By Paul D. Anderson ©
In February 2011, former Chicago Bears star Dave Duerson shot himself in the chest and left this request, “Please, see that my brain is given to the NFL’s brain bank.”[1] The post-mortem analysis of Duerson’s brain determined that he had chronic traumatic encephalopathy[2] (CTE), a debilitating disease linked to repeated blows to the head. These results, inter alia, may eventually become crucial exhibits in the first jury trial in the developing saga of the National Football League’s (NFL) alleged concealment and mishandling of the risks related to concussions.
Shortly following the anniversary of Duerson’s suicide, his family filed a wrongful death complaint[3] alleging that the NFL and Riddell Helmets — through various acts of negligence, concealment and conspiracy — caused Duerson’s death. The complaint was filed a few weeks after the Judicial Panel on Multi-district Litigation (JPML) granted the NFL’s motion to consolidate the pending concussion lawsuits to the Eastern District of Pennsylvania.[4]
Duerson’s lawsuit is one of the few cases that have not been transferred to Philadelphia, yet. Duerson’s complaint was initially filed in Cook County State Court. The NFL removed the case to the Northern District of Illinois, claiming that the court has federal-question jurisdiction pursuant to Section 301 of the Labor Management Relations Act (LMRA).[5] A few days later, the NFL filed a notice of potential “tag-along” action with the JPML requesting that Duerson’s case be transferred to Philadelphia, and, in addition, the NFL filed a motion to stay the proceedings in Illinois pending the JPML’s ruling.
In hopes of remanding the case back to state court, Duerson filed a motion opposing the NFL’s stay. Judge James F. Holderman, of the Northern District of Illinois, set a status hearing to determine whether the NFL’s motion should be granted. On the eve of the hearing, Duerson filed a motion to remand.
Following the hearing, Judge Holderman issued a three-page order denying the NFL’s motion to stay and ordered the parties to brief whether the case should be remanded.
Judge Holderman’s ruling effectively set the stage for a challenging § 301 preemption issue that could have a major impact on the NFL concussion litigation.
The issue on its face appears straightforward: whether this is fundamentally a labor dispute governed by the collective bargaining agreement (CBA) or if the state-law claims are independent of the CBA.
The Supreme Court in Allis-Chalmers v. Lueck, 471 U.S. 202, 220 (1985) has articulated the principle of Section 301 preemption: if a tort claim (1) arises under the CBA or (2) is “substantially dependent” upon or is “inextricably intertwined” with the terms of the CBA, then it is completely preempted.
Duerson argues that his claims are “freestanding claims dependent upon traditional state law elements of tort.”[6] Specifically, Duerson argues that his claims are independent of the CBA because he played during a period in which there was no operative CBA.
From August 31, 1987 through March 29, 1993 the NFL operated without a CBA.[7] Duerson’s complaint alleges that his three documented concussions (e.g. 1988, 1990 and 1992) occurred during this “gap period.” Accordingly, the court would not need to examine a CBA to determine the purported duties owed to Duerson.
Conversely, the NFL argues that this “gap period” is irrelevant because Duerson’s claims allege duties — arising under the CBA — that occurred throughout Duerson’s 11 year career[8] and that he played in the NFL pursuant to the 1982 and 1993 CBA. The NFL further argues that Duerson’s complaint is not based solely upon his documented concussions; instead the complaint alleges that Duerson received several undocumented concussions and thousands of sub-concussive hits that occurred when a CBA was in place.
Duerson’s argument is indeed clever, but a similar issue was presented to one judge when the first group of concussion-related lawsuits was removed to federal court. The plaintiffs in Pear, Barnes and Maxwell attempted to remand the case back to state court; however, the “gap period” was not a prime issue of controversy. In a one-half-page order, Judge Manuel Real held that the “physician provisions of the CBA must be taken into account in determining the degree of care owed by the NFL,” and, therefore, plaintiffs’ negligence claim is preempted.[9]
Although Judge Real decided at least one claim was preempted, and thereby exercised supplemental jurisdiction over the other claims, Judge Holderman may not be so persuaded. When I asked five law professors their thoughts on whether Duerson’s case would be remanded they were split 2 — 2 — 1.
Professor Roger Abrams[10] said, “[t]he court will not send the case back to state court.” “Duerson’s claims are superficial at best,” Abrams said, and are “rebutted directly by the status quo requirement.”[11] In other words, although a CBA was not technically in place, the parties still acted as if they were operating under a CBA and remained in a bargaining relationship. Professor Mark Berger[12] agreed.
On the other hand, both Professor Robert McCormick[13] and Dean Gary Roberts[14] believed that if there is no CBA or Union, then the preemption argument should fail. Professor McCormick took it a step further and concluded that the NFL “has an obligation to refrain from committing tortious conduct,” and it appears that the NFL’s alleged conduct will take it outside of the CBA.
And, the decisive swing vote from Professor Michael McCann[15], “it’s not a clear cut issue…traditional labor law issues tend to have unusual applications in the context of professional sports collective bargaining.”
Indeed, the case law, within the context of the NFL, is also split on the preemption issue. Half of the cases alleging that the NFL or its member clubs engaged in tortious conduct were held to be preempted,[16] and the other half were found to be independent of the CBAs.[17]
The NFL’s best case appears to be Stringer v. NFL, which was also the case Judge Real found persuasive. [18] In Stringer, the spouse of the decedent, former NFLer Korey Stringer, brought a wrongful death claim against the NFL, inter alia[19], over its alleged mishandling of heat-related illnesses. The court held that even if the NFL assumed a duty to oversee the players’ health, “the degree of care owed cannot be considered in a vacuum,” but instead “must be considered in light of pre-existing contractual duties imposed by the CBA” and therefore the wrongful death claim was preempted.[20]
Duerson’s best case is Jurevicious v. Cleveland Browns Football Co.[21] In Jurevicious the court held that fraud, negligence and negligent misrepresentation claims — based on affirmative misrepresentations concerning staph infections at the Browns’ facility — were not preempted. The court found that no provision in the CBA covers the specific duty that the plaintiff alleged. In fact, the court rejected the same argument that the NFL is making in Duerson’s case — that the purported duty arises out of numerous CBA provisions addressing the health and safety of players.[22] Similarly, Duerson argues that there is no specific provision in the CBA that addresses the NFL’s duty regarding the diagnosis and treatment of concussions, and as such, the duty arises from state law, independent of the CBA.
If Judge Holderman agrees with Duerson and finds that the claims are not preempted, the court will lack federal-question jurisdiction. Diversity jurisdiction would also be lacking because the NFL is an unincorporated association of each of its member clubs (i.e. Chicago Bears, and thus, no complete diversity). Accordingly, Judge Holderman would be required to remand the case back to state court. However, if Judge Holderman determines the court has federal jurisdiction, the case will be sent to Philadelphia and consolidated with the other 60-plus concussion-related lawsuits, where a ruling on the NFL’s motion to dismiss — which will hinge primarily on 301 preemption — is not likely to be adjudicated until early 2013.[23]
Finally, if Duerson’s case is remanded it would slowly churn its way through discovery and the summary judgment process with an eye towards trial. If a settlement is not reached by the time Duerson’s case is set for trial, it will undoubtedly become the first bellwether[24] case in the concussion lawsuits.[25] The ramifications of Judge Holderman’s ruling are yet to be seen, but it could dramatically affect the former players’ and NFL’s respective positions as the litigation proceeds.
Anderson is the founder of NFL Concussion Litigation (http://nflconcussionlitigation.com/). He wrote the instant piece exclusively for Sports Litigation Alert. Anderson just graduated Summa Cum Laude from the University of Missouri-Kansas City School of Law. You can follow him on Twitter @PaulD_Anderson or email him at pauld_anderson@me.com
[1] Schwartz, Alan, “A Suicide, a Last Request, a Family’s Questions.” http://www.nytimes.com/2011/02/23/sports/football/23duerson.html?pagewanted=all
[2] Schwartz, Alan, “Duerson’s Brain Trauma Diagnosed.” http://www.nytimes.com/2011/05/03/sports/football/03duerson.html
[3] February 23, 2012, Estate of Dave Duerson v. NFL et al., Circuit Court of Cook County, Case No. 2012L-002043
[4] See In re National Football League Players’ Concussion Injury Litigation, MDL No. 2323, 2012 U.S. Dist. Ct. (E.D. Pa. 2012) At the time of this publication, there are 67 lawsuits and over 1,680 plaintiffs.
[5] “Suits for violation of contracts between an employer and a labor organization…may be brought in any district court of the United States….”
[6] See Duerson’s Motion to Remand
[7] Breer, Albert, “Lifting the lockout bring back football, but no progress.” http://www.nfl.com/news/story/09000d5d81f19c7f/printable/lifting-the-lockout-brings-back-football-but-not-progress
[8] Duerson was a defensive back from 1983-1993.
[9] Pear et al v. NFL et al, No. 11-cv-08395 (C.D. Cal. Dec. 5, 2011)
[10] Richardson Professor of Law at the University of Northeastern School of Law
[11] NLRB v. Katz, 369 U.S. 736, 743; NLRA § 8(a)(5); See also Sherwin v. Indianapolis Colts, Inc., 752 F.Supp. 1172, 1174-75 n.2 (N.D.N.Y. 1990) (holding that expired “1982 CBA continues to govern the relationship of the parties at least with respect to arbitration since the parties have continued to honor and utilize the arbitration provision of the 1982 CBA.”)
[12] Professor of Law at the University of Missouri-Kansas City School of Law
[13] Professor of Law at Michigan State University College of Law
[14] Dean and Gerald L. Bepko Professor of Law at Robert H. McKinney School of Law
[15] Director of the Sports Law Institute and Professor of Law at Vermont Law School
[16] See Williams v. NFL, 582 F.3d 863 (8th Cir. 2009); Sherwin v. Indianapolis Colts, Inc., 752 F. Supp. 1172, 1178 (N.D.N.Y., 1990); Jeffers v. D’Allessandro, 681 S.E.2d 405 (N.C.App. 2009); Givens v. Tennessee Football, Inc., 684 F.Supp.2d 985 2010 WL 517411 (M.D. Tenn. 2010) (preempted because CBAs contained language addressing claim(s) brought by the plaintiffs.)
[17] Brown v. NFL, 219 F. Supp. 2d 372 (S.D.N.Y. 2002); Hendy v. Losse, 1991 WL 17230 (9th Cir., Feb. 12, 1991); Bentley v. Cleveland Browns Football Co., 958 N.E.2d 585 (Ohio Ct. App. 2011); McPherson v. Tennessee Football Inc., 2007 U.S. Dist LEXIS 39595 (M.D. Tenn. May 31, 2007) (claim(s) not preempted because the CBA was silent on a specific duty.)
[18] Stringer v. NFL, 474 F. Supp.2d 894 (2007)
[19] Riddell Helmets was also a defendant, and the court found that Stringer’s claims against Riddell were not preempted.
[20] Stringer at 910-11 (holding wrongful death claim was inextricably intertwined with the terms of the CBA)
[21] No. 1:09 CV 1803, 2010 U.S. Dist. LEXIS 144096 (Mar. 31, 2010)
[22] See 1993 CBA Art. IX Section 1 (grievance procedure); See also 1993 CBA Art. XLIV Section 1 (medical care provision).
[23] See Judge Brody’s Case Management Order #2
[24] Although technically not a “bellwether” case in the context of MDL proceedings, it would become an indicator for the other lawsuits.
[25] The average time for a case to go to trial in Cook County is 30 months, according to Duerson’s motion opposing stay.
