A federal judge from the Middle District of Tennessee has granted the Tennessee Titans’ motion to dismiss after a former player sued the NFL team for allegedly not disclosing a “defect” that was found in the plaintiff’s knee during an examination. The player later suffered an injury that was related to the defect, ending his career.
In ruling for the defendant Tennessee Football, Inc., the court found that David L. Givens claim was preempted by the Collective Bargaining Agreement between the league and its players and that the plaintiff should have first pursued remedies through the CBA.
In the events leading up to the lawsuit, the plaintiff alleged that he signed a 5-year contract with the defendant on or about March 14, 2006. The plaintiff further alleged that “at or about the time the contract was being negotiated,” he underwent a complete physical examination to determine his fitness to engage in professional football and to determine his capacity to fulfill the terms of the proposed contract.
The physical examination, according to the plaintiff, was performed by an orthopedic surgeon, who was acting as an independent contractor and who did not undertake to treat or advise the plaintiff, but rather to report his findings to Tennessee Football, Inc.. Givens further alleged that team officials were notified by the physician on March 13, 2006 that he has “a large defect on the medial femoral condyle” of his left knee and “may need surgery at some point.”
The plaintiff alleged that no one from the Titans notified him of the physician’s findings. “Consequently,” according to the complaint, “he continued to play football until he was injured in a game on November 12, 2006. Plaintiff alleges that an x-ray of his knee revealed that the ‘previously-known lesion and defect in his knee had crumbled.’”
His career over, the plaintiff alleged that he “learned of the results of the earlier physical examination when the defendant provided his medical records to him in February of 2009 during an arbitration to recover future payments from the defendant, pursuant to (the CBA).”
Givens alleged that Tennessee Football, Inc. committed the torts of outrageous conduct and negligent and/or intentional infliction of physical and emotional injury, and performed its contractual obligations in bad faith, by withholding certain medical information regarding his knee.
After the Tennessee Football, Inc. moved for summary judgment, the court considered whether a CBA can preempt the plaintiff’s state law claims.
To determine whether a state law claim is sufficiently independent to survive preemption, the Sixth Circuit has adopted a two-step inquiry. Mattis v. Massman, 355 F.3d 906 (6th Cir. 2004). “A state law claim is preempted if either: (1) the rights claimed by the plaintiff were created by the collective bargaining agreement rather than state law; or (2) resolving the state law claim would require interpretation of the terms of the collective bargaining agreement. Id.”
The court continued, noting that “the CBA at issue in this case states that it ‘represents the complete understanding of the parties on all subjects covered herein,’ and defines the parties as all ‘present and future employer member clubs of the National Football League’ and ‘the National Football League Players Association’ which includes ‘present and future employee players in the NFL’ and specifically ‘[a]ll professional football players who have been previously employed by a member club of the National Football League who are seeking employment with an NFL Club.’ The complaint alleges that the conduct complained of took place while the plaintiff, who had played for the New England Patriots NFL Club, was in contract negotiations to play for the defendant. Thus, at the time of the conduct complained of, both the plaintiff and the defendant were parties to the CBA.”
The judge went on to look specifically at Article XLIV of the CBA, entitled “Players’ Right To Medical Care And Treatment,” which specifically provides:
“Club Physician: Each Club will have a board-certified orthopedic surgeon as one of its Club physicians. The cost of medical services rendered by Club physicians will be the responsibility of the respective Clubs. If a Club physician advises a coach or other Club representative of a player’s physical condition which adversely affects the player’s performance or health, the physician will also advise the player. If such condition could be significantly aggravated by continued performance, the physician will advise the player of such fact in writing before the player is again allowed to perform on-field activity.”
Further, he found that “a determination of whether the defendant’s failure to advise the plaintiff of the result of the orthopedic surgeon’s examination is ‘tolerated by a civilized society’ would require consultation and interpretation of the terms of the CBA governing the relationship among the club, the player and the physician. The questions raised by the complaint, such as whether a physician’s failure to advise a player of his medical condition should be imputed to the club or whether the club has a duty independent of the physician to advise a player of his medical condition, are ‘inextricably intertwined’ with the provisions of the CBA. See Sherwin v. Indianapolis Colts, Inc., 752 F.Supp. 1172, 1177-79 (N. D. N.Y. 1990)(Former player’s tort claims based on allegation that team intentionally withheld information regarding true nature of injury are preempted because they are created by or are substantially dependent on CBA clause requiring physician to advise player of such information); Williams v. National Football League, 582 F.3d 863, 881-82 (8th Cir. 2009)(Former player’s tort claims arising from NFL’s failure to warn plaintiffs that supplement contained banned substance are preempted because duty to provide warning and outrageousness of the NFL’s conduct ‘cannot be determined without examining the parties’ legal relationship and expectations as established by the CBA and the Policy.’).”
As with the outrageous conduct claim, the judge also concludes that the negligence claims are preempted. “Any duty the defendant had to advise the plaintiff of the results of his medical examination was either created by the CBA, or is inextricably intertwined with the CBA.”
Finally, Plaintiff asserts a cause of action for “the legal wrong, whether styled as quasi contract or tort, of performing its contractual obligations in bad faith.” (Complaint, at P 15). The Plaintiff argues that this claim is a tort claim and that its resolution does not require interpretation of the CBA.
“In sum, all the plaintiff’s claims are preempted under Section 301 because they are not sufficiently independent of the terms of the CBA. The Supreme Court has held that because preempted claims must first be presented through the arbitration procedure established in a collective bargaining agreement, those claims should be dismissed.”
David L. Givens v. Tennessee Football, Inc.: M.D. Tenn.; No. 3:09-0888,
2010 U.S. Dist. LEXIS 11707; 2/10/10
Attorneys of Record: (for plaintiff) Daniel D. Warlick, LEAD ATTORNEY, Nashville, TN. (for defendant) Heather J. Hubbard, LEAD ATTORNEY, Waller, Lansden, Dortch & Davis, LLP, Nashville, TN; Mark W. Peters, Robert Earl Boston, LEAD ATTORNEYS, Waller, Lansden, Dortch & Davis, Nashville, TN.
