Sometimes lawsuits spur action before they prove any claims.
Paul Secunda, one of the attorneys representing retired players Don Majkowski and Aveion Cason in their lawsuit against the NFL and NFLPA, suspects his clients’ case played a crucial role in an announcement made by the NFLPA late Tuesday.
The union declared that its executive committee and board of player representatives “voted unanimously to amend the 2020 collective bargaining agreement.”
Two amendments were made. First, the start date for the “Social Security offset”—a provision that will reduce by several thousand dollars a month the amount of disability money paid to certain categories of retired players by amounts they receive from the government—has been pushed back from January 1, 2021 to January 1, 2024. The second amendment is less precisely explained but the NFLPA says it relates to ensuring that “vested players and non-vested players have fairer access to the [neurocognitive] benefit.”
The amendments do not fully remedy the alleged harms identified by Majkowski and Cason, both of whom, their federal complaint asserts, are disabled. The duo’s multifaceted lawsuit, which draws on provisions from the Employee Retirement Income Security Act and the Labor Management Relations Act, extends beyond the amendments’ subject matter.
For instance, while the offset has been pushed back by three years, it is not being eliminated in the 10-year CBA. The vague depiction of “fairer access” might also fall short of the two players’ demands when relevant details become known.
Majkowski and Cason, who have petitioned for their federal lawsuit to be certified as a class action, also allege the NFL and NFLPA unlawfully conspired to conceal key facets of the CBA from voting players. The duo further maintains the NFLPA changed substantive language from the version voted on by players on March 5 to the version posted on NFLPA.com 10 days later.
Still, the NFLPA’s amendments are relevant—and they caught Secunda by surprise. The Wisconsin-based employment attorney is disappointed neither the league nor NFLPA informed him in advance of the announcement.
“We are still considering what impact this development has on our litigation,” Paul Secunda wrote in a statement to Sportico on Tuesday night. “We are dismayed that the PA and League did not reach out to us to let us know this was in the works, as it directly impacts the Class we seek to represent.”
Secunda, however, stressed the apparent impact of the case on the NFLPA’s policy-making.
“At the very least,” Secunda said, “it appears that the pressure that we applied to the PA and League to live up to their promises to these disabled players has led to our class of players receiving an additional three years of full disability benefits. It is a good first step, but more work needs to be done to ensure these players receive their rightful benefits for life.”
The case will continue. However, it’s possible the NFL and NFLPA will attempt to argue to presiding Judge Trevor McFadden that the case is no longer ripe for judicial review and thus should be dismissed. The league and union could assert that the three-year delay of the offset means the legal controversy is no longer imminent. (In which case Majkowski and Cason might highlight other aspects of their case require near-future review in order to protect retired players).
As detailed by Sportico on Tuesday, the lawsuit is currently in the motion to dismiss stage. If the lawsuit advances past dismissal, it would enter pretrial discovery. NFL commissioner Roger Goodell and NFLPA executive director DeMaurice Smith (among other officials from both organizations) could then be compelled to provide sworn testimony about the circumstances of the CBA’s negotiation and passage. They could also be directed to share sensitive emails and other documents.