial.

The retired players contend the league purposely withheld information about the damaging effects of concussions. The NFL believes these matters should be decided by a procedure already set forth in the collective bargaining agreement.

"I will rule when I sort this whole thing out for myself,'' U.S. District Judge Anita Brody said after the hearing. It could take several weeks for her decision.

If Brody rules in favor of the NFL, the lawsuits as currently constituted will end, although former players might choose to sue individual teams or the NFL Players Association. If she decides the matter deserves a trial, there could be a yearslong process of deposing witnesses before a trial. Regardless of her ruling, either side could appeal.

Players attorney David Frederick, who has argued cases before the U.S. Supreme Court, contends the league willfully kept information about concussions from the players. "The NFL spread misinformation about the neurological risks [of concussions],'' Frederick said. "The NFL was not giving truthful information, even though they knew, or should have known, that repeated impacts would cause problems.''

NFL attorney Paul Clement said these matters should be decided by a grievance process already in place as part of the CBA. He also suggested the players could have chosen to sue the teams or the union, but chose to sue the NFL because of potential problems associated with going after the clubs and/or the NFLPA.

"This case is about workplace safety,'' Clement said. "The fundamental problem is that the CBA evolves over time. The one thing that is constant is these agreements put the primary role on some combination of the players themselves, the union and the clubs. You can't think of the league's responsibility in a vacuum.''

Brody offered no hints about how she might rule.

"The arguments really boil down to basic premises,'' said Andrew Brandt, a Philadelphia-based lawyer who attended the hearing. Brandt teaches sports law and negotiations at the Wharton School of the University of Pennsylvania and is a legal analyst for ESPN.

"On the league's side, it's a pre-emption case -- how the players get treated, what the benefits are, how they're handled by team doctors, the grievance process and all that's incorporated into the CBA. The plaintiffs said that's not exactly true, that the CBA does not deal with the quote-unquote glorifying violence and the failure to disclose neurological damage.''

Brandt wouldn't speculate what Brody's decision might be, but suggested it might not be an all-or-nothing proposition."If she rules for the NFL, it's over," Brandt said. "If she rules for the players, it goes forward completely. The easy handicapping is somewhere in between. It may go forward on some levels, but not others. She has a lot of potential split decisions, the 'gap' players [not covered in years when there was no CBA before 1968 and from 1987-93], the fraud claims, the negligence claims, some kind of limited pre-emption [that would protect the league from being sued.] If you put a gun to my head, I would say somewhere in between."

A handful of former players and widows of deceased players who suffered from brain trauma were in court.

"I'm very glad we're at least moving forward, and hopefully it won't drag out,'' said former NFL running back Kevin Turner, 43, who was diagnosed in 2010 with Lou Gehrig's disease, which is incurable. He believes he contracted it because of repeated head trauma during eight seasons with the Patriots and the Eagles.

"This is something that will hopefully move at a reasonable pace. Unfortunately, there are a lot of us that don't have 10 years to find out.''

Turner was optimistic about Tuesday's's arguments.

"I don't know a lot about the law,'' he said, "but it sounds like we won.''

Lisa McHale, the widow former Bucs offensive lineman Tom McHale, said she believes people are finally getting the message about the dangers NFL players have experienced. Tom McHale died of an accidental drug overdose in 2008 at age 45; it was determined after his death that he suffered from chronic traumatic encephalopathy (CTE), a progressive degenerative disease that occurs as a result of repeated head trauma.

"I didn't want to believe that [the NFL] could have been so callous to had known this and continue to operate the way they did over the years," she said. "I just had to accept that they were engaging in a very deliberate strategy."

McHale believes the NFL is now more aware of the dangers of head trauma, but doesn't absolve the league for what she believes was a deliberate pattern of deceiving players at the dangers of brain injury.

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