Introduction
On September 6, 2018, the Ninth Circuit Court of Appeals in California breathed fresh life into a case brought by a putative class of retired professional football players (“players”) against the National Football League (“NFL”). See Dent v. NFL, No. 15-15143, 2018 U.S. App. LEXIS 25302 (9th Cir. Sep. 6, 2018) (“Dent”). The players assert that the NFL directly provided medical care and supplied powerful prescription drugs to players, in violation of federal and state laws, which allegedly resulted in permanent orthopedic injuries, drug addictions, heart problems, nerve damage and renal failure. After the district court ruled that these claims were preempted (i.e., barred) under Section 301 of the Labor Management Relations Act (“LMRA”), a unanimous, three-judge panel reversed. The Ninth Circuit held that the players’ claims did not trigger a dispute “over the rights created by, or the meaning of,” the NFL’s collective bargaining agreements (“CBAs”), thus leaving the parties to address the players’ claims on the merits at the district court. The Ninth Circuit was careful to “express no opinion about the ultimate merits of the players’ claims”; and whether the players’ claims are adequately pled, or create a sufficient factual question that could lead to trial, will be questions for the district court in the months to come.
Factual Allegations and District Court Ruling
The NFL is an unincorporated association of thirty-two independently owned and operated football “clubs”, or teams. Although the NFL “promotes, organizes, and regulates professional football in the United States,” the NFL “does not employ individual football players; they are employees of the teams for whom they play.” Since 1968, the NFL, its member teams, and the NFL players have been bound by a series of CBAs which, since 1982, include provisions regarding “players’ rights to medical care and treatment.” The CBAs generally require teams to employ board-certified orthopedic surgeons and trainers certified by the National Athletic Trainers Associations. The CBAs have also guaranteed players the right to access their medical records, obtain second opinions, and choose their own surgeons.
Retired NFL football player, Richard Dent, played in the league for fourteen years. On behalf of himself and other retired NFL players, Dent sued the NFL in 2014 in federal district court in San Francisco, alleging that since 1969, the NFL has distributed controlled substances and prescription drugs to its players in violation of both federal and state laws. The complaint also alleged that the manner in which the drugs were administered left the players with permanent injuries and chronic medical conditions. Dent claims that doctors and trainers gave him “hundreds, if not thousands” of injections and pills that contained powerful painkillers so that he could stay on the field. More broadly, the complaint alleges that players “rarely, if ever”, received written prescriptions for the medications they were given. Instead, the players claim that they received, and were told to take, pills in “small manila envelopes that often had no directions or labeling”. The players allege that throughout their years of taking the medications, no one from the NFL warned them about potential side effects, long-term risks, interactions with other drugs or the likelihood of addiction. In Dent’s particular case, he ended his career with an enlarged heart, permanent nerve damage in his foot and an addiction to painkillers.
Although the doctors and trainers who address players’ medical needs are employed by the teams, rather than the NFL, the players’ operative complaint alleges that the NFL directly provided medical care and supplied drugs to players. Among other things, the players assert that the NFL:
- “directly and indirectly supplied players with and encouraged players to use opioids to manage pain before, during and after games in a manner the NFL knew or should have known constituted a misuse of the medications and violated Federal drug laws;”
- “directly and indirectly supplied players with local anesthetic medications to mask pain and other symptoms stemming from musculoskeletal injury when the NFL knew that doing so constituted a dangerous misuse of such medications”; and
- “made knowing and intentional misrepresentations, including deliberate omissions, about the use and distribution of the Medications.”
With these allegations as their baseline, the players sought to represent a class of plaintiffs who had “received or were administered” drugs by anyone affiliated with the NFL or an NFL team. The claims the players filed were styled as ones grounded in state law (albeit with the specific state unspecified), including: negligence per se, negligent hiring and retention, negligent misrepresentation, fraudulent concealment and fraud. The players sought relief that included damages as well as injunctive relief, declaratory relief and medical monitoring.
Facing these allegations, the NFL filed a motion to dismiss, contending that the claims are preempted under Section 301 of the LMRA. The NFL also contended that the players failed to sufficiently state legal claims, and that their claims were time-barred. The district court sided with the NFL on the preemption issue, dismissing the case without ruling on the NFL’s other challenges. The court relied on Section 301 of the LMRA, which Congress passed in order to “protect the primacy of grievance and arbitration as the forum for resolving CBA disputes and the substantive supremacy of federal law within that forum.” Section 301 preempts state law claims “founded directly on rights created by collective bargaining agreements, and also claims substantially dependent on analysis of a collective bargaining agreement.”
Ninth Circuit’s Reversal of the District Court: Players’ Claims Not Preempted
On appeal, the Ninth Circuit reversed the district court’s preemption ruling in favor of the players. The Ninth Circuit explained that a “hypothetical connection between the claim and the terms of the CBA is not enough to preempt the claim.” (Emphasis in original.) For purposes of preemption, the “plaintiff’s claim” must be the “touchstone”, and the “need to interpret the CBA must inhere in the nature of the plaintiff’s claim.” In contrast, merely “consulting a CBA” does not “constitute interpretation of the CBA for preemption purposes.” The Ninth Circuit then considered whether the players’ allegations, as pled, arose from the CBAs and, if not, whether establishing the elements of the claim would require interpretation of the CBAs. The answer to each, the Ninth Circuit held, is no.
As the Ninth Circuit read the complaint, the players “are not merely alleging that the NFL failed to prevent medication abuse by the teams, but that the NFL itself illegally distributed controlled substances, and therefore its actions directly injured players.” (Emphasis in original.) The Ninth Circuit held that the players’ negligence claim was not preempted; as the NFL players’ right “to receive medical care from the NFL that does not create an unreasonable risk of harm” does not arise from the CBAs. The CBAs, as the Court noted, “do not require the NFL to provide medical care to players, and the players are not arguing that they do.” What the players argue is that the NFL “violated state and federal laws governing prescription drugs.”
In turn, the Ninth Circuit held that the players’ negligence claim did not require interpretation of the CBAs, because each element — duty of care, breach, causation, and damages — falls outside the scope of the CBAs. In so holding, the Ninth Circuit distinguished another case, Williams v. Nat’l Football League, 582 F.3d 863 (8th Cir. 2009), on the basis that Williams involved an alleged failure to warn claim as applied to certain supplements that contained a banned substance. The players in Williams, unlike in Dent, had procured “the supplements on their own; in fact, they were taking supplements against the advice of the NFL.” (Emphasis added.) Not so here, said the Ninth Circuit, where the players alleged the “NFL has a duty to avoid creating unreasonable risks of harm when distributing controlled substances that is completely independent of the CBAs.” The Ninth Circuit also distinguished obligations of teams from the NFL: “if the NFL had any role in distributing prescription drugs, it was required to follow the law regarding those drugs” regardless of what each NFL team’s obligations may have been within the meaning of the CBAs.
What is more, the Ninth Circuit expressed “no opinion regarding the merits of the plaintiffs’ negligence claim”. As the Ninth Circuit described it, the players may or may not be able to prove the elements of the claim. “That must await completion of discovery.” The Appeals Court held “only that the [players’] negligence claim regarding the NFL’s alleged violation of federal and state laws governing controlled substances is not preempted by [Section] 301.” The Appeals Court pointed out that the players’ “theory of direct liability”, rather than vicarious liability, is what distinguished this case from others in which similar, if not identical, claims had been made; and further proceedings before the district court “should be limited to claims arising from the conduct of the NFL and NFL personnel — not the conduct of individual teams’ employees.”
In addition, the Ninth Circuit addressed the players’ negligent hiring and retention claim with respect to doctors and trainers, observing that if the NFL “did in fact hire doctors and trainers to treat the players, or hire individuals to oversee the league’s prescription drug regime, there is clearly an employment relationship” that makes the alleged incompetence “foreseeable”. As such, the NFL had a “common-law duty to use reasonable care in hiring and retaining” any such individuals it may have hired. Any negligent hire and retention claims did not implicate any CBA provisions, according to the Ninth Circuit, which instead only related to “teams’ obligations”. (Emphasis added.) The Court also addressed negligent misrepresentation, holding that whether the NFL made false assertions, knew or should have known that they were false, whether the players justifiably relied on the NFL’s statements to their detriment, “are all factual matters that can be resolved without interpreting the CBAs.” The Court held similarly with respect to the players’ fraud claim. Finally, the Ninth Circuit rejected the NFL’s argument that the players “failed to exhaust the grievance procedures required by the CBAs” because, as already held, the players’ claims did not arise under, or involve the interpretation of, the CBA.
Potential Implications
The Ninth Circuit was conscious to confine its ruling to preemption. Whether the players’ claims will be enough to survive a motion to dismiss for failure to state actionable claims, or failure to timely bring them — both of which the NFL filed the first time around, without receiving a ruling on either — will await another day. So too, perhaps, will the question of whether the players have enough actual facts, beyond the pleadings, to sustain their claims all the way to trial. Even still, the Ninth Circuit’s ruling is significant. It may now force the NFL to defend the players’ allegations on the merits. It could also inform NFL players, looking to avoid the preemption often caused by the CBAs, how to style their complaints in any future actions for recovery. Regardless of whether Mr. Dent’s claims ultimately win the day in this case, an upshot for the NFL from the Ninth Circuit’s ruling is that additional “direct liability” actions, brought by other retired players, seem sure to follow.
