By Jeff Birren, Senior Writer
In June 2012 former NFL players filed a class action lawsuit related to concussions against the NFL. The Multi District Litigation Panel sent the case to the U.S. District Court in Philadelphia. The NFL filed a motion to dismiss. In part, the motion was based on federal labor preemption since the vast majority of the players involved were covered by collective bargaining agreements (each, a “CBA” and collectively, “CBAs”) that provided mandatory remedies for claims.
That Court heard the motion on April 9, 2013. Contemporaneous media reports indicated that Judge Brody was inclined to dismiss the vast majority of the claims, but was troubled because some players played exclusively between September 1987 and January 1993, when there was no CBA in effect. Instead of ruling, Judge Brody pushed the parties to settle the entire case. The Court approved a settlement in 2015 (Sports Litigation Alert (“SLA”), “Court Approves another Settlement between NFL and Players,” May 15, 2015). That good deed in forcing a settlement of dubious legal claims led to further litigation.
Spurred on by Judge Brody’s actions, in 2014, ambitious lawyers filed a similar case against the NFL involving medications that had been given to players over the decades. The case was filed in San Francisco United States District Court in San Francisco on May 20, 2014. Richard Dent was the first named plaintiff. The defendant was again the NFL and not the individual clubs (SLA, “Former NFL Football Players Sue League Over Use of Prescription Drugs,” 5-30-14). The theory of the case is that the NFL, and not the individual clubs and their physicians, purportedly gave medications to the players that allegedly caused harm.
District Court Judge William Alsup granted the NFL’s motion to dismiss in December 2014 (SLA, “Judge Grants NFL’s Motion to Dismiss Prescription Drug Claim Brought by Players,” 12-26-14). Judge Alsup found that the claims were preempted under federal labor law, but did not rule on any other basis of the motion. The Ninth Circuit heard oral argument on December 15, 2016.
While that case was on appeal, the plaintiffs’ lawyers decided to file a very similar case in another federal court, one that named the individual clubs as defendants rather than the NFL. Seeking to avoid Judge Alsup, the case was filed in the District Court in Maryland in May 2015. The first named plaintiff was Etopia Evans, the widow of the late NFL player Charles Evans. Mr. Evans died in a jail cell after he was jailed for failing to pay child support. The case is the mirror image of the Dent case, since in Evans counsel alleges that it was the clubs that gave the medications to the players, not the NFL.
However, Evans was transferred to Judge Alsup. In March 2017 Judge Alsup granted much of the NFL’s motion to dismiss, including the claims for conspiracy and RICO claims (Professional Sports and The Law, “Court Dismisses Claims in Pain Medication Litigation,” March-April 2017). All that remained were claims by two former players against three NFL clubs for intentional misrepresentation.
The three clubs then moved for summary judgment on the basis that the respective states’ workers’ compensation exclusivity laws bar such claims. Since the case began in Maryland, the court employed Maryland’s choice-of-law rules, where the courts will “enforce a bar created by the exclusive remedy of any state” (Evans v. Arizona Cardinals et al, N.D. Cal., Case No. 3:16-cv-01030-WHA, Order Granting Summary Judgment, July21, 2017 at 3) (SLA, “Judge Grants Summary Judgment On The Few Remaining Claims in NFL Painkiller Case,” 9-1-17). The plaintiffs’ appealed and oral argument is scheduled for December 18, 2018.
The Ninth Circuit Finally Rules
The wheels of the legal process move slowly at times, and the Ninth Circuit did not rule on the Dent appeal until September 6, 2018. It is surprising that it took so long, given that it was not an appeal of the underlying merits but merely on whether or not a motion to dismiss should have been granted; it is a unanimous opinion by the three judges on the panel; and it is a mere ten-page opinion (Richard Dent et al v. NFL, 2018 U.S. App. LEXIS 25302, ___ F.3d ___, (9th Cir. 9-6-18)). The Ninth Circuit reversed the order granting the motion to dismiss and sent the case back to Judge Alsup. However, it made it quite clear that the plaintiffs’ were far from prevailing. “We express no opinion about the ultimate merits of the players’ claims. They may be susceptible to either a motion for a more definite statement under Rule 12(e) or a motion to dismiss for failure to state a claim under Rule (12)(b)(6), and they may not survive summary judgment under Rule 56. But the fact that the claims may have been inadequately pled is not a reason for finding them preempted” (Id. at 9/10).
The Court knew that each “team hires doctors and trainers who attend to players’ medical needs. Those individuals are employees, not the NFL” (Id. at 2). However, notwithstanding that truth, the Second Amended Complaint, (“SAC”) asserted that the NFL itself “directly and indirectly, supplied players with and encouraged players to use opioids to manage pain before, during and after games…directly and indirectly administered Toradol on game games to injured players to mask their pain… directly and indirectly supplied players with local anesthetic medications to mask pain and other symptoms, gave players medications without telling them what they were taking or the possible side effects and without proper recordkeeping, …(and) made knowing and intentional misrepresentations, including deliberate omissions, about the use and distribution of the Medications” (Id.).
Since the claims had been dismissed due to federal labor law preemption, “we ask whether the cause of action involves ‘rights conferred upon an employee by virtue of state law, not a CBA'” (Id. at 3). Then, if “the right exists independently of the CBA, we ask whether litigating the state law claims nonetheless requires interpretation of the CBA, such that resolving the entire claim in court threatens the proper role of grievance and arbitration” (Id.). That prong requires a determination of whether the claim will “require interpretation of the CBA” (Id.).
The first cause of action is for negligence, “styled” as one for “negligence per se but under California law, negligence per se is a doctrine, not an independent cause of action” (Id. at 4). The players argue that they were injured by the NFL’s provision and administration “of controlled substances without written prescriptions, proper labeling, or warnings regarding side effects and long-term risks, and that this conduction violated” both federal and state statutes (Id.). The Court continued: “as we read the complaint, the plaintiffs are not merely alleging that the NFL failed to prevent medication abuse by the teams, but that the NFL itself illegally distributed controlled substances, and therefore its actions directly injured players. The SAC alleges that the NFL “directly and indirectly supplied players with drugs” (Id.), (emphasis in the original). It also alleged that Toradol is “controlled by the NFL Security Office in New York,” that the NFL “coordinat(ed) the illegal distributions of painkillers and anti-inflammatories for decades” and that “‘NFL doctors and trainers’ gave players medication ‘without telling what they were taking or the possible side-effects'” (Id.).
The Court stated that the CBAs “do not require the NFL to provide medical care to the players, and the players are not arguing that they do. They are not arguing that the NFL violated the CBAs at all, but that it violated state and federal laws governing prescription drugs” (Id.). Thus, the question is whether the claim requires an interpretation of a CBA or, whether the plaintiffs can make each element of a prima facie case for negligence without interpretation of the CBA.
A duty to exercise reasonable care in the distribution of medications did not arise from the CBA. The Court stated, “that to the extent the NFL is involved in the distribution of controlled substances, it has a duty to conduct such activities with reasonable care” (Id. at 5). Whether or not the “NFL’s alleged violation of the statutes cause the plaintiffs’ injuries is a ‘purely factual question ‘ that do(es) not ‘require(e) a court to interpret any term of a collective-bargaining agreement'” (Id.).
The Court acknowledged that the Eighth Circuit reached a different result in Williams v. NFL, 582 F. 863 (8th Cir. 2009). The Ninth Circuit stated that that unlike Williams, in Dent, “no examination of the CBA is necessary” to analyze the claims (Id.). They “express no opinion regarding the merits of the plaintiffs’ negligence claim, which will require the players to establish that the relevant statutes apply to the NFL, the NFL violated those statutes, and the alleged violations caused the players’ injuries. Perhaps plaintiffs can prove these elements; perhaps not. That must await completion of discovery. We hold only that the plaintiffs’ negligence claim regarding the NFL’s alleged violation of federal and state laws governing controlled substances is not preempted by § 301” (Id. at 6).
“We do note that at many points in the SAC, the plaintiffs appear to conflate the NFL and the teams. But the plaintiffs are pursuing a theory of direct liability, not vicarious liability. And they have attempted to vindicate virtually identical claims against the clubs themselves in separate litigation. Therefore, on remand, any further proceedings in this case should be limited to claims arising from the conduct of the NFL and NFL personnel–not the conduct of individual teams’ employees. We leave it to the district court to determine whether the plaintiffs have pleaded facts sufficient to support their negligence claim against the NFL” (Id.).
The Court then turned to the allegations that the NFL “may be liable to a third person for the employer’s negligence in hiring or retaining an employee who is incompetent or unfit” (Id. at 6/7). The SAC alleged that the NFL knew that the doctors were unfit. “If the NFL did in fact hire doctors and trainers to treat players, or hire individual to oversee the league’s prescription-drug regime, there is a clearly an employment relationship between the NFL and those individuals” (Id. at 7). Such a duty is not imposed by a CBA. “We recognize that it is not entirely clear that the NFL did hire doctors, trainers, or individuals to supervise medications. The complaint provides very little detail about the employees who were purportedly ‘charged with overseeing’ medication distribution, and the SAC is devoid of any allegation of agency relationship that would render the NFL liable for the conduct of particular doctors who treat specific players. But, if the plaintiffs have failed to make the factual allegations necessary to support their claim, that is a pleading problem, not a preemption problem” and the issue on appeal was whether the claims were preempted (Id.) (emphasis in the original).
The court then dealt with the negligent misrepresentation claim, noting that none of the CBA provisions “address the NFL’s responsibilities with regard to the distribution of prescription drugs” (Id.). Whether or not the NFL made false assertions concerning such drugs “can be resolved without interpreting the CBAs” (Id. at 8). The Court acknowledged that the Eighth Circuit in Williams had come a different conclusion, as had the Sixth Circuit in Atwater v. NFL Players Association, 626 F.3rd 1170 (6th Cir. 2010). However, in Dent, “no CBA provisions address the subject of the litigation” (Id. at 8).
The Court summarily disposed of the fraud allegations, as the “players can establish each of these elements without relying on the CBAs” (Id. at 9). So, too, for the loss of consortium claim, the request for declaratory judgment and medical monitoring, as those are “derivative of their other claims. Because we hold that their claims are not preempted” the Court reversed the dismissal of those claims (Id.).
The Court also rejected the NFL’s assertion that the dismissal should be affirmed because the players failed to exhaust the grievance procedures required by the CBA. The players were not arguing that the NFL failed comply with the CBA so this argument failed. The claims as pled “do not arise from the CBAs and do not require their interpretation. Therefore, they are not preempted” (Id. at 10).
Going Forward
The Court noted early on that the NFL made a motion to dismiss because the claims were time barred, and the District Court had dismissed that motion as moot (Id. at 2). That motion is no longer moot and will now move front and center. For example, Richard Dent last played in the NFL in 1997. California’s statute of limitations for personal injury is two years (Cal. Civ. Pro. 335.1). The lead plaintiffs’ lawyer is a California workers compensation attorney and California rarely applies a statute of limitations in football workers compensation cases. That is no true in federal court.
Furthermore, the case as pled is based on a factual assertion that the NFL hired the doctors, and the CBAs have long stated that the clubs, not the NFL, hires the physicians that treat the players. However, the Ninth Circuit was stuck with the case as pled, though it seemed to grasp that the pleading was fundamentally false, but it left dealing with that to the District Court on remand. The plaintiffs next face the next motion to dismiss that Judge Alsup had not ruled on years ago. But even if they ever get out of the pleading stage, the chances of recovery look grim.
