All-star attorneys suit up to argue future of NFL concussion lawsuit

Photo courtesy of Ron Cogswell

Photo courtesy of Ron Cogswell

After thousands of former players sued the National Football League (NFL) over its alleged negligence in the handling of concussions, the NFL tapped the star quarterback of the legal world, Paul Clement, to represent the league.

Clement, who served as U.S. solicitor general under President George W. Bush, typically argues high-profile cases, including the recent showdowns before the U.S. Supreme Court on the issues of health care reform and same-sex marriage.

Nevertheless, Clement is not the only all-star attorney involved in the lawsuit. The former players have hired David Frederick, who also regularly participates in important cases, such as those involving consumer protection interests.

Clement argued April 9 that the lawsuit against the NFL should be dismissed, while Frederick tried to convince the judge that the former players’ suit should be allowed to proceed to trial.

Yet, these high-profile attorneys did not square off in the U.S. Supreme Court or even in a federal court of appeals, which are the higher courts where their services are usually employed. Instead, their participation began at the outset of the case, arguing at a hearing before a federal district judge in Philadelphia. This involvement at the lower court level underscores the magnitude of the lawsuit against the NFL and the billions of dollars that are potentially at stake.

“(Clement and Frederick) spend most of their time … at the Supreme Court,” Paul Anderson, a Missouri attorney who tracks the NFL litigation, said in an interview with the Associated Press. “This is really a multibillion-dollar issue. That’s why both parties went out and hired the best of the best.”

After graduating magna cum laude from Harvard Law School, Clement clerked for two federal judges, including U.S. Supreme Court Justice Antonin Scalia. It was only a matter of time before Clement made a name for himself in the legal community.

“The buzz in the legal world about Clement is like the buzz in basketball when LeBron James was coming out of high school and turning pro,” Washington attorney Evan Tager told the National Law Journal. “Paul Clement is the Holy Grail of law firm recruiting.”

Frederick boasts an impressive resume as well. Like Clement, Frederick also clerked for two federal judges after law school, including U.S. Supreme Court Justice Byron White, who was an All-American halfback at Colorado and the fourth overall selection in the 1938 NFL Draft. Thus, it is fitting that Frederick represents the former players in their suit against the NFL.

According to the Washington Times, over 4,000 former players are represented in the litigation. This includes roughly 300 players who played for the New Orleans Saints at some point in their career, such as Willie Roaf, Joe Horn, and Eddie Kennison.

Louisiana attorney Derriel McCorvey, a former LSU safety who spent one season with the Indianapolis Colts, has assisted a number of former players with their involvement in the lawsuit against the NFL. McCorvey’s clients include former LSU star Justin Vincent and former Southern standout Charlie Granger.

“The league is pretty powerful,” McCorvey said according to Bloomberg News. “Most people don’t have a good chance of taking on the league,” though McCorvey recognized that the arguments of the former players in the current suit against the NFL are strong.

During the April 9 hearing in Philadelphia, Frederick told U.S. District Judge Anita Brody that the efforts by the NFL to handle player safety issues were fraudulent and amounted to a “sham.” According to court filings, the former players believe that the NFL “glorified the hyper-violent collisions most likely to lead to head trauma and orchestrated a disinformation campaign to conceal the resulting brain injuries.”

Meanwhile, Clement argued that the players’ lawsuit should be dismissed because it is “pre-empted” by the NFL’s collective bargaining agreement (CBA), which requires certain disputes to proceed before an arbitration panel as opposed to being heard in court. Clement also stated that the individual NFL teams, as opposed to the NFL itself, were primarily responsible for the safety of the players.

“The (teams) are the ones who had doctors on the sidelines who had primary responsibility for sending players back into the game,” Clement said at a news conference following the hearing.

ESPN Legal Analyst Lester Munson believes the future of the lawsuit may come down to a case that was previously decided by a higher court whose decisions are binding on the Philadelphia court in which the NFL litigation currently resides. The case, Kline v. Security Guards, Inc., involved a group of security guards who sued their employer, alleging fraud and concealment. The court ruled that, because the security guards’ CBA did not expressly cover allegations of fraud or concealment, the case could proceed to trial as opposed to being sent to arbitration.

Frederick argued Tuesday that the CBA of the former NFL players, like that of the security guards, also did not specifically apply to claims of fraud or concealment. Thus, Frederick contended that the former players’ case should be able to proceed to trial.

Clement attempted to distinguish the Kline case from the current suit against the NFL. He argued that, unlike the CBA of the security guards, which did not mention the subject of their dispute, the CBA of the former NFL players did provide for disputes concerning health and safety provisions.

The judge’s emphasis on the Kline case during the hearing could be a bad sign for Clement and the NFL.

“It is always difficult to predict the outcome of a legal argument by parsing the questions the judge asks during the hearing,” Munson wrote on ESPN.com, “but (Judge) Brody’s focus on the Kline case was clearly good news for the players.”

While Brody’s ruling likely will not determine which side actually prevails in the lawsuit, the ruling could control whether a jury or a panel of arbitrators ultimately decides the case.

That factor alone could have a major impact on any eventual outcome.

“Juries in general are much more sympathetic to injured players and former heroes, and there’s no limit on how much they could provide in damages,” Anderson said in an interview with ABC News. “But if the NFL is able to get the cases in front of an arbitrator whose sole job is to interpret the contracts, they’ll most likely rule in favor of the league.”

Brody’s decision is not expected for a few months.

Regardless of whether the case is ultimately heard by a jury or an arbitration panel, both sides will have their all-star attorneys ready to suit up if their number is called.

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About Thomas McCall

Thomas McCall is a reporter for LouisianaFB.com. He received his undergraduate degree from the University of Notre Dame, where he served as a reporter for Notre Dame Television. Thomas covered a variety of news and sporting events there, including the 2006 Tostitos Fiesta Bowl. He also interned for CNN in its Washington bureau. Thomas is currently pursuing a law degree from the LSU Law Center and resides in Baton Rouge with his wife, Natalie.

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