By Christopher R. Deubert, Senior Writer
Briefing has recently completed in a case between an NFL player and the League that could have significant ramifications for the resolution of player-league disputes moving forward.
During the October 17, 2022 Monday Night football game between the Denver Broncos and Los Angeles Chargers, Broncos’ linebacker Aaron Patrick, after trying to make a tackle near the sideline on a punt, tripped over television cables and mats and collided with the NFL’s television liaison, the person responsible for coordinating commercial breaks. Unfortunately, Patrick, an undrafted second year player, tore his ACL in the process, a potentially career-ending injury.
The NFL’s Preemption Playbook
On November 15, Patrick sued the NFL, ESPN, the Chargers and the entities that own and operate their stadium, and others, in California state court for negligence and premises liability. The NFL and Chargers subsequently removed the case to federal court and have moved to have the case dismissed, arguing that Patrick’s claims are preempted by the NFL-NFLPA collective bargaining agreement (CBA), pursuant to the Section 301 of the Labor Management Relations Act, 28 U.S.C. § 185. Patrick responded with a motion to remand the case to state court in what is set up to be a potentially interesting and extensive analysis of the NFL CBA.
The NFL’s motion is a familiar one. Whenever the NFL or one of its clubs is sued by a player in court (which is not uncommon), they argue that the claims (usually state common law tort claims) are “preempted” by Section 301. The well-established and controlling Supreme Court precedent on this issue holds that claims whose resolutions are “substantially dependent upon analysis of the terms of” a CBA are preempted. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220 (1985). In other words, claims that are “inextricably intertwined” with the terms and provisions of the CBA cannot proceed. Id. at 213. The intended and frequent result is the dismissal of the claims altogether.
The plaintiff-players cannot reasonably dispute this standard at a high level, nor does Patrick in the instant case. Instead, the parties argue over whether analysis of the claims requires interpretation of the CBA. In this case, the NFL argues that they do – specifically, that the claims would require analysis of Article 39, Section 11 of the CBA, which establishes and discusses the responsibilities of the joint NFL-NFLPA Field Surface Safety & Performance Committee. In short, that Committee is responsible for establishing and enforcing playing field standards, known as the Mandatory Practices. In the NFL’s opinion, the court cannot evaluate whether the NFL or Chargers was negligent in this case without evaluating whether they complied with the Mandatory Practices. Thus, the NFL says Patrick’s claim is really a breach of contract claim, masquerading as a tort claim.
In response, Patrick argues that “[t]his is a straightforward ‘slip-and-fall case,” and the court should not get distracted by the fact that it occurred during a Monday Night Football game. According to Patrick, “the claims are garden-variety negligence and premises liability claims that turn simply on whether reasonable live-events broadcast producers would have placed their cords, cables, mats, and personnel which Patrick fell over in similar positions.” Such claims, in Patrick’s view, do not require analysis of the CBA and thus are not preempted.
The parties dispute the applicability of a variety of past cases involving NFL players. Perhaps of most relevance is the case of former NFL running back Reggie Bush. In 2016, Bush sued the St. Louis Rams and their stadium authority when, at the conclusion of a play, he slipped and fell on a concrete surface surrounding the turf playing field causing a knee injury. The federal court denied the Rams’ arguments that Bush’s claims were preempted by the CBA. Bush v. St. Louis Reg. Conv., 2016 WL 3125869 (E.D. Mo. June 3, 2016). The NFL argues that the court got Bush wrong and also that the case was evaluated under a prior CBA that did not include the joint Field Surface Safety & Performance Committee.
Are Tort Claims Grievable?
Stepping back, there are bigger issues here concerning the dispute resolution mechanisms under the CBA. The purpose of the preemption concept, as articulated by the Supreme Court, is “to promote the peaceable, consistent resolution of labor-management disputes” via the processes outlined in the CBA. While the NFL states in one brief that “Patrick’s claim was grievable” under the CBA, Patrick disputes this. In support, Patrick cites and attaches arbitration decisions from 1986 and 1988 in which arbitrators ruled that tort claims brought by NFL players against the NFL and its clubs could not be addressed in that forum.
The now settled class action litigation concerning player concussions danced around, but did not resolve this issue. The NFL moved to dismiss the plaintiffs’ claims in that case on preemption grounds and by arguing that the claims should have been brought pursuant to the CBA’s arbitration mechanisms. But the NFL did not explicitly say that an arbitrator would ultimately have jurisdiction to decide them on the merits.
In approving the settlement of that case, the courts did not seem to fully grasp the issue. The district court stated that a “preemption ruling in this [case] would necessarily require… Plaintiffs to resolve their claims through arbitration rather than in federal court because the CBAs contain mandatory arbitration provisions.” In re NFL Players’ Concussion Injury Litig., 307 F.R.D. 351, 363 (E.D. Pa. 2015). The Third Circuit affirmed this view. 821 F.3d 410, 422 (3d Cir. 2016). But these courts seemingly did not know that it was unsettled whether tort claims could be brought in arbitration.
Interestingly, in its reply brief, the NFL does not say that the 1980s arbitration decisions are no longer applicable. Indeed, the CBA has been amended numerous times since then and the provisions around player health in particular have grown enormously, lending more force to a preemption argument. Instead, the NFL simply argues that whether Patrick’s claims could hold up under the CBA is not the appropriate test for preemption.
The Statute of Limitations Problem
The NFL’s reply again helps it hide the ball a bit. Notably, the NFL moved to dismiss Patrick’s claims not to compel them to arbitration. The NFL argues to courts that players’ claims must be arbitrated, but does not explain that such claims would likely fail on statute of limitations grounds. The NFL-NFLPA CBAs for decades have required that grievances be brought within 50 days “from the date of the occurrence or non-occurrence upon which the grievance is based” or from when the player knew or should have known the facts supporting the grievance. This time limitation would have been fatal to the claims brought by the concussion litigants, a fact that the courts in that case did not seem to recognize.
The Underlying Arbitration Provision
Part and parcel to this dispute is the narrow arbitration provision in the CBA. Article 43 of the CBA, the controlling grievance mechanism in most situations, requires that:
Any dispute (hereinafter referred to as a “grievance”) arising after the execution of this Agreement and involving the interpretation of, application of, or compliance with, any provision of this Agreement, the NFL Player Contract, the Practice Squad Player Contract, or any applicable provision of the NFL Constitution and Bylaws or NFL Rules pertaining to the terms and conditions of employment of NFL players, will be resolved exclusively in accordance with the procedure set forth in this Article, except wherever another method of dispute resolution is set forth elsewhere in this Agreement.
The provision, on its face, is thus limited to contractual disputes. Even though the various contracts referenced encompass considerable duties, the provision could be broader. A standard arbitration provision in the employment context requires arbitration of any dispute arising out of or related to the employee’s employment. A provision with such language would seem more likely to capture claims like Patrick’s.
Ready for Kickoff
The case presents a challenging set of facts and arguments for the court, not all of which are addressed above. If the NFL loses, it may both appeal and move to compel arbitration (knowing that Patrick has not filed a timely grievance). If Patrick loses, he too could appeal, but may also choose to file a grievance, arguing that his lawsuit should toll the statute of limitations. Either way, the case presents the opportunity for a court to clarify the bounds of the NFL’s collective bargaining agreement.
Deubert is Senior Counsel at Constangy, Brooks, Smith & Prophete LLP.
