By Jeff Birren, Senior Writer
Dent plaintiffs are nine former NFL players who seek to represent a class that played between 1969 and 2014. They sued the NFL in 2014, and “allegedly suffered injury from what they claim was a ‘return to play’ business plan prescribed by the NFL” (Richard Dent et al v. National Football League, U. S. Court of Appeals for the Ninth Circuit, Case No. 19-16017, (“Dent II”), (8-7-20) at 4). By filing solely against the NFL, the plaintiffs sought to avoid the arbitration clause in the players’ contracts and the limitations imposed by workers compensation law. Dent was filed after another district court judge in the concussion litigation did not rule on the NFL’s motion to dismiss, but instead pushed the parties to settle. During that process, Dent was born, thus again proving the maxim: “no good deed goes punished.”
District Court Judge William Alsup granted the NFL’s motion to dismiss Dent, but the Ninth Circuit “reversed the district court’s preemption decision” as to all claims, including negligence” (Dent II at 5, citing Richard Dent et al v. NFL, 902 F.3d 1109, 1117-18 (9th Ci. 2018) (“Dent I”)). After Dent wasinitially dismissed, plaintiffs’ counsel filed a similar case against the individual clubs, Etopia Evans et al v. Arizona Cardinals et al, in Maryland federal court to avoid Judge Alsup. Evans also included a RICO claim. The Maryland Court transferred it to the Northern District of California and naturally it went to Judge Alsup. Some of Evans went by way of a motion to dismiss, (SLA, Court Dismisses Claims Brought by Ex-NFL Players in Pain Medication Litigation, (3-17-17)) and the rest was tossed on summary judgement months later, based on various states’ workers’ compensation statute exclusive remedy provision (SLA, Judge Grants Summary Judgment on the Few Remaining Claims in NFL ‘Painkiller’ Case (9-1-17)). The Ninth Circuit affirmed (761 F. App’x 701 (9th Cir. 2019)).
These pages have previously charted the progress of the Dent case. (See, SLA, “Judge Grants NFL’s Motion to Dismiss Prescription Drug Claim Brought by Players”, (12-26-14); SLA, “Judge Grants Summary Judgment on the Few Remaining Claims in NFL ‘Painkiller’ Case”, (9-1-17); SLA, “Ninth Circuit Revives Prescription Drug Claims Case Against the NFL”, (12-7-18), among others.) Consequently, the rest of the background will not be repeated here.
After Dent 1 revived the case,the plaintiffs filed a Third Amended Complaint (“TAC”) based solely on negligence (Dent II at 6). It claimed that the “NFL negligently facilitated the hand-out of controlled substances to dull players’ pain and return them to the game after injury in order to maximize revenues by keeping marquee players on the field” (Id.). The TAC contained a “painstaking recitation of injuries sustained by Plaintiffs and the medication they recall receiving during their tenure with the NFL” (Id. at 7). It asserted that the NFL, and not just the member clubs, were required to comply with federal and state laws, or that it “voluntarily undertook the duty” to do so (Id. at 6).
The NFL responded with another motion to dismiss. Judge Alsup granted the motion in April 2019, ruling that the TAC “did not plausibly allege negligence under a per se theory” because the TAC “did not provide evidence of ‘direct involvement in the handling, distribution and administration’ of controlled substances by ‘the NFL itself’” and the “order went on to swiftly dismiss Plaintiffs’ other theories, and thus their negligence claim altogether” (Id. at 8)(emphasis in the original). The plaintiffs again appealed. Oral argument was in San Francisco on March 12, 2020 (Id. at 1).
Legal Standards
The Court reviewed the dismissal “de novo.” It had to accept “all material allegations in the complaint as true” and to construe them most favorably to the plaintiffs. This requires more than “a sheer possibility” that the defendant has acted unlawfully (Id. at 8). The Court then turned to the first dismissed allegation, negligence “under a per se theory” (Id. at 9).
Negligence Per Se
This requires the usual negligence pleading standard, including “facts to support the four elements of negligence: duty, breach causation and damages” (Id.). Negligence per se “is not a separate cause of action but creates an evidentiary presumption that affects the standard of care” and the complaint “may refer to a statute” (Id.). It establishes a “presumption of negligence for which the statute serves the subsidiary function of providing evidence of an element of a preexisting common law” cause of action (Id. at 9/10).
Plaintiffs’ “primary argument” was that the district court “misconstrued both the thrust of their allegations and the NFL’s duty, as identified in Dent I” (Id. at 10). The Court agreed “in some respects” but “there was no error” because the district court “correctly identified deficiencies in” the pled allegations (Id.).
Dent I recognized that there was no statute on point, but there was a duty to “exercise reasonable care in the distribution of medications” (Id.). To the extent that the NFL was “involved int the distribution of controlled substances” it owed a duty to the plaintiffs (Id.). The district court wrongfully assumed that this required the plaintiffs to allege a “direct involvement” by the NFL. Dent I “did not adopt such a rigid construction” but referred to the allegations that the NFL” might have “directly and indirectly supplied players” with such drugs or that it might have “coordinat[ed] the illegal distribution of painkillers and anti-inflammatories” (Id.) (emphasis in the original).
The plaintiffs had therefore “facially” alleged a duty “somewhat similar to that identified in Dent I” (Id.). The TAC pointed “to specific provisions of the federal drug statutes they claim the NFL violated through the actions of ‘NFL doctors and trainers’” (Id. at 11). However, it failed to “marshal facts that tether the alleged statutory violations to concrete actions of the NFL (i.e. allege breach.) This shortcoming became clear at oral argument when Plaintiffs’ counsel acknowledged that the phrase ‘NFL doctors and trainers’ as used in the TAC, does not actually refer to any employees of the NFL itself” (Id.). Counsel “conceded that the ‘NFL’ and ‘Club’ doctors and trainers are one and the same and are in fact hired hands of the Clubs” (Id.).
The TAC thus suffered from a “dearth of allegations regarding the NFL behavior that violates the duty to ‘comply with federal and state laws’” (Id.). The “allegations of breach” did not sufficiently “connect back to the NFL.” Moreover, the plaintiffs admitted that “the Club doctors and trainers appear to be the only relevant actors purportedly in violation of statutory requirements” (Id.).
The plaintiffs may have “suffered myriad serious injuries but because they could not “tell us exactly what NFL actions are responsible for them, it is impossible to ascertain whether there is proximate causation.” The TAC’s “absence of facts” “pertaining to the NFL’s alleged breach and causation of damages dooms any possibility of recovery under this theory” and the Court affirmed the dismissal of the “per se theory of negligence” (Id.).
“Voluntary Undertaking”
The second negligence theory was “voluntary undertaking.” This has a four-part test: (1) that the defendant “undertook to render services to another;” (2) “… of a kind that the actor should have recognized for the protection of [the plaintiff]”; (3) “the actor failed to exercise reasonable care in the performance of the undertaking;” (4) that the failure “resulted in the physical harm” to the plaintiff; “and (5)(a) the actor’s carelessness increased the risk of such harm” (Id at 12/13). The NFL asserted plaintiffs were estopped from asserting this theory “because it was not raised at the time of Dent I.” The Court disagreed, as the “earlier assertion that their negligence per se argument was the ‘primary duty at issue’ does not raise to the level of a ‘clearly inconsistent’ position” (Id. at 12, FN #3).
The TAC alleged that the NFL “voluntarily undertook a duty to ‘ensure the proper recordkeeping, administration and distribution of Medications,’ but ultimately failed to protect players due to its ‘business culture’ that supposedly depended on keeping players in the games” (Id. at 13). Plaintiffs supported their statement “with factual allegations that the NFL created a drug oversight program in 1973, which ‘required teams and their doctors to report to the NFL regarding the administration of Medications’” (Id.) (emphasis in the original).
Plaintiffs asserted that by the early 1990’s, the NFL “allegedly ‘began auditing clubs’ compliance with [federal drug] laws” including the types and amounts of such medications and related information (Id. at 14). Furthermore, the NFL “mandated procedures to control the drug administration system” including requiring storage facilities, tracking software, periodic audits, annual meetings with NFL officials and club physicians, and that the NFL has funded studies on the medication Toradol, and that the NFL commissioned a document that stated that “inappropriate opioid and non-opioid pain medication” was “much more prevalent in the NFL than in virtually any other industry” (Id.) (emphasis in the original).
The TAC claimed the “NFL has promulgated rules” for compliance with its prescription drug program that included guidelines “for the utilization of all prescription drugs provided to players” and this was done to “ensure” the appropriate handling of such medications “in compliance” with Federal Drug Enforcement Administration (“DEA”) regulations (Id. at 15). Finally, the TAC stated that when the DEA “investigated the clubs” in 2010 it found that “nothing had changed. The clubs did not understand–and were in woeful noncompliance with—the law regarding controlled substances, as evidenced by the many, many violations thereof” and that “the NFL allegedly was aware of this from its audit results by nonetheless turned a blind eye to maximize its revenues” (Id.).
The Court felt these “allegations read much more like” its opinion in Mayall ex rel. H.C. v. USA Water Polo, Inc. 909 F.3d 1055 (9th Cir. 2018) (Id.).In Mayall the Circuit held that the defendant had a duty not to increase the risks for a sports participant. (For a description of Mayall, see SLA, “Federal Appeals Court Revives Concussion Lawsuit Against USA Water Polo,” (12-7-18)). Dent II stated that this circuit and “other courts have previously noted that the NFL ‘promotes, organizes and regulates professional football in the United States,’’ quoting Williams v. NFL, 902 F.3d 863, 868 (8th Cir. 2009) (Id.).
The NFL asserted that no prior court had ever held that a professional sports league “owed a duty to intervene and stop mistreat by the league’s independent clubs” (Id. at 16). To the Court, the issue was not a duty to intervene but rather “for the NFL to properly exercise a voluntarily undertaken duty to create and then enforce league-wide rules regarding player safety and drug distribution” (Id.). The League did not have duty to protect the players but “it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport” (Id.). The Court “believe[d]’ that the TAC’s “allegations are sufficient to raise a claim that the NFL undertook such a duty here” (Id.).
This alleged breach led to a claim of “physical harm” by the players (Id.). Furthermore, “it was within the NFL’s control to promulgate rules or guidelines that could improve safety for players” and the “TAC even alleges that the NFL has already demonstrated its ability to create better policies, regarding Toradol use for example, but has failed to enforce them” (Id. at 17). The TAC also “includes allegations” that the NFL’s failure “increased the risk” of physical harm to the plaintiffs (Id.). “[T]hese are adequate allegations that the NFL’s carelessness in allowing drugs to be distributed as they were increased the harm” to the plaintiffs (Id. at 18). The Court therefore overruled the district court.
The “Special Relationship” Theory of Negligence
The final claim was based on the supposed “special relationship” between the players and the NFL. California law requires that if such a relationship exists, a defendant has a duty to warn or protect “the potential victim that gives the victim a right to expect protection” (Id. at 18). However, the plaintiffs “failed to reference ‘a special relationship’ even once in the TAC” nor did they “allude to any particular vulnerability or dependency of their community” (Id. at 18/19). The Court therefore rejected this theory in two paragraphs. At this point, the plaintiffs appeared to be beyond the motion to dismiss stage on the “voluntary undertaking” theory of negligence. Maybe.
The Maybe
The Court stated that although the plaintiffs “properly pled a theory of negligence, we recognize that the issue of § 301 preemption under the LMRA (Labor Management Relations Act, 29 U.S.C. § 141) lurks in the background” (Id. at 19). Dent I stated that state law claims based on rights created by a Collective Bargaining Agreement (“CBA”), and claims “substantially dependent on analysis” of a CBA were barred by the LMRA. Furthermore, the Dent plaintiffs “did not expressly plead a voluntary undertaking theory” in the complaint that was before the Court in Dent I. Consequently, the district court “did not consider whether Plaintiffs’ voluntary undertaking claim is preempted” (Id.).
The Court had the “discretion” to consider the issue but declined to do so “because we do not have all potentially relevant CBAs before us in this latest appeal.” It thus remanded the case “for consideration of the preemption question as to this claim in light of the relevant CBAs and our guidance in Dent I” (Id.). It “should examine afresh whether the NFL’s general disclaimer of liability for individual players’ medical treatment is relevant to the sufficiently plead allegations of the organization’s inaction” and in light of the “audit results” that demonstrated a “failure to safely distribute painkillers” (Id. at 20). The court ended by stating that “each party was to bear its own costs” (Id.).
Going Forward
The district court will now consider the preemption issue as to the voluntary undertaking claim. As the NFL’s first CBA was in 1968, even the earliest plaintiffs were covered by a CBA. There was a new CBA in 1968, 1970, 1977, 1982, 1993, 2006, and 2011. Both sides will now be closely reading all of them to see what was included and how it impacts the Dent litigation. There cannot be many prospective plaintiffs who played in 1969 and who were senior enough then to be an NFLPA Club Representative or NFLPA officer who could testify about the 1968 CBA. There are also few remaining NFL owners or executives left who could do so.
That research could lead to different results for the Dent plaintiffs because the CBAs have kept increasing in length. Furthermore, the Court noted the NFL’s “audits” did not begin until “at least the early 1990s” (Id. at 14) so if that is legally relevant to finding potential liability members of the putative class that played prior to the audits may be foreclosed from recovery.
Conclusion
After more than six years of litigation, the parties are headed back Judge Alsup. The CBAs will be produced, and the plaintiffs will then wait for the NFL’s motion to dismiss based on federal labor law preemption under Section 301 of the LMRA. That motion will be heard by the same judge who twice dismissed the case and is the judge that plaintiffs’ counsel tried unsuccessfully to avoid by filing Etopia Evans in Maryland, only to have it transferred to Judge Alsup, and then dismissed. This case is greatly reduced from the original complaint, but there is still life in it, for now at least.
