When it comes to player litigation, the NFL and NFLPA are usually on opposite sides of the table.
Usually is not always.
In the latest development in the federal lawsuit filed by retired NFL quarterback Don Majkowski and running back Aveion Cason’s against the league and the union, the parties have submitted dueling briefs to Judge Trevor McFadden on whether he should dismiss the case.
As previously covered by Sportico, the suit involves claims by the two former players, who are now disabled, under the Employee Retirement Income Security Act and the Labor Management Relations Act.
The duo contends that the NFL and NFLPA illegally conspired to violate lifetime disability benefit rights, allegedly cutting and altering benefits in finalizing the 2020 collective bargaining agreement. Majkowski and Cason also portray the defendants as breaching fiduciary duties. As told by the duo, the league and union concealed pertinent information and engaged in a so-called “switcheroo”— after a slim majority of NFL players (1,109 to 959) approved a CBA proposal on March 5, certain terms were changed by the time NFLPA posted a new version of the CBA on its website 10 days later. One alteration concerned disability protections, with each side portraying the revision’s significance in a very different light.
Majkowski and Cason seek to have their case, which also names the Bert Bell/Pete Rozelle NFL Player Retirement Plan board and the NFL Player Disability & Neurocognitive Benefit Plan as defendants, certified as a class action on behalf of similarly situated ex-players.
The four defendants forcefully maintain this case should be dismissed. Take the NFLPA: In its Nov. 17 brief, the players’ association charged that Majkowski and Cason have wrongly construed the law. Under federal labor law, the NFLPA insisted, “a union’s duty is to its current members only, not retirees.”
The union quoted from the 1971 U.S. Supreme Court decision Allied Chem. & Alkali Workers v. Pittsburgh Plate Glass Co. for the proposition that “nowhere” in the history of relevant law “is there any evidence that retired workers are to be considered as within the ambit of the collective-bargaining obligations.” Retired workers, Justice William Brennan wrote at the time, “plainly do not share a community of interests [with active employees] broad enough to justify inclusion of the retirees in the bargaining unit.”
In their Dec. 9 brief, attorneys for Majkowski and Cason depicted the NFL and NFLPA as relying on straw-man arguments. The attorneys acknowledged that the union comprises “only active members” and thus the plaintiffs aren’t included. Yet the attorneys stressed that’s beside the point: Majkowski and Cason are painted as “intended third-party beneficiaries” while the NFLPA is described as “informally represent[ing] the interests of former players in negotiating various benefits, including disability and retirement benefits, and bargaining over these issues is a common practice in unionized settings.”
Among other demands, Majkowski and Cason seek a re-vote on the March 15 version of the CBA on the grounds that the agreement was allegedly “amended in secret” without the authorization of players who had voted on a different version on March 5.
Paul Secunda, one of the plaintiffs’ attorneys, sharply criticized the defendants’ most recent filings, which “make clear that owners and the union should not continue to rake in billions while taking away crucially needed disability benefits from the most vulnerable and injured former NFL players,” he told Sportico. “It is time for the league and union to do what’s right lawfully and ethically.”
To survive the motion to dismiss, Majkowski and Cason must convince Judge McFadden that their complaint alleges enough information to establish that, if what they are saying is true, they’ve expressed a plausible legal claim. The pair therefore do not need to “prove” their legal claims or their alleged facts at this juncture. They only need to articulate a logical legal argument.
If Judge McFadden denies the motion to dismiss, the case would then move into pretrial discovery. This would be a potentially threatening phase to the NFL and NFLPA—and could motivate them to offer attractive settlement terms to Majkowski and Cason.
Discovery would compel the league and the union to turn over emails and other sensitive documents relating to the CBA vote. NFL and NFLPA leaders, including league commissioner Roger Goodell and NFLPA executive director DeMaurice Smith, could also be compelled to answer written questions (interrogatories) or partake in depositions where opposing counsel would grill them in front of a court reporter. In either scenario, Goodell and Smith would testify under oath and under penalty of perjury.
The four defendants have an opportunity to reply to Majkowski and Cason’s brief by Dec. 23.