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Arland Bruce's lawsuit is about negligence, and the CBA and standard player contract don't relieve the CFL or its clubs from any negligence
One particularly interesting element of the CFL's motion to dismiss Arland Bruce III's concussion lawsuit is the league's request "that the case be dismissed and sent to arbitration under terms of the CFL's collective bargaining agreement." That raises the question of just what the CFL's CBA says about injuries and injury-related grievances, and how that applies in Bruce's case. A full version of the 2014 CBA hasn't been published anywhere, but Bruce's claim (PDF, via The Concussion Blog) is about what happened in 2012 and 2013, and the 2010-2013 CBA (PDF) and standard player contract (PDF) are fortunately both available through CFLDB. Most notably, the provisions of the standard player contract don't appear to release clubs or the league from charges of negligence, which are what Bruce is bringing. From the standard player contract, section 20:
If the Player is injured (injury shall include the aggravation of a pre-existing condition) in the performance of his duties called for hereunder and without restricting the generality of the foregoing, those duties shall include attendance at any practice session called by the Club or any coach thereof and attendance at and performance in any Pre-Season game, regular season game, play-off game and Grey-Cup Game, the Club shall pay the Player’s hospitalization and medical expenses necessarily incurred or arising from the injury provided that the hospital and doctors are selected by the Club, or if selected by the Player, are approved in writing by the Club which approval shall not be unreasonably withheld; the Club’s obligation to pay such expenses shall continue until such time as the Club’s doctor, or the doctor selected by the Player and approved by the Club, certifies in writing that the Player has sufficiently recovered from the injury to play football, or the first day of the training camp period in the year following the year in which the injury occurred, whichever event shall first occur; thereafter the Player relieves the Club from any and every additional obligation, liability, claim or demand whatsoever in connection with the injury, provided in no event is the Club, its servants or agents relieved from any negligence on the part of its servants or agents in the treatment of said injury, nor does the Player release the Club of any of its obligations arising under Paragraph 21 hereof.
That's a mouthful, but the particularly notable part may be "in no event is the Club, its servants or agents relieved from any negligence on the part of its servants or agents in the treatment of said injury." Bruce's statement of claim (PDF) is alleging negligence. None of Bruce's claims have been proven in court at this time, but he's trying to argue that the CFL's teams allowed him to play in 2012 and 2013 despite knowledge of his concussion symptoms. See points 24-28 in his statement of facts:
Bruce goes on to discuss the specific symptoms he reported later in that claim:
Bruce goes on to mention anxiety and personality changes as well, discusses how he was quoted in The Vancouver Sun as not being 100 per cent recovered, says he took further hits during the West Final that exacerbated his condition and says he was cleared to play for Montreal in 2013 despite ongoing concussion symptoms. That would certainly seem to indicate that he's charging the CFL and its teams with negligence. In fact, Part III of Bruce's claim includes a "Negligent Misrepresentation" section:
There's much more in there, and a following section saying "The plaintiff's injuries were caused or contributed to by the negligence and or breach of statuatory duty by the CFL," so negligence is clearly what's at play here. Why is he charging negligence? Consider the discussion in his statement of claim of the CFL concussion protocol that was established in 2011. That concussion protocol led to posters (PDF) put in every locker room afterwards that discuss concussion symptoms (including most of the ones Bruce mentions) and say "an athlete should never return to play while symptomatic" and "when a player shows ANY SYMPTOMS or SIGNS (emphasis theirs) of a concussion, the player should not be allowed to return to play in the current game or practice; the player should not be left alone, regular monitoring for deterioration is essential; the player should be medically evaluated." Bruce will have to prove his claims in court, but if he can, it would seem like the league wasn't following its own policies with respect to him (and there have been questions about if the CFL's teams have followed them in other cases).
The allegations of negligence might be crucial to Bruce's attempt to pursue this claim in court rather than through arbitration. As discussed above, the standard player contract cuts off club liability for injuries and treatment by the first day of training camp the following year, but it does not relieve the club of responsibility for negligence. The CBA (PDF) also talks about what can be taken to arbitration, and says that either the player or the club can bring things to arbitration, but it doesn't prohibit court proceedings; in fact, section 24.09 includes "any future arbitration or Court proceedings."
Keep in mind that Chris Williams (and the CFLPA) took his contract dispute to court after the arbitrator ruled against him, and a judge overruled the arbitrator. That eventually led to a settlement that let Williams go to the NFL. There are obvious differences between a concussion lawsuit and a contract dispute, but it may be notable that the league hasn't been able to stop players from taking it and its clubs to court before.
None of this necessarily means that the league's motion to dismiss Bruce's lawsuit won't be successful. This is a complicated case, and no one's tried to sue the CFL over concussions before, so we're in somewhat uncharted waters here. Bruce's discussion of the symptoms he had and reported is certainly interesting, though, especially considering the policies the league and its clubs were supposed to be following at that time. That could help his case to have this heard in court rather than before an arbitrator.
