Dent v. National Football League, 090618 FED9, 15-15143

Docket Nº:15-15143
Opinion Judge:TALLMAN, CIRCUIT JUDGE:
Party Name: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.
Attorney: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. Cle...
Judge Panel:Before: Richard C. Tallman, Jay S. Bybee, and N. Randy Smith, Circuit Judges.
Case Date:September 06, 2018
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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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.

No. 15-15143

United States Court of Appeals, Ninth Circuit

September 6, 2018

Argued and Submitted December 15, 2016 San Francisco, California

Appeal from the United States District Court for the Northern District of California William Alsup, District Judge, Presiding D.C. No. 3:14-cv-02324-WHA

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.

SUMMARY[**]

Labor Law

The panel reversed the district court's dismissal on preemption grounds of an action alleging a variety of state-law claims brought against the National Football League ("NFL") by former professional football players, and remanded for further proceedings.

The putative class of retired NFL players alleged that the NFL 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.

The panel held that the district court erred in holding that the players' claims were preempted by § 301 of the Labor Management Relations Act. The panel held that as pled, the players' claims neither arose from collective bargaining agreements ("CBA") nor required their interpretation. Specifically, the panel held that plaintiffs' negligence claim regarding the NFL's alleged violation of federal and state laws governing controlled substances was not preempted by § 301. The panel also held that the players' negligent hiring and retention claims, and their negligent misrepresentation claim, were not preempted because they could be evaluated without interpreting the CBAs. The panel further held that the NFL had not identified any CBA provisions that must be interpreted in order to resolve the players' fraud claims, and resolving those claims did not require interpreting CBA provisions.

The panel held that the players' loss of consortium claim, and their requests for declaratory judgment and medical monitoring were derivative of their other claims. Because those claims were not preempted, the panel reversed the dismissal of the derivative claims and remanded.

The panel rejected the NFL's argument that the dismissal should be affirmed on the ground that the players failed to exhaust the grievance procedures required by the CBAs.

OPINION

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...

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