By Sean Halloran & Jeff Birren, Senior Writer
Football games have a guaranteed start time, and a virtually guaranteed end time. Such is not the case with football-related litigation, as DeMeco Ryans continues to discover. Ryans played ten seasons in the NFL. He had a severe injury while playing at the Houston Texans in 2014 and was never the same player again. After his career ended, Ryans filed a lawsuit in Texas state court against the Texans and other defendants. He claimed that the condition of the playing surface caused his injury.
The Texans removed the case to federal court. The federal court sent it back to state court. The Texans then made a motion to compel arbitration. The state trial court denied the motion so the Texans appealed that order. Unfortunately for Ryans, the Texas Court of Appeals recently reversed the trial court and ordered that the claims against the Texans be sent to arbitration (Houston NFL Holding, L.P. D/B/A Houston Texans, Appellant v. DeMeco Ryans, Appellee, Texas Court of Appeals for the First District of Texas, No. 01-18-00811-CV, 8-1-19 at 2 (“Ryans”)).
Ryans Career in Football
Ryans played linebacker for Alabama and had a stellar season in 2005. He was named SEC Defensive Player of the Year, was a unanimous first team All-American and won the Lott Trophy. He was also a finalist or semi finalists for five other national honors. He then became the 33rd pick of the NFL draft by the Houston Texans.
Ryans had virtually instantaneous success with the Texans. He had league-high 12 solo tackles in his very first game. He finished second in the league in solo tackles that season and was named the AP NFL Defensive Rookie of the Year. Ryans went to the NFL Pro Bowl in 2007 and 2009. But all good things seem to end, and in 2012 he was traded to Philadelphia. Ryans made solid contributions that season, as well as in 2013 and the start of the 2014 season. Then the roof fell in on his career.
Early in the fourth quarter against Houston on November 3, 2104, Ryans intercepted a pass and began to run with it. His foot caught in the turf, and without any contact from a Houston player, he fell, fumbling the ball. Houston recovered his fumble and Ryans lay on the turf with a seriously torn Achilles tendon. Houston fans gave him a standing ovation as he was carried off the field.
This was not the first time that there was a serious injury on that turf. In 2010 Patriots wide receiver Wes Welker tore his MCL and ACL there. Head Coach Bill Belichick told the media that the “turf down there is terrible. It’s terrible. It’s just inconsistent. It’s all the little trays of grass and some of them are soft and some of them are firm and they don’t fit well together… I really think it’s one of the worst fields that I’ve seen” (Findlaw.com/tarnished_twenty, Christopher Coble “Terrible Texans Turf” 10-18-16).
In 2011 the Texans’ punter Brett Hartman suffered a catastrophic injury on the field. He sued SMG and Harris County in 2012. That case was settled in 2015 (Houstonpress.com, Sean Pendergast, “Former Texas LB DeMeco Ryans Suing Texans NFL for 2014 Leg Injury” 10-19-16). That surface has since been replaced.
Ryans spent the rest of 2014 on the Injured Reserve list. Ryans returned to playing in 2015 but at a greatly reduced level. His solo tackles went from 127 in 2013 to 32 in 2015 and his total tackles went from 127 to 49. His six-year contract was now over, and the Eagles released Ryans in February 2016. He never again played in the NFL. He began a coaching career in 2017 with the San Francisco 49ers, and he remains a linebacker’s coach there.
Let The Litigation Games Begin
Ryans Sues In State Court — In October 2016 Ryans filed a premises liability case in Harris County State Court. He sued the Texans, Harris County Convention & Sports Corporation, the entity that owns the stadium, SMG, the private company hired to operate the stadium, SrathAyr Turf Systems PTY Ltd., the company that designed the turf system at the stadium, and the NFL though he later dropped the NFL (Ryans at 3, fn. 2).
The gist of the complaint was that the defendants breached their duty of ordinary care in multiple ways, including negligently selecting an unreasonable dangerous design, by negligently causing the condition of the field to pose an unreasonable risk, that the Texans knew the field was negligently designed, constructed and maintained yet failed to exercise reasonable care to reduce or eliminate the known risks, and these failures directly and proximately caused his injuries (Id. at 4/5).
That turf was unlike any other. It consists “of squares of grass grown in trays on top of sand, peat, moss, and mess wire. Each tray has a plastic-and-steel drainage base, and the individual turf pieces are stored in stacks” off the field, and then taken to the field and assembled prior to games (Findlaw.com, Christopher Coble, “Terrible Texans Turf” 10-18-16).
Ryans alleged that but for such negligence he would not have suffered a career-ending injury and would have continued playing football (Ryans at 5). The lawsuit further claimed that the defendants were on notice of the condition due to complaints by other players (Sportslawinsider.com, Joseph M. Harris, “Former NFL Player Asks Court to Send Texas Turf Injury Suit Back to State Court” 1-10-17). Ryans sought damages in excess of ten million dollars (Houstonpress.com, Sean Pendergast, “Former Texans LB…” 10-19-16). So the case in state began, for a moment.
And Then the State Court Complaint Was Whisked Away — The Texans responded by removing the case to federal court in Houston. It did so on the basis of “federal question jurisdiction, claiming that all of the plaintiff’s claims and causes of action are preempted by Section 301 of the Labor Management Relations Act (“LMRA”), asserting that the resolution of the plaintiff’s claims would require interpretation of the NFL Collective Bargaining Agreement (“CBA”) (Demeco (stet)Ryans v, Houston NFL Holdings, L.P. d/b/a Houston Texans, et al, U.S. District Court for the Southern District of Texas, Houston Division, No. 4:16-CV-3554, Memorandum and Order, 5-2-17 (Ryans v. Houston Texans et al”) at 2). The case reached the court on December 2, 2016 (Ryans v. Houston Texans et al, “Case Summary” at 1).
Before December was over, Ryans filed a motion to remand the case to state court. He asserted “that the defendants cannot show that his state law tort law claims are completely preempted by the LMRA,” that his claims were “not inextricably intertwined with consideration of the CBA”, and that “his claims are not based on any provision of the CBA nor is the CBA the source of any of his claims” (Ryans v. Houston Texans et al, at 2). The Texans in turn insisted: “that the CBA represents the complete understanding of the parties involved” (Id. at 3).
The court stated that it had to “evaluate whether the CBA is the course of the plaintiff’s claims, or whether his claims are independent, non-negotiable state law rights substantially dependent upon an interpretation of the CBA” (Id. at 6). A court in this situation should “focus on the conduct of the parties involved” (Id.). It found that the negligence claims do “not require an interpretation of the CBA, which prompts the Court to return this matter to its proper jurisdiction” (Id. at 7).
The “premises liability claim under Texas sate law is not inextricably intertwined with consideration of the CBA because the plaintiff has not invoked the CBA to satisfy any of the elements of his claim” (Id.). Consequently, the motion to remand was granted (Id.). The federal court file was “terminated” on 5-2-17 so it was back to state court.
Back In Harris County State Court — The parties spent approximately a year litigating and in June 2018 the Texans filed a motion to compel arbitration under the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (Ryans at 1), and pursuant to Article 43 of the NFL CBA. The Texans insisted that Ryans’ claims: “involves the interpretation and application” of the CBA, the NFL Standard Player Contract, and the NFL Rules which contain specifications for the playing fields (Ryans at 6).
Ryans opposed the motion, “arguing that his claim falls outside the scope of” Article 43 “because the claim is based on the common law duty of care that a premises owner owes to invitees and is thus unrelated to any provision of the CBA” (Id. at 7).
The trial court denied the motion (Id.) and the Texans filed “an accelerated interlocutory appeal” from the order denying the motion to compel arbitration (Id. at 1). The Texas Court of Appeals stated that it faced “a single issue” of whether “the trial court abused its discretion in denying the motion to compel arbitration because Article 43 of the CBA is a valid arbitration agreement that encompasses Ryans’ premises-liability claim” (Id.). Ryans argued that the CBA provision, though valid, was “narrow in scope and does not encompass state law claims that, like his, neither depend on nor require reference to the CBA, or other documents to which Article 43 applies” (Id.).
The Court of Appeals Rules
Justice Laura Carter Higley’s Ruling The Court of Appeals issued its decision on August 1, 2019. Previously, Ryans had successfully argued to the trial court that his claim could not be preempted by the CBA requirement for arbitration, citing the Brown, Bush, and McPherson cases, discussed infra in Section e. Justice Higley distinguished those cases as only addressing plaintiffs’ claims that were not preempted by the four-corners of the CBA and not any accompanying documents such as the NFL Rules, which are also subject to the arbitration agreement under Article 43. Because Ryans’ claim centers on the separate NFL Rules document, Brown, Bush, and McPherson are inapposite.
Central to the nature of Ryans’ premises-liability claim is whether the conditions of NRG Stadium met applicable safety standards. The court found it impossible to rule out that the trier of fact may consider the applicable safety standards established in NFL Rules Playing Field Specifications (“PFS”).
Article 43 of the CBA is a valid arbitration agreement so it was possible that Ryans’ claim was within the scope of Article 43 because of the PFS. Thus the trial court abused its discretion by denying the Texan’s motion to compel arbitration.
Presumption of Arbitration — Justice Higley began her outline of applicable law and standard of review with a ten-thousand-foot overview of the FAA focusing on 9 U.S.C. § 2 (Ryans at 7-8), stating “that a written provision in a contract … to settle by arbitration a controversy shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”
In AT&T v. Concepcion, 563 U.S. 333, 339 (2011) the U.S. Supreme Court made a clear liberal policy of interpreting 9 U.S.C. § 2 in favor arbitration (Ryans at 8).
Application of this policy is explained in Ellis v. Schlimmer, 337 S.W. 3d 860, 862 (Tex. 2011) that when (1) a valid arbitration agreement is undisputed, then (2) policy requires the court to resolve any doubts as to the agreement’s scope in favor of arbitration (Ryans 8-9.) AT&T v. Commc’ns Workers, 475 U.S. 643, 650 (1986) stated that “a court should not deny arbitration unless it can be said with positive assurance that an arbitration clause is not susceptible of an interpretation which could cover the dispute at issue”(Ryans at 9).
Thus in determining whether Ryan’s claim falls within the scope of Article 43, the presumption in favor of arbitration applies and the parties must arbitrate unless it can be said with positive assurance that Article 43 is not susceptible of an interpretation that would cover Ryan’s claim” (Id.).
Scope of Broad Arbitration Agreement — As defined by In re J.D. Edwards, 87 S.W. 3d 546, 660-551 (Tex. 2002) and FD Frontier Drilling v Didmon, 438 S.W. 3d 688, 693 (Tex. App.) respectively, use of the terms “involving” and “any dispute” in a contract regarding an arbitration clause thereby makes the underlying contract a broad arbitration agreement (Ryans at 10). Didmon states that if the factual allegations of the complaint touch matters that have a significant relationship to, are inextricably enmeshed with, or are factually intertwined with the agreement then the claim in arbitrable (Id.). But if the facts alleged in support of the claim can be maintained without reference to the agreement then the claim is not arbitrable (Didmon at 695-696) (Ryans at 11).
Whether a claim falls within the scope of an arbitration agreement is a question of law (Didmon at 692-693), which the appellate court reviews de novo for abuse of discretion (Id.).
Analysis on Abuse of Discretion
Interpreting Article 43 Heading “Non-Injury Grievance” — Justice Higley examined the heading of Article 43, which reads “Non-Injury Grievance” (Id.). Ad Vallarai v Chan, 519 S.W.3d 132, 138 (Tex. 2017) established that headings in contracts are permissible indicators of meaning (Id.).
On first glance, the court found Ryans’ contention plausible that Article 43’s heading “Non-Injury Grievance” indicates his claim falls outside the agreement’s scope because his claim is essentially a “grievance” for the “injury” he sustained at NRG Stadium (Ryans at 12). However, further analysis reveals that the context of Article 43’s heading is not meant to indicate exclusion of all injury claims, rather it is only meant to differentiate the grievance procedure for injury claims set forth in Paragraph 13 of the NFL Player Contract entitled “Injury Grievance” which relate solely to claims asserted by a player against the Club employing him (Id.).
Orlando Brown v NFL, 219 F. Supp. 2d 372, 389 n.7 (S.D.N.Y. 2002) defined the term “Injury Grievance” as a specific kind of claim asserted by a player against the Club that employs him (Id.). Thus, the title and substance of Paragraph 13 indicates that Article 43’s heading “Non-Injury Grievance” was meant to distinguish it from Paragraph 13 disputes against the Club that employs the player as opposed to all other disputes, including grievances against an opposing team (Ryans at 12-13). The court also noted that the CBA itself expressly provides that its headings “are solely for the convenience of the parties, and shall not be deemed part of, or considered in construing, the agreement” (Ryans at 13).
In sum, Justice Higley held that Article 43’s heading does not indicate that Ryans’ claim, which he asserts against an opposing team and not his employer, falls outside the agreement’s scope (Id.).
Interpreting the Substantive Text of Article 43 — Justice Higley then analyzed the substantive text of Article 43 which states “any dispute … involving the interpretation of … any provision of the CBA, the NFL Player Contract … or any applicable provision of the … NFL Rules pertaining to the terms and conditions of employment of NFL players” (Id.).
The use of the terms “involving” and “any dispute” in Article 43 is indicative of a broad arbitration agreement giving it expansive reach and making it capable of encompassing disputes having a significant relationship to the CBA itself, NFL Player Contract, and NFL Rules (Ryans at 13-14).
The Texans contended that Ryans’ premises-liability claim involves interpretation and application of the CBA, NFL Player Contract, and NFL Rules. Though all three contentions are dispositive, Justice Higley only addressed the NFL Rules argument (Ryans at 14).
As pertains to the NFL Rules, the “Texans contend that Ryans’ claim involves the interpretation and application of the Playing Field Specifications (“PFS”)” within those rules (Id.). Both the parties agreed the PFS is part of the NFL Rules (Id.). Further, “Ryans does not dispute that the PFS pertains to the terms and conditions of employment of NFL players or that the NFL playing field is the workplace of the NFL players” (Id. fn.7).
The PFS characterizes the condition of the playing field as a “player safety issue” and requires each NFL Club to maintain its playing field in accordance with its applicable safety standards (Ryans at 15). The PFS requires inspections of the field prior to each game that must include an impact hardness test, a synthetic infill depth and evenness measurement, and a visual inspection for defects before every game (Id.).
Ryans’ premises liability claim alleges that various conditions on the playing field in NRG Stadium posed an unreasonable risk of harm due to negligent design, installation, and maintenance of the synthetic turf field which resulted in a severely uneven playing surface, with uneven hardness, and continuity problems which caused players to land awkwardly, trip, stumble, and sink into the turf resulting in severe and even career ending injuries (Ryans at 16-17).
Del Lago Partners v. Smith, 307 S.W. 3d 762, 767 (Tex. 2010) requires that on a claim for premises liability the invitee must prove that a condition on the premises posed an unreasonable risk of harm (Ryans at 16). Additionally, in Cohen v. Landry’s Inc., 442 S.W. 3d 818, 827 (Tex. App. 2014) the trier of fact may consider “whether the condition met applicable safety standards” (Id.).
Justice Higley held that to determine whether Ryans’ allegations are true, the trier of fact may consider whether the playing field met applicable safety standards established by the PFS (Ryans at 17). Therefore, because factual allegations of Ryans’ premises-liability claim involve the interpretation or application of the PFS within the NFL Rules, and because the NFL Rules are subject to the arbitration clause under Article 43, it cannot be said with positive assurance that Article 43 is not susceptible of an interpretation, which would cover Ryan’s claim. (Id.).
Scope of Article 43 Further Examined — Ryans insisted that his claim falls outside Article 43’s scope and analogizes the present case to three federal cases involving NFL players who asserted state law tort claims against the NFL and a game official, Orlando Brown v. NFL 219 F. Supp. 2d 372, (S.D.N.Y. 2002); against the home team and the stadium owner and stadium operator, Reggie Bush v. St. Louis CVC, St. Louis Rams & St. Louis Regional Sports Convention Center, No. 4:16CV250 JCH, 2016 WL 3125869 (E.D. Mo. June 3, 2016); and against the home team, McPherson v. Tenn. Football Inc. d/b/a/ Tenn. Titans 2007 U.S. Dist. LEXIS 39595 (M.D. Tenn. May 31, 2007) (Ryans at 17-18). In each of those personal injury cases the injured NFL player did not include his own team in his lawsuit. Brown settled his claim against the NFL and Bush went to trial in the summer of 2018 against the home team St. Louis Rams on his personal injury claim. That case is now on appeal. Moreover, after McPherson’s case was remanded to state court, the trial court ordered arbitration (Id. at 19, fn. 9).
In each case, the defendant removed the action to federal court, and each case was remanded back to state court after ruling the plaintiff’s claims were not preempted by the CBA (Ryans at 18). Ryans contends this shows his premises-liability claim does not require the interpretation or application of CBA and therefore falls outside the scope of Article 43 (Id.).
However, the court disagreed because each of these federal cases related solely to the interpretation of the four-corners of the CBA itself, whereas here Ryans’ claim specifically involves the interpretation of the separate NFL Rules document (Ryans at 18-19.) Thus, these cases are inapposite. Ryans thus failed to convince the Court of Appeals that his case could avoid arbitration against the Texans, so now at least as to those two parties the case will be arbitrated under the terms of the NFL CBA.
It should be noted that the term “equity” was never addressed by the appeals court was “equity” or the trial court’s right to revocation as a matter of equity. That may give Ryans an opening for further review.
Ryans had hoped to avoid arbitration following the examples in Orlando Brown and to date at least, Reggie Bush. At least as to the home-team Houston Texans that was not to be. One can assume that the other defendants will now seek a stay of the lawsuit pending the outcome of the arbitration, or perhaps they night even attempt to join the arbitration. Plaintiff’s counsel will also stress the “equity” angle in their efforts to avoid arbitration.
Plaintiff’s counsel thought the way to avoid arbitration was to simply not name the player’s team but it is no longer that simple under the 2011 CBA. Presumably the next similar case will only name the stadium owner and/or operator and ignore the home team, with a hope of thus avoiding arbitration on personal injury claims. The law, like football players, is ever in motion. In the meantime, Ryans delivered a severe blow to NFL players that seek refuge in the courts for their claims and thus avoid the arbitration provisions in their contract and the CBA.
Sean Halloran attends Southwestern Law School in the Trial Advocacy Honors Program, graduating class Spring 2020, and attended UCLA as an undergraduate.
Birren is the former general counsel of the Oakland Raiders and is an adjunct professor of law at Southwestern.