A federal judge from the Middle District of Florida has remanded back to state court a lawsuit brought by the former placekicker of the Tampa Bay Buccaneers, who alleges claims of premises liability and negligent misrepresentation associated with an alleged outbreak of methicillin-resistant staphylococcus aureus (MRSA) at One Bucs Place, the building the NFL team uses for its training facility.
In so ruling, the federal judge found that the claims do not relate to “medical treatment,” as the defendant argues, and that “they are not related in any way to the CBA, premised on any duty provided for in the CBA, nor do they require interpretation of the CBA.”
Plaintiff Lawrence Tynes, who has allegedly been unable to play professional football as a result of the MRSA infection, initially sued the Bucs in state court.
The Bucs removed the case based on “complete preemption” under § 301 of the Labor Management Relations Act (LMRA) of 1947, 29 U.S.C. § 185, arguing that Tynes’ claims are inextricably intertwined with the NFL’s collective bargaining agreement (CBA) because they concern the medical treatment he received in rehabilitating an alleged football-related injury.
Tynes moved to remand the case, contending that his claims arise purely under common law and have nothing to do with the CBA since the complaint is focused entirely on the defendant’s “mismanagement of the sanitary conditions at the facility.”
In considering the arguments, the court first considered the relevant facts.
Tynes, who had never before had a MRSA infection, reported for training camp in late July of 2013 “healthy and in good condition.” Before each of his nine prior NFL seasons, Tynes voluntarily visited a podiatrist for a minor procedure on the toe-nail on the big toe of his kicking foot, each without incident. He did so again on July 30, 2013; the defendant was aware that he had the procedure.
In order for the toe to heal, Tynes needed access to hot and cold tubs and a bucket to soak the toe. He was not required to rehabilitate the toe at the facility. Tynes could have elected to undergo his post-procedure rehabilitation regimen at any number of facilities other than the facility. Tynes chose to do his rehabilitation regimen at One Bucs Place, i.e., the facility, “based on the Bucs’ representations concerning the world-class, state-of-the-art nature of the facility.” In particular, “Bucs officials further represented that appropriate precautions and procedures designed to prevent the spread of infection were in place and being followed at the Bucs Training Facility,” according to the court.
The court noted that the defendant’s representations “turned out to be untrue and misleading. The defendant did not have appropriate precautions and procedures in place to prevent the spread of infection in the facility.”
Further, the court noted that the Bucs “failed to warn Tynes that several other people using the facility at the same time – including a coach, a trainer, and several players – were suffering from bacterial infections. These people ‘used the same hot and cold tubs, soak buckets, and other therapy devices, equipment, and surfaces’ as Tynes, and the defendant ‘failed to properly and reasonably . . . sterilize, disinfect and/or clean’ them. As a result, Tynes developed a MRSA infection in the toe that caused permanent damage and ended his professional career.”
The federal judge noted that Tynes’ claims “encompass duties that arise under Florida common law. Specifically, Count I includes two premises liability claims that arise from the duties that a premise owner owes to its invitee to use reasonable care in maintaining the premise in a reasonably safe condition and the duty to provide the invitee notice of latent and concealed perils known to the premise owner, or which by exercise of due care should have been known to the owner. See Friedrich v. Fetterman & Assocs., P.A., 137 So. 3d 362, 365 (Fla. 2013).
“Count II is a negligent misrepresentation claim that relates to the common law duty to exercise reasonable care or competence in supplying information. There are four elements: ‘(1) there was a misrepresentation of material fact; (2) the representer either knew of the misrepresentation, made the misrepresentation without knowledge of its truth or falsity, or should have known the representation was false; (3) the representer intended to induce another to act on the misrepresentation; and (4) injury resulted to a party acting in justifiable reliance upon the misrepresentation.’ Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1259 (11th Cir. 2014). In connection with this claim, Tynes alleges that the defendant supplied him with false information regarding the precautions and procedures designed to prevent the spread of infection in order to convince Tynes to undergo his rehabilitation regimen at the facility.
“Importantly, the CBA is silent with respect to NFL clubs’ maintenance of their training facilities. It is also silent with respect to any duty to warn invitees, including players, of dangerous, unsanitary conditions on the premises, or to provide information concerning infection-control policies in place at team training facilities. As Tynes points out in his motion to remand, none of the CBA provisions the defendant relies upon in its notice of removal suggests the existence of any such duties within the CBA.”
The Bucs argued that Tynes’ claims “are essentially claims related to the medical treatment he received, an area that the CBA covers. A careful reading of the claims, however, quickly disposes of this argument because the claims have nothing to do with medical treatment. The gravamen of the claims is whether the facility was inadequately sanitized to prevent the spread of infection. Tynes does not claim that he received inadequate care – his claims concern the defendant’s failings with respect to conditions at the Facility. As such, Tynes’ claims do not arise from the CBA. And resolution of the claims does not depend upon the meaning of any provision of the CBA. See Jurevicius v. Cleveland Browns Football Co., LLC, No. 1:09 CV 1803, 2010 U.S. Dist. LEXIS 144096, 2010 WL 8461220, at *12-*14 (N.D. Ohio Mar. 31, 2010) (granting a motion to remand nearly identical claims for negligence and negligent misrepresentation because the CBA did not contain any language about the adequacy of medical or training facilities).
“Jurevicius involved facts nearly identical to the instant case and is therefore highly persuasive. The defendants in Jurevicius argued, like the defendant here, that any duty to the plaintiff ‘to implement appropriate precautions and procedures at the Browns Training Facility designed to eradicate the existence of staph and to prevent the spread of staph would only be owed to the plaintiff because he was covered by the CBA.’ See id. The district court disagreed, stating that the defendants’ argument was ‘not well-taken because the CBA does not address any duty or lack of duty that The Browns may have to the plaintiff regarding the facilities. Indeed, the CBA does not contain language about maintenance of training facilities.’ 2010 U.S. Dist. LEXIS 144096, [WL] at *13-*14. With respect to the negligent misrepresentation claim, the court held: ‘The duty underlying negligent misrepresentation is a duty owed by any professional to any person acting in justifiable reliance on that professional. The CBA does not create this requirement. Just because the plaintiff entered into a CBA with Browns defendants does not mean that every suit between the two parties is covered by it.’ 2010 U.S. Dist. LEXIS 144096, [WL] at *14.”
Lawrence Tynes v. Buccaneers Limited Partnership, a Delaware Limited Partnership d/b/a Tampa Bay Buccaneers, et al.; M.D. Fla.; CASE NO: 8:15-CV-1594-T-30AEP, 2015 U.S. Dist. LEXIS 128515; 9/24/15
Attorneys of Record: (for plaintiff) Bradford Rothwell Sohn, LEAD ATTORNEY, Brad Sohn Law Firm, PLLC, Coral Gables, FL; Matthew Weinshall, Stephen F. Rosenthal, LEAD ATTORNEYS, Podhurst Orseck, PA, Miami, FL. (for defendants) Aram Papkin Megerian, David C. Borucke, LEAD ATTORNEYS, Cole, Scott & Kissane, PA, Tampa, FL; Daniel L. Nash, James Edward Tysse, LEAD ATTORNEYS, PRO HAC VICE, Akin, Gump, Strauss, Hauer & Feld, LLP, Washington, DC; Gregory W. Knopp, LEAD ATTORNEY, PRO HAC VICE, Akin, Gump, Strauss, Hauer & Feld, LLP, Los Angeles, CA.
