By Tony Corleto, of Gordon Rees Scully Mansukhani, LLP
(The following appeared in Concussion Defense Reporter, a publication produced by Hackney Publications.)
What is federal preemption? In the legal world, federal preemption is a doctrine based on the Supremacy Clause of the U.S. Constitution that allows federal laws to supersede conflicting state laws. Courts determine whether a federal law preempts a conflicting state law by generally analyzing the express language in the federal and state law or by examining Congress’s preemptive intent in the federal law’s structure and purpose. For instance, the Voting Rights Act is an important federal civil rights law that preempts conflicting state statutory or state constitutional laws. As you will read below, bringing a preemptive argument can be a vital tool in winning a case for your client.
On March 29, 2021, the United States District Court for the Northern District Court of Illinois issued a decisive ruling in a case brought by two former professional ice hockey players against the National Hockey League (“NHL”) and its Board of Governors. Plaintiffs Daniel Carcillo and Nicholas Boynton (“Plaintiffs”) alleged that they each suffered serious head injuries during their careers, and that the NHL and its Board of Governors’ (“Defendants”) were liable for those injuries. The Court ultimately dismissed Plaintiffs’ case after it held that a majority of their claims were preempted by federal law and the Plaintiffs failed to exhaust their contractual remedies in accordance with the collective-bargaining agreements (“CBAs”). The Court also declined to exercise supplemental jurisdiction over Plaintiffs’ remaining claims.
Plaintiffs each played in hundreds of games for multiple NHL teams in different states during their respective careers. Mr. Carcillo played in 429 games while playing for the NHL from 2006 to 2015 and Mr. Boynton played in 605 games while playing for the NHL from 1999 to 2011. In their lawsuit Plaintiffs alleged that they each suffered head injuries and trauma that resulted from Defendants’ promotion of fighting during gameplay. Plaintiffs also alleged that their injuries were a result of Defendants’ misrepresentation, concealment, and failure to warn players of the risks of head trauma. Plaintiffs further alleged that Defendants knew that head injuries result from fights during gameplay, and that those injuries could result in serious and lasting injury.
Plaintiffs initially filed their lawsuit in June 2018 in the United States District Court for the District of Minnesota, but the case was eventually transferred to the Northern District of Illinois after the parties jointly moved to transfer venue. Plaintiffs brought three sets of state law claims: two claims alleging general negligence; two claims alleging failure to warn; and two claims alleging intentional concealment and misrepresentation of materials facts. Defendants asserted several affirmative defenses, including a fatal preemption defense. Defendants argued that Section 301 of the Labor Management Relations Act (“LMRA”) preempted Plaintiffs’ state law claims due to the CBAs governing their employment as NHL players.
The Court held that Section 301 of the “LMRA provides a federal rule for contract disputes between employers and labor organizations or between different labor organizations.” The Court further held that Section 301 completely preempts claims that are founded “directly on rights created by collective-bargaining agreements” and are “substantially dependent on analysis of a collective-bargaining agreement.” As you will see below, as a result of Section 301 completely preempting Plaintiffs’ state-law claims, the Court dismissed the lawsuit due to an arbitration clause in the CBAs.
The first step in its preemption analysis required the Court to decide which state law(s) applied to Plaintiffs’ claims. In order to determine whether the LMRA completely preempted Plaintiffs’ claims, the Court had to decide whether the state law claims were “inextricably intertwined with consideration of the terms of the labor contract.” The LMRA will not preempt a state law to the extent that law may have some connection to a CBA.
Here, Mr. Carcillo and Mr. Boynton played most of their games in Pennsylvania and Massachusetts, respectively. Because Plaintiffs alleged that they suffered their injuries during these games, the Court applied Pennsylvania and Massachusetts law.
Negligence Claims
Plaintiffs’ first two claims alleged that their injuries stemmed from “the proximate result of the NHL’s negligence.” In order to prevail on these negligence claims, Plaintiffs had to prove that (1) Defendants owed Plaintiffs a duty of reasonable care; (2) Defendants breached this duty; and (3) the breach caused damage to Plaintiffs. Accordingly, the Court assessed each theory separately for the purposes of preemption.
Plaintiffs alleged that Defendants caused them unreasonable harm by “promoting” and “glorifying” fighting during gameplay. In previous cases brought by professional ice hockey players against the NHL, federal courts have concluded that a duty to refrain from unreasonable harm is considered common law and does not require the interpretation of a CBA. Therefore, the LMRA did not preempt Plaintiffs’ claims that were based on Defendants’ alleged breach of common law duties to refrain from reasonable harm.
However, the remainder of the negligence claims were based on Defendants’ alleged breach of their supposed “self-imposed and self-declared duties” to keep Plaintiffs safe, to advise them “of all risks,” and “to not increase” the risk of “permanent brain damage and/or addiction.” Both Massachusetts and Pennsylvania law provide that a defendant may be liable for harm caused by negligently performing duties they voluntarily undertook (e.g., self-imposed and self-declared duties). In order for the Court to determine the scope of Defendants’ alleged “self-imposed and self-declared duties,” the Court had to reference the CBA because it was not possible to define the scope of Defendants duty, or whether they even had a duty, without reference to the CBA. Therefore, the Court held that Plaintiffs’ negligence claims that alleged Defendants breached certain duties they voluntarily assumed were completely preempted by the LMRA.
Failure to Warn
Plaintiffs’ next two claims alleged that Defendants “knew or should have known” that playing with a brain injury would result in brain damage, and that Defendants negligently failed to warn Plaintiffs of this risk.
Under Massachusetts law, Mr. Carcillo had to refer to a special relationship, such as a fiduciary relationship, outside of the CBA in order to avoid preemption. Similarly, under Pennsylvania law, Mr. Boynton had to refer to a relationship, such as a landowner-invitee relationship, or a duty that runs from a manufacturer to a consumer, in order to avoid preemption. To the extent that the Defendants owed Plaintiffs a duty to warn, such a duty would arise only under the CBA. The Court held that because Plaintiffs failed to present any legal authority to impose a duty to warn existed outside of the CBA, their claims were completely preempted by the LMRA.
Misrepresentation
Plaintiffs’ final two claims alleged that Defendants “misrepresented the risk of brain damage.” The Court analyzed these claims under two theories: (1) Defendants’ intentional misrepresentation by omission or negligent misrepresentation, and (2) Defendants’ misrepresentation by making affirmative misrepresentations.
First, Plaintiffs alleged that Defendants knowingly concealed the risk of brain damage and the effects of fighting. Under both Massachusetts and Pennsylvania law, Plaintiffs had to prove that Defendants “possessed a duty to disclose” in order to succeed on claims for intentional misrepresentation by omission or negligent misrepresentation. As discussed earlier, this duty typically arises from a contractual, or fiduciary relationship. Plaintiffs failed to allege that a fiduciary relationship existed. Likewise, the Court was required to interpret the CBA in order to analyze whether Defendants had a duty to disclose this information. As a result, the LMRA completely preempted Plaintiffs’ theories of intentional misrepresentation by omission or negligent misrepresentation.
Second, Plaintiffs’ alleged that they relied upon Defendants’ misrepresentations to their detriment. Specifically, Plaintiffs alleged that Defendants made affirmative representations that players would not suffer “any later-in-life risks” and were not subjecting themselves to conduct that could lead to brain damage. Based on precedent, this theory arises from a duty to refrain from making affirmative misrepresentations. Both Massachusetts and Pennsylvania law recognize this as a common law duty and the LMRA does not preempt a theory claiming the NHL harmed the players by communicating that head trauma is not dangerous. Thus, the Court held that the final two claims were not preempted by the LMRA to the extent Plaintiffs maintained a theory that Defendants injured them through making “active, intentional misrepresentations.”
The Court’s Ruling
In sum, Section 301 completely preempted Plaintiffs’ claims for: negligence, “to the extent based upon allegations that Defendants breached certain duties they voluntarily undertook and that they failed to disclose certain information”; failure to warn, in their entirety; and misrepresentation, “to the extent based upon an intentional misrepresentation by omission or negligent misrepresentation theory.” Because of this complete preemption, the Court considered the claims under Section 301 and, therefore, the Court found it had subject matter jurisdiction over the case.
However, an article from the CBA provided that all disputes “involving the interpretation or application of, or compliance with, any provision of” the CBA had to be resolved through a grievance procedure and arbitration. The Court held that where a labor contract requires mandatory arbitration, “a plaintiff seeking redress under that contract can only bring a so-called ‘hybrid’ Section 301 claim after the grievance process has failed.” Plaintiffs failed to allege that they exhausted their contractual remedies, which required them to utilize the grievance and arbitration procedures provided by the CBA. Accordingly, the Court dismissed all of the Plaintiffs’ federal claims without prejudice. After dismissing all federal claims, the Court declined to exercise supplemental jurisdiction over the non-preempted state law claims. The Court thereby granted Defendants’ motion for judgment on the pleadings.
The case is Carcillo et al. v. National Hockey League, et al., Case No. 19 CV 6156, U.S. The Court’s decision may be found here.
