Scales-of-Justice

Yesterday, I was finally able to obtain copies of the Barrett Green lawsuit and I spent some time analyzing the allegations in his complaint. Time didn’t permit me to address the response filed by the Redskins but it basically mirrors what I said about the CBA preempting the claims in the lawsuit. The Redskins had some other interesting things to say in their Motion to Dismiss and the accompanying Memorandum of Law, so let’s get right to it.

The lawsuit essentially has 2 bases for dismissal, preemption under the CBA and the statute of limitations. Let’s address the statute of limitations argument first because it raises 2 pretty interesting dynamics. First, as I wrote last night, the Redskins have retained counsel but their attorneys are not representing Robert Royal or Gregg Williams. This shows up most plainly in the portions of the dismissal paperwork addressed to the statute of limitations issue.

In their dismissal and argument, the Redskins only address the counts in the complaint addressed solely to them. As I said last night, the preemption argument is really strong and if the Judge finds the claims to be preempted by the CBA then the case gets dismissed. I certainly think it’s possible this is all by design and that there was a conscious decision by the parties to handle the case this way initially. One would think there must be an agreement from the attorneys representing Mr. Green that no default judgment would be sought against Royal and Williams and that they need not procure counsel until the Judge rules on the preemption argument.

The statute of limitations defense revolves around Green’s claims of battery, negligence, vicarious liability and negligent supervision against the Redskins. In all fairness, the Redskins brief points out that the statute of limitations for ALL THE CLAIMS brought in the lawsuit is 3 years and their argument is directed to and applies to all claims. This will not go unnoticed by the District Court Judge. The statute of limitations defense is raised first which I think is a great move by the attorneys representing the Redskins.

From a tactical standpoint, I think it is very good lawyering (made up word!) by the attorneys representing the Redskins to lead with the statute defense. It allows them to set forth the claims and the inconsistencies in detail and argue the delay was through a conscious decision by Green. It also sets up the preemption argument because it shows Green was aware of or should have been aware of the nature of his claims immediately. It also fairly readily disposes of Green’s claim of fraudulent concealment. Finally, it leads you to wonder why he waited so long which of course is a perfect segue to the preemption defense.

As for the preemption argument, it is important to note the pleadings state the CBA applies to Green, Royal and the Redskins. Gregg Williams is noticeably absent from that argument and for good reason as the agreement is technically between the NFL and the NFLPA on behalf of the players. The extent to which that may or may not matter has to be determined by the allegations against Gregg Williams. So let’s take a look at those allegations.

Green alleges Williams had a “duty to coach the game of football in a manner that was within the rules as set forth by the NFL to ensure the safety of all NFL players.”  He further alleges Williams had a “duty to coach the game in a safe and reasonable manner so as not to expose players he coached against to take risk of injury.” Finally, Green alleges Williams owed this duty to all NFL players that he coached and all that he coached against. Count V, ¶¶ 85-86 The Redskins are charged with making sure Williams carried out this duty most particularly in training players in proper and safe methods of play and for designing game plans consistent with NFL rules and fair standards of play. Count V, ¶87 Finally, Williams is alleged to have breached this duty by “knowingly cultivating a culture of violence that encouraged play outside the rules of the game and to “roll the dice” with player’s health and safety and/or that he knowingly breached this duty by specifically instructing Royal to injure Green. Count V, ¶¶88-89

While it’s certainly tricky that Williams isn’t subject to the CBA, it isn’t fatal to the defense. Clearly, Green is asking a Court of law to determine what is acceptable play in the NFL and what obligations the Redskins had to ensure the rules were followed by Williams and/or Royal. It also requires a determination of whether a football play can even be characterized as a battery.  This is the essence of the preemption doctrine since Section 301 of the LMRA is in place to make sure issues arising under the interpretation of a labor agreement be determined by professionals (a/k/a arbitrators) who are familiar with the field and who have the requisite knowledge to interpret these agreements and make these determinations.

There is no question Green was subject to the CBA as were Royal and the Redskins. The play in question was allegedly flagged so we obviously know it was an illegal hit and possibly dirty too. Was it a bounty hit? I’m not sure there is any distinction between a dirty hit and a bounty hit from a practical standpoint. Football is a violent sport. While you can try you will never be able to completely eradicate the fact that these are grown men physically at least and they are on the field in the heat of battle and injuries occur. When injuries occur treatment is provided as it compensation for those injuries. The means through which this is provided was negotiated between the NFL and the NFLPA.

Furthermore, the CBA addresses player safety and injury. There are good reasons for asking players to timely pursue these grievances. A lot of time has passed since the events alleged and memories fade and become even more unreliable. The fact remains he was required to exhaust the grievance procedure. The extent to which there is a career ending injury tied to that play is certainly in doubt, but what is clearly not is that he had an avenue through which to pursue such a claim. He just didn’t do so. As would be expected, the Redskins very artfully argue this in their legal memorandum.

It will be interesting to see how Green responds and even more interesting to see how the Judge ultimately rules. As I previously indicated, oral argument is set for September 24, 2013.

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