Originally Posted by Vis
The CBA argument isn't a factual defense. If the Motion is correct on the 12(b)(6) grounds of simply failing to allege required elements in an Amended Complaint, that's the attorney's failure and doesn't speak to the merits. I' d be more interested in a SJ motion with attachments if you see one.
The CBA argument is a standard pre-emption argument (NFL previously has relied upon the CBA to bar a challenge to the draft and needing to stay in college three years before being allowed to play pro ball) and other dismissal argument is failure to plead fraud with specificity
If you do not have facts you are not simply allowed to throw allegtaions againt the wall in a complaint and then plan to prove it up in discovery - the attorney's failure is filing a case without supporting facts - I doubt the attorney left anything out since the complaint to which you linked threw in the kitchen sink (e.g. - citing ESPN Magazine articles as averments of fact)
SJ motions will not be filed until the obligatory motions to dismiss are considered by the Courts in these cases - you then will get discovery and summary judgment motions will not be filed until at least 2013 if the cases do not settle.