The Impact of Preemption in the NFL Concussion Litigation

30 Pages Posted: 2 Jun 2013 Last revised: 4 Dec 2013

See all articles by Kelly Heard

Kelly Heard

University of Miami - University of Miami Law Review

Date Written: November 25, 2013


In recent years, a concussion epidemic has plagued the NFL. The tragic suicides of former NFL players have thrust the devastating impacts of multiple concussions to the forefront of "America’s Sport" and have threatened the very essence of the game. As a result, on July 17, 2012, some eighty-one concussion lawsuits against the NFL involving 2,200 former players were consolidated into "one mega suit," In re National Football League Players’ Concussion Injury Litigation. In their complaint, the former players alleged that the NFL fraudulently concealed the severe long-term effects of concussions in football. On August 29, 2013, the former players and the NFL reached a proposed settlement (which is pending approval) whereby the NFL must pay $765 million for medical benefits and injury compensation for the former players, research, and litigation costs.

This comment analyzes why the United States District Court for the Eastern District of Pennsylvania would have been poised to grant the NFL’s motion to dismiss the former players' complaint had the parties not reached a proposed settlement. Furthermore, this comment discusses how Section 301 of the Labor Management Relations Act would likely have preempted the former players' state-law claims. Because the former players’ state-law claims were inextricably intertwined with the collective bargaining agreements — and thus would require interpretation of the collective bargaining agreements for adjudication — federal law would have preempted the state-law claims. This comment also analyzes the proposed settlement and explains why future concussion lawsuits filed against the NFL will likely be dismissed due to the NFL's same preemption arguments. Finally, this comment suggests courses the NFL may pursue to recover from the concussion epidemic and recommends further congressional action to assist the NFL in such endeavors.

Keywords: University of Miami Law Review, University of Miami, Miami Law, Miami Law Review, In re National Football League Players’ Concussion Injury Litigation, National Football League, NFL, football, concussions, Labor Management Relations Act, Section 301, LMRA, preemption, collective bargaining

Suggested Citation

Heard, Kelly, The Impact of Preemption in the NFL Concussion Litigation (November 25, 2013). University of Miami Law Review, Vol. 68, No. 1, 2013, Available at SSRN:

Kelly Heard (Contact Author)

University of Miami - University of Miami Law Review ( email )

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