There are currently a number of lawsuits filed by former NFL players claiming that the NFL inadequately regulated the game to minimize the risk of head trauma and, therefore, is liable for the long-term brain impairments associated with such on-field concussions.  In a suit filed in the Eastern District of Pennsylvania, players are seeking relief on claims of lack of proper medical monitoring, concealment, and civil conspiracy.  The players contend that the NFL’s inaction, even when confronted with information concerning the connection between the sport and long term brain trauma, entitles them to relief and compensation for their injuries, financial loss and expenses.

The initial hurdle the players will face is whether their state law tort claims against the NFL are preempted by federal law and subject to the arbitration clause of past and present collective bargaining agreements (CBA).  Federal law preempts state law claims that 1) are created by the applicable CBA, or 2) require interpretation of the CBA.  The NFL is interested in federal preemption because federal law requires that “preempted claims must first be presented through the arbitration procedure established in a collective bargaining agreement.”  Givens v. Tennessee Football, Inc., 684 F. Supp. 2d 985, 991 (M.D. Tenn. 2010).

Therefore, a court finding in favor of the NFL will be forced to dismiss the case in order for the issue to proceed to arbitration.  The most significant aspects of arbitration for the NFL are the delay of civil liability and preventing the negative publicity of a trial in federal or state court.  Given the legal precedent on this issue, the NFL has a strong argument for avoiding litigation.  See, e.g., Stringer v. National Football League, 474 F. Supp. 2d 894 (S.D. Ohio 2007).