Former CFL players face arbitration deadline for concussion-related grievances

Photo: Neil Noonan/3DownNation. All rights reserved.

Former players are facing a deadline to file grievances against the Canadian Football League for concussion-related injuries following the withdrawal of a class action lawsuit.

CFL players who were no longer active as of October 31, 2023, have been notified by law firm Foreman & Company that they have six months to file an individual grievance against the league and its teams for any known or suspected concussion-related injury impacts. Players who don’t meet the April 30, 2024, deadline will no longer be entitled to file a claim and could lose their right to labour arbitration.

The new deadline comes after the CFL struck a deal to facilitate the official discontinuation of a class action lawsuit filed against the league, its nine franchises, and former commissioner Mark Cohon on May 29, 2015. The case was brought forth by former defensive back Korey Banks and former receiver Eric Allen, since deceased, claiming that the defendants had systemically failed to warn former players of traumatic brain injury risk or prevent them.

The Supreme Court of Canada dismissed a separate lawsuit by former receiver Arland Bruce III in March of 2018 after lower courts ruled that unionized employees, like CFL players, must use labour arbitration to resolve disputes arising from their collective bargaining agreements, instead of the courts.

That precedent laid the groundwork for this deal, where the players, represented by Foreman & Company, discontinued their lawsuit in the Ontario Superior Court of Justice without costs. In exchange, the CFL agreed not to raise any timeliness objections for claims made concerning injury-related impacts dating from January 1, 2017, until the imposed deadline and will not allow arbitrators to consider delays during that period as a mitigating factor.

Typically under the Collective Bargaining Agreement (CBA), grievances must be commenced within one year of the time in which the basis for the claim was reasonably discoverable by the player.

All individual players are responsible for filing their own grievances. However, the Canadian Football League Players’ Association may consider requests to file on behalf of players where appropriate. The CFLPA already filed a group grievance against the league in March of 2018 that is still pending arbitration.

The arbitration process imposes no monetary limit to the compensation that players can seek under the CBA. It includes the capacity for claims concerning negligence, negligent misrepresentation and equitable treatment by the CFL and the teams concerning player safety, well-being and treatment of concussion-related injuries. Each claim will be governed under the terms of the applicable CBA in effect at the time of the injury.

Arbitration is a private dispute resolution procedure which is legally binding. It does not guarantee success for the player.

The CFL declined to comment when contacted by 3DownNation, citing a “comprehensive” press release issued by the courts. The CFLPA did not respond to a request for comment.

J.C. Abbott is a University of British Columbia graduate and high school football coach. He covers the CFL, B.C. Lions, CFL Draft and the three-down league's Global initiative.