Dent v. Nat'l Football League

Decision Date06 September 2018
Docket NumberNo. 15-15143,15-15143
Parties Richard DENT; Jeremy Newberry ; Roy Green; J. D. Hill; Keith Van Horne; Ron Stone; Ron Pritchard ; James McMahon ; Marcellus Wiley; Jonathan Rex Hadnot, Jr., on Behalf of Themselves and all Others Similarly Situated, Plaintiffs-Appellants, v. NATIONAL FOOTBALL LEAGUE, a New York unincorporated association, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Phillip J. Closius (argued), Andrew G. Slutkin, Steven D. Silverman, Stephen G. Grygiel, and William N. Sinclair, Silverman Thompson Slutkin & White, Baltimore, Maryland; Mark J. Dearman and Stuart Andrew Davidson, Robbins Geller Rudman, Boca Raton, Florida; for Plaintiffs-Appellants.

Paul D. Clement (argued), Washington, D.C.; Daniel Nash, Stacey R. Eisenstein, James E. Tysse, Marla S. Axelrod, and Elizabeth England, Akin Gump Strauss Hauer & Feld LLP, Washington, D.C.; Rex S. Heinke and Gregory W. Knopp, Akin Gump Strauss Hauer & Feld LLP, Los Angeles, California; Allen J. Ruby, Jack P. DiCanio, and Timothy A. Miller, Skadden Arps Slate Meagher & Flom LLP, Palo Alto, California; for Defendant-Appellee.

Before: Richard C. Tallman,* Jay S. Bybee, and N. Randy Smith, Circuit Judges.

TALLMAN, Circuit Judge:

This appeal requires us to decide whether a variety of state-law claims brought against the National Football League (NFL) by former professional football players are preempted by § 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 141.

The district court held that the players’ claims are preempted and dismissed their suit. We disagree. As pled, the players’ claims neither arise from collective bargaining agreements (CBAs) nor require their interpretation. Therefore, we reverse and remand for further proceedings.

I

The NFL is an unincorporated association of thirty-two independently owned and operated football "clubs," or teams. The NFL "promotes, organizes, and regulates professional football in the United States," Williams v. Nat’l Football League , 582 F.3d 863, 868 (8th Cir. 2009), but it does not employ individual football players; they are employees of the teams for whom they play.

Richard Dent is a retired football player who played on four different NFL teams during his fourteen-year career. During that time, doctors and trainers allegedly gave him "hundreds, if not thousands" of injections and pills containing powerful painkillers in an effort to keep him on the field. According to Dent, he was never warned about the potential side effects or long-term risks of the medications he was given, and he ended his career with an enlarged heart, permanent nerve damage in his foot, and an addiction to painkillers.

Since 1968, the NFL, its member teams, and NFL players have been bound by a series of CBAs1 negotiated by the NFL Players’ Association (the players’ bargaining unit) and the NFL Management Council (the teams’ bargaining unit).2 Since 1982, the CBAs have included provisions regarding "players’ rights to medical care and treatment." Those provisions have changed somewhat over the years, but generally speaking, they have required teams to employ board-certified orthopedic surgeons and trainers who are certified by the National Athletic Trainers Association, and they have guaranteed players the right to access their medical records, obtain second opinions, and choose their own surgeons. The CBAs impose certain disclosure requirements on team doctors; for example, the 1982 CBA established that "[i]f a Club physician advise[d] a coach or other Club representative of a player’s physical condition which could adversely affect the player’s performance or health, the physician [would] also advise the player." The 1993 CBA added the requirement that "[i]f such condition could be significantly aggravated by continued performance, the physician [would] advise the player of such fact in writing." The 2011 CBA established that team physicians "are required to disclose to a player any and all information about the player’s physical condition" that the physicians disclose to coaches or other team representatives, "whether or not such information affects the player’s performance or health."

In 2014, Dent and nine other retired players filed a putative class action suit against the NFL in the Northern District of California, seeking to represent a class of more than 1,000 former players. They alleged that since 1969, the NFL has distributed controlled substances and prescription drugs to its players in violation of both state and federal laws, and that the manner in which these drugs were administered left the players with permanent injuries and chronic medical conditions.

Like Dent, the other named plaintiffs allege that during their years in the NFL, they received copious amounts of opioids, non-steroidal anti-inflammatory medications, and local anesthetics. The complaint claims the NFL encouraged players to take these pain-masking medications to keep players on the field and revenues high, even as the football season got longer and the time between games got shorter, increasing their chances of injury. According to the players, they "rarely, if ever, received written prescriptions ... for the medications they were receiving." Instead, they say they were handed pills in "small manila envelopes that often had no directions or labeling" and were told to take whatever was in the envelopes. During their years of consuming these powerful medications, it is further alleged that no one from the NFL warned them about potential side effects, long-term risks, interactions with other drugs, or the likelihood of addiction. The plaintiffs claim that as a result of their use (and overuse) of these drugs, retired players suffer from permanent orthopedic injuries, drug addictions, heart problems, nerve damage, and renal failure

.

Each team hires doctors and trainers who attend to players’ medical needs. Those individuals are employees of the teams, not the NFL. But the players’ Second Amended Complaint (SAC) asserts that the NFL itself directly provided medical care and supplied drugs to players. For example, the SAC alleges that:

"The NFL directly and indirectly supplied players with and encouraged players to use opioids to manage pain before, during and after games in a manner the NFL knew or should have known constituted a misuse of the medications and violated Federal drug laws."
• "The NFL directly and indirectly administered Toradol

on game days to injured players to mask their pain."

"The NFL directly and indirectly supplied players with NSAIDs, and otherwise encouraged players to rely upon NSAIDs, to manage pain without regard to the players’ medical history, potentially fatal drug interactions or long-term health consequences of that reliance."

"The NFL directly and indirectly supplied players with local anesthetic medications to mask pain and other symptoms stemming from musculoskeletal injury when the NFL knew that doing so constituted a dangerous misuse of such medications."

"NFL doctors and trainers gave players medications without telling them what they were taking or the possible side effects and without proper recordkeeping. Moreover, they did so in excess, fostering self-medication."

"[M]edications are controlled by the NFL Security Office in New York ...."

"The NFL made knowing and intentional misrepresentations, including deliberate omissions, about the use and distribution of the Medications."

The named plaintiffs sought to represent a class of plaintiffs who had "received or were administered" drugs by anyone affiliated with the NFL or an NFL team. They filed claims for negligence per se, negligent hiring and retention, negligent misrepresentation, fraudulent concealment, fraud, and loss of consortium. They sought relief including damages, injunctive relief, declaratory relief, and medical monitoring.

The NFL filed two motions to dismiss, one arguing that the players’ claims were preempted by § 301 of the LMRA and the other arguing that the players failed to state a claim and their claims were time barred. The district court held a hearing on the preemption issue. It granted the NFL’s motion to dismiss on preemption grounds and denied the NFL’s other motion to dismiss as moot. The players timely appealed.

We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s finding of preemption under § 301. Cramer v. Consol. Freightways, Inc. , 255 F.3d 683, 689 (9th Cir. 2001), as amended (Aug. 27, 2001).

II

Section 301 of the LMRA is a jurisdictional statute that has been interpreted as "a congressional mandate to the federal courts to fashion a body of federal common law to be used to address disputes arising out of labor contracts." Kobold v. Good Samaritan Reg’l Med. Ctr. , 832 F.3d 1024, 1032 (9th Cir. 2016) (quoting Allis-Chalmers Corp. v. Lueck , 471 U.S. 202, 209, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985) ). Congress intended for § 301 to "protect the primacy of grievance and arbitration as the forum for resolving CBA disputes and the substantive supremacy of federal law within that forum." Alaska Airlines Inc. v. Schurke , 898 F.3d 904, 920 (9th Cir. 2018) (en banc) (emphasis omitted). Accordingly, § 301 preempts state-law claims "founded directly on rights created by collective-bargaining agreements, and also claims ‘substantially dependent on analysis of a collective-bargaining agreement.’ "3 Caterpillar, Inc. v. Williams , 482 U.S. 386, 394, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987) (quoting Int’l Bhd. of Elec. Workers v. Hechler , 481 U.S. 851, 859 n.3, 107 S.Ct. 2161, 95 L.Ed.2d 791 (1987) ). Conversely, claims are not preempted where the rights at issue are "conferred by state law, independent of the CBAs" and "the matter at hand can be resolved without interpreting the CBAs." Burnside , 491 F.3d at 1058.

We conduct a two-step inquiry to determine whether state-law claims are preempted by § 301. First, we...

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