By Jeff Birren, Senior Writer
Philadelphia offensive tackle Lane Johnson is a better football player that a litigant. In 2016 Johnson failed a test for a performance-enhancing substance, leading to a suspension by the NFL. Johnson responded by filing a grievance. He lost, so he sued to overturn the suspension and sought damages. Once his case was moved to the correct court, he lost again and appealed to the Second Circuit. On July 17, 2020 the Second Circuit affirmed the District Court.
The Facts
Johnson played college football first at Kilgore Junior College and then transferred to Oklahoma. He played tight end and defensive end before switching to offensive tackle in 2011. In 2013 Philadelphia selected him with the fourth pick of the NFL Draft and he started all 16 games that season. In May 2014 Johnson “tested positive for a performance-enhancing substance and served a four-game suspension” (David Lane Johnson v. National Football League Players Association (“NFLPA”) National Football League (“NFL”) and National Football League Management Council (“NFLMC”), (“Johnson”), U.S. Court of Appeals, Second Circuit, Case No. 19-2734-cv, (July 17, 2020) “Summary Order” at 3).
Johnson appealed, claiming that he had made a mistake because the drug was prescribed to him by his family physician who did not know the NFL rules. He lost, and thus became subject to reasonable cause testing up to 24 times a year (Sports Illustrated, Michael McCann, “Lane Johnson’s Bold Move” (“Bold Move”) (1-11-17)). There is an adage that one “who does not learn from history is bound to repeat it” and so it was to be for Johnson.
In January 2016 Johnson signed a six-year contract extension for over $63M, making him the NFL’s highest-paid right tackle. For reasons unstated, Johnson “twice” ingested “a prohibited substance that he had obtained from an anonymous ‘friend’” and in July Johnson was informed that he had again tested positive for a performance-enhancing substance (Johnson at 3). To Johnson the fault lay elsewhere, and with almost everyone else. He “challenged the procedures pursuant to which his urine same was collected and analyzed” and filed a grievance (Id. at 3/4). He went public with his complaints and “believed that other persons, groups and even the government were at fault” (Bold Move at 3). He “attributed the positive result to taking an amino acid supplement, manufacturers of which Johnson has threatened to sue for incorrectly listing ingredients. Johnson also blamed the NFLPA for providing players with an app designed to inform players about approved and disapproved substances” and even “criticized the U.S. Food and Drug Administration’s lack of regulation over supplements” (Id.). Johnson asked that the “B” sample be tested and that also came back positive (Id. at 4).
The arbitration went forward. Johnson sought discovery on a number of issues, even how the arbitrator was selected. He objected to the arbitrator, an attorney at Wilmer Hale, alleging conflicts of interest between Wilmer Hale and the NFL and NFLPA. The arbitrator ruled on October 11, 2016 that “the drug test was authorized under” the NFL’s policy and “that ‘none of the collection and analysis issues’ raised by Johnson justified overturning his suspension” (Johnson at 4).
Johnson Heads to The Wrong Court
So, Johnson sued the NFLPA, the NFL and the NFLMC in the Northern District of Ohio (David Lane Johnson v. NFLPA, NFL & NFLMC, (N.D. Ohio, Case # 5:17-cv-0047SL, Document #1, Complaint and Petition To Vacate Arbitration Award (1-6-17) (“D.L. Johnson”). He sought “vacatur of the arbitration award” and asserted “claims against the NFL, the Management Council, and the Players Association for breach of the duty of fair representation, breach of the CBA, and a violation of his rights under the LMRA, the National Labor Relations Act (‘the “NLRA’), and the Labor Management Relations Disclosure Act” (Johnson at 4). Johnson apparently depicted the NFLPA as “as corrupt and incompetent” (Bold Move at 6). Moreover, it supposedly “deliberately withheld relevant and pertinent information” from him and that it “retaliated against Johnson because of its public dispute with Johnson over the poor quality of the NFLPA’s representation” and that this was done “out of personal animosity” (Id.). He also claimed the NFLPA breached its duty of fair representation “’by willfully and fraudulently mislead[ing]’ him about his appeal options and strategies” and “’depriving’ him of the chance to receive and inspect documents germane to his appeal” (Id.).
Johnson was not from Ohio, he did not play college or pro football in Ohio, nor is the NFL or NFLPA office located in Ohio. His only apparent connection to the state is that his lawyer is based in Cleveland. Johnson’s next legal defeat was soon coming.
The defendants responded by filing motions to transfer the case to the Southern District of New York and to stay the Ohio litigation (D.L. Johnson, Memorandum Opinion and Order, Doc. #68, at 1/2 (7-6-17)). Johnson opposed the motions and claimed that he appealed his suspension “from Ohio” (whatever that is supposed to mean) (Id. at 4). He also “appears to be relying upon the fact that Cleveland, Ohio has an NFL team (the Browns) as the basis for venue” and thus the NFL and all of its teams were residents of Ohio (Id. at 6). To the Court at least, “the issue is quite simple: is the Northern District of Ohio the appropriate venue for a case that: involves a plaintiff from Oklahoma who plays professionally for a football team that operates out of Philadelphia, Pennsylvania, and three defendants who are headquartered in New York, NY, New York, NY, and Washington, DC, respectively” and that sought to set aside an arbitration that took place in New York City (Id. at 4).
The Court found that venue was not proper in Ohio and that even if it was it would still grant the motion to transfer “to a more convenient forum” (Id. at 6). Thus, the parties were back in “New York, NY”. With the case now in its proper venue, Johnson did not have to wait long until his next judicial loss.
In the Right Court
The NFLPA, NFL and NFLMC filed motions to dismiss. The case had the ironic twist of placing Daniel Nash of Akin, Gump, long-time counsel for the NFL and NFLMC, and Jeffrey Kessler, one of the NFLPA’s counsel, on the same side. Usually they are on opposite sides of NFL-NFLPA cases. Johnson opposed the motions. On October 3, 2018 the Court confirmed the arbitration award, denied Johnson’s petition for vacatur, and dismissed Johnson’s duty of fair representation claim against the NFLPA because “Johnson had failed to plausibly allege that the Players Association acted in an arbitrary or discriminatory manner or in bad faith, or that their actions had seriously undermined the arbitral process” (17-cv-5131(RJS), Case Doc. #124, (S.D. N.Y) LEXIS 225346), (Johnson at 4). It denied the motion as to one claim “because it concluded that the Players Association had failed to provide a copy of a side agreement relating to the timeline for reasonable-cause testing” (Id. at 4/5). That document was soon forth-coming (Id. at 5).
Johnson’s next loss came a month later when the Court granted the NFL and NFLMC’s motion to dismiss, “holding that Johnson’s failure to plausibly allege a violation of the duty of fair representation by the Players Association necessarily precluded his LMRA claim against the NFL and the Management Council” (Case Doc. #145, LEXIS 200646) (Johnson at 5).
Having produced the previously withheld document, the NFLPA moved for summary judgment on the remaining claim. Johnson opposed the motion and as always sought further discovery. The Court rejected his motion for additional discovery in January 2019 (Id.), yet Johnson’s summary judgment opposition was based on his supposed need for further discovery. Finally, on August 2, 2019 the Court granted summary judgment to the NFLPA. “Johnson failed to show a material dispute as to whether all agreements to which he was entitled had been produced to him” (Johnson at 6). Since the document had been produced, the claim was “moot” and that the “threadbare” “retaliation” claim was “clearly nonviable and cannot be the basis for ongoing litigation and discovery in this case.” The Court concluded by stating that the “Clerk of the Court is respectfully directed to terminate the motion … and to close this case” (Johnson, Opinion and Order, Case Doc. #155, LEXIS 129500 (8-2-19) at 7).
Johnson appealed and concluded his opening brief by stating that he was seeking to “reverse the District Court’s denial of Johnson’s motion to vacate” and “reverse the District Court’s grant of summary judgment in favor of the NFLPA, permit Johnson to conduct discovery, require the NFLPA to answer Johnson’s Amended Complaint, and reverse the District Court’s orders granting, in part, the NFLPA’s motion to dismiss, granting the NFL’s motion to dismiss under Civil Rule 12(c), and denying Johnson’s motion to vacate” (Johnson, Opening Brief at 37, Doc. # 51 (12-10-19). The NFL filed its appellate brief on 3-10-20 (Doc. # 77). The NFLPA also filed on 3-10-20 (Doc. #76) and after it was told that it was defective, filed a “cured” brief on 3-13-20 (Doc. #82). Johnson’s reply brief came on April 21, 2020 (Doc. #97). Oral argument was held on June 24, 2020 (Doc, #107). Johnson did not have to wait long as the Second Circuit issued its Summary Order less than four weeks later.
The Second Circuit Speaks
The Circuit began by considering Johnson’s claims that the District Court erred in dismissing his hybrid duty of fair representation claim against the NFLPA and his LMRA claim against the NFL and NFLMC. The Court reviewed the dismissals de novo (Johnson at 6). It stated that it was a hybrid claim because it was both a claim against the union and a LMRA Section 301 claim against the employer. To establish such a claim Johnson had to allege both that the NFL breached the collective bargaining agreement and the union breached its duty of fair representation. Johnson could sue both, but he therefore had to “allege violations on the parts of both” (Id.). Johnson insisted that the NFLPA breached its duty due to its “failure to provide him with documents, including ‘the complete Policy, his discipline file, and his testing file’’ and “this amounted to a ‘per se’ breach of its duty of fair representation” (Id. at 7). The Court yawned.
“This contention finds no support in our precedents, but even assuming the failure of the union to produce documents constitutes such a breach, Johnson remains unable to identify how the failure of the Players Association to provide these documents affected the outcome of his case” (Id.). Moreover, the arbitrator was aware of these discovery requests but “nonetheless confirmed Johnson’s discipline, finding that ‘none of the collection and analysis issued raised by… Johnson ‘justified overturning his suspension’” (Id.). The arbitrator had also rejected his argument “that access to these side agreements … would have changed the arbitral outcome. We agree and affirm.” The dismissal of that claim “necessarily precluded his LMRA § 301 claim against his employers” (Id. at 8).
The Court then turned to the summary judgment ruling. The court below found that the NFLPA had eventually “produced all of the documents to which he was entitled” and granted summary judgment (Id. at 9). Johnson argued that there was a “material dispute” as to whether all of the documents had been produced. This went nowhere. “Johnson’s first argument lacks merit because he was unable to dispute the evidence in the record that all relevant documents had been produced” since the NFLPA had submitted declarations from its legal team “that all amendments to the Policy had been produced.” “Johnson’s speculation that additional relevant documents existed was insufficient to create a material dispute” (Id. at 9).
Johnson’s second argument was that due to the delayed production he was “entitled to damages, including compensatory, punitive damages, and attorney’s fees and costs” (Id.). The Court did not agree. “Johnson suffered no actual damages” due to the “belated production, as it had no impact on the arbitral outcome, and he failed to make any showing of bad faith on the part of the union” (Id. at 10).
Johnson also challenged the denial of his discovery motion. That issue was reviewed for “abuse of discretion.” The Court cited the statute and two prior cases, and at the end of a four-sentence paragraph the Court stated that: “We see no abuse of discretion here” (Id.).
Johnson’s final argument was that the District Court “erred in denying his motion to vacate the arbitration award” because the NFLPA’s “failure to provide him with the entire Policy at the time of his arbitration deprived him of a ‘full and fair hearing’” (Id.). The Court stated that it reviewed such orders “de novo on questions of law and for clear error on findings of fact” citing Tom Brady’s defeat in the Second Circuit, 820 F.3d 527 (2nd Cir. 2016). Johnson’s “belief that he was deprived of certain documents relating to the Policy at the time of his arbitration comes nowhere close to the high threshold needed to vacate an LMRA arbitration award under our precedent. The arbitrator was specifically authorized under the Policy to make discovery rulings, and he was well within his broad discretion to explicitly reject many of the document requests Johnson seek to revive here” again citing Brady (Id. at 11).
Johnson had been “given clear notice of the contemplated disciplinary action that was to be taken against him, the appeal was heard by a qualified arbitrator and he had a full and fair opportunity to present his arguments. That was more than sufficient under our precedent to confirm the award” (Id.). With that, the Court affirmed “the judgment and orders of the District Court” (Id. at 12).
Conclusion
Johnson’s chances for a successful certiorari petition in the Supreme Court are small. Back in 2016 he also blamed the pharmaceutical company that made his drug but claims against it may now be barred by the statute of limitations. It is likely time for Johnson to move on, knowing that a third failed test would lead to a suspension for two seasons, that he would then have to petition in order to be reinstated, and that a legal challenge to such a suspension is not likely to succeed.
Johnson can now serve as a learning lesson to current and future players who are contemplating performance enhancing drugs. The “blame game” is unlikely to work and Johnson’s loss of ten weeks of salary, plus the obligation to pay his defendants’ legal costs may deter others from using such drugs. Lawyers eager to represent those who fail such tests will be obligated to explain the unlikely chances of winning such a challenge and what the actual cost will be. Finally, athletes, their family, friends, and advisors need to understand that “I did not know” is not going to work in the arbitration or in court seeking to overturn an adverse arbitration ruling.
